3.5 Billion USD Arbitration Claim Against Mexico Puts Spotlight on Pending TFJA Order

scale of justice

Last week, Don Diego’s sponsor submitted a Notice of Intent (NOI) to Mexico’s Ministry of Economy indicating it would seek a $3.5 billion USD arbitration under NAFTA Chapter 11 due to Mexico’s failure to approve the phosphate project.  The NOI establishes a pattern of facts which demonstrate that Mexico’s former Semarnat Secretary, Rafael Pacchiano, acted arbitrarily and illegally when he denied Don Diego’s environmental approval.  Mexico now faces the prospect of losing a large sum of money to Don Diego’s sponsor through a NAFTA Chapter 11 arbitration process.

The publicity surrounding this NOI has attracted broad international attention due to the significant dollar amount attached to the arbitration as well as the document’s description of Pacchiano’s brazen disregard for Mexico’s laws and regulations.  Much of that attention will now focus on an upcoming Order from the Mexican Federal Court of Administrative Justice (TFJA) which is considering Semarnat’s second refusal of the Don Diego project — as this Order will likely determine whether the case goes to arbitration.  As such, it is apparent that the next TFJA Order will not only serve as a commentary on the Don Diego dispute and the corruption of Rafael Pacchiano, but also on the inviolability of Mexico’s federal judicial system.

The TFJA has thus far shown itself to be an unimpeachable source of power and righteousness, checking the corrupt and abusive former Secretary of Semarnat when he initially denied Don Diego (with a unanimous annulment of that decision).  Yet Pacchiano has challenged the integrity of the TFJA once again with his second Don Diego refusal, a decision that followed neither the guidance from the court’s initial order nor the statutes that govern his own agency.  Now the question is whether the TFJA will stand behind its unanimous ruling and the scientific and legal grounds that underpinned it and compel Semarnat to act according to statutes, or whether it will yield to the unlawful bullying tactics of this corrupt politician and his powerful and moneyed supporters.

For Mexico’s sake we hope the TFJA holds its ground – the alternative would set the legal system back and humiliate the country and its judicial system in front of a global audience.  Relying on NAFTA arbiters to enforce Mexican laws is not a good look for Mexican judges.

Below we highlight some of the more important takeaways from the NAFTA Chapter 11 NOI.   While there are always two sides to any story, we note that the allegations brought in the filing are based on facts which would be backed with substantial evidence.  Please don’t rely on this summary – read the entire NOI for a more comprehensive view on the dispute.


  • According to Mexican regulations, SEMARNAT must evaluate projects according to a statutory process.  That process supports an evidence and science-based evaluation of the specific nature of a project and the environment in which it would operate.  The rigorous process includes evaluation of the most important impacts of the project and mitigation efforts that can help to offset impacts.
  • Following the submission of a comprehensive MIA (environmental application) the project’s sponsor responded effectively to all technical queries from Semarnat and was told that Semarnat was satisfied with their answers. 
  • Secretary Rafael Pacchiano had one material question about the project which had to do with impact on whale migration.  When the sponsor explained that the project was not near whale migratory routes, and that in an abundance of caution it would cease operations during migration season, Pacchiano stated to the sponsor and its lawyers that he was satisfied with their answer. 
  • In March of 2016, Secretary Pacchiano told Don Diego’s sponsor that he was under political pressure due to unrelated environmental controversies.  He asked the sponsor to withdraw their MIA application, and stated that if they refused, he would find a reason to reject it.  Pacchiano’s message was clear – his career aspirations were more important than scientific evidence in determining the outcome of development projects. 
  • In April of 2016, Pacchiano followed through on his threat to reject the project.  The hastily drafted rejection was based upon the alleged threat the project posed to loggerhead turtles and their food source – red crabs.  The rejection document deliberately ignored scientific evidence provided to it in the evaluation process.  It also deliberately misinterpreted scientific evidence to make its case.  Semarnat failed to cite a single study demonstrating that the MIA’s analysis or conclusions were incorrect. 
  • The rejection document did not meet the statutory requirements outlined in Mexican law.  The document did not treat site specific environmental and geographic features.  It did not consider the scientific and empirical evidence furnished by Don Diego’s sponsor.  “It failed to address any of ExO’s technical proposals, working methods, mitigation measures, restoration protocols, or monitoring sampling and communications programs.”
  • The rationale for impact on loggerhead turtles and their food source was heavily flawed.  It is essentially impossible for either loggerhead turtles or red crabs to be harmed by dredging in the Don Diego operational area because the depth of operation is below that which these animals inhabit. 
  • Rather than rely on scientific and empirical evidence, Semarnat relied upon mass media sources as well as papers that treated the Gulf of Ulloa broadly. 
  • Semarnat has continued to approve large dredging projects that operate in areas that are far more environmentally sensitive than Don Diego.  Many of these projects operate in protected and sensitive areas that host high levels of biodiversity.  The NOI names three of these projects, but there are more. 
  • In April of 2016, Don Diego’s sponsor appealed Semarnat’s refusal with the agency.  A full supplementary technical report was filed with Semarnat that pointed out the flaws and inaccuracies in Semarnat’s refusal as well as the evidence that Semarnat had disregarded in its process.   Semarnat ignored the appeal, never offering a response.  By law, Semarnat was required to respond to an appeal within 120 days of the appeal’s filing. 
  • Finding Semarnat unresponsive, in January of 2017 Don Diego’s sponsor requested a judicial review by the Mexico’s Federal Tribunal of Administrative Justice (TFJA).
  • After 15 months of consideration and briefing, the TFJA found unanimously for the sponsor in March of 2018.  From the NOI, “A bench of eleven judges found that SEMARNAT had failed to comply with Mexican law because its decision lacked sufficient scientific justification, ignored key evidence relating to the depth and lack of environmental impacts of the operation and failed to take account of the mitigation factors put forward by ExO.”
  • The TFJA directed Semarnat to justify its original decision with scientific evidence within four months.  Absent this evidence, Semarnat was to issue an approval for the project. 
  • Semarnat refused to respond to the court’s order and did not respond to the court within the prescribed time frame. 
  • After six months, the project’s sponsor filed a motion with the TFJA to find Semarnat in contempt, and to order the agency to issue an approval.   Semarnat was forced to issue its second refusal in order to stop the court’s review process. 
  • Semarnat’s second refusal was in clear contempt of TFJA’s order.  Once again, Semarnat did not offer any scientific evidence to support its original denial rationale concerning sea turtles.  Instead it put forth studies that had little or no relevance to the specific conditions and environment around the Don Diego project. 
  • Rather than discreetly notify the sponsor of its refusal as is normal protocol for Semarnat, Pacchiano issued a widely disseminated press release for his second Don Diego refusal.  That press release carried a number of materially false statements about that project’s environmental impacts that were intended to damage the project and its sponsor.   

Los Tres Principales Mitos del Proyecto Don Diego Expuestos

Earth is Flat

Se dice que las empresas extranjeras de fertilizantes están financiando una campaña para detener el proyecto de fosfato Don Diego (recientemente renombrado Exploraciones Oceanicas), en un intento de robar BCS y México de un recurso natural valioso y estratégico que puede ayudar a producir una nutrición asequible para el país y traer ingresos y empleos a BCS.  Estas empresas de fertilizantes donan dinero a las ONG y otros grupos que repiten regularmente mentiras sobre el proyecto en un esfuerzo por hacer que usted se oponga a él.

A continuación se enumeran tres de los principales mitos perpetuados por estos grupos.  



Los opositores afirman que Don Diego contará con una nueva tecnología que nunca antes se había usado en México.  Nada podría estar más lejos de la verdad. El proyecto utiliza equipo de dragado estándar para aspirar la arena del fondo del océano.  Es un proceso mecánico simple y relativamente benigno que se ha utilizado de forma segura en todo el mundo durante más de 70 años. En México, Dragamex ha dragado más de 260 proyectos incluyendo áreas costeras de BCS.  Inglaterra draga más de 20 millones de toneladas de arena y grava del fondo marino cada año, y lo ha hecho durante décadas sin mayores consecuencias negativas.  Gobiernos e instituciones académicas han financiado cientos o hasta miles de estudios para caracterizar los impactos del dragado marino. En estos estudios se señala que si se siguen las mejores prácticas, y no se efectúa el dragado en zonas sensibles (arrecifes de coral, zonas de desove, manglares y hábitats de algas marinas), se puede realizar el dragado con un impacto mínimo. 

No tome nuestra palabra para ello.   Véalo usted mismo. Hemos recopilado una lista de estudios científicos independientes al final de este artículo que analizan los impactos del dragado marino.  Léalos y saque sus propias conclusiones.


Los opositores a Don Diego afirman que el proyecto dañará la industria pesquera, destruirá ecosistemas y matará a otros animales marinos.  Esto es absolutamente falso. Si fuera cierto, las operaciones de dragado a gran escala no ocurrirían cada día en todo el mundo, y no continuarían durante décadas.  Los impactos ambientales de este proyecto se limitan a la creación de un pequeño nube de sedimentos, y la recolección y procesamiento de arena se limita a un área de un solo km2 por año.  Para poner en contexto, las perturbaciones de la pesca de arrastre de fondo y de las grandes tormentas alrededor de BCS son exponencialmente más grande que la de este proyecto. Y la pesca de arrastre se extiende sobre un área mayor de un millón de km2 por año (de nuevo, Don Diego impactará tan solo un km2 por año).  Debido a que los impactos de la pluma de dispersión de Don Diego están restringidos a una area de menos de 4 metros del fondo marino (a una profundidad de 70 metros), no hay ningún mecanismo por el cual el dragado impactaría la producción de fitoplancton, o peces, o larvas en la columna de agua.  

