Environmental Technologies Industries
||Environmental Technologies Industries
|Argentina Environmental Export Market Plan|
|Chapter 2-Legal and Regulatory Framework|
Legal and Regulatory Framework
Argentina does not have a comprehensive national environmental law. Instead, a set of often contradictory and overlapping federal and provincial laws, regulations, norms, decrees, and by-laws form the basis for environmental management and protection framework. These laws have been adopted over the last 25 years in response to specific sectoral problems, and for this reason, they are often inconsistent and fail to address the interdependence of the natural environment. A key problem with the Argentine system is that the responsibility for environmental issues is divided between various ministries and secretariats at the national and provincial levels, creating serious jurisdictional problems. These problems have been compounded by decentralization.
Federal regulations have often been enacted only after it becomes clear that certain problems cannot be adequately addressed at the local level. As a common practice, the Argentine Congress adopts environmental laws that are directly applicable only in the Federal District (Buenos Aires) and in other places under federal jurisdiction (i.e., national parks, interprovincial rivers, and national highways), and then requests the provinces to adhere to such law. Each province may adopt the national law (or decree, regulation, standard, etc.) in total or in part, or choose to promulgate more stringent regulations. It may not adopt environmental standards that are less strict than the national ones. The province is also charged with establishing the regulatory agency responsible for implementing the law. The Provinces of Buenos Aires and Cordoba are leaders in the promulgation of environmental laws. Buenos Aires, in particular, has adopted comprehensive environmental regulations modeled after those of the United States.
For the most part, Argentine environmental laws are broad and contain vague prohibitions, and the promulgation of the specific technical standards or decrees necessary to enforce many of the laws is often delayed. There is also not enough guidance to help companies comply with environmental regulations. As a result, the Argentine environmental laws have so far only marginally affected daily business operations. The following laws are currently in place:
Air Pollution. The Argentine Air Pollution Law (Law 20,284 of 1973) focuses on controlling all sources of air pollution located in the Federal District and adjoining provinces. Stationary sources are required to obtain emission permits that set loading limits for certain pollutants.
Water Pollution. Law 20,094 of 1973 establishes a general prohibition against polluting water resources. It is partly implemented by Decree 674/89, as amended by Decree 776/92, which regulates wastewater discharges to waters in federal jurisdiction. In addition, all the provinces currently have water regulatory agencies, and many of them have enacted local water codes.
Hazardous Waste. The Hazardous Waste Law (Law 24,051 of 1992) governs the generation, transport, treatment, and final disposal of hazardous wastes that are: (1) located and generated in places under federal jurisdiction; (2) located in a province but destined to be transported outside that province; or (3) otherwise capable of affecting human health or the environment beyond the borders of the province in which they are generated. The Hazardous Waste Law was implemented by Decree 831 (1993) which introduced specific regulations and technical standards. The provinces were invited to enact their own hazardous waste laws but only a few (Mendoza, Chubut, and Tierra del Fuego) have done so. Several provinces have contested the national law.
Solid Waste. There are no nationwide uniform standards for the handling of solid wastes. The collection and disposal of solid wastes are regulated by the provinces and municipalities. The most stringent provincial law for handling solid waste is Law 9111 (1978) of the Province of Buenos Aires.
Environmental Impact Assessment (EIA). The National Public Investment Law (Law 24, 354 of 1994) and its implementing Decree 720 (1995) require that an EIA be performed for selected public projects or projects with public contributions or guarantees. The law does not cover private sector projects. Many provinces have their own EIA requirements for both public and private projects. Cordoba was the first province to pass legislation requiring environmental impact assessment for development projects in thermal/nuclear power generation, the chemical and petrochemical industry, road construction, and toxic waste management.
The EIAs are not a significant part of the economic policy or privatization process in Argentina because it is feared that environmental requirements may discourage investments. When an EIA is performed, its findings are never released to the public or subjected to public comment. The EIA is often conducted after the project has been approved, and the results of the study are unlikely to affect project development.
Beginning in 1992 with the Rio Summit on Sustainable Development, there was increased recognition of the importance of sustainable development and the protection of the environment in Argentina which prompted a series of measures to better address this issue. As part of a series of reforms to the Argentine Constitution in 1994, the Argentine Congress passed several amendments related to environmental protection. These amendments establish the right for all citizens to have a clean environment and their duty to preserve it. They also mandate that authorities must guarantee the prudent use of natural resources and the preservation of the cultural patrimony and biological diversity. Article 41 divides responsibility for environmental management between federal and provincial governments.
