Sabsay, Daniel

Walsh, Juan Rodrigo

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Pace Environmental Law ReviewVolume 13Issue 2 Spring 1996Symposium EditionArticle 17April 1996Barriers and Opportunities under the 1994Argentine Constitutional Amendments for BothEnvironmental Protection and the Sustainability ofthe Socio-Economic SystemJuan Rodrigo WalshDaniel SabsayFollow this and additional works at: http://digitalcommons.pace.edu/pelrThis Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in PaceEnvironmental Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact cpittson@law.pace.edu.Recommended CitationJuan Rodrigo Walsh and Daniel Sabsay, Barriers and Opportunities under the 1994 ArgentineConstitutional Amendments for Both Environmental Protection and the Sustainability of the Socio-Economic System, 13 Pace Envtl. L. Rev. 591 (1996)Available at: http://digitalcommons.pace.edu/pelr/vol13/iss2/17Barriers and Opportunities Under the1994 Argentine ConstitutionalAmendments for Both EnvironmentalProtection and the Sustainability of theSocio-Economic SystemDR. JuAN RODRIGO WALSH AND DR. DANIEL SABSAYDr. Sabsay is a constitutional lawyer who has published abook on recent constitutional reforms in Argentina. Dr.Walsh is an environmental lawyer, practicing with the firmof Marciel, Norman & Associates in Buenos Aires, and theprogram director for FARN. 1In their dialogue, these attorneys identify the barriersand opportunities under the 1994 constitutional amendmentsfor creating an integrated legal system that promotes bothenvironmental protection and the sustainability of the socio-economic system. In this analysis, the following points areexamined: the creation of new categories of environmentalrights and duties; jurisdictional conflicts, not only betweennational, provincial and municipal governments, but also be-tween the executive and the legislative branches of govern-ment; the new constitutional obligation to remediateenvironmental damage; the procedural remedies for environ-mental harm; and the creation of a system for environmentalregulation at the national level.1) Walsh and Sabsay explain that Article 412 containsmany features that make it a unique constitutional amend-ment. The amendment guarantees Argentine citizens theright to a healthy and balanced environment. It charges boththe national and provincial governments with the duty of pro-1. Fundaci6n Ambiente y Recursos Naturales.2. CONST. ARG., art. 41.1592 PACE ENVIRONMENTAL LAW REVIEW [Vol. 13tecting this right. Article 41 also provides that the govern-ment is responsible for the preservation of natural resourcesand has an obligation to provide environmental informationand education.Unfortunately, the way this amendment was draftedmakes it difficult to resolve the jurisdictional conflicts amonglevels and branches of government that exist under currentenvironmental statutes. One response to this confusion is therecent establishment of the Federal Council on the Environ-ment (COFEMA), formed under a compact between the na-tional and provincial governments whose charge includes theresolution of these conflicts. Ironically, the existence and op-eration of COFEMA itself manifest the legal conflicts inher-ent in the Constitution; to date there is no indication that thisnew entity is going to be competent to resolve these issues.2) The jurisdictional ambiguity of Article 41 may presentthe provinces an opportunity to create regional entities to co-ordinate their policies and programs with the national gov-ernment at the regional level. This may be necessary toprotect natural resource areas that are shared by two or moreprovinces and to accomplish other constitutional objectivessuch as the protection of biological diversity and the culturalheritage of the nation. A clear limitation on the powers ofany regional confederation of this sort is that its recommen-dations, under law, have to be ratified by the individual pro-vincial legislatures. How such entities can be used to resolvethe tension between the power of the provinces and the au-thority of the National Congress over interstate commerce isfar from clear.3) The ambiguity of Article 41 is heightened by the pro-visions of Article 124, 3 which continue the previous constitu-tional delegation of authority over natural resources to theprovinces. In the opinion of Sabsay and Walsh, Article 124gives plenary authority over these matters to the provinces.Article 41 means that this plenary authority must be exer-cised within the context of threshold national standards forthe protection of the environment, which the national govern-3. CONST. ARG., art. 124.2http://digitalcommons.pace.edu/pelr/vol13/iss2/171994 ARGENTINE AMENDMENTSment must establish. It may resolve the contradictionswithin Article 41 to see the National Congress as chargedwith establishing minimum standards for environmental pro-tection while continuing provincial authority for natural re-source planning and protection within this national scheme.This interpretation would give the national government theauthority it needs to establish standards to honor its interna-tional obligations, to prohibit the entry of hazardous wastesinto the country and to protect biological diversity and othermatters of national interest. If there is evidence that theprovinces are not acting competently to enforce these na-tional standards and protect the national interest, there maybe implied authority for the national government to exercisemore direct authority in that event.As a model of how this joint authority could be adminis-tered, Sabsay and Walsh point to the existing system of pro-viding harmonious and uniform tax policies throughout thecountry. Under this system, tax policy is created through atwo step process. First, it is adopted by the National Con-gress and then ratified by the provincial legislatures before itbecomes effective.4) Article 41 contains language that requires the com-plete remediation of environmental damage. 4 This seriouslyextends the current concept of remediation which does not re-quire a return to the status quo ante, but only imposes liabil-ity for specific damages. Depending on how thisconstitutional mandate is carried into law, it could imposeunprecedented costs on the private sector. Further, there areno existing judicial procedures, or civil or criminal penalties,being used in Argentina that are effective to enforce this de-gree of remediation of environmental damage.5) Sabsay and Walsh believe that Article 41 is too specif-ically drawn insofar as it prohibits, as a matter of constitu-tional law, the transport of hazardous wastes into thecountry. They believe that this type of provision has no place4. CONST. ARG., art. 41.1996] 5933594 PACE ENVIRONMENTAL LAW REVIEW [Vol. 13in the Constitution and may violate the reciprocity clauses ofvarious MERCOSUR 5 and other international agreements.6) In summarizing, Sabsay and Walsh note that theseconstitutional ambiguities and conflicts place a tremendouspremium on clarity and organization in the drafting of all leg-islation intended to discharge these newly articulated federaland provincial duties.5. Argentina-Brazil-Paraguay-Uruguay: Treaty Establishing a CommonMarket (signed Mar. 26, 1991), U.N. Doc. A/46/155 (1991), reprinted in 30I.L.M. 1041 (1991).4http://digitalcommons.pace.edu/pelr/vol13/iss2/17

Barriers and Opportunities under the 1994 Argentine Constitutional Amendments for Both Environmental Protection and the Sustainability of the Socio-Economic System

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Barriers and Opportunities under the 1994 Argentine Constitutional Amendments for Both Environmental Protection and the Sustainability of the Socio-Economic System

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