Basado en datos de estudios académicos, sabemos que el dragado no es una amenaza significativa para otros animales marinos, incluyendo las tortugas marinas.  Esto explica por qué el Tribunal Administrativo Federal (TFJA) silenció unánimemente la negación del proyecto basada en supuesto peligros a la tortuga promulgada por Semarnat.  No había evidencia que apoyara la idea de que el proyecto dañaría a las tortugas. El proyecto operará en una zona mucho más profundo de donde se sabe que las tortugas descansan en el fondo del mar.   Los modelos de dispersión del nube han demostrado que la pluma de dispersión  se extendería a no más de 3 km de la zona activa de trabajo, y los ensayos de sedimentación en varios organismos locales no han mostrado evidencia de ningún contaminante que tenga un efecto sobre la fauna marina.  La zona de dragado se encuentra a 40 km de la costa en su punto más cercano.


A menudo se nos dice que no puede haber un proyecto Don Diego porque BCS ha dicho “no” a la minería tóxica.  La verdad es, sin embargo, que Don Diego no está involucrado en la minería tóxica y no se encuentra en territorio propio de BCS.  El proyecto no introduce productos químicos ni otras sustancias extrañas en el mar. Simplemente aspira la arena fosfórica y devuelve grava y arena directamente al fondo a través de un tubo largo.  Opera fuera de las aguas territoriales Mexicanas, a unos 40 km de la costa y por lo tanto no está situado en territorio de BCS. A pesar del hecho de que BCS no verá ningún daño de Don Diego, el estado si se beneficiará directamente por el Fondo Minero de los pagos de regalías del proyecto.  


Don Diego creará beneficios netos para el medio ambiente ya que el fosfato de este proyecto puede reemplazar la roca producida por minas terrestres mucho más dañinas.  Sin embargo, las grandes empresas internacionales de fertilizantes no quieren que este proyecto compita con su negocio, y se rumorea que están pagando a grupos ecologistas para oponerse a este proyecto.  No dejes que estos grupos y sus socios en el crimen te engañen. Conoce los hechos y la ciencia. Este proyecto puede ayudar a México a acceder a fertilizantes de bajo costo, puede ayudar a alimentar al país, y bajo las nuevas leyes de minería propuestas por AMLO, BCS directamente recibirá regalías del proyecto.    


Muestreo de la Investigación sobre los Impactos Ambientales del Dragado Marino:

Birklund, J., Wijsman, J., Report Z3297.10; February 2005. Aggregate Extraction: A Review On The Effect On Ecological Functions. http://citeseerx.ist.psu.edu/viewdoc/download?doi=
Black, K., Athey, S. & Wilson, P., 2006. Direct measurement of seabed stability at marine aggregate extraction site using benthic flume technology . https://tethys.pnnl.gov/sites/default/files/publications/Nedwell_and_Garner_2006.pdf
Bokuniweicz, H., Sung, G., Dredging Intensity A Spatio-Temporal Indicator for Managing Marine Resources https://www.researchgate.net/publication/326595628_Dredging_Intensity_A_Spatio-Temporal_Indicator_for_Managing_Marine_Resources
Frost, N .. (2006, pp 166-167). Coupling physical and ecological models: A new approach to predicting the elimination of aggregate extraction on biological recoverability.  https://tethys.pnnl.gov/sites/default/files/publications/Nedwell_and_Garner_2006.pdf
Hitchcock, DR, et al. (2002). Integrated report on the impact of marine aggregate dredging on physical and biological resources of the seabed “US Dept. of the Interior, Minerals Management Service . https://www.boem.gov/Non-Energy-Minerals/2002-054.aspx
Krause, J. et al. (2010). The Physical and Biological Impact of Sand Extraction: a Case Study of the Western Baltic Sea https://www.jstor.org/stable/40928833?seq=1#page_scan_tab_contents
Newell R. and Woodcock T., (2013). Aggregate Dredging and the Marine Environment.   Crown Estate.   https://bmapa.org/documents/Aggregate_Dredging_and_the_Marine_Environment.pdf
Newell R., et al. (2004). Impacts of Marine Aggregate Dredging on Benthic Macrofauna off the South Coast of the United Kingdom . Journal of Coastal Research, 20 (1) – 115-125. https://www.jstor.org/stable/4299272?seq=1#page_scan_tab_contents
Newell, RC, et al. (1998). The Impact Of Dredging Works In Coastal Waters: A Review Of The Sensitivity To Disturbance And Subsequent Recovery Of Biological Resources On The Sea Bed.Oceanography and Marine Biology.  http://www.sussex.ac.uk/geography/researchprojects/coastview/dredging/Impact_of_Dredging_Oc_Bio.Ann_Rev.pdf
Pearce B., JA Taylor & LJ Seiderer, (2006). Recoverability of Sabellaria spinulosa following aggregate extraction.  pp 68-75. https://tethys.pnnl.gov/sites/default/files/publications/Nedwell_and_Garner_2006.pdf
Schinaia, SA, Momiji, H., Bishop, SR, Simons, RR and Freeman, S. (2006). Towards a cellular automata model to predict the elimination of aggregate extraction on biological recoverability . International Conference Coastal Engineering, San Diego.  https://journals.tdl.org/icce/index.php/icce
Seiderer A. et al, (January 1998). The impact of dredging works in coastal waters: a review of the sensitivity to disturbance and subsequent recovery of biological resources on the sea bed.Oceanography and Marine Biology 36: 127-128. ” Https://www.researchgate.net/publication/298415859_The_impact_of_dredging_works_in_coastal_waters_a_review_of_the_sensitivity_to_disturbance_and_subsequent_recovery_of_biological_resources_on_the_sea_bed
Simonini, R., et al. (2007). Recolonization and recovery dynamics of the macrozoobenthos after sand extraction in relict sand bottoms of the Northern Adriatic Sea . Marine Environmental Resources. https://www.ncbi.nlm.nih.gov/pubmed/17686511
Thomas N., (2006). Marine aggregates and biodiversity in both a 2 and 3 dimensional context.   pp. 62-28. https://tethys.pnnl.gov/sites/default/files/publications/Nedwell_and_Garner_2006.pdf
Todd V. et al., (2015). A review of the marine dredging activities of marine mammals . ICES Journal of Marine Science. https://academic.oup.com/icesjms/article/72/2/328/676320
Valdez-Diarte, S. 2008. Thesis. Producción primaria fitoplanctónica en la región sur de la corriente de california durante julio de 2008. Universidad de Occidente Unidad Guasave Departamento de Ciencias Biológicas.  http://imecocal.cicese.mx/tesis/terminadas/pdf/tes-valdez10.pdf

Residentes de BCS Manipulados para Oponerse al Proyecto Don Diego

BCS Manipulation

Don Diego es un proyecto que hará dragado de arenas de fosfato desde el fondo del océano a una distancia de 35 a 40 km de la costa, en la Bahía de Ulloa. El fosfato se utilizará para producir fertilizantes económicos para ayudar a México a revitalizar su sector agrícola, alimentar a millones de personas que sufren de pobreza alimentaria y ser más autosuficientes. El proyecto ha sido rechazado dos veces por Semarnat, pero esa determinación en torno, fue rechazada por el tribunal federal (TFJA) debido a que Semarnat no había dado apoyado sus conclusiones. El Secretario de Semarnat ahora enfrenta un posible delito grave por negarse a cumplir con la orden del tribunal.

Le informamos de esto porque los residentes de BCS están siendo manipulados por organizaciones internacionales que quieren impedir que Don Diego avance. Poderosos intereses de los comerciantes de fertilizantes internacionales no quieren que México compita con ellos en el mercado de fosfato, prefiriendo que México siga dependiendo de ellos para el más caro roca de fosfato importado. Estas compañías financian grupos ONG, como AIDA, que luego fabrican historias de temor sobre el proyecto para convencer a los políticos y a la comunidad de que se debe detener a Don Diego. Si tiene dudas, por favor consulte estos artículos (enlace aqui y  aquí y aquí) que demuestran claramente las mentiras que AIDA está utilizando para formar opiniones erróneas.  

Si desea saber más sobre cómo operará Don Diego, haga clic aquí. En resumen, un solo barco de dragado de movimiento lento aspira arena con alto concentración de fosfato y devuelve la arena no utilizada hasta el fondo marino a través de un largo tubo del barco. No se utilizan productos químicos y no se introducen materiales extraños en el medio ambiente. Es una de las formas de extracción más benignas que se practica en el mundo porque no es necesario eliminar la sobrecarga, no se utiliza agua dulce y se perturba muy poco el fondo marino. México ya ha permitido que cientos de otros proyectos de dragado tengan lugar en sitios más sensibles, como en puertos, bahías y playas. El proceso crea beneficios netos para el medio ambiente, ya que elimina la necesidad de otra minería de fosfato más perjudicial cercana a comunidades terrestres. Significamente, la huella del proyecto se superpone con un pequeño trozo de concesión de pesca y solo impactaría un solo kilómetro cuadrado del fondo marino por año.  

