The Law on Minimum Standards for the Protection of Glaciers. Was Enacted: Its Constitutionality is Controversial

In our previous issue we informed that on early morning of September 30, 2010, the Senate definitively passed the bill that had been approved by the House of Representatives, on "minimum standards for the protection of glaciers and periglacier environment". Regarding the contents of this law, please refer to "New Law on Minimum Standards for the Protection of Glaciers" in our September issue.

On October 28, 2010 the law was enacted by the Federal Executive Power "without its approval", with the number 26639. The Argentine Constitution provides that, in the process of making a law, when a bill is passed by the House of origin it is sent to the other House for debate. Once approved by both houses, the bill is presented to the Executive Power for examination, and if it is also approved, it shall become law (section 78). In addition, section 80 of the Argentine Constitution states that "it is considered approved by the Executive Power every bill not returned within a 10-day period". As the Executive Power did not veto the bill passed by the Houses of Representatives and Senators, this bill was considered approved and, therefore, has become a federal law.

We have pointed out in our previous issue that this new law is detrimental to mining activity, as it ends up by banning it, in a territory rich in minerals and where many mining projects are beginning to develop. The consequences of this law may turn out to be very unfavorable for those provinces in which the mining activity has become the mainstay of their economy. This is why many provinces have already shown their intention to go to Court to have the law declared unconstitutional.

Some of the arguments mentioned against the constitutionality of Law 26639 are the following:

•     (a) The bill of this law on minimum standards was first approved by the House of Representatives (house of origin), and then by the House of Senators (revising house). This House deleted section 17 from the bill passed by the lower house, which established that in the areas potentially protected by the law "the authorization or performance of new activities will not be allowed until the [glacier] inventory is completed and the systems to be protected are defined. If requests for new undertakings are submitted, IANIGLIA will prioritize the completion of the inventory in such area". The Argentine Constitution provides that in the event that the bill passed by the house of origin is amended by the revising house, the bill must return to the house of origin that "may, with the votes of the absolute majority of members in attendance, approve the bill with the additions or corrections, or insist on the original bill, unless the additions or corrections were made by the revising house by two thirds of the members in attendance" (section 81 of the Argentine Constitution). However, the legislative steps established by the Argentine Constitution were not observed in the case of Law No. 26639.
•     (b) As section 124 of the Argentine Constitution provides that "the original ownership of the natural resources existing in their territory belongs to the provinces", it is argued that it is not in the power of the Federal Congress to enact laws concerning the protection of glaciers, as they are natural resources whose "original ownership" belongs to the provinces. This does not seem to be the strongest argument against the constitutionality of this law, because of the distinction that is made between "ownership" and "jurisdiction" as regards section 124 mentioned before.
•     (c) In any case, Law No. 26639 infringes the principle of reasonability (section 28, Argentine Constitution), as the pure and simple prohibition of lawful activities is not an appropriate way of protecting the environment, especially when there are many instruments to control the environmental quality in which these economic activities take place.
•     (d) Finally, constitutional validity of Law 26639 is seriously questioned due to the fact that it is not a minimum standards law as provided by section 41 of the Argentine Constitution. Pursuant this section, "The authorities will provide for the protection of this right, the rational use of the natural resources, the preservation of the natural and cultural heritage and biological diversity, and environmental education and information. The Nation must dictate the regulations that contain the minimum standards for protection, and the provinces must dictate the regulations necessary to complement them, without altering local jurisdictions". A law that forbids the exercise of a lawful economic activity, encouraged by federal regulations (Mining Code, Mining Investments Law, among many others) may not be characterized as a minimum standards law, as the prohibition may not be a "minimum standard" of anything. The "prohibition" is a maximum standard, not a minimum. In the end, establishing minimum standards must be limited to setting minimum parameters that the provinces must ensure, being able to establish even more strict parameters. But there is nothing stricter than pure and simple prohibition, by which is demonstrated that Law 26639 is not a "minimum standards" law. In fact, Decree No. 1837/08, by which the Executive Power vetoed the previous law on the protection of glaciers No. 26418 (which contained provisions similar to the ones contained by the recently enacted law), expressly disqualified the prohibition as an environmental minimum standard for being excessive.