Environmental Compliance and Enforcement Achievements Through Judicial Decisions in Argentina
By Adriana Norma Martínez (Lawyer, Magistrate in Human Environment, Universidad Nacional de Luján, Argentina, anmart at arnet.com.ar) and Adriana Rosenfeld (Environmental Information Specialist, Environmental Auditor, Universidad Nacional de Luján, Argentina, proiap at ciudad.com.ar)

The paradigm of sustainable development is intimately related to the concept of quality of life, which includes the right to development, to peace, to free determination of peoples and the enjoyment of a healthy and balanced environment. This paradigm requires the establishment of a new system of values and a change of socio-cultural patterns. Law should contribute to this goal through its exemplary power and its behavioral shaping function, driving the enforcement of a sustainable and solidary development profile, and leading to the rational use of resources that satisfies humans’ present needs and improves the quality of life of present and future generations.

To incorporate these rights into a legal system, they must be introduced into the most fundamental structure of the legal system – the constitution. Article 41 of Argentina’s constitution, introduced by the constitutional reform of 1994, entitles all the country’s inhabitants with the right to a healthy and balanced environment fit for the human development, in order that productive activities shall meet present needs without endangering those of future generations, while bearing the responsibility to preserve it.

But along with these new rights, the 1994 reform also includes, in the same paragraph, the novel approach of “human development.” Human development is intimately related to the juridical good quality of life, which is conceived as the process of amplification of the options of human beings, increasing their functions and capacities. Human development is people's development, by people and for people.

The trilogy of environment, sustainable development and human development defines the ideological profile of the Reformed Argentinean Constitution regarding human rights of solidarity.

Several countries have placed similar aspirational statements in their constitutions, but it is widely recognized that, without compliance and enforcement, they are meaningless. Argentina 's model shows how these rights can be effectively implemented through judicial decisions.

In the sentence to the case Ronco, Jorge Fabian, the Civil and Commercial Chamber of Bariloche, 07/09/1998, considered that it is necessary to admit certain ruptures of the ecological balance, in order to incline towards sustainable development. The Chamber determined that since it could not conceive the implementation of the project in question without the alteration of the ecosystem due to its magnitude, and economic and social transcendency, it was certain that such impacts must be minimized. Therefore the Chamber decided that it was necessary to prevent and to repair the environmental impact caused by the project insofar as possible.

In the sentence to the case Subterráneos de Buenos Aires SE v. Propietario de la Estación de Servicio Shell, the National Civil Chamber of Appeals, 01/10/1999, noted that the proposed solution affected more than the two parties involved, and so when giving answer to the petition of the party, the Chamber gave answer to the entire affected community. The Chamber also noted that in environmental cases, when a stop of pollution is requested, total environmental recovery is also requested. Therefore the Chamber decided to consider the recovery of the damaged environment as a necessary component of the improvement of quality of life.

In the sentence to the case Sagarduy Alberto Omar v. Copetro, the Civil and Commercial Chamber of Appeal of La Plata, 28/03/2006 , expressed that the company’s activity produced, produces and perhaps will produce, environmental damages due to the intrinsic characteristics of the activity. This situation demanded the judges, in representation of the Justice, to harmonize a quasi irreversible situation for the neighbors with the environmental recovery as a social value with juridical consequences, using compensation or mitigation mechanisms. Therefore the Chamber decided to order the emission of polluting elements to stop, according to the modalities settled by the legal framework – and according to the expert-approved project presented by the defendant. Once the company finished the implementation of this order, it was required to obtain from the Chamber an approval in order to determine its effectiveness.

As these cases demonstrate, the Argentinean model shows how to effectively incorporate the environmental rights into a values system in a way that drives the continued improvement of the population’s quality of life and the attainment of sustainable development.