Following the enactment of these amendments, there has been increasing pressure on the Argentine Congress to pass adequate and comprehensive national environmental legislation. Under the Environmental Policy and Institutional Strengthening Project of the Inter-American Development Bank, there were efforts to draft an environmental framework law similar to the one recently enacted in Chile. However, the Secretariat of Natural Resources and Sustainable Development has opted instead to develop sectoral environmental laws, which will be promulgated over the next 2 years.
Organization of the Secretariat of Natural Resources and Sustainable Development
Institutional Structure for Environmental Management
The institutional structure for environmental management in Argentina is characterized by an inter-institutional conflict between the national, provincial, and municipal governments. Most environmental matters are the responsibility of the provinces, unless explicitly delegated to the federal government. The provinces may also delegate implementation powers to municipalities. However, under certain circumstances, the national government can assume authority for specific environmental issues. The number of agencies involved at all administrative levels creates coordination problems and leads to inconsistencies in environmental policy implementation.
Federal Level. The central environmental policy institution at the national level is the Secretariat of Natural Resources and Sustainable Development (SRNDS), formerly known as the Secretariat of Natural Resources and Human Environment. SRNDS was created in 1992 as a cabinet-level agency reporting directly to the Office of the President. Its core mission is to coordinate national environmental policy development and enforce federal environmental regulations. SRNDS has enforcement authority in issues of air and water quality, protection of the ozone layer, soil protection, hazardous waste management, nature conservation, and EGAS for federal projects. SRNDS coordinates the national environmental policy through the Federal Environmental Council (COFEMA), the forum in which the federal government and all the provinces discuss common environmental issues. At this stage, SRNDS is still an evolving institution, struggling to define its role in the environmental policy-making process.
There are a number of other federal agencies that have important environmental responsibilities. For example, the Ministry of Health is charged with developing and enforcing public health and housing standards. The Secretariat of Agriculture, Livestock and Fisheries (part of the Ministry of Economy and Public Works) is the enforcement authority for certain federal regulations concerning forestry, pesticides, fertilizers, and agricultural product quality. The Federal Police is involved in environmental enforcement through its Division for Protection of the Environment and Natural Resources, and Ecological Crimes.
Provincial and Municipal Levels. The environmental management structure varies from province to province. For example, provinces like Misiones and Mendoza have established ministries of environment, while other provinces have secretariats or provincial directorships. The provinces of Cordoba, Mendoza, Santa Fe, and Buenos Aires are considered to have the best institutional structures for effective environmental management. Each province determines the scope of environmental responsibilities (including monitoring, enforcement, and solid waste management) for the municipalities within its jurisdiction. However, the municipalities often face budget constraints, and they lack the equipment and training to fully implement environmental programs. In large part, this is the impetus for the privatization of water and wastewater services across the country.
The Federal District has a unit for environmental management in its administration. However, this agency does not have adequate resources to address Buenos Aires’ environmental problems. There are no formal institutions for environmental management in the Buenos Aires metropolitan area.
Due largely to weak environmental authorities and jurisdictional confusion, Argentina's environmental laws and regulations are poorly enforced. The environmental laws provide for some administrative sanctions, including the use of fines, denial of discharge permits, and temporary or permanent plant closures. Several statutes establish criminal liability for certain environmentally related activities (e.g., the Hazardous Waste Law authorizes up to 25 years of imprisonment for willful release of hazardous wastes). In initiating enforcement actions, much discretion is left in the hands of government enforcement officials, most of whom are ill-equipped to make qualified decisions regarding particular violations. None of the Argentine environmental laws empower citizens or nongovernmental organizations to bring enforcement actions against noncomplying parties. The government has established two special forces to investigate environmental crimes. In 1996, a 28-person force within Argentina's federal police corps was created. This force relies on environmental press coverage and public complaints to produce evidence for criminal proceedings. Most of the 130 cases last year were for illegal dumping of hospital waste and unregulated garbage dumps. There is also a special environmental division in the Ministry of the Interior. Since the division's inception in 1992, the number of criminal cases has jumped from just 20 to 3,500 in 1996, largely due to greater public awareness of environmental issues and improved training.
Courts in Argentina are not very sensitive to environmental lawsuits. The main reasons are the inconsistencies of legal coverage in this area, weakness of civil liability provisions with respect to environmental damages, and low level of environmental awareness in the judiciary. In addition, the dual jurisdiction of provincial and federal agencies over environmental issues often results in companies facing multiple authorities and overlapping regulations related to the same event or activity. There are also regional variations in the level of enforcement, so similar violations are likely to result in different consequences depending on where they are committed.
The large multinational companies in Argentina that have significantly improved their environmental compliance and performance have done so not in response to domestic enforcement efforts, but because of pressure to comply with international business standards and improve their public image.
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