In the last two decades, Argentina, due to its territorial characteristics and its vast natural and cultural resources, has experienced a peak and development in the subject of the environment, which has given rise to a large number of regulations, authority and court holdings.
10.1. Environmental Regulation
Environmental regulation and control are a responsibility of both the Federal Government and the Provinces and City Authorities.
These three levels of government are divided by subject matter and venue, since, on one hand, the Federal Government regulates minimum budgets and substantive matters in the entire national territory; and, on the other hand, the Provinces and City Authorities regulate on local environmental matters within the relevant area.
In this way, federal regulation co-exists with local provisions in each Province and City, which are integrated into the environmental regulatory environment under the National Constitution itself.
In turn, it should be noted that environmental provisions are largely public policy rules, and for this reason they are not left to the discretion of private persons. For the same reason, a violation of such rules may result in civil and criminal liability.
10.2. The National Constitution
The National Constitution of Argentina, the highest regulation in our legal system, on the subject of the environment, determines in its Article 41 (added by the constitutional Reform of 1994), that “All inhabitants have the right to a healthy and balanced environment, suitable for human development, so that productive activities satisfy present needs without endangering those of future generations; and have the duty to preserve it”.
In turn, it separate regulatory jurisdictions for environmental matters, by providing that “The Nation is responsible for enacting any provisions to determine the minimum protection requirements, and the provinces are responsible for enacting those necessary to supplement such provisions, without altering local jurisdictions”.
Finally, Article 41 provides a prohibition for hazardous wastes to enter the country “The entrance into national territory of actually or potentially hazardous wastes, and radioactive wastes, is hereby prohibited”.
10.3. General Environmental Law
The Law 25,675, so-called the General Environmental Law (LGA), is a regulation enacted by the National Congress, which regulates the constitutional principles described above, and determines the minimum requirements for an environmental management that is sustainable and suitable for the environment, preserving and protecting biological diversity and implementing sustainable development. The law seeks to provide basic environmental conditions that are equal throughout Argentina.
We should note section 5, which provides that “The different levels of government shall integrate environmental provisions in all its decisions and activities, so as to ensure compliance with the principles contemplated” in the LGA.
The LGA applies to all the national territory, and its provisions are public policy, effective upon enactment, and used to construe and apply specific legislation. Accordingly, the law is mandatory for the Federal Government, which in turn regulates substantive matters.
The provinces and city authorities also have the duty to apply the LGA, but may also supplement such law in their respective jurisdictions by local regulations.
In turn, the environmental principles listed in the LGA are used to construe and apply the law and include: Prevention, Precaution, Inter-generational fairness, Responsibility, Subsidiary applicability, Sustainability, Solidarity and Cooperation.
Among such environmental principles we should highlight the Precaution principle, indicating that, where there is danger of serious or irreversible damage, absence of information or scientific certainty may not be used as a reason to postpone the adoption of efficient and cost-effective action to prevent detriment to the environment.
This principle, which is stricter than the principle provided at the Rio de Janeiro Convention (1992), in many cases where it has not been scientifically determined that an activity is harmless to the environment, has been used in court to stop the activity.
The LGA, in turn, creates two requirements that must be met prior to commencing any project or business that may affect the environment:
- Doing an environmental assessment; and
- Taking environmental insurance (section 22 of the LGA). Such liability insurance is regulated under Joint Regulation 98/2007 and 1973/2007 by the Secretariat of Finance and the Secretariat for the Environment and Sustainable Development, which defines the hazardous activities that require taking insurance against environmental risks. In turn, it provides criteria to determine the minimum insurable amounts. It also permits self-insurance and create the relevant agency (UERA). Further to this, the Joint Resolution creates an advisory Committee on environmental financial guarantees, so as to define the minimum conditions of the policy and the requirements for acceptability of self-insurance, and acceptable ways to create it. The Committee defines the function and scope of a restoration fund.
Finally, we should note that the LGA defines environmental damage as any substantial alteration that modifies the environment, its resources, balance among ecosystems, and collective goods or values. In the event of such damage, we should take into account that legal standing to claim restoration is extremely wide, and both broad or restrictive (ordinary lawsuits or constitutional shelter actions known as amparos) actions may be used. Also, we should note that liability for environmental harm is strict, unlimited and joint and several.
10.4. Specific Environmental Laws
To the above legislation, we should add federal rules specifically enacted for environmental matters, such as:
- Law No 22,428 (Preservation of Soil). This law regulates the encouragement of private and governmental action to preserve and recover productive capability of soils; and is supplemented by the UN Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification;
- Law No 20,284 (Preservation of Air). The purpose of this regulation is to provide rules on air quality and concentration of pollutants, and plans to prevent critical situations of atmospheric pollution;
- Law No 24,040 (Chemical Components). This law provides regulations on controlled substances, chemical compounds, included in Annex A to the Montreal Protocol, relating to substances that exhaust the Ozone Layer. Its production, use, marketing, importation and exportation are subject to the restrictions determined by such Protocol and the provisions in such regulation;
- Laws Nos 24,051 and 25,612 (Industrial and Hazardous Wastes). The Law NO 24,051 applies to generation, handling, transport, treatment and final disposal of hazardous wastes, which are defined in the law. Civil and criminal responsibilities are provided (together with section 200 of the Penal Code). The Law No 25,612 provides minimum requirements for comprehensive management of industrial wastes and service activities;
- Law No 25,670 (PCBs). This law sets forth minimum environmental protection requirements for the management of PCBs throughout Argentina. The law defines the subject matter, creates a register and the controlling authorities, and determines responsibilities and penalties;
- Law No 25,688 (Water Management). This law provides for the minimum environmental requirements to preserve water and its development and rational use. Water is defined as the water that is a part of water courses or bodies, natural or artificial, superficial or underground, and any water contained in aquifers, underground rivers and the atmosphere. A superficial water basin means a geographic region limited by watersheds draining towards the sea by a network of secondary beds that converge into one main bed, and any endorreic basin (sections 1 and 2);
- Law No 25,831 (Free access to public information on environmental matters). This law determines minimum environmental protection requirements to ensure the right to access environmental information kept by the Government, within the national, provincial, city environments and in the City of Buenos Aires, and likewise any self-regulated entities and public utility companies, whether they are governmental, private or mixed. Environmental information means any information, regardless of the method of expression or support, in relation to the environment, natural or cultural resources and sustainable development (sections 1 and 2);
- Law No 25,916 (Residential Wastes). The provisions of this law determine minimum environmental protection requirements for comprehensive management of residential wastes, whether residential, urban, commercial, social assistance, sanitary, industrial or institutional, except those regulated under specific provisions (section 1);
- Law No 26,331 (Native Forests). This law provides for minimum environmental requirements in relation to enrichment, restoration, conservation, development and sustainable management of native forests. For this purpose, it requires the Provinces to determine a regulation for native forests in three conservation classes, by taking into account that if the regulation is not enacted, no deforesting activities will be permitted.
- Environmental regulation of public utilities: In addition to framework laws and specific laws, we should also take into account the existing regulatory environments for public utilities, which provide for environmental matters associated to each utility. For instance, such is the case of telecommunications, where we can find environmental provisions on the subject of non-ionizing radiation, used for mobile telephone services, issued by the Federal Government for the entire country, regulated under Resolutions No 202/95 by the National Ministry of Health, and Resolution No 530/00 by the National Secretariat of Communications. |