¿Qué puedes hacer? Hable con sus políticos locales y estatales que han sido manipulados por falsedades. Dígales que no quiere que los ONG y las empresas extranjeras retengan importantes recursos naturales al sector agrícola de México. Dígales que desea que BCS se beneficie de proyectos sostenibles como Don Diego que por medio del Fondo Minero pueden traer ingresos a las comunidades locales y ayudar a alimentar a millones de Mexicanos. Infórmese leyendo más en nuestro sitio web, y cuando alguien haga una reclamación sobre el proyecto, pídale que proporcione pruebas para respaldar esa afirmación. La ciencia que demuestra la seguridad de este proyecto es sólida, razón por la cual TFJA ha invalidado la determinación de Semarnat y le ha ordenado a la Agencia que apruebe el proyecto.  

México ganará esta batalla contra las ONG venenosas y los poderosos intereses corporativos que están tras ellas, y el país se volverá a ser independientemente autosuficiente en cuanto a sus necesidades alimenticias gracias al proyecto Don Diego. Los ciudadanos de BCS y sus políticos deben enfrentarse a los intereses corporativos y las ONG deshonestas que intentan robar sus recursos. Haga responsable a AIDA por sus mentiras y pregúntese por qué esta ONG le mentiría a usted como lo ha hecho?

AIDA’s Top Ten Lies About Don Diego

AIDA Pinocchio

AIDA-America, is a U.S.-based non-governmental organization (NGO) which focuses on environmental causes in Latin America.  The organization has actively opposed the Don Diego phosphate project in Baja California, Mexico, for several years.  As part of that effort, AIDA published an article entitled “10 Things You Should Know About Don Diego.” Like so much of AIDA’s literature, the document is filled with misinformation and blatant fabrications about the Don Diego project.

Not only are AIDA’s tactics unethical, they are dangerous.  In using false scare stories to prevent this source of inexpensive fertilizer from being developed, AIDA risks withholding proper nutrition from millions of malnourished Mexicans.

Below we list the “Top Ten Lies” AIDA tells in its “10 Things You Should Know About Don Diego” publication.  Following this list we provide a possible explanation as to why AIDA would pursue this reckless cause in such a dishonest manner.

AIDA’s Top Ten Lies

  1. AIDA states that Don Diego, “would be the first phosphate mine of its type, using this technique, in the region.”  This is patently false and AIDA knows it is lying because one of the documents it references to support its point (found here) says exactly the opposite.  That article states, “Santo Domingo, on the Pacific shore of the Baja California peninsula, Rofomex constructed a mine that will produce 1.5 million mt/yr of concentrates by dredge mining a beach sand deposit that grades about 4.5% P2O5…”  Rofomex’s Santo Domingo project dredged phosphate from a site that is far more sensitive (directly on the coastline) than where Don Diego will operate in BCS, Mexico.  Equally as important, projects like Don Diego have been happening every day for the last 50 years, all over the globe.  In fact, the marine sand and aggregate dredging industry has undertaken over 250 projects in Mexico alone.  None of these facts matter to AIDA because the organization wants to deceive its audience into thinking that Don Diego is the first of its kind and is therefore risky.

  2. AIDA says “Exploraciones Oceanicas, the company in charge of the project, does not have adequate experience in this area.”  In this case AIDA has lied by omitting key information which would be known to it, as it is contained in the project’s environmental filing.  Exploraciones Oceanicas has indicated that the company managing the project will be Royal Boskalis Westminster NV, one of the largest dredging operators in the world (and owner of Dragamex, which has completed more than 250 sand dredging projects in Mexico).  Boskalis is a world-class operator, and has decades of experience dredging sands and aggregates, and mitigating environmental impacts, all over the globe.  AIDA doesn’t want its readers to understand the facts, it wants to scare them.

  3. AIDA claims that Don Diego would “destroy a refuge for the grey whale.”  To support this idea, AIDA offers that the project will, “generate noise, increase traffic, and change the marine ecosystem forever altering what has been for centuries a refuge for migrating whales.”  AIDA’s claims, however, have zero basis in fact.  The grey whale doesn’t come close to the project site during migration or calving, breeding, and resting.  Grey whale migratory routes hug the shoreline, generally 1-2km from the coast.  The whales calve, breed, and rest in bays and lagoons.  Grey whales will not be impacted by Don Diego as the whales would not come closer than 30km from the operation.  As an extra precaution, the project’s sponsor has volunteered to cease operations during migratory season.  Grey whales are impacted by fast moving whale watching boats, fishing vessels, tankers and cargo vessels, but not the Don Diego dredging operation.  For AIDA to suggest that Don Diego would “destroy” a refuge for the grey whale is irresponsible fearmongering with no factual basis.

  4. AIDA states, “The collection of phosphate sand from the sea, and the deposition of waste, would create sediment that blocks light from entering, in turn affecting marine photosynthesis.”  This information is completely false and AIDA knows it, because the correct information is supplied in both the project environmental application and the project’s non-technical summary.  The truth is that the dredging vessel returns unused sand and shells to the sea floor via a 75-meter tube (page 10).  This method restricts the “plume” to the very bottom of the ocean, well below the pycnocline where most photosynthesis takes place.  AIDA tries to substantiate its claim by referencing a scientific study.  Yet, the study which AIDA cites, looks at the impact of loading phosphate ore into cargo ships at port, where ore is blown by wind into surface waters of a shallow harbor.  Of course, this has zero applicability to Don Diego where excess shell and sand will be piped to the seabed under 75 meters of water.  The citation doesn’t come close to supporting AIDA’s point and is another deceptive tactic by the organization.

  5. AIDA says, “a portion of the project would spread over 20 percent of the Magdalena Bay Region of Marine Importance, a mangrove ecosystem that provides essential environmental services to coastal communities, including mitigation of climate change.”  Once again, AIDA is lying.  As the map of the concession contained in both the environmental application and the non-technical summary clearly shows (page five and page 18 of non-technical summary), the concession isn’t anywhere near the Bay of Magdalena or any mangrove ecosystem. In fact, the Bay of Magdalena is over 100 km from the project site according to the project’s non-technical summary.   Note that the actual project footprint, where dredging will take place, is a fraction of the total concession and is approximately 35km from shore at its closest point.

  6. AIDA claims, “Studies show that heavy noise, such as the mine would generate, would cause drastic changes in behavior and displace turtles from their habitat.”   Yet, the study that AIDA references (found here) shows that Don Diego would not create acoustic disturbance that would cause behavior change or habitat displacement.  That study notes some behavior changes at levels over 166 Db re 1 µPa – sound profiles typically seen with fishing and whale watching boats as well as tankers and cargo ships, but it does not cite any turtle behavior changes that would result from the acoustic profile of the Don Diego dredging equipment (below 140 Db re 1 µPa – from pg 18 non-technical summary).                                                                                                                                                                                    Because the dredge has a less intense sound profile than the other vessels that frequently pass through the area, and because the dredge moves so slowly (walking speed) and over such a limited space compared to these other ships, the idea that it would displace turtles from their habitat is outlandish.  We know that no permanent damage is done to turtle hearing from dredging or other vessels.  We also know that an eleven-judge panel recently unanimously decided against Semarnat’s rejection of Don Diego which was made on the basis of impact to sea turtles.  AIDA’s claim that a slow-moving dredge would cause “drastic changes in behavior and displace turtles from their habitat” has no basis in fact, was rejected by eleven independent judges, and is not supported by the very study that AIDA cites for support.

  7. AIDA claims that the government does not “have the experience to implement and monitor it properly” (referring to Don Diego).  Yet, the government has approved and overseen over 250 dredging projects in Mexican waters, most in highly sensitive areas close to shore and within lagoons, bays, and ports.  Again, AIDA is simply misleading people.  The government has decades of experience regulating and monitoring sand dredging projects.

  8. AIDA says, “The mine will not necessarily create greater food security in Mexico.”  Yet, nothing could be further from the truth.  Mexico does not make enough phosphate on its own each year and must import the mineral from far-off places such as Morocco.  What little phosphate Mexico does produce is very expensive, which is why the San Juan de la Costa mine, where it is produced, is having financial and operating difficulties (and is currently being sued by a vendor for non-payment).  Don Diego’s sponsor has made it clear that the project can produce high volumes of phosphate at low cost.  There is enough phosphate in the concession to help Mexico revitalize its agricultural sector, produce food at lower costs for the many malnourished people in the country, and have plenty of phosphate available for export as well.  Because the costs to ship a bulk commodity like phosphate are high, the lowest cost market for the rock, and the rock’s natural market, is Mexico.  We would imagine that the sponsor would work closely with AMLO’s administration to ensure that Don Diego rock is used to help fight the massive malnourishment crisis in Mexico.

  9. AIDA claims, “It would put at risk fisheries and the families that depend upon them.”  This is false.  Just as the 250 dredging projects in more sensitive waters did not harm fishing, Don Diego will not either.  The project footprint has been studied and contains relatively low levels of fauna which explains why fish populations at the site average 50% of the density in the Gulf of Ulloa more generally (page 41, non-technical summary).  This is likely explained by the high phosphate content of the sands in the area, which makes the site less hospitable to marine life.   The impacts from plume settling have been studied and quantified, as this study notes, “Sediment plumes are generally localized, and marine mammals reside often in turbid waters, so significant impacts from turbidity are improbable.”   The Gulf of Ulloa is approximately 13,000 square km and the Don Diego project will occupy a single square km each year, or less than 0.000076 of the total area.  Fishermen and their families will not be impacted by a project operating 35km+ from shore in a very small footprint with low environmental impact.

