“A reform that contradicts scientific findings and increases legal uncertainty.” This was one of the conclusions of a group of experts that analyzed the reform proposed by the national government Glacier law (Law 26,639 of the “Minimum Budget Regime for the Conservation of Glaciers and the Periglacial Environment”, approved by the National Congress in 2010). They did it at an event in the courtroom of the Faculty of Law of the University of Buenos Airesyesterday Wednesday. And not only that: it is a “hasty reform carried out behind the back of society”.
The panel was composed of environmental lawyers such as Andrés Nápoli, executive director of the Environment and Natural Resources Foundation (FARN), Enrique Viale of the Association of Environmental Lawyers and Claudia Villanueva, professor of environmental law at the same UBA, as well as Agostina Rossi Serra, biologist and member of Greenpeace, and federal judge Sebastián Casanello, who intervened in several cases related to the application of the same law that is being pilloried.
Although a day-long plenary session of the Commissions in Congress is scheduled for today with presentations from NGOs and experts as well as mining entrepreneurs and representatives of mining provinces, the ruling party’s intention is that the ruling be issued quickly and specifically considered in the Chamber so that the reformed norm comes into force before the end of the year, with the advance of the midterm elections and the new composition of the Congress. The essence of the change is that it moves from a protective approach that includes glaciers and the periglacial environment to a restrictive approach that includes glaciers that act as water reservoirs or feed rivers and watercourses to stimulate new mining projects.
However, if this were to happen, a “regulatory mess” would arise, as Napoli said yesterday at the UBA, since the current glacier regulation concerns “minimum budgets”, i.e. This would be lost because the reform would leave maintenance to the discretion of each province, which must decide whether or not the glaciers in question contribute to the various water channels (which is difficult to determine). This would change the provisions of the National Constitution, which states in Article 41 that the nation is the one that sets these minimum budgets for environmental protection and that the provinces supplement them with higher standards of protection as specified.
“It is a law that hides things,” Nápoli added, “because it does not talk about climate change, does not talk about protecting biodiversity, but rather refers to the copper and lithium table, which is almost like a confession.” And he concluded: “It needs investments in the country, but also serious institutions, and this reform is not it.”
Rossi Serra, for his part, also emphasized the discretion that the provinces now have if they allow mining activities and therefore have to affect the glaciers previously protected by law due to their importance, for example for the existence of crops on the slope, since “all glaciers in themselves have a water relevance”.
With this reform, he added, “we contradict the scientific evidence, because it is also questionable whether the provinces have the resources to carry out a correct survey of the importance of glaciers in ecosystems.”
Meanwhile, Professor Villanueva stressed that the precautionary principle that underlies all environmental regulations is unclear in the official project. She also believes that it is difficult for provinces (there are twelve that deal with glaciers) to take an interest in appropriate care and create uniform regulatory frameworks.
For his part, Enrique Viale, who took an active part in the adoption of the law 15 years ago, compared the different political contexts that made this adoption possible (although it was costly since there had already been a veto under Cristina Kirchner’s presidency in 2008) and today. “Then there was a national public discussion that included debates on prime time television with protagonists such as Fernando Pino Solanas, Miguel Bonasso and Daniel Filmus, and now an explicit treatment with its back to society is sought instead,” he explained.
Viale believes that this will create great legal uncertainty since, in his opinion, it is an unconstitutional norm that is being challenged in national and international courts. “If the project moves forward, the backbone of Argentina’s environmental regulatory system will collapse… and they may then opt for the Forestry Code,” fears Viale.
Although Judge Casanello finally said that he could not comment specifically on the new standard to be adopted in order to avoid possible challenges, he canceled the ruling of the Supreme Court, which in 2019 declared the current law constitutional.
“The court ruled that these are not intersubjective conflicts, but a collective right. And that the environment is indivisible. Furthermore (the failure) took an ecocentric view, which is not about analyzing it from one province or one country, but from the consequences that its care has on the entire planet, especially when it comes to water,” he explained.
And he added that this court ruling refers to the Paris Agreement (on climate change, approved by countries in 2015), the 2030 development goals and, in general, to all environmental crises.
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