By By Lic. Mabel Santoro *
Motivations and Contradictions in the Treatment of the Law
After having analyzed the most important modifications to the environmental impact assessment law; It seems to us that this work is incomplete if it does not show some paragraphs of the discussion generated between legislators during its treatment, which we believe is interesting to highlight, either because of the opposition presented or because of the implications of what was approved:
Indeed, not everyone agreed with the sanction of the original law 123 as it was approved and the same happened with the modifications proposed by law 452.
Reading the shorthand versions of both moments is a valuable document to understand the technical complexity of the law, as well as the concern of legislators for the importance it has in the development of activities and undertakings in the city.
The dispatch of the environmental impact assessment bill is the synthesis of a work that involved months of discussion and search for consensus among the members of the commissions that debated the project: the Commissions of Ecology, Urban Planning, Economic Development and MERCOSUR and Employment Policies. During this process, interested sectors were also consulted: professionals and academics, NGOs, entrepreneurs, business chambers and consultants.
As a common consensus could not be reached, a majority office and a minority office were presented for treatment on the premises.
The main difference of the minority office is in the procedure for the categorization of activities. It would be in charge of the Enforcement Authority, who in ten days and according to the result of the application of a polynomial equation called the Environmental Impact Index (IIA), the activities would be categorized into Low, Medium and High Environmental Impact. The latter two should comply with the full EIA procedure.
When we talk about the original 123 law, we will refer from now on to the majority office since it is the approved one, although with some proposed modifications in the area.
Let's see how those points that seem interesting to us were discussed:
1) The reasons for which the law in question has been drafted can be found in the "recitals" of the office.
The recitals of the original 123 law stand out for their length and detail. We rescue two paragraphs on the reasons that prompted this law:
"It should be considered that the City is immersed in a deep process of building transformation and use of urban space. The following phenomena stand out: a) the construction of large towers that are erected on land of a certain magnitude, leaving free green spaces for use exclusive of the owners; b) The urbanization or use of land reclaimed from the river;
c) The new port structure;
d) The redevelopment of the Retiro area;
e) The new underground transport networks, and
f) The incorporation of Puerto Madero into urban life. In these undertakings that are already being carried out, the environmental impacts are not taken into account as the clause of Art. 30 of the Constitution of the City is not operative. With respect to those already started, the accompanying project creates an adaptation regime. But we feel that the vortex of the times in which we live makes the sanction of the proposed norm extremely urgent. "
"The evaluation up to the present has been reduced to correcting imbalances on projects in execution, thus losing its character as a preventive instrument for the direction of environmental planning and social and ecological development. Therefore, the need for impact evaluation to be carried out is emphasized. prior to the initiation of any work or activity. "
As can be seen, in that year 1998 legislators were concerned about the construction of large towers and the need for environmental impacts to be evaluated prior to the initiation of undertakings. Both points were reflected in the then Law No. 123.
Later, this law was modified by Law No. 452, in such a way that the large towers were excluded from any possibility of environmental impact assessment (except for a few exceptions that are framed in some subsection of Art. 13) and, on the other hand, the need Environmental assessment prior to the authorization or certificate of conforming use of the activity is no longer so clear. What happened to drive such a change?
If we read the reasons that led to the modification of Law 123, we will see that the intention has been to simplify the procedures to the detriment of the true object of the law:
"That the aforementioned regulation generates unnecessary problems, especially for the registration of plans of works or authorizations in activities of medium impact without relevant effect and low environmental impact, which are not precisely those that motivated the interest of the constituents and of the legislators in the field of preservation of the environment that, as already indicated in article 27, sections 7, 8, 10, 11, 12 and 13 of the Constitution of the City, focuses on those undertakings capable of producing a relevant effect .
That based on the foregoing, an enunciative list of activities, projects, programs and / or undertakings that are presumed to have Environmental Impact with relevant effect is proposed, with which the activities will be clearly obliged to comply with the established procedures. whose development may affect the appropriate environmental conditions in its environment. "
However, not all deputies agreed with this modification. The parliamentary discussion was very interesting, where substantive questions were raised that today remain unsolved. Let's see what was said at the venue:
"It is true - posing in this case a self-criticism as a member of the ruling party - that the regulation that was made of the law was not entirely happy and that this regulation, instead of clarifying what - in my opinion - was a rather confusing law , which allowed a degree of arbitrariness or lack of clarity in relation to the definitions she was taking, perhaps, it confused her even more.