  10. AIDA is misleading its audience once again when it says that the Mexican government is required to abide by the precautionary principle and reject the project “as there is no scientific certainty about the magnitude and intensity of the environmental damage that could occur.”  In fact, there is a high degree of scientific certainty with respect to the environmental impacts of the Don Diego project and other sand dredging projects.                                                                                                                                                                                                                                                                 There is a tremendous body of academic and scientific research which documents and quantifies the impact of marine dredging on the environment (hundreds if not thousands of reports).   The subject has been studied by governments, environmental groups, and academic institutions over the last 50 years because marine dredging has become so pervasive.  We have listed a small sampling of studies at the end of this article.                                                                                                                                                                                                                                                                   That research is remarkably consistent in its findings, which almost universally demonstrate that if best practices are followed and projects are restricted to non-sensitive areas (avoiding spawning grounds, sea grass beds, reefs, and densely populated areas), impacts are well-defined, limited, and that recolonization normally occurs.  Not one single thing about Don Diego is experimental – it has all been done before, over extended periods of time, and its impacts are well-known and predictable.  The precautionary principle would, in fact, demand that the project be undertaken since the consequences of not bringing Don Diego’s inexpensive phosphate to the Mexican market are very high to those who suffer from malnutrition in the country.

It should be clear now that AIDA (and others who say many of the same things as AIDA) is lying about Don Diego’s impacts.  This “Top Ten” list represents a small sample of AIDA’s deception, but it makes a clear case for how little fact-checking, editorial oversight, and honesty is present in the organization’s work.  The people of BCS and the rest of Mexico need to ask themselves why groups such as AIDA would be willing to compromise their integrity and manipulate Mexico’s citizens and politicians in this manner.  Citizens should also question whether they should rely on any of the information that AIDA supplies on the project, or that it disseminates through various news organizations.

We have reason to believe that there is a very large international fertilizer corporation making donations to AIDA to fund a negative public relations campaign against the project.  This corporation stands to lose a lot of money if Mexico creates a viable fertilizer business and becomes more self-sufficient in agriculture.  This company doesn’t care that Mexico needs more affordable and abundant food, more jobs, and a pathway toward a better future.  They don’t care about Mexican citizens at all, they just want to protect their profits and make sure that Mexico doesn’t progress toward becoming a legitimate international fertilizer producer.

While AIDA attempts to hide behind the idea that it opposes Don Diego on environmental grounds, we have shown elsewhere that Don Diego actually provides net benefits to the environment.  Our ideas were validated earlier this year when an independent, eleven-judge panel at the TFJA unanimously ruled in favor of the project, rejecting Semarnat’s sea-turtle denial rationale.  The court found Semarnat’s denial to be sloppy and full of flawed assumptions, very much like AIDA’s propaganda.

AIDA’s campaign is unjust, unethical, and immoral.  It represents an attack on Mexico by an NGO and its backers, who are trying to deny the country access to an important resource.  Unfortunately, those who are hurt most by AIDA’s sleazy tactics are those who have little ability to protect themselves.  They are the most vulnerable, poorest, and most malnourished in the country.

When development projects are held to the highest possible standards and those who oppose the projects are allowed to use every underhanded trick in the book to derail the projects, the public’s interests are not well-served.  It isn’t fair to Mexico that AIDA behaves in this manner, and it is time that the citizens of BCS and their politicians were made aware that they’ve been used by AIDA and its sponsors.





Sampling of Research On Marine Dredging Environmental Impacts

Black, K., Athey, S. & Wilson, P., 2006. Direct measurement of seabed stability at a marine aggregate extraction site using benthic flume technology. https://tethys.pnnl.gov/sites/default/files/publications/Nedwell_and_Garner_2006.pdf

Bokuniweicz, H., Sung, G., Dredging Intensity A Spatio-Temporal Indicator for Managing Marine Resources  https://www.researchgate.net/publication/326595628_Dredging_Intensity_A_Spatio-Temporal_Indicator_for_Managing_Marine_Resources

Frost, N.. (2006,  pp 166-167). Coupling physical and ecological models: A new approach to predicting the impacts of aggregate extraction on biological recoverability.   https://tethys.pnnl.gov/sites/default/files/publications/Nedwell_and_Garner_2006.pdf

Hitchcock, D.R., et al. (2002). Integrated report on the impact of marine aggregate dredging on physical and biological resources of the seabed” US Dept. of the Interior, Minerals Management Service. https://www.boem.gov/Non-Energy-Minerals/2002-054.aspx

Krause, J. et al. (2010). The Physical and Biological Impact of Sand Extraction: a Case Study of the Western Baltic Sea https://www.jstor.org/stable/40928833?seq=1#page_scan_tab_contents

Newell R. and Woodcock T., (2013). Aggregate Dredging and the Marine Environment.  Crown Estate. https://bmapa.org/documents/Aggregate_Dredging_and_the_Marine_Environment.pdf

Newell R., et al. (2004). Impacts of Marine Aggregate Dredging on Benthic Macrofauna off the South Coast of the United Kingdom. Journal of Coastal Research, 20 (1) – 115-125. https://www.jstor.org/stable/4299272?seq=1#page_scan_tab_contents

Newell, R.C., et al. (1998). The Impact Of Dredging Works In Coastal Waters: A Review Of The Sensitivity To Disturbance And Subsequent Recovery Of Biological Resources On The Sea Bed. Oceanography and Marine Biology.  http://www.sussex.ac.uk/geography/researchprojects/coastview/dredging/Impact_of_Dredging_Oc_Bio.Ann_Rev.pdf

Pearce B., J.A. Taylor & L.J. Seiderer, (2006). Recoverability of Sabellaria spinulosa following aggregate extraction.  pp 68-75. https://tethys.pnnl.gov/sites/default/files/publications/Nedwell_and_Garner_2006.pdf

Schinaia, S.A., Momiji, H., Bishop, S.R., Simons, R.R. and Freeman, S. (2006). Towards a cellular automata model to predict the impacts of aggregate extraction on biological recoverability.  International Conference Coastal Engineering, San Diego.  https://journals.tdl.org/icce/index.php/icce

Seiderer A. et al, (January 1998). The impact of dredging works in coastal waters: a review of the sensitivity to disturbance and subsequent recovery of biological resources on the sea bed. Oceanography and Marine Biology 36: 127-128. “https://www.researchgate.net/publication/298415859_The_impact_of_dredging_works_in_coastal_waters_a_review_of_the_sensitivity_to_disturbance_and_subsequent_recovery_of_biological_resources_on_the_sea_bed

Simonini, R., et al. (2007). Recolonization and recovery dynamics of the macrozoobenthos after sand extraction in relict sand bottoms of the Northern Adriatic Sea. Marine Environmental Resources. https://www.ncbi.nlm.nih.gov/pubmed/17686511

Thomas N., (2006). Marine aggregates and biodiversity in both a 2 and 3 dimensional context.  pp 62-28. https://tethys.pnnl.gov/sites/default/files/publications/Nedwell_and_Garner_2006.pdf

Todd V. et al., (2015). A review of impacts of marine dredging activities on marine mammals. ICES Journal of Marine Science. https://academic.oup.com/icesjms/article/72/2/328/676320


Dirty Green: Environmentalists Manipulate Mexicans to Oppose Promising New Phosphate Source

A group led by a small foreign non-governmental organization, AIDA, is coordinating a highly deceptive public relations campaign to manipulate residents of Baja California Sur (BCS) into opposing the proposed “Don Diego” marine phosphate operation in Mexico.  The environmentalists are deliberately misinforming the public about key aspects of the project, and making wildly exaggerated claims, in an effort to scare citizens into believing the project will be a disaster for the environment.

In addition to being dishonest and unethical, the campaign threatens the health and well-being of many Mexicans, and ironically, it also threatens the environment.

Developing Don Diego will support President Peña Nieto’s national Crusade Against Hunger, which aims to eliminate food poverty, in part, by increasing access to affordable domestic fertilizers.  Over 53 million Mexicans live in poverty and have difficulty meeting basic nutritional needs.  Sadly, approximately 8,500 citizens die each year from malnutrition, and malnutrition amongst children is especially widespread.  Because the Don Diego project offers a low cost, secure source of phosphate, the project can increase food production while lowering food production costs and help lift millions of Mexicans out of food poverty.

No mine is good for the environment.  Yet, the human race depends on mining to survive, so we try to extract resources in a manner that imposes the lowest environmental costs.  Don Diego represents a dramatic leap forward in lowering the environmental costs associated with phosphate mining (see here).  Because the environmental costs associated with Don Diego are lower than those related to terrestrial phosphate operations, developing Don Diego will yield a net benefit to the global environment as Don Diego supplants production from mines that are more harmful.

The Don Diego Project

Don Diego is a proposed marine phosphate dredging operation sponsored by the Mexican firm, Altos Hornos de México, and the American company, Odyssey Marine Exploration.  The concession is situated roughly 35 kilometers off the coast of Baja California Sur.   The project involves vacuuming phosphate sands from the bottom of the ocean.  It is a simple, mechanical process that does not add any chemicals or other foreign matter to the marine environment.

Dredging operations identical to Don Diego have been undertaken for decades, and the environmental impact of these operations has been carefully recorded in academic studies.  These studies have shown that the environmental impact is limited when best practices are followed.  Dredging operations are used to extract aggregates in Europe and Asia, to extract diamonds in Africa, and for land reclamation, harbor, canal, and beach improvements all over the world.

Dredging for phosphate sands will be far less damaging to the environment than the land-based operations it can replace.  Dredging operations require less energy, generate a smaller carbon footprint, use less land, less freshwater, and perhaps most significantly, require no overburden removal, and thus involve much less processing than terrestrial extraction operations.  A recent environmental study confirmed the relative advantages of seabed mining versus terrestrial mining.

