New law on minimum standards for protection of glaciers
Almost two years after the Executive Power vetoed Law No. 26,418, in the early morning of September 30, 2010 the National Congress passed the new law on minimum standards for protection of glaciers and periglacier environment. This law (No. 26,639) was finally published in the official gazette on October 28, 2010.
Laws on minimum standards are enacted at the federal level as provided by section 41 of the Argentine Constitution, and the provinces must pass their own complementary regulations.
Until this date the laws on minimum standards passed by the National Congress were the following:
i) Law No. 25612 – Law on Industrial and Service Activities Waste Management (Official Gazette. July 29, 2002)
ii) Law No. 25675 – Law on National Environmental Policy (Official Gazette, November 28, 2002)
iii) Law No. 25670 – Law on PCB – Standards for its Management and Elimination (Official Gazette, November 19, 2002)
iv) Law No. 25688 – Law on Environmental Management of Water (Official Gazette, January 3, 2003)
v) Law No. 25831 – Law on Free Access to Public Environmental Information (Official Gazette, January 7, 2004)
vi) Law No. 25916 – Law on Household Waste Management (Official Gazette, September 7, 2004)
vii) Law No. 26331 – Law on Environmental Protection of Native Forests (Official Gazette, December 26, 2007)
viii) Law No. 26562 – Law on Minimum Standards for the Control of Burn-Off Activities (Official Gazette, December 16, 2009)
The general guidelines of the law passed by the Congress are the following:
a) Glaciers are defined as perennial ice masses, stable or slowly flowing, with or without interstitial water, formed by the re-crystallization of snow, situated in different eco-systems, whatever its shape, dimensions and state of conservation. Rocky detritic material and internal and surface water courses are part of each glacier. Also, the high mountain peri-glacier environment is considered the area with frozen soils that functions as a water-resource regulator. In mid and low mountain is the area that functions as a water resource regulator in ice-saturated soils.
b) It creates the National Glacier Inventory, where all glaciers and peri-glacier geo-forms that act as water reserves within the national territory will be individualized, with all the necessary information for its adequate protection, control and monitoring. The National Glacier Inventory must contain the information on glaciers and peri-glacier environment by hydrographic basin, location, surface and morphologic classification of the glaciers and peri-glacier environment. This inventory must be updated every 5 years, verifying the changes on the surface of the glaciers and peri-glacier environment, its advance or retreat, and other factors relevant for its conservation. The inventory and monitoring of glaciers and peri-glacier environment will be carried out by the “Instituto Argentino de Nivología, Glaciología y Ciencias Ambientales” (IANIGLA) [Argentine Institute of Glaciology and Environmental Sciences] with the coordination of the competent national enforcement authority. The Ministry of Foreign Affairs, International Trade and Religious Affairs will take part in the procedure when it refers to international border areas pending demarcation.
c) The enforcement authority of this law is “the national entity with higher hierarchical level on environmental matters” (“Secretaría de Ambiente y Desarrollo Sustentable”, Secretary of Environment and Sustainable Development).
d) The following activities are forbidden on glaciers:
(i) Activities that may affect their natural condition or their function as a source of water resources, those that mean their destruction, movement or interfere with their advance, particularly with the liberation, dispersion or disposition of substances or polluting elements, chemical products o residues of any nature or volume. Those that take place on the peri-glacier environment are included in such restriction.
(ii) The construction of architecture or infrastructure works, with the exception of those necessary for scientific investigation and risk prevention.
(iii) Mining exploration and exploitation. The restriction includes those taking place in peri-glacier environment.
(iv) The installation of industries or development of industrial activities or works.
i) Warning.
ii) Fine of 100 to 100,000 basic salaries for the initial category in the national public administration.
iii) Suspension or revocation of authorizations. Suspension of the activity may be of 30 days to one year, according to the circumstances.
iv) Termination of the activity.
These sanctions will be applicable subject to prior proceedings within the jurisdiction where the infraction was made, and will be governed by the corresponding rules for administrative proceedings, guarantying due process, and graduated according to the nature of the infraction.
Different Non-Governmental Organizations have actively promoted the sanction of this law, as they understand that a strategic and scarce resource, such as freshwater reserves, is being protected.
However, the approved law has, and certainly will have, its adverse effects on activities such as mining, where not only the industry has expressed its opposition to the project, mainly due to the vagueness of its definitions, but also the “mining” provinces (leaded by the Province of San Juan) have resisted the project, which was finally approved in the House of Senators by a slight difference (35 votes in favor, 33 votes against and one abstention).
This insight is a brief comment on legal news in Argentina; it does not purport to be an exhaustive analysis or to provide legal advice.