It is based on this that we are proposing the amendment to the law. And he said that, fundamentally, what we are doing is eliminating from this rule what was previously defined as "medium environmental impact", which was the darkest area and which has left an excessive degree of discretion to the Executive Power. "
To which the Dip. Kismer de Olmos responds:
"The truth is that we are again acting under pressure; pressure from interests that legitimately want to work in the city and see projects postponed because there is no decision in the administration. So, they find no better solution than to avoid the objective for the which the law had been sanctioned, which is to try to prevent problems affecting the environment through the economic and productive activities that were regulated in the City of Buenos Aires, and it is intended to go to a simplified system that divides the activities simply in "with" or "without" relevant effect, to end up passing the majority as "without relevant effect"; that is, without a detailed analysis of the administration that allows to foresee the possible damages against the environment and, above all the things, that allow to demand decontaminating investments and repairs to the environment, which is one of the rights that are established in the Constitution of the City. "
2) The discussion around the right that citizens had in the original 123 law to request the complete EIA procedure on undertakings that, a priori, were not understood, deserves a special reading.
The law firm said:
Art. 8 - Activities, projects, programs or undertakings are considered, obligatorily subject to the Technical - Administrative Procedure for Environmental Impact Assessment:
a) Those with High Environmental Impact, thus categorized as being capable of producing a relevant environmental effect;
b) Those of Medium Environmental Impact, thus categorized and when indicated by the respective regulations because they are likely to produce a relevant environmental effect, and
c) those for which citizens request it, in accordance with the regulations.
When this dispatch was discussed in the venue, a modification to subparagraph c) was proposed in the following terms:
"I request a modification in paragraph c) of Article 8 °. I suggest that the expression" ... be deleted so that the citizens may request it, in accordance with the regulations "and that the following be added:" ... what is requested by the citizens, in use of the powers conferred by Article 26 of the Constitution of the City of Buenos Aires "."
This modification was accepted, but with one caveat:
"Regarding paragraph c) of Article 8, I understand the concern of Deputy Peirano. It does not seem wrong to include Article 26 as something incorporated in terms of the use of these environmental rights. What I do understand is that the regulation. It could be written as follows:
"Those for whom the citizenship requests it, in exercise of the rights conferred in article 26 of the Buenos Aires Constitution, in accordance with the regulations." Because the regulations will require a series of specifications that, to us, it did not seem appropriate to consider, such as the number of signatures required, conditions, etc. In short, there is a whole series of quantitative and qualitative elements that it would be redundant to establish in this law ".
Then Congressman Beliz made a very important clarification that, as we will see later, will be totally ignored when Law 123 is modified and this subsection disappears:
"Everyone has the right to enjoy a healthy environment, as well as the duty to preserve and defend it for the benefit of present and future generations ...", we see that there are elements that not only make - I allow myself to clarify - the question of receiving freely information that, on the other hand, would be contemplated in the Information Law that we approved a few days ago. In that sense, I do not think it is pertinent only to focus Article 26 in its last paragraph. "
This is how the then mistreated section c) was created. Let's see now what happened to him when the amendment of Law 123 was discussed:
"Subsection c) refers to Article 26 of the Constitution of the City of Buenos Aires, which clearly states that" everyone has the right to freely receive information on the impact that public activities or may cause on the environment. private. "You have the right to freely receive information.
In the commission, the deputy Lestingi, was the author - together with the deputies Beliz and Argüello of this Legislature - of a bill that was approved and that today is the Law of Right to Environmental Information; therefore, we consider it redundant to continue including this subsection within the text of Law 123, when there is a sanctioned law that regulated the constitutional text.
And thus the disappearance of subsection c) was justified and with it the possibility of citizens to request the environmental impact assessment went. They were led to believe that it was unnecessary because Article 26 of the City Constitution guarantees the right to information, but they did not say that the same article also speaks of the right to have and defend a healthy environment. Within the framework of the latter, as Deputy Beliz said a year and a half earlier, the citizen could have the right to request the EIA procedure.