Don Diego is strategically important to Mexico.  Currently the country imports 80 percent of the fertilizer it consumes.  Those imports, however, are expensive, so many Mexican farmers don’t use fertilizers or under-fertilize.  According to this presentation given by Mexican state-owned oil company, Pemex, to catch up with world productivity metrics, Mexico needs to double its fertilizer consumption.

The benefits from developing Don Diego are manifold.  The concession represents a large, relatively inexpensive source of the key fertilizer nutrient – phosphate.  A large, secure domestic source of the strategic phosphate resource would make Mexico less vulnerable to supply shocks, price spikes, and riots.  It would make phosphate fertilizers more affordable for farmers, and it would allow the country to stop importing expensive phosphate illegally from Western Sahara.  It could provide Mexico, and BCS in particular, almost ten billion pesos in royalties over the project’s lifetime.  It could also help to create hundreds, and perhaps thousands of jobs in Mexico within the phosphate and fertilizer supply chain.  Furthermore, the feedstock provided by this project would help strengthen Mexico’s plans to make the country a globally significant hub for fertilizer products.

But the government’s plan to boost fertilizer production from 2015 seems not to take into account the situation of the ore from rock phosphates and whose scarcity, both in Mexico and in the world, begins to alarm experts. Today we have to import. It is very focused on Morocco and the Western Sahara is home to the largest amount of phosphorus in the world. There’s the rock phosphate used as fertilizer that contains all elements for fertilizers. The shortage is so severe as global warming. We are not aware of the problem. The resource is finite, “says Jesús Valdés, researcher at the Institute of Chemistry of the National Autonomous University of Mexico, for this report    Link

Don’t Let the Facts Get in the Way of a Good Story

Because the facts favor the development of Don Diego, environmentalists are forced to fabricate stories in a clumsy attempt to manipulate Mexican citizens to oppose the operation.  The lack of honesty and integrity, the willful bending of the truth, is apparent from the very first sentence in AIDA’s early propaganda directed against the proposed Don Diego marine phosphate mine, authored by Haydee Rodriguez.

A project to mine 225,000 acres of seabed in Baja California’s San Ignacio lagoon threatens the myriad sea life of the area, writes Haydée Rodríguez: not just Gray whales but Blues, Humpbacks and Loggerhead turtles, from noise, disturbance and radioactive releases.

There are a number of glaring inaccuracies in this sentence, but we will concentrate on two in particular which represent egregious misstatements of fact.  First, the project is not in the sensitive San Ignacio lagoon.  In fact, it does not come close to the San Ignacio lagoon (or any lagoon for that matter).  The project’s Non-Technical Summary indicates that, “The minimum distance from the coast is 22.2 km.”  Not only will the dredging take place far from the lagoon, but its impact will be confined to within two to four kilometers from the operation according to empirical data and modeling in the environmental application.  Thus, there will be absolutely no impact along the coast or within the lagoons as Ms. Rodriguez suggests.  The gray whales’ nursing grounds are under no threat from the project.

The second misleading point is found in Ms. Rodriguez’s claim that project will mine 225,000 acres.  The project’s Non-Technical Summary clearly states that Don Diego will mine 1 square km per year (247 acres).  Over the 50-year mine life, the total mined area would equal approximately 12,350 acres, or 5.4% of the area that Ms. Rodriguez represented in her article.  In other articles, AIDA variously refers to the mine as extracting 350 million tons of phosphate sands (the correct number is approximately 150 million tons) and mining 91,000 hectares (when slightly less than 5,000 hectares will be mined per the application).  Though AIDA has been warned about their inaccurate claims, they continued to publish them, demonstrating a willful intent to deceive Mexico’s people.  Incidentally, the size of the Don Diego operation indicates a small mining footprint relative to land-based mines.

AIDA’s sensationalism has a purpose.  The organization aims to mislead the audience into believing the project is larger than has been proposed, so to generate concern over the massive scale of the operation.  The facts contained in the environmental filing and Non-Technical Summary are inconvenient to AIDA, so the organization makes up figures which better suit its purposes.

AIDA and other opposition groups regularly promote the fact that Don Diego would be the first offshore phosphate extraction operation authorized in Mexico, or anywhere.  AIDA writes, “The comments show that the Don Diego project, the first of its type in the region, could cause serious environmental damage…” link  Another article asserts, “offshore phosphate mining has never been done before anywhere the world…” link  AIDA’s aim is to scare Mexicans, their politicians, and regulators into thinking that the project is experimental, dangerous, and that its impact cannot be predicted.

Yet, the facts stand in stark contrast to the misdirection offered by these environmental groups.  Marine phosphate dredging operations are not novel.  In fact, the Mexican government operated a marine phosphate dredging operation directly within the Bay of Magdalena in the 1980s.  Mosaic operates freshwater phosphate dredging operations today.  In addition, to suggest that phosphate dredging is any different from the tens of thousands of sand dredging or aggregate dredging operations that take place all over the world is highly misleading.  The processes and equipment involved in these operations are virtually identical to those proposed for Don Diego.  The standards, models, and empirical data that have been developed around these operations over decades have guided and informed the Don Diego environmental submission.  As such, the outcome of the work is highly predictable.

In a number of publications, AIDA and other groups allege that the extraction operation would threaten whale populations.  In this article, Ms. Rodriguez says, “The noise could jeopardize the survival of the whales by causing changes in their behavior and migration route, and it could also disrupt mothers feeding their calves.”  Yet the idea that a single, slow moving dredging vessel operating 22 kilometers away would jeopardize the survival of any whale is an outlandish statement with no basis in fact.  More objective scientific work supports the limited nature of impact from dredging on marine mammals.  Furthermore, the type of dredging vessel used for Don Diego has been employed in Mexico, and all over the world, for decades.  Dragamex alone has conducted over 220 dredging projects in the country.  Yet we could not find a single recorded incident where a dredging vessel threatened the survival of a whale.

Gray whales are far more threatened by fast-moving whale watching boats, fishing vessels, and tankers that operate in close proximity to the whales, than a single, slow moving dredge operating 22 km away (at its closest point).   Note that the project is not close to the lagoons where the whales feed their young, or near their migratory path which is very close to shore.

In a number of articles, AIDA asserts that toxins in the plume generated in the Don Diego operation could threaten fish and the people who eat fish.  “These toxins may be consumed by fish that then arrive on our tables, making phosphate mining a potential source of radioactive contamination.”  Yet again, a couple of facts are inconvenient to the author’s point.

First, the toxins to which Ms. Rodriguez refers are naturally occurring in the sediment, and do not pose a risk in the peak concentrations demonstrated in discharge models cited in the Don Diego environmental application.  Second, the sediment is discharged by pipe to the bottom of the ocean, meaning that the plume remains below the light-fed layer where phytoplankton live and where fish feed.  Third, the mining footprint is specifically known for its lack of sea life.  It overlaps no fishing concessions, and fishermen avoid it because of its lack of sea life – calling it the “mud pits.”   The scarcity of fish within the mining footprint may be due to the high concentrations of phosphate on the sea floor, as high concentrations are thought to be inhospitable to life.

While the dredging process causes turbidity which liberates sediments from the bottom of the ocean in a plume, the heavy metals quickly fall out of the solution because of their relative weight.  The models contained in the environmental application, and decades of empirical data, show this fact to be true.  To put this threat into context, heavy storms in the area regularly cause turbidity containing the same heavy metals on a scale that would make the Don Diego operation completely inconsequential by comparison.

In another article, AIDA says, “the project threatens to damage seriously and irreversibly the marine environment, living conditions of wildlife it houses and livelihoods of communities that depend on tourism and fishing in the area.”  link

Yet, tens of millions of dollars have been spent on studies over the last three decades which show that environmental damage from dredging is nether serious, nor irreversible.  In fact, the studies show that recolonization can be rapid and that the operations can have a positive impact on the marine environment in some cases by causing a more varied bathymetry.  Further, AIDA would have to explain how one dredging vessel operating 30 kilometers out to sea is a threat to tourism or to fishing.  Dredging projects have been undertaken in Mexico, and all over the globe, for 30 years without impacting tourism or fishing operations.  Don Diego will operate outside all fishing concessions.   AIDA’s statement is completely without merit.

AIDA and others have also claimed that the project would pose a grave risk to the local loggerhead turtle population, and could exacerbate a conflict between the United States and Mexico which, “would have serious socio-economic impacts not only on the State of BCS, but also in the rest of the country.”   link

Again, while the statements sound very ominous, they don’t fit the facts very well.  For background, the US organization NOAA issued a negative certification in relation to Mexico’s turtle bycatch program because of the fishing bycatch of turtles in the Gulf of Ulloa.  Though dredging has taken place in Mexico and in the US for decades, the NOAA complaint does not mention dredging because dredging techniques and operations have been refined to such an extent that turtle entrainment is no longer a significant problem.

Moreover, the project is not located in the shallow, warm waters that attract turtles.  Don Diego is between 60-80 meters deep, and its high phosphate content makes the area inhospitable to benthic organisms which would provide a food source for turtles.  Few or no turtles are likely to inhabit the seafloor where Don Diego dredging will take place.  Even if there were turtles present, the dredge head will be equipped with a number of protective mechanisms to prevent turtles from becoming entrained.  These protection devices have helped to reduce turtle takes by over ten times since they were introduced in the early-1990s.

