The Argentine Supreme Court defines its original jurisdiction on environmental law

1.    The Supreme Court’s original jurisdiction over environmental law: “Altube, Fernanda Beatriz et al vs. Province of Buenos Aires et al”

On May 28, 2008, the Supreme Court dismissed a claim filed by a group of neighbors against the Federal Government, the Province of Buenos Aires, the City of Buenos Aires, CEAMSE and other companies, for hypothetical contamination of the Reconquista and Río de la Plata rivers and the aquifer Puelche, because the lawsuit is not of the Supreme Court’s original jurisdiction in spite of the interdependence of environmental matters as grounds to consider that the environmental claims are inter-jurisdictional. This ruling is key to determine the location of the “degrading factor” which, in that case, is located in provincial jurisdiction. For those reasons, the Supreme Court found that the provincial authority has jurisdiction to take the necessary measures to restore the resource, if necessary.

Such was the decision of the Supreme Court - in a unanimous vote - issued in the case “Altube, Fernanda Beatriz et al vs. Province of Buenos Aires et al”. As mentioned above, a group of neighbors of the basin of the Reconquista River requested the cease of the actions and omissions which, apparently, have generated the contamination of the basin of the Reconquista and Río de la Plata rivers and the Puelche aquifer. They also demanded the restoration in natura of the natural resources and individual compensation for alleged actions and omissions that the defendants had caused to the neighbors.

The Supreme Court listed some precedents, in order to determine its original jurisdiction over the environment. The Supreme Court said that the jurisdiction in personam (the Federal Government and the Province of Buenos Aires were defendants) is not appropriate when the plaintiff only tries to accumulate claims against several defendants and none of the defendants have been summoned autonomously to the Supreme Court or if there were insufficient reasons to conclude that the accumulation of claims against several defendants is necessary.

Then, the Supreme Court considered its jurisdiction as to the subject matter, pursuant to Section 7 of the General Environmental Act (“GEA”), which states that “…in actions, omissions and situations which effectively degrade or pollute inter-jurisdictional natural resources, the jurisdiction shall be federal …”. Thus, the Supreme Court concluded that even if there were an indisputable migration to the water flow and the substances contained within the flow, this does not necessarily determine the inter-jurisdictionality of the natural resource.

Furthermore, the Supreme Court remembered that the entirety of the area of the Reconquista River is located in the Province of Buenos Aires and the hypothetical contamination would have been caused by acts occurred inside the territory of the Province of Buenos Aires. Moreover, the Supreme Court reiterated that though the interdependence of environmental matters might be considered to assess that the environmental claims are inter-jurisdictional, it is decisive to determine the location of the “degrading factor”. In this case, the Supreme Court said that the degrading factor” was located, beyond any doubt, in the Province of Buenos Aires.

Despite the natural mobility of industrial and domiciliary waste, under the Supreme Court’s opinion, in the case the intervention of the other jurisdictions is not necessary to restore the affected environment.

Finally, the Supreme Court concluded that only the Province of Buenos Aires must be responsible for restoring the contaminated environment, if it should be determined that the Province of Buenos Aires has committed actions or omissions using its authority, exercised by  its environmental controls. .

2.    The “degrading factor” as a way of analysing the inter-jurisdictional character of the natural resource, according to Section 7 of General Environmental Law No 25,675.

The decision rendered in re: “Altube, Fernanda Beatriz et al vs. Province of Buenos Aires et al” follows the Supreme Court precedents “ASSUPA vs. Province of San Juan et al” and “Asociación Argentina de Abogados Ambientalistas vs. Province of Buenos Aires et al”. In this third precedent the Supreme Court states firmly that the natural interdependency of natural resources from the different jurisdictions (inherent of any natural resource) is not enough to adjudicate the original jurisdiction to Supreme Court. Moreover, it is necessary to consider the location of the “degrading factor” of the hypothetical contamination.

In re: “ASSUPA vs. Province of San Juan et al”, filed by an NGO against the Province of San Juan and a group of mining companies for the hypothetical contamination of the mining project inside the territory of the Province of San Juan, the Supreme Court said that, in order to determine the inter-jurisdictional character of the natural resource according to Section 7 of the GEA, it must consider the location of the degrading factor. The court did not find evidence that the mining activity could contaminate the natural resource from another jurisdiction.

The Federal Supreme Court followed the same interpretation in the “Asociación Argentina de Abogados Ambientalistas vs. Province of Buenos Aires et al” precedent,whereby an environmentalNGO claimed for the remediation and restoration of the basin of the Reconquista River. The Supreme Court emphasized that the whole area of the basin of the Reconquista River was situated inside the Province of Buenos Aires and the contamination reported (attributed by organic, inorganic, industrial and domiciliary wastes) had been generate in the Province of Buenos Aires. For that reason, the Federal Court recalled that the site of the degrading factor” should have been analyzed as it was located in the Province of Buenos Aires and found no evidence to accept the lawsuit against jurisdictions other than the Province of Buenos Aires to restore the environment.

If the “degrading factor” -the Supreme Court does not define the scope of this expression-, is located in only one specific province, the Supreme Court will lack original jurisdiction, despite the interjurisdictionallity of the natural resource. The “degrading factor” must be located in order to determine the federal jurisdiction according to Section 7 of the GEA.

With three unanimous judgments, the Federal Supreme Court was able to rule with respect to its environmental original jurisdiction, including the definition of the degrading factor” when it is necessary to analyze the interjurisdictionallity of the natural resource involved, according to Section 7 of the GEA.