Nearly two years after the executive vetoed Law 26,418, on September 30 2010 the National Congress passed the new Law on Minimum Standards for Protection of Glaciers and Periglacier Environment (26,639). The new law was published in the Official Gazette on October 28 2010.
Laws on minimum standards for environmental protection are enacted at federal level as provided by Section 41 of the Constitution. However, provinces can issue their own specific regulations, reflecting the minimum standards determined at federal level. Before September 2010, several laws on minimum standards had been passed by the National Congress, including:
- the Law on Industrial and Service Activities Waste Management (25,612);
- the Law on National Environmental Policy (25,675);
- the Law on Polychlorinated Biphenyls – Standards for Management and Elimination (25,670);
- the Law on Environmental Protection of Native Forests (26,331); and
- the Law on Minimum Standards for the Control of Burn-Off Activities (26,562).
Law 26,639 defined 'glaciers' as perennial ice masses, stable or slowly flowing, with or without interstitial water, formed by the re-crystallisation of snow, situated in different ecosystems, whatever their shape, dimensions and state of conservation. Moreover, the definition includes rocky detritic material and internal and surface water courses as part of each glacier. In addition, the high mountain periglacier environment is considered to be an area with frozen soil that functions as a water-resource regulator.
The law also created the National Glacier Inventory, where all glaciers and periglacier geoforms that act as water reserves within the national territory will be listed, with all the necessary information for their adequate protection, control and monitoring. The National Glacier Inventory must contain information on glaciers and periglacier environments by hydrographic basin, location, surface and morphologic classification of the glaciers and periglacier environment. This inventory must be updated every five years, verifying the changes on the surface of the glaciers and periglacier environments, advances or retreats and other factors relevant to their conservation. The objectives of the National Glacier Inventory have recently been set out in Regulatory Decree 207/2011. Moreover, the inventory and monitoring of glaciers and periglacier environments will be carried out by the Instituto Argentino de Nivología, Glaciología y Ciencias Ambientales, in conjunction with the competent national enforcement authority and the Ministry of Foreign Affairs, International Trade and Religious Affairs where the inventory deals with international border areas pending demarcation.
The law appointed "the national entity with higher hierarchical level on environmental matters" – that is, the secretary of environment and sustainable development, as provided by Decree 207/2011 – as its enforcement authority and has set down its functions. Moreover, certain activities that may affect the natural condition or function as a source of water resources of glacier and periglacier areas are now forbidden. Such activities are those that result in the destruction, movement or interference with the advance of glaciers - in particular:
- the liberation, dispersion or disposition of substances or polluting elements, chemical products or residues of any nature or volume (including in periglacier areas);
- the construction of architecture or infrastructure works, except for those necessary for scientific investigation and risk prevention;
- mining and oil exploration and exploitation activities (including in periglacier areas); and
- the installation of industries or the development of industrial activities or works within the protected areas.
Except for certain activities (eg, rescue, scientific activities which may require extraction of samples and that leave no waste in glaciers and periglacier environments, and sports including mountaineering, hiking and non-motor sports which do not affect the environment), all other activities to be performed in glaciers and periglacier environments which are not explicitly forbidden shall be subject to an environmental impact evaluation and environmental strategic evaluation. Such proceedings must include a social involvement stage by means of public hearings in accordance with the General Environmental Law (25,675). Despite the general provisions of the law, the implementing regulations issued at federal level have not yet defined the activities forbidden in protected areas.
The penalties for non-compliance with the law and its regulations can be set by each jurisdiction in accordance with its police power. However, the penalties may not be lower than those set by the law. In addition, jurisdictions without a penalty system should apply the following penalties set at national level:
- warning;
- fine of 100 to 100,000 basic salaries for the initial category in the national public administration;
- suspension or revocation of authorisations – such suspension may last from 30 days to one year, according to the circumstances; and
- termination of the activity.
The officers of a company that has breached the law shall be jointly liable for the penalties applied to the company. Penalties will apply subject to prior proceedings within the jurisdiction where the infraction occurred, and will be governed by the corresponding administrative proceedings rules, which guarantee due process, and staggered according to the nature of the infraction.
The new law has had and will have adverse effects on activities such as mining. Not only has the industry expressed its opposition to the project , mainly due to the vagueness of its definitions and the possible unconstitutionality of certain provisions, but the mining provinces have also resisted the project (led by the province of San Juan). However, the project was finally approved by the Senate by a small margin (35 votes in favour, 33 votes against and one abstention).
In fact, many provinces have not only enacted their own protective measures,(1) but have also declared their intention to challenge the constitutionality of Law 26,639. Nevertheless, although judicial decisions on the issue have not yet been issued, the courts have already accepted precautionary measures requesting the suspension of certain sections of the law.
For further information on this topic please contact Francisco A Macías, Federico S Deyá or Marina Cabral at Marval O'Farrell & Mairal by telephone (+54 11 4310 0100), fax (+54 11 4310 0200) or email ([email protected], [email protected] or [email protected]).
Endnotes
(1) Jujuy – Law 5,647 (July 6 2010); La Rioja – Law 8,773 (8 July 2010); Mendoza – Law 8,051 (May 5 2009); Salta – Law 7,625 (August 3 2010); San Juan – Law 8,144 (July 14 2010); Santa Cruz – Law 3,123 (April 8 2010).