Our thoughts on sea turtles have now been confirmed by a unanimous, 11-0 ruling from the TFJA, which overruled Semarnat’s refusal on the grounds of sea turtle impact.

A Misuse of the Precautionary Principle

The precautionary principle is, however, a very useful one for consumer activists precisely because it prevents scientific debate. The burden of evidence and proof is taken away from those who make unjustified and often whimsical claims placed on the scientific community which, because it proceeds logically and rationally, is often powerless to respond. This is what makes the principle so dangerous. It generates a quasi-religious bigotry which history should have has taught us to fear. Its inherent irrationality renders it unsustainable. Link

AIDA, and others who have opposed the Don Diego project, wield the Precautionary Principle like a weapon.  It is their “ace in the hole,” that can crush any project, no matter how benign its environmental impact or beneficial its effects on humanity.  AIDA cites Mexico’s international obligation to abide by the Principle, but applying the Principle is a thoroughly subjective exercise and it is not at all clear that Principle would prohibit Don Diego’s development.  What is clear is that Mexico is currently violating the international ruling which prohibits the importation of phosphate from Western Sahara.  It is also clear that Don Diego could replace rock from Western Sahara and put Mexico back in compliance with international law.  This fact seems to have escaped the notice of AIDA’s environmental lawyers, however.

We must tread lightly with respect to the Precautionary Principle.  The strong form of the Principle, which AIDA advocates, is highly controversial.  In the past, its adoption has sometimes led to large scale human death and suffering while stymieing innovation and progress.

It is virtually impossible to achieve “scientific certainty” in proving a negative (that the project will do no harm) as the strong form of the Precautionary Principle demands.  As many have noted, this is an unreasonably high standard, and setting it in such a manner can be extremely dangerous.  Applying the strong version of the Precautionary Standard throughout history would have necessarily prevented the development of most common medicines, power generation technologies, vaccines, and many other life-giving innovations.  Indeed, the application of a strong version of the Precautionary Principle is widely believed to have caused tens of millions of deaths by restricting access to technological innovations such as DDT and Golden Rice (amongst others).

A thoughtful and comprehensive application of the Precautionary Principle in the case of Don Diego would acknowledge that though scientific certainty with respect to environmental costs cannot be achieved, we have thirty-plus years of empirical data which shows that the activity can be undertaken with relatively low risk to the environment.  The environmental risks associated with the Don Diego extraction project, based on scientific data provided in the MIA, and empirical data from similar projects, are neither serious nor irreversible.

Any analysis relying on the Precautionary Principle must, by definition, also endeavor to comprehend the risks of NOT undertaking the subject activity.  While science and data demonstrate that the risks of moving forward with Don Diego are limited, the risks of not undertaking the project appear to be serious to human health, and potentially irreversible.  Denying Mexico’s population the technology to access inexpensive phosphate risks thousands of lives each year, and may cause suffering in tens of millions more.  It subjects the country to the risks of further phosphate market instability.  It also may result in more pronounced environmental damage in places such as Florida, and Peru.  Finally, it encourages a continued reliance on the illegal importation of phosphate from Moroccan controlled Western Sahara, as well as the continued subjugation of the people of Western Sahara.

The chronic obstruction of so many economic endeavors is a symptom of deeper problems in the environmental movement. Environmentalists tend to live in a fantasy world, where some unattainable perfection is always the enemy of the good. What was once reasonable conservation has become for many the pseudo-religion of environmentalism, where Luddite obstruction is the default position, and no environmental benefit, no matter how small, is ever too costly.  Link

AIDA Owes Mexico an Apology

The shame in this manipulative and corrupt campaign against Don Diego is that it threatens not only millions in Mexico who suffer from malnutrition, but that it also represents a genuine threat to the environment.  Seabed mining is far less impactful to the environment than terrestrial mining.  Thus, opposing a relatively nonthreatening project such as Don Diego would, if successful, create higher environmental costs for the global environment by causing a continued reliance on production from terrestrial sources.

This is not to say that Don Diego has no environmental impact.  Any extraction operation will cause damage.  The project will impact the seafloor within the mined area and any small organisms that reside there, and it will temporarily create a plume that contains naturally-occurring elements from the seabed, but that is contained to a relatively small footprint.  All of this is well-anticipated, and because the immediate benthic ecosystem is relatively insensitive (i.e. it is not on a coral reef, or in a fish spawning ground), the associated costs are not high.  Outside the benthos of the mining footprint, the environmental impact will be limited, and the overall impact will certainly be less costly than land-based alternatives.

Environmentalists such as AIDA do more harm than good with their sensationalist, manipulative, and inaccurate claims.  AIDA’s campaign of lies and distortion is demeaning to the people of Baja California Sur, and to Mexico more generally.  Does AIDA truly believe that it can use the residents of BCS in such a manner without repercussion?  Are environmentalists never held accountable?

This campaign is an embarrassment to AIDA, and the organization owes BCS citizens an apology.  This is not simply another case of narrow-minded environmentalists imposing their misguided, but well-intended agenda on others.  AIDA’s blatant and deliberate deception has crossed a line.  The truth was readily available, but AIDA chose to ignore the facts.  Moreover, AIDA’s campaign of misinformation could cost Mexican lives, jobs, and billions in pesos.  Their antics will have a lasting impact on future environmental campaigns in Mexico.  How can the public trust these groups when they’ve shown such a willingness to abuse that trust?

Why would AIDA tell so many blatant lies about Don Diego when the project that can help so many Mexicans and the environment?  AIDA owes Mexico nothing, and there are reports that a large international fertilizer company is funding groups, including NGOs, to stop the development of Don Diego.  This fertilizer company wants to prevent a major new competitor from emerging in the fertilizer market, and it wants to keep Mexico and North America, dependent on outside sources for fertilizers.  It likely found an accomplice in AIDA, a company that was willing to sell its soul and overlook moral and ethical obligations in an effort to keep Mexico poor and hungry while keeping its donor wealthy and protected.




Disgraced Pacchiano To Exit SEMARNAT Under Threat of Felony Prosecution and Federal Investigation


Rafael Pacchiano, who will leave Semarnat in a matter of weeks, defied an order from the Superior Administrative Court and denied the Don Diego phosphate project MIA for a second time recently, missing the court-imposed deadline and refusing to comply with the court’s demand for new scientific evidence to support his initial denial.

Rather than provide specific and substantive scientific evidence to back his ruling that the project would impact sea turtles, Pacchiano issued a bizarre and rambling press release in which he wandered far off-target, indulging speculative and unsubstantiated theories about impacts of the project.  In so doing, Pacchiano has shown blatant disrespect for the eleven justices at the TFJA who unanimously issued the initial court ruling.  The project’s sponsor has asked the court to impose a fine on the Secretary while it requests that the Federal Internal Control Unit (Órgano de Control Interno) be notified of the Secretary’s contempt.  In addition, the sponsor has called for the Federal Prosecutor to be notified regarding potential criminal felony prosecution in the case that the Secretary continues to defy the court.

Pacchiano has become increasingly isolated with respect to this issue.  Not only has the Superior Section of the Federal Administrative court ruled unanimously against him in an unusually harsh rebuke, but he has faced opposition from marine biologists who specialize in the study of sea turtles (his denial was based on impacts to sea turtles), and the people of Mexico who have realized that this project can help feed the poor and reduce Mexico’s dependency on international food sources.  In addition, forward-thinking environmentalists have rallied around the project, realizing that the environmental costs of Don Diego are far below those imposed in terrestrial phosphate mines (for more information see here, and here).  AMLO’s administration, which has promised to make domestic agriculture and fertilizer production key initiatives in an effort to bring relief to Mexico’s malnourished population, cannot be pleased with Pacchiano’s behavior either.

Rafael Pacchiano’s actions show contempt not only for the Mexican system of jurisprudence and established law, but also for his duties as head of Semarnat according to none other than Pacchiano himself.  On more than one occasion the Secretary has spoken about his proper role in evaluating projects — “You cannot have a position if you are for or against, I believe that the role of the government is to fully enforce any existing law.”  Yet it is abundantly clear what the law is saying in the case of Don Diego.  Nonetheless, Pacchiano has chosen to defy the law to pursue his own agenda, doing exactly what he said Semarnat should not.

Pacchiano’s fight against Don Diego seems to be personal and it is certainly illegal.  His erratic behavior and his willingness to ignore the court, the people of Mexico (who he is supposed to serve), scientists, and environmentalists, simply doesn’t make much sense on the surface.  We can speculate as to his reasoning.  He is part of what is widely held to be a corrupt administration, and it would not surprise anyone if his motivation to take this extraordinary, illogical, and unpopular action were linked to his next career move.  Any investigation of Rafael Pacchiano should take a very close look at his personal finances and the finances of his future employer.  Some believe that international business interests connected to fertilizer production want Pacchiano to pursue his obstructionist path to make sure Mexico remains dependent on foreign sources of food and fertilizers.  Should Pacchiano be found guilty of breaking the law under the direct or indirect influence of foreign sources, he could be charged for high treason against the nation.

The Don Diego phosphate project’s importance extends beyond Mexico.  Its large size and low cost means it can help supply all of North America and parts of Asia.  Thus, the international community is watching its development with interest.  Rafael Pacchiano’s refusal to abide by court order is creating an embarrassment for the country on a global stage.  The fact that an unelected bureaucrat, and former car salesman, can hold the country for ransom while ignoring the judicial system reflects poorly on Mexico.  Pacchiano is making a joke out of his country and its legal system, but no one is laughing.

