*By Carlos Saravia Frías
On November 2nd, 2010, the judge with jurisdiction on federal matters of the province of San Juan ruled the suspension of sections 2, 3, 5, 6, 7, and 15 (the “Ruling”) of the “National Glacier Act” N° 26.639 (the “Glacier Law”) in the territory of the province of San Juan.
The Ruling was issued in file “AOMA and Others vs. the National State for Unconstitutionality”, by means of which the affected entities handed in a complaint against the National State seeking for the nullity and unconstitutionality of the Glacier Law, along with a precautionary measure, to suspend the legal effects until the question of law is resolved.
The claim was based on the grounds that the Law affects the continuity of enterprises under current development in the province of San Juan as well as new productive enterprises (i.e. architecture and infrastructure works, mining and hydrocarbons exploration and exploitation, industry settlement, and the development of industrial activities) by prohibiting said activities, thus violating the constitutional rights to work, hire, to carry on lawful business, employment; sustainable development and progress of a community.
The Ruling sustains the claim and orders to suspend the effects of the Glacier Law arguing, as mentioned in previous publications, that the Glacier Law not only violates rights with constitutional supremacy, but also subjugates San Juan’s provincial autonomy.
It lies on three basic grounds:
(i) There were excessive attributions in the parliamentary proceedings when banning activities and establishing differential environmental impact assessments according to planned activities and excluded activities, since this situation was deemed invalid concerning the minimum environmental requirements by Decree-law Nº 1837/08, by means of which the National Executive Power vetoed the bill Nº 26.418, which contained similar provisions to the ones stated by the Glacier Law;
(ii) The General Environmental Law already specifies an environmental impact assessment system prior to the authorization of any activity which may deteriorate the environment. Therefore, the prohibition stipulated in section 6 of the Glacier Law is excessive, not constituting a minimum environmental requirement, and
(iii) Said prohibition may affect the economic development of the provinces involved, thus giving preeminence to environmental matters over activities that could be authorized and developed without harming the environment.
The ruling under analysis opens up the possibility of similar claims. It is a valuable precedent which supports the constitutional rights above mentioned and curbs the subjugation of provincial autonomy, seeking for equilibrium between the sustainable economic development of the provinces and the protection of the environment abiding by the legislation in force.
*Mr. Carlos Saravia Frías is a lawyer, Partner of Saravia Frías Mazzinghi Lawyers. For further information: www.sfmabogados.com
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