The General Environment Law

The General Environment Law No 25,675 (the "GEL") was passed by the Argentine Congress pursuant to the powers conferred by section 41 of the Argentine Constitution. However, it remains to be seen whether the GEL actually imposes minimum environmental standards.

The GEL, which is a federal law of public order, regulates various issues which aim to achieve a sustainable and adequate utilization of the environment, the preservation and protection of biological diversity and the implementation of sustainable development. It sets out the objectives of Argentine environmental policy.

1. Protected public interest

Although Chapter One of the GEL is titled "Protected Interest", the GEL does not contain a definition of the public interest which it intends to protect nor does it give any hints as to how it should be defined.

Furthermore, the GEL provides that its provisions are of an "operative" nature, i.e. no regulation is required for enforcement thereof by the federal and provincial authorities. However, the term "operative" was vetoed by the Executive Branch.

2. Principles of environmental policy

According to its provisions, the GEL, as well as any other rule under which the environmental policy may be carried out, must be interpreted and applied taking into account the principles of coherence, preservation, prevention, intergenerational equality, progressiveness, responsibility, subsidence, sustainability, solidarity and cooperation.

Most of such principles have been included in international documents and rules. However, the progressiveness principle is not found in previous rules in Argentina. Under this principle, environmental objectives must be achieved in a progressive manner by means of temporary and definitive goals, projected on a time schedule.

3. Federal environmental system

Through the Federal Council on Environment (COFEMA) the GEL creates a Federal Environmental System intended to coordinate the environmental policy, and this system is formed by the Argentine Nation, its Provinces and the City of Buenos Aires.

The Executive Branch is further empowered to propose to the board of the COFEMA the issuance of recommendations or resolutions intended to give due effect and adequately apply the laws and regulations, both those imposing minimum requirements and those supplementing rules passed by the Provinces.

4. Minimum environmental standards

The GEL defines Minimum Environmental Standards as any rule providing for the protection of the environment which is uniformly applied in all the Argentine territory and intended to impose conditions for insuring protection of the environment.

Even though it is true that all rules imposing Minimum Environmental Standards are applicable uniformly in the Argentine territory, not all uniform environmental rules impose Minimum Environmental Standards. This slight distinction has important legal implications since there is a difference between the Argentine Constitution empowering the Congress to pass environmental rules that must be uniformly complied with in the Argentine territory; and empowering it to pass only rules containing minimum requirements and delegating the issuance of other rules with greater requirements to the Provinces.

For this reason, the GEL should have referred to minimum environmental requirements rather than to uniform environmental requirements. The GEL contains provisions that are uniform for all the Argentine territory but fails to establish minimum requirements enabling the provinces to impose greater requirements. Therefore, the GEL would be a framework or mixed rule, which serves as a basis for the environmental laws which may be sanctioned in the future.

5. Jurisdiction

The ordinary courts should enforce the GEL as appropriate depending on the territory, the subject matter or the persons involved. In cases where the pollution or degradation of natural resources belonging to two or more states is confirmed, the federal courts shall have jurisdiction.

6. Evaluation of environmental impact

Pursuant to the GEL, any work or action that might degrade the environment in the Argentine territory or any of the environment elements or that may significantly affect the population's standards of living shall be subject to an environmental impact evaluation procedure prior to execution thereof.

The GEL fails to determine in which specific cases a work or action is deemed to degrade the environment or any of its elements significantly. Therefore, such determination remains pending until the regulatory rules are issued.

7. Citizen participation

The GEL provides that all citizens are entitled to be consulted with and to give their views on the administrative procedures related to the preservation and protection of the environment and with general or specific effects and of general scope. However, the Executive partially vetoed the right of any person to be consulted with.

The views or objections of the consulted citizens shall not be binding on the authorities making the consultation, but if their views conflict with those obtained by public consultation or hearing, they must give reasons for and make public such views.

8. Environmental insurance

The GEL binds all persons and entities, public or private, that carry out activities dangerous to the environment, the ecosystem or its constitutive elements, to have an insurance dully covering the remediation of the damage that it may cause when performing its activities. This insurance is independent from any indemnification that may correspond for tort liability.

Environmental insurance is a controversial matter since, in most cases, the remediation of the environment is extremely expensive and it is often difficult to determine the amount of the loss.

9. Environmental Compensation Fund

In cases where remediation of the environment is not possible, the GEL provides that substitute compensation fixed by courts must be deposited with the Environmental Compensation Fund. The purpose of this fund is to guarantee the quality of the environment, the prevention and mitigation of negative or dangerous effects to the environment, handling of environmental emergencies, as well as the protection, preservation, conservation or compensation of ecological systems and the environment.

10. Environmental damage

The GEL defines environmental damage as any significant alteration which negatively modifies the environment, its resources, the ecosystem’s balance, goods or collective values. Nevertheless, the GEL does not define the environment as protected public interest.

The GEL provides that those who cause damages shall be strictly liable to take the necessary remedial actions to restore the status quo ante. Even though in certain cases it is reasonable to attribute liability regardless of the liability based on breach of a duty, strict liability to any damage to the environment is unreasonable.

Liability may be exempted when it is proved that, notwithstanding the adoption of all measures so as to avoid damages and that no concurrent responsibility is verified, damages were produced by the exclusive negligence of the victim or of a third party for which the same is not responsible.

According to the GEL, liability of the party causing environmental damages is presumed iuris tantum (allows evidence to the contrary) in case of existence of breaches to environmental administrative rules. This presumption is censurable since the breach of formal administrative rules would oblige the party responsible for said breach to demonstrate that it did not cause an environmental damage. This presumption was vetoed by the Executive Power.

Moreover, with respect to collective damages, this law provides that in case of damages caused by more than two persons or when it cannot be demonstrated exactly which damage was caused by which person, all said persons shall be jointly liable for the damages. This, without prejudice of the right to claim the other party, for which case the court may determine the responsibility of each party. This rule is extremely important, especially for facilities located at industrial zones (locations where several industries are established).

When damages are caused by legal entities (i.e. corporations), liability may be extended to their authorities and professionals involved in accordance with their intervention.

The GEL contains procedural rules that exceed the powers which the provinces have delegated to the Government under section 41 of the Argentine Constitution. To that extent, the GEL provides that access to jurisdiction on environmental matters shall not allow restrictions of any kind or specie.

The GEL has amplified the number of persons or entities that may have courses of action to demand the remedy of environmental damage. The environmental summary proceeding "amparo" (section 43 of the Argentine Constitution) can also be filed by the federal, provincial and municipal agencies besides the affected person, the ombudsman and non-governmental environmental organizations. Once the claim for collective damage has been filed by any of those entitled, the rest shall not be able to file the same, notwithstanding they shall be able to intervene in the process as third party.

Fortunately the Executive Power has partially vetoed section 32 of the GEL which entitled judges to extend their decisions to matters not required by the parties.