Of course, not all legislators agreed with the removal of subsection c):
"We do not share what has been said here regarding Article 26; effectively, it guarantees the right to information, but we are talking about the participation of people in relation to requesting, in a certain situation, that it be qualified as relevant or not certain undertaking or certain activity. "
But it did not reach the number of deputies to oppose its approval.
3) Regarding the EIA procedure for ventures without relevant effect, the opposition arguments of the Dip. Kismer de Olmos. Indeed, during the discussion regarding the modification proposed -and then approved- that the undertakings with no relevant effect comply with stages a) and b) of the environmental impact assessment procedure by submitting a sworn statement, he stated that next:
"Therefore, it is clear that for all these activities there will not be even a minimum information of a technical nature that allows the administration to know if, indeed, there is any risk effluent on which it must act.
We do not agree with the Code that sanctioned the military dictatorship that implies the conception of the Athens Charter and that, unfortunately, continues to persist in the conception of qualifying activities according to the prejudice of the planner.
For us, there are no polluting activities and non-polluting activities; for us there are activities that are carried out in a polluting way and activities that are carried out in a non polluting way. And the difference is in the technology that is applied; Furthermore, if something is dynamic today, it is technology.
Thus, continuing with a table of uses that reuses the sites according to the prejudice that architects have about productive activities, and not allowing an economic dynamic based on real behavior, is a significant delay for management in the Buenos aires city.
The truth is that we had thought that with Law 123 progress was being made in that sense and that it might be possible, at some point, to suppress the table of uses and replace it with the application of Law 123. But what we are doing today is to cancel it. "
4) Another point that has generated debate is the one relative to the way and when the Enforcement Authority must categorize the activities and issue the environmental suitability certificate and its compatibility with the current procedures. Let us not forget that the minority firm presented a different categorization system based on a polynomial equation to which all undertakings or activities would be subjected, the result of which would determine whether or not the full EIA procedure should be complied with.
Let's see what was said about it:
"The question that arises is the following: has the scope of the enforcement authority's discretion on this issue that we have just begun to explore, and which is so sensitive for the lives of the neighbors, been duly considered?"
"It would be necessary to put" prior to the issuance of the certificate of conforming use "and not confuse it with" authorization "or" authorization "because, in principle, I do not know what" authorization "means in the administration of the City. City are permits, precarious permits, concessions, but I do not know the figure of "authorization", yes, instead, the one of "permission" and also that of "authorization." These are the figures that the administration grants. The certificate of use as it is not granted –it is not a grant–, but is issued by a professional. "
"... it seems to me that we are proposing something that, from the point of view of the processing, is not clear. Moreover, if a professional issues the certificate of compliant use, one is in a position to request the work permit and obtain it if, Obviously, it coincides with the Code. Once the construction certificate is obtained, the construction is carried out. Someone could suggest that, once the construction is finished, it is only at the time of requesting the authorization that it be determined that this environmental aptitude certificate is needed. "
To which was answered:
"It seems to us that the order will arise from the fact that, if any difficulty arises, this Interfunctional Commission will be in charge; and that the" prior "character that comes from Article 30 of the Constitution, in reality, should lead to simplify the procedures, and not make them more cumbersome or complicate them, because the certificate of environmental aptitude can even simplify subsequent procedures to carry out a work, such as the certificate of technical approval, etc.
So we understand that any type of analysis is prior to all the other procedures that have to be carried out.
… If I understood well what she was pointing out, that the certificate of permitted use and compliant use is prior to authorization. And if it is prior to the authorization, to make it more explicit, we could put "... prior to your certificate of compliant use, authorization or authorization ...", etc. If it is about emphasizing that because the procedure is prior, we could put it before.
5) Let's see the discussion around the concept "environmental impact of relevant effect". This phrase is not typical of Law 123, but they are the terms used by Art. So the legislators have made their interpretation of it. It is nothing more and nothing less than the definition of the object of the law.