Pacchiano in Contempt of Court and Mexican People



Rafael Pacchiano has refused to comply with a court ruling from the TFJA related to the Don Diego phosphate project, putting him, his agency, and the people of Mexico at risk.  The ruling, issued in March, ordered Semarnat to reassess the MIA submission for the Don Diego phosphate project within four months.  Yet Semarnat has defied the court’s order and has refused to reissue an opinion on the environmental application.  In failing to take the court ruling seriously, Mr. Pacchiano could see jail time, and he and the agency he represents could face financial liabilities in the hundreds of millions of dollars for damages.  Most important, Mexico’s large malnourished population must continue to patiently wait for more abundant and lower cost food that would result from fertilizer produced from Don Diego, as Rafael Pacchiano plays games with their lives.

The Don Diego project was denied by Semarnat in April 2016 due to its alleged impact on sea turtles.  When the project’s sponsor challenged that ruling in court, the case was heard by the entire roster of eleven judges on the superior court bench at the TFJA.  Every single one of those eleven judges ruled that Pacchiano’s denial of the project was invalid.  It was a stunning ruling — the court had not ruled unanimously in almost two decades.

The TFJA’s ruling was supported by the work of dozens of marine biologists (see citations below), who all conclude that neither sea turtles nor their food sources spend time on the bottom of the ocean at the depths where Don Diego will operate.  In fact, due to the fact that they are cold-blooded, loggerhead turtles would likely die if they slept on the ocean floor at these depths.  Yet despite the ruling from eleven superior court magistrates, and the extensive work from dozens of life-long marine biologists, Pacchiano, who has a background selling cars for BMW, believes he knows better.

The implications of Secretary Pacchiano’s malfeasance are significant.  He and the agency he controls are now subject to penalties for damages that could range from tens of millions of dollars into the billions of dollars under Mexican law and Nafta Chapter 11 arbitration guidelines.  Yet these costs pale in comparison to those that Pacchiano imposes on the people of Mexico.

Mexico desperately needs more abundant and more affordable food for its citizens.  Almost 49 million Mexicans live with food insecurity, and each year over 8,000 people die from malnutrition in the country.  AMLO diagnosed the issue and is moving to address it by bringing back domestic agriculture with a focus on introducing inexpensive fertilizer sources.  Don Diego is a key lever that AMLO can pull in this effort, as the project will produce phosphate at much lower cost and higher quantity than current domestic or imported sources.  Mexican citizens are literally dying for Don Diego to begin production, and AMLO aims to deliver despite Pacchiano’s illegal obstruction.

The problems of the Mexican people are of little concern to Rafael Pacchiano.  The man travels by private jet on ski vacations to Aspen with his children.  He boasts of a collection of Rolex watches, and his wife, Alejandra Lagunes, has a lucrative job working with President Nieto.  Many think that he has been an ineffective leader at Semarnat, yet he still draws a handsome government salary.  With Pacchiano busily attending to photo opportunities and otherwise supporting his privileged lifestyle, it should be of no surprise that he shows so little compassion for the plight of the average Mexican citizen.

Pacchiano finds himself on the wrong side in this process.  Eleven judges from the highest administrative court in the land have unanimously criticized him for his sloppy work and told him that his denial of Don Diego was wrong.  Marine biologists who specialize in sea turtles have also told him his denial was  wrong.  Progressive environmentalists, such as ourselves, have told Pacchiano he is wrong.  Mexico’s people have told Pacchiano he is wrong.

Don Diego is a win-win for Mexico.  The project imposes far fewer environmental costs than the typical land-based phosphate mine, so it creates net benefits to the environment by supplanting terrestrial phosphate production.  The process of dredging sand has been used in Mexico hundreds of times in areas that are far more sensitive than where Don Diego will operate – 25 km offshore in the Bay of Ulloa.  Don Diego will not impact fishing activities, tourism, or whales and turtles, according to the work of marine biologists.  Don Diego uses no chemicals, no fresh water, and no habitable land.  Inexpensive phosphate from Don Diego will help lower food costs and feed millions of Mexicans who live in food poverty while providing tax and royalty revenue as well as jobs to BCS and Mexico.  Don Diego epitomizes the idea of sustainable mining.  Pacchiano’s reluctance to render a new decision on the project is a crime against the people of Mexico.

We call on AMLO and his new Secretary of Semarnat to take a close look at Rafael Pacchiano’s actions, and his finances, to see if criminal charges are warranted.  The Mexican people want this man to be held accountable for the harm he has caused the country.


Sampling of marine biology work supporting the fact that Don Diego will not impact sea turtles or their food sources:

Aurioles-Gamboa D (1992) Inshore-offshore movements of pelagic red crabs Pleuroncodes planipes (Decapoda, Anomura, Galatheidae) off the Pacific coast of Baja California Sur, México. Crustaceana 62:71–84
Beth S. Turnbull; Cynthia R. Smith, DVM; M. Andrew Stamper, DVM, DACZM, Departments of Veterinary Services and Rescue and Rehabilitation, New England Aquarium, Boston, MA, USA.  Medical Implications of Hypothermia in Threatened Loggerhead (Caretta caretta) and Endangered Kemp’s Ridley (Lepidochelys kempi) and Green (Chelonia mydas) Sea Turtles.  https://www.vin.com/apputil/content/defaultadv1.aspx?pId=11147&meta=Generic&catId=32414&id=3864468
Bowen, et. al. 1995. Trans-Pacific migrations of the loggerhead Turtle (Caretta caretta) demonstrated with mitochondrial DNA markers. Proceedings of the National Academy of Sciences, Vol. 92. Available: http://www. pnas.org/content/92/9/3731.full.pdf
Boyd, C.M. (1967) The Benthic and Pelagic Habitats of the Red Crab, Pleuroncodes planipes. Pacific Science. Vol. XXI.
Foley AM, Schroeder BA, Hardy R, MacPherson SL, Nicholas M. Long-term behavior at foraging sites of adult female loggerhead sea turtles (Caretta caretta) from three Florida rookeries. Marine Biology. 2014;161(6):1251-1262. doi:10.1007/s00227-014-2415-9. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4033788/
Rivera, Michelle A., The Habitat And Climate For A Loggerhead Turtle. http://animals. mom.me/habitat-climate-loggerhead-turtle-4400.html
Shingo Minamikawa, Yasuhiko Naito, Katsufumi Sato, Yoshimasa Matsuzawa, Takeharu Bando And Wataru Sakamoto; Shingo et al, 2000: http://jeb.biologists.org/content/jexbio/203/19/2967.full.pdf
Yonat Swimmer, Mike Musyl, Lianne McNaughton, Anders Nielson, Richard Brill, Randall Arauz. Sea Turtles and Longline Fisheries: Impacts and Mitigation Experiments.   http://www.soest.hawaii.edu/PFRP/dec03mtg/swimmer.pdf 

AMLO: A Call to Investigate Rafael Pacchiano and Advance Don Diego

Dear President-Elect,

Congratulations on your impressive victory.  The people of Mexico have shown their overwhelming trust in your even hand to guide the country to a more sustainable and self-sufficient future, with greater prosperity and far less corruption.  As you contemplate the first moves of your new administration please consider that you have the opportunity to win an early victory and deliver on many of your promises by advancing the Don Diego phosphate discovery and investigating Rafael Pacchiano, head of Semarnat.

As a candidate you read our articles, and you are aware how important the Don Diego project is to your electorate.  Inexpensive phosphate fertilizer from Don Diego can give Mexican farmers an important global competitive advantage and will help to revitalize this important sector while promoting Mexico’s food sovereignty.  In addition, the project can boost employment and provide Mexico with a crucially important export to Asian and American markets as well as a bargaining chip in trade negotiations (US phosphate is increasingly difficult to source as it comes at the expense of sensitive wetlands in populated areas and is low-grade).  Most important, the project can go a long way to helping Mexico feed its chronically undernourished poor while creating net benefits to the environment (see here).

You may also remember that the current administration’s Secretary of Semarnat, Rafael Pacchiano, stands between the Mexican people and this highly strategic natural resource.  Pacchiano rejected the environmental application (MIA) two years ago, due to the project’s alleged impact on sea-turtles.  What you may not know is that in March of this year, the Federal Administrative Court (http://www.tfjfa.gob.mx/) struck down Pacchiano’s decision in a stunning, unanimous 11-0 ruling.  The annulment was not only noteworthy for the fact that a unanimous decision hadn’t been rendered by this court in almost two decades, but the ruling itself offered a scathing rebuke to Semarnat’s processes as well as its rationale for rejection.

In spite of harsh criticism from the people of Mexico and the Federal Judiciary over the Don Diego rejection, Pacchiano remains stubbornly intent on obstructing the project and denying Mexico this important source of wealth and nutrition.  Through media channels he has signaled that he will use his office to reject the project once again later this year.

There is no mistaking the fact that as Secretary of Semarnat, Pacchiano wields enormous power.  He has the ability to determine outcomes that influence the living standards of Mexico’s people, the growth in its economy, and the health of its ecosystems.  It is interesting to understand where Pacchiano’s power originates.  While your authority comes directly from the people who elected you, Pacchiano was appointed to the position because of his spouse’s connections.  He didn’t earn the trust of Mexican people by working for decades as an environmental lawyer or environmental engineer.  He doesn’t appear to have any specialized skills or experience that qualify him for a position of such power (other than some knowledge of climate change).  It isn’t apparent that Mr. Pacchiano, a former marketing manager with BMW, is equipped with the understanding to make decisions of such profound importance or to comprehend their ramifications.


