ARTICLE
Unconstitutionality of Municipal Ordinance Related to Environmental Matters
The Superior Court of Justice of the Province of Neuquén held unconstitutional Ordinance No. 1,165/09 from Rincón de los Sauces as it violated constitutional principles regarding environmental matters and the federal cooperation procedure in connection with the legislative jurisdiction.
May 30, 2014
On May 13, 2014 the Superior Court of Justice of the Province of Neuquén (“SCJ”) held unconstitutional Ordinance No. 1,165/09 (the “Ordinance”), enacted by the City Council of the Municipality of Rincón de los Sauces (the “Municipality”), considering that the Ordinance exceeds the jurisdiction of the Provincial Constitution and that it infringes the federal regime.
The unconstitutionality action was filed in 2009 by YPF against the Municipality, given the fact that the Municipality charged YPF with 16 violations of the Ordinance.
The plaintiff challenged the Ordinance –which established new sanctions applicable to the non-compliance with the mandatory use of oil-absorbent blankets or any other improved method in hydrocarbon production stages- considering that Disposition No. 218/06 of the Directorate-General for the Environment of the Province of Neuquén included the same subjects and similar sanctions. The plaintiff alleged that there was an overlapping of two regimes that sanctioned the same nonfulfillment of an environmental disposition.
The SCJ ruled the Ordinance unconstitutional through the abstract constitutional control, a procedure provided by Section 16 of the Provincial Constitution, with erga omnes effect (towards all), as it reproduced provincial regulations and, consequently, violated constitutional principles regarding environmental matters and the federal cooperation procedure (federalismo de concertación) in connection with the legislative jurisdiction.
Moreover, the SCJ stated that “important issues concerning the Republican form of government and the federal State dynamics are involved in this case, such as the jurisdiction distribution among municipal and provincial governments concerning the environment care, the exercise of the police power and exploration and production of hydrocarbons.”
Even though the Provincial Constitution acknowledges municipal autonomy (Section 271), as well as their capacity to exercise the municipal police power and to impose sanctions that are compatible with the nature of their powers, including fines (Section 273.k), the SCJ referred to Section 92 which determined that “the Province shall enact the environmental regulations complementing national regulations, and regulations for the protection of the environment applicable to their whole territory, while Municipalities may enact the appropriate regulations in accordance with its jurisdiction”. The SCJ made clear that such powers shall be held within a political coordination framework, legislative convergence and the agreement of executive actions.
The SCJ also invoked the Municipal Charter, whose chapter on environmental issues provides that the Municipality shall exercise environmental control by applying the ordinances in accordance with provincial and national legislation. Thus, it held that the Ordinance involved the violation of the Municipal Charter’s principles.
Also the SCJ noted that the Municipality did not act according to the provisions of its Charter related to the common policies with the province for the preservation of the environment, but instead reproduced locally an already existing regulation at a provincial level, and by doing this, the Municipality violated the constitutional guidelines on environmental matters (Section 41).
The SCJ further held that "the rules of the provincial and municipal public law have provided a system composed by a set of elements that ease the relationship between the national, provincial and municipal orders, in all matters, and especially in matters concerning the environment and the sustainable development, encouraging a true federalism that allows the harmonious coexistence of these three orders to fulfill their powers.” In previous cases ("Etcheverry" Ruling No.1532/08) the SCJ stated that federalism meant to emphasize that the State must work as an articulated system at its different levels, but must do so through a political, flexible, open and democratic process in order to achieve the common good.
Finally, the SCJ noted that federalism seeks "to displace the center of attention from the exclusive jurisdiction of each center of power and address it to the dynamics of cooperation in related fields, in order to ensure common policies at an inter-jurisdictional level among the several government bodies for the better achievement of common objectives".
In this case, the SCJ made such emphasis on the concurrent powers and duties of cooperation and coordination that must govern among the different government bodies, that it even exhorted the provincial and municipal legislative bodies, as well as the respective executive branches, to resort to the institutional mechanisms provided by the Provincial Constitution and the Municipal Charter in order to achieve a proper participation of the communities in the environmental management.
The unconstitutionality action was filed in 2009 by YPF against the Municipality, given the fact that the Municipality charged YPF with 16 violations of the Ordinance.
The plaintiff challenged the Ordinance –which established new sanctions applicable to the non-compliance with the mandatory use of oil-absorbent blankets or any other improved method in hydrocarbon production stages- considering that Disposition No. 218/06 of the Directorate-General for the Environment of the Province of Neuquén included the same subjects and similar sanctions. The plaintiff alleged that there was an overlapping of two regimes that sanctioned the same nonfulfillment of an environmental disposition.
The SCJ ruled the Ordinance unconstitutional through the abstract constitutional control, a procedure provided by Section 16 of the Provincial Constitution, with erga omnes effect (towards all), as it reproduced provincial regulations and, consequently, violated constitutional principles regarding environmental matters and the federal cooperation procedure (federalismo de concertación) in connection with the legislative jurisdiction.
Moreover, the SCJ stated that “important issues concerning the Republican form of government and the federal State dynamics are involved in this case, such as the jurisdiction distribution among municipal and provincial governments concerning the environment care, the exercise of the police power and exploration and production of hydrocarbons.”
Even though the Provincial Constitution acknowledges municipal autonomy (Section 271), as well as their capacity to exercise the municipal police power and to impose sanctions that are compatible with the nature of their powers, including fines (Section 273.k), the SCJ referred to Section 92 which determined that “the Province shall enact the environmental regulations complementing national regulations, and regulations for the protection of the environment applicable to their whole territory, while Municipalities may enact the appropriate regulations in accordance with its jurisdiction”. The SCJ made clear that such powers shall be held within a political coordination framework, legislative convergence and the agreement of executive actions.
The SCJ also invoked the Municipal Charter, whose chapter on environmental issues provides that the Municipality shall exercise environmental control by applying the ordinances in accordance with provincial and national legislation. Thus, it held that the Ordinance involved the violation of the Municipal Charter’s principles.
Also the SCJ noted that the Municipality did not act according to the provisions of its Charter related to the common policies with the province for the preservation of the environment, but instead reproduced locally an already existing regulation at a provincial level, and by doing this, the Municipality violated the constitutional guidelines on environmental matters (Section 41).
The SCJ further held that "the rules of the provincial and municipal public law have provided a system composed by a set of elements that ease the relationship between the national, provincial and municipal orders, in all matters, and especially in matters concerning the environment and the sustainable development, encouraging a true federalism that allows the harmonious coexistence of these three orders to fulfill their powers.” In previous cases ("Etcheverry" Ruling No.1532/08) the SCJ stated that federalism meant to emphasize that the State must work as an articulated system at its different levels, but must do so through a political, flexible, open and democratic process in order to achieve the common good.
Finally, the SCJ noted that federalism seeks "to displace the center of attention from the exclusive jurisdiction of each center of power and address it to the dynamics of cooperation in related fields, in order to ensure common policies at an inter-jurisdictional level among the several government bodies for the better achievement of common objectives".
In this case, the SCJ made such emphasis on the concurrent powers and duties of cooperation and coordination that must govern among the different government bodies, that it even exhorted the provincial and municipal legislative bodies, as well as the respective executive branches, to resort to the institutional mechanisms provided by the Provincial Constitution and the Municipal Charter in order to achieve a proper participation of the communities in the environmental management.
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