"For those of us who work on this law, the" environmental impact of relevant effect "is that environmental impact whose direct or indirect effects extend over time. The concept of" extension over time "would eliminate the performance of an environmental impact study the start-up of a recital on public roads, which is not linked to a stadium. If the recital is linked to a stadium, the stadium will first have an environmental impact study. "
"... in that it should only be taken into account when its effect persists over time, I mean that it seems to me that it is not the only condition to determine that something has or produces a relevant environmental effect or impact. An activity may not have persistence over time, but if the activity or the undertaking had been poorly organized, it could produce a very impressive impact, as has happened, even with deaths, in the province of Buenos Aires. "
On the occasion of the treatment of the modifications to Law 123, it returns to this point:
"... this law failed because it could not define" relevant ". By not being able to define" relevant ", by not determining who is going to characterize an undertaking or activity as relevant, by not determining which equation is to be used and which ones are the parameters, we are always enclosed in the same circle.
Therefore, in some way I wanted to contribute with three modifications in the glossary that would be approached so that later the application authority would find a solution. Even I understand that the equation used is misused; there are misused terms; scales are not used. Therefore, the characteristic of "relevant" can be given to something that is not. I am proposing this to facilitate the solution of many problems. The problem is in the definition of what was the only thing that this law should have defined: the characteristic of "relevant".
"In" Susceptible Environmental Impact of Relevant Effect ", the proposal says:" It is the environmental impact whose direct or indirect effects violate to a certain extent the rights and guarantees established by the Constitution of the City and whose parameters must be established or modified in a timely manner by the enforcement authority ". Someone has to take charge of defining these parameters with absolute clarity."
6) Finally, in the Disc. 1352/02 is striking that the same arguments are cited as the modification of Law 123 to justify the repeal of Disclosure 1120/01:
"The regulatory modification that is propitiated hereby aims to apply effective administrative procedures for the preservation and improvement of the environmental quality of the City, as well as to avoid possible delays in the administrative processing of actions related to the subject in question ".
Perhaps the modification of Law 123 and, therefore, its new regulation Dto. 1120/01, didn't you have the same goal?
Law 123 has undergone an important modification that has distorted its original spirit and its current regulatory decree accentuates these differences even more. In this sense, we can point out the following:
1) It can be affirmed that with the current regulations, very few enterprises must present technical environmental studies within the framework of the EIA procedure.
The law says that the activities of construction, modification and / or expansion, demolition, installation or performance of commercial or industrial activities susceptible of relevant effect must be submitted to the EIA procedure. And the regulations establish that the uses found in the Uses Table of the Urban Planning Code - with the addition of the classification "With relevant effect", "Without relevant effect" or as appropriate - will be the way to categorize the activities.
However, let us not forget that this table is for "Uses" and as such, it does not contemplate activities that can perfectly take place in our city, such as, for example, construction -understood as a process capable of causing environmental impact- or demolition. The regulation is incomplete, as it does not understand all the activities mentioned in the law.
On the other hand, in accordance with the regulations, only undertakings with a relevant environmental effect included in Art. 13 that are in the Uses Table under the CRE (With Relevant Effect) categorization must carry out the EIA procedure. It should not be forgotten that this article presents an enunciative, and not exhaustive, list of activities that are presumed to have a relevant environmental effect, which means that there may be undertakings with a relevant environmental effect that are not contemplated in Art. 13.
Furthermore, activities included in said article are not found in the Uses Chart, because they do not correspond to a defined "use". For example, works that demand significant deforestation or reduction of absorbing land (presumed by Art. 13 as having an environmental impact with a relevant effect) may correspond to the first stage of the construction of a residential building. The use "Residential building" is considered as SRE (No relevant effect) in the Uses Chart, so it should not be subject to the EIA procedure.
There are numerous examples of this style, which show that the Uses Chart cannot be the only tool by which the relevant environmental effect is determined.
2) Regarding the activities classified as s / c, -as applicable-, a great power of discretion is granted to the Enforcement Authority, as there are no defined criteria in the regulations for the categorization of said activities.
Law 123 does not intend to generate uncertainty in those who want to start an activity in the city, but rather seeks to preserve the environment, for the benefit of all. In this sense, the way to categorize should be clearly outlined, so that whoever intends to carry out an undertaking can know in which categorization it will be included and thus evaluate their investment with all the elements at stake.