While you understand your role as a servant of the people and a leader who aims to help those most in need, Pacchiano does not.  His decision-making reveals that he cares little about the people he is supposed to serve.  He governs as an elitist whose goal is to advance his personal agenda without regard for the average citizen.  Pacchiano boasts of his collection of Rolex watches and uses a private jet for transportation from his ski vacations in Aspen, Colorado.  He leads a lifestyle most Mexicans can only imagine, and Pacchiano intends that it remain that way.

Though we find it extraordinarily offensive to witness Pacchiano flaunting his wealth and privilege while withholding life-saving resources from the poorest of Mexicans, this behavior may not rise to the level of crime against the country.  All the same, we believe that an investigation of Rafael Pacchiano and his finances is warranted.  A reliable source has indicated that foreign hedge fund managers have financed resistance to Don Diego in Mexico,  aiming to make money betting against the project.  Whether this included any form of pay-off to Pacchiano is not known.  Yet, because of the seriousness of this potential crime, and the odd circumstances surrounding Pacchiano’s unwarranted and ill-conceived obstruction of this project, a proper and thorough investigation is necessary.  You have vowed to stamp out corruption – this is a very good place to start.

The people of Mexico have financed Rafael Pacchiano’s elitist lifestyle, but it is his elitist ideals that have cost them most dearly.  Pacchiano is so far removed from the common Mexican, he cannot even fathom how much his policies have hurt them.  They deserve better.  We know Pacchiano’s decision with respect to Don Diego was wrong, and that it has been damaging to the environment and to the fortunes of the Mexican people.  The eleven chief justices in the TFJA know it.  The Mexican people, the marine biologists, and other environmental experts know it as well.  AMLO, you can make this right.  Please see that this man is investigated for potential fraud.  Mexico owes it to its people to understand whether Pacchiano is corrupt or simply incompetent.

Rafael Pacchiano has taken a win-win project and turned it into a lose-lose for the country and for the environment.  This is your moment – correct his painful mistake and make his failure your success.

Best of luck in your Presidency – may you achieve each of your admirable goals.

Viva Don Diego.  Viva Mexico! 


Environmentalists for Don Diego


Semarnat Partly Responsible for Skyrocketing Food Prices in Mexico



Mexico’s government announced last week that inflation hit a sixteen year high in the country, driven primarily by increases in food prices and transportation.  The general level of inflation, measured by the consumer price index, hit 6.6 percent for the first half of August.  A staggering 27 percent increase in produce prices was a large factor behind the increase.  This spike in food inflation is all the more problematic for the government because the CPI measure is being altered next year to give food prices a heavier weighting.

Spiking food prices are a significant problem in any nation, but Mexico is especially vulnerable as 44 percent of the country lives in poverty and 18 percent are unable to afford enough food.   The last time inflation spiked like this, large portions of the population rioted in the streets.  The dangerous price increases are painful and unsustainable, and the government has struggled unsuccessfully to find a solution.

One of the main drivers of food inflation in Mexico is the fact that the country has become overwhelmingly dependent on imports.  In fact, according to the US Food and Agriculture Organization, the situation has put Mexico into a dangerous position:

When NAFTA was signed in 1994, Mexico imported $5 billion worth of agricultural products. By 2013 that figure had increased almost fourfold, to $19 billion. In 2015 the Food and Agriculture Organization (FAO) of the United Nations warned that Mexico had become a net importer of food, making it more vulnerable to international price rises and pronounced currency fluctuations.

The FAO estimates that the threshold at which a country becomes what it calls “food-vulnerable” is when as much as 25% of its food supply comes from abroad. Mexico currently imports over 40% of the food it consumes, with nearly four-fifths of it coming from the U.S. Link

To promote national security and insure the welfare of its citizens, Mexico needs to produce more food domestically.  Yet, the country needs to do so competitively, so that it can supplant US imports without imposing tariffs and raising prices.  While this sounds like a tall order, it is achievable.  In fact, not long ago Mexico produced most of its own food.  It has access to the same capital, technology, know-how, and arable land available in the US (though irrigation will be relatively expensive).  Yet, one crucial input Mexico is missing – inexpensive fertilizer.

Rafael Pacchiano’s Crusade Against Mexico

Mexico has no national fertilizer industry, which results in farmers either fertilizing their crops with traditional products or foregoing fertilizing altogether. While potash demand has experienced volatile swings in recent years in the region, nitrogen (and to a lesser extent, phosphate) has experienced steady demand. According to the Business Monitor International Agribusiness Report for 2014 , use of these fertilizers has experienced significant growth over the past decade and will continue to grow in the coming years. Affordable fertilizers have strong market potential in the agricultural sector.  (International Trade Administration Report)

Fortunately for Mexico, the country has the natural resources it needs to become a world leader in fertilizer production.  Most developing nations dream of having Mexico’s bounty in this regard.  Mexico can leverage its substantial natural gas and phosphate resources to become an international fertilizer hub, selling low-cost fertilizer throughout the Americas as well as Asia.  The country’s phosphate resource (Don Diego) is of particularly important strategic value given its size, costs of extraction, and its proximity to markets in short supply of phosphate.  The agro-chemical industry can create billions in wealth, tens of thousands of jobs, more plentiful lower cost domestic food, and substantial geopolitical clout for Mexico.

Yet to become a world leader while protecting its own citizens from vulnerabilities, Mexico must execute with resolve and strong leadership.  These qualities are lacking at Semarnat, where the Secretary, Rafael Pacchiano, has engaged in a crusade against the highly sustainable Don Diego phosphate project.  In doing so, Secretary Pacchiano is essentially withholding affordable food from the neediest people in Mexico, destining them to starvation and malnutrition as food prices soar.

Bringing Don Diego into production won’t solve all of Mexico’s problems tomorrow, but it is a sizable step in the right direction.  By approving the project, Semarnat would send a signal to the Mexican people that the “political elite” are sensitive to their plight.  Doing so would not only help to turn around a national industry (agriculture), but create another one (agro-chemicals) in the process.  Perhaps most important from the perspective of Semarnat, it would do so in a way that is highly sustainable, and would create net benefits for the environment.

Tens of millions of Mexican people want to know why Rafael Pacchiano stands against them AND against the environment.  They should stop to think of the Secretary when they cannot afford to feed their children dinner this week.

Mexico Left Behind as Yet Another Nation Adopts Seabed Mining

tshs2New Zealand recently joined the list of countries that have given environmental and regulatory clearance for seabed mining to occur within their Exclusive Economic Zones(EEZs).   Trans Tasman Resources was granted approval to dredge iron sands 25km off the coast of New Zealand in early August.

Though this mine is a fairly standard shallow seabed sand dredging operation, this is not what certain environmental groups and media outlets want the public to think.  For political reasons these groups give the impression that this approval is extraordinary and novel.  They do so in an attempt to make the project sound particularly risky and unproven.

“She said the mining proposal was the first of its kind anywhere in the world, and the United Nations’ International Seabed Authority was still working on international rules around seabed mining.”  Link

This could not be further from the truth.  As we have noted many times in the past, seabed sand dredging has been practiced widely all over the world for fifty years or more.  In fact, three countries alone in northern European mine over 100 million tons of seabed sand and aggregate material annually (Trans Tasman will extract 5 million tons of ore per year).  The only difference in the case of New Zealand is that there is a higher concentration of iron in the sand being dredged than in many other places – a fact that should have no bearing on relative environmental impact.

The process and impact of marine sand and aggregate dredging have been carefully studied for decades.  These studies are backed by tens of millions of dollars in government grants.  The risks involved in undertaking these programs are extremely well-defined, and the modeling that is used to predict impacts is based on empirical data that has shown itself to be very dependable.  Sand dredging is a commonplace occurrence all over the world.

Man’s experience in seabed mining extends far beyond sand and aggregates.  Other forms of seabed mining have also been popular for decades.  We have dredged diamonds from the seabed for almost thirty years.  We have been drilling the seabed for oil and gas for fifty-plus years.   We have been dredging the seafloor for tin, magnesium, salt, sulphur, gold, and heavy minerals for decades as well.

What many less enlightened environmental groups are missing, is the fact that careful, low impact mining of the seafloor in non-sensitive regions of the ocean will have a net beneficial impact on the environment.  This is because the yields are higher and the environmental costs generally lower than terrestrial mines.  As we run low on terrestrial resources, mining above the water line becomes increasingly costly from an environmental perspective.  Incidentally, seabed mining is also “Green” in that it will eventually provide rare resources that are needed to develop “sustainable” energy generation such as wind and solar.  Seabed resources offer a path forward to support the world’s population without doing as much damage to the planet as terrestrial sources.

Mexico has been slow to realize this fact, and as the country falls further and further behind the world’s embrace of the Green revolution behind seabed mining, the security and sovereignty of the country is threatened.  Rafael Pacchiano’s refusal of the Don Diego phosphate sand dredging operation last year is costing Mexico lives, creating increased suffering for tens of millions who live in nutritional poverty in Mexico, and harming the environment.  The ironic thing is that Mexico has approved over 200 sand dredging projects in the past according to Cemex.  But when it came to this crucially strategic sand dredging project, one that is far enough offshore that it has fewer risks than the 200 sand dredging projects already approved in Mexico, Rafael Pacchiano said “no.”

If Mexico wants to make progress, to help its poorest citizens, to bring wealth to the country, and to create a strong bargaining chip with the US and other trading partners, it will reconsider its position on Don Diego.  Mexico needs strong leadership.  The weak political apparatus at Semarnat has failed the country.