The Supreme Court has dismissed the precautionary suspension of the staggered increase in the ecological flows of the Tagus scheduled for the years 2026 and 2027 that was requested by the Generalitat Valenciana. The Administrative Litigation Chamber argues that the Consell’s request refers to some flow forecasts that will not be applied for another three years, so there is more than enough time for the high court to issue a ruling on the substantive appeal against the Tagus Plan and its impact on the Tagus-Segura Transfer, which could be cut between 70 and 110 cubic hectometres per year, 40% of current transfers.
The ruling of the high court was decided on the 4th, based on the precautionary measures requested by the Government of Ximo Puig, which accepts the first increase in minimum flows in the Alto Tajo area from 6 to 7 cubic meters per second, which is already being applied, but requests that the following staggered increases not be applied, which will be 8 cubic meters in the year 2026 and 8.6 in the year 2027.
The same Chamber of the Supreme Court will have to rule on the precautionary measures requested by the Transfer Irrigation Union (Scrats) and the regional government, although with a difference: both request the Supreme Court to stop the increase in flows from 6 to 7 cubic meters which is already in force.
State Lawyer: “A hypothetical damage”
The ruling of the Supreme Court rejecting the precautionary request of the Consell is equivalent to saying that the Executive of Ximo Puig has been ahead of time on a planned action but that has not yet been put into practice by the Ministry.
The State Attorney considers that the ‘periculum in mora’ requirement is not met when the alleged damage is deferred in time and, furthermore, it is hypothetical, since it refers to a moment, 2026 and 2027, in which presumably it will already be finished the process.
The Supreme Court rejects that, if the suspension is not agreed, the appeal is deprived of a legitimate purpose or the effectiveness of the sentence that may be handed down in due course suffers, since the challenge refers to provisions related to ecological flows that would not be applied until 2026 and 2027, which he considers more than reasonable time for the Chamber to issue a sentence, without prejudice to the fact that, in another case, the precautionary measure can be requested at any time as provided by Law.
Nor does it appreciate that the Generalitat has reasons that justify the suspension from the perspective of the appearance of good law. «As has been stated repeatedly by the jurisprudence, this criterion, not included in the Jurisdiction Law although not excluded by it and provided for by art. 728 LEC, must be applied with extreme prudence as it implies a pronouncement on the merits of the litigation in the initial moments of the process».
For this reason, the order adds, “it has only been considered applicable in the cases of contesting acts applying provisions declared null, of those that reiterate or are identical to others already annulled or in those cases in which the invalidity defects are manifest from so that it is not necessary to examine them for their appreciation. And the Chamber does not believe that any of these circumstances occur in this case.
Arguments of the Valencian Council in favor of the Transfer
The Contentious Chamber notes that in the request of the Government of Ximo Puig “the first step” of ecological flows is not appealed, applicable immediately to the entry into force of the Royal Decree approved by the Council of Ministers in January . This first step will be in force until December 31, 2025, unless the Supreme Court decides to paralyze said measure in the event that it meets the precautionary measures requested by the irrigators of the Transfer and the Government of López Miras,
The Consell’s argument is based on the fact that its disagreement with the automaticity with which the ecological flows are activated for the years 2026 and 2027, “without taking into account the evaluations and measures resulting from the development of the Special Program for Monitoring and Control of the state of the masses of water and the sustainability of the uses in the area of the Acueducto-Tajo-Segura”. And it emphasizes that this automatism that is contained in the final wording of the norm did not appear in the text submitted to the examination of the National Water Council.
It considers that this automatism may give rise to the disproportionate fixing of ecological flows resulting from it, with the consequent damage to the exploitations dependent on the Tajo-Segura Transfer, since the disproportionate elevation of these flows may condition the transfer, with the consequent damages, in the territorial areas concerned, on irrigation with a decrease in economic activity, increase in urban supply costs, loss of heritage value derived from the transition from irrigated to dry land, data that quantifies and extracts from the Memory of the Hydrological Plan of the Safe.
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