3) The current Decree 1352/02 has forgotten to regulate important paragraphs of Art. 13: Environmentally Critical Areas, relevant deforestation and reduction of absorbent land, and large undertakings that, due to their magnitude, imply exceeding the capacity of the road infrastructure or of existing services ..
Here is a negligence on the part of the authorities, that when repealing an entire decree (Decree 1120/01) to replace it with another, it did not regulate the items entrusted to it or incorporate the corresponding polynomial formulas to categorize the activities classified as s / c, which makes it an inefficient rule.
4) With the disappearance of the Medium Environmental Impact, the construction and modification of buildings, as well as the modification of the topography, which is no longer considered a relevant aspect of impact, have come to be considered without significant environmental effect.
There is no longer in the law the subsection that allowed citizens to request an environmental impact assessment of any undertaking.
On the other hand, functions have been removed from the Advisory Council, since it will no longer participate with its opinion in each EIA procedure, but will only be consulted when the Enforcement Authority deems it necessary.
These points demonstrate how impoverished our environmental impact assessment law has been, and how far the aspirations that fostered its original sanction have been.
5) Lastly, although the law determines that in the event of an infringement of the same, the activity must be closed or suspended immediately, as a preventive measure; The current regulations give rise to the fact that, once the infringement is verified, the Enforcement Authority may or may not apply said sanction.
It is evident that the changes introduced in the law and its regulatory decrees have left important aspects of the preservation of the environment in the air and have degraded it in many aspects.
* By Lic. Mabel Santoro
Deputy Ombudsman of the City of Buenos Aires
Venezuela 842 - 3rd Floor, Tel .: 4338-4900
New address [email protected]
Law 123 on Environmental Impact Assessment is the most important environmental law of the City of Buenos Aires. It is because it establishes a procedure to control the environmental effects of what is going to be done in the city. This is important because we know that there are many laws that are merely declarative and no one expects that they will ever be enforced.
This Law is an instrument that allows to prevent, knowing the projects before they are carried out, and, therefore, before they can cause environmental damage.
It is also an exceptional law because it establishes that all inhabitants can analyze all the papers related to a project and give their opinion on it in a public hearing. The Law is thus by express mandate of the Constitution of the City, which is one of the most environmentally friendly in the world.
And the Constitution has such important environmental content due to the very special political conditions that surrounded the Constituent Convention, which had never existed before and have not been repeated until now. This political moment had to do with the founding enthusiasm of the first months in which Buenos Aires was declared an Autonomous City.
But soon after, the forces against these new winds began to act. The history of the Environmental Impact Law is the history of the difficulties for its implementation. This ranges from "this can't be done because it was never done before" biases, to delays in regulation, to vested interests that continually pressure to mitigate its effects, and some officials who insist on not complying.
In fact, most of the amendments to the law and its regulatory decree had the consequence of reducing its scope of application. Was it by chance that the modification of Law 123 (and its replacement by Law 452) allowed the construction of the Puerto Madero towers without an environmental impact assessment? Who could have thought that two 50-story towers have no relevant environmental effect and that they can be built without bothering to investigate?
Was it by chance that the latest modification of the regulatory decree makes it easier to build more parking lots in a crowded downtown area? Were you really unaware of ECLAC's recommendations to prohibit or make parking in the center of cities as difficult as possible, to ensure that people do not take their car to the center?
Why was it never achieved that the floodplains were defined as an "environmentally critical area"? Why is it so difficult to get the City Government itself to comply with this Law in its own works, to the point that sometimes it is necessary to resort to Justice to achieve it?
In this installment you receive a study from Lic. Mabel Santoro on the brief and eventful history of the Environmental Assessment Law and on the modifications made by the Law and its regulatory decree. Among other effects, these modifications prevent the environmental evaluation of important works, such as large housing estates, reduce citizen participation by preventing neighbors from requesting an environmental evaluation procedure and leave the sanction to be chosen by the Enforcement Authority, when The law does not authorize them to leave an environmental violation unpunished.
The end result is the progressive degradation of what is still our most important environmental standard. Perhaps knowing her will help us to put things on track a little and to answer a question that we are asked almost every day: "How was it that they authorized the construction of those towers without worrying about their environmental impact?" .-
Antonio Elio Brailovsky
Deputy Ombudsman of the City of Buenos Aires