Environmental summary proceedings. Suspension of mining activities in the Province of Chubut

In 2003 a mining company appealed against a first instance injunction ordered by a court in Chubut which had ordered the suspension of open-pit activities due to the failure to comply with certain requirements of the provincial environmental legal framework. Such requirements included the holding of a non binding public hearing as a condition for the approval of mining projects pursuant to Section 6 of provincial Law No 4036.

The mining company appealed against the injunction on the grounds that it had complied with all requirements contained in the Federal Mining Code, including those concerning environmental issues. It further alleged that its activities could not be subject to requirements more strict than those imposed by the federal framework.

The Provincial Court of Appeal rejected the appeal and the Provincial Supreme Court confirmed the injunction.

On April 17, 2007, the Federal Supreme Court confirmed the appealed decision.[i] Although the Federal Supreme Court’s decision was mainly based upon a failure to comply with certain procedural requirements governing appeals against injunctions to be heard by the Supreme Court, it reaffirmed certain jurisdictional principles of environmental protection.

The Federal Supreme Court confirmed the jurisdictional principle set out in Section 41 of the Federal Constitution, pursuant to which the powers of the Federal Government to establish the minimum requirements or standards of environmental protection and the powers of the Provinces are complementary.

Based on this principle, the Federal Supreme Court recognized the validity of the requirements imposed by Chubut’s Law No 4032, stating that such requirements were complementary and did not contradict those provided by Federal Laws No 24,585 and No 25,675.

Provincial complementary jurisdiction in environmental matters has been previously recognized by the Federal Supreme Court in re “Asociación Civil para la Defensa y Promoción del Cuidado del Medio Ambiente y Calidad de Vida vs. Provincia de San Luis y Otros” where the court stated:

“…there must be recognized the powers of the local authorities to apply, on one hand, the environmental protection criteria that they deem appropriate to achieve the welfare of its community, and to judge if the local authorities’ decisions affect social welfare” (decision given on July 4, 2006, published at Doctrina Judicial, September 6, 2006, page 32).

In December 2005 the Legislature of Chubut enacted the Environmental Provincial Code (Law No 5439), which repealed Law No 4032 that motivated the Federal Supreme Court’s decision. Notwithstanding this, the Environmental Provincial Code retained within its environmental requirements both the performance of environmental impact assessments and the need for public hearings as conditions for the approval of any projects, activities or works capable of damaging the environment in accordance with the principles laid down by the General Environmental Law No 25,675.