Argentina has some issues related to the environmental impact assessment (EIA) procedures for strategic projects, which are essential for national development. On the one hand, although EIA procedures depend on the provinces, there is a legal loophole regarding who leads the projects that are located in two or more jurisdictions, or with a neighboring country, which are precisely those that we associate with a development strategy: hydroelectric dams, waterways, projects related to mineral exploitation. On the other hand, the national authority’s competence in EIA procedures is limited, causing the federal level to be unable to fill the institutional and regulatory gap between the provinces.
To address these and other problems, it is necessary to create an Environmental Services Agency, capable of materializing the federal environmental vision in strategic projects. Such an agency, with a hierarchical role and a defined scope of competence, will streamline evaluation procedures and allow the execution of projects that contribute to the development of our country. We offer five fundamental reasons that illustrate the need for an Environmental Services Agency. And also, a proposal for its creation.
Five reasons to have an Environmental Services Agency
1
The current legal framework needs to be revised for the execution of the strategic projects Argentina needs
Argentina needs an Environmental Services Agency because of how the current legal framework for Environmental Impact Assessment is implemented. According to what is established in our National Constitution, the provinces have the original domain of the natural resources existing in their territory and, likewise, they keep all the regulatory powers not delegated to the Nation. This has a direct impact on the instruments of environmental management and protection: the environment is the responsibility of the original owner of the jurisdiction (provincial government), who exercises authority over the natural environment and over the actions of the people who have an impact on that environment.
In addition, although the provinces have their own EIA rules, there is a loophole regarding the criteria for procedures on projects that are located in more than one jurisdiction. This situation is made even more difficult by the fact that there is also no National Minimum Standards Law that establishes common criteria for the processes for all jurisdictions.
Environmental Impact Assessment (EIA): a process that allows the identification, prediction, evaluation and mitigation of the potential impacts that a project or activity may cause to the environment in the short, medium and long term, before deciding on the execution of a project. From the regulatory point of view, it is a technical-administrative procedure established in the General Environmental Law No. 25675 with a preventive nature, which allows the competent environmental authority to have an informed decision-making process regarding the environmental feasibility of a project and its environmental management (SAyDS, 2019).
2
The constant judicialization paralyzes strategic projects
The lack of a defined authority for the EIA procedures of certain projects, such as inter-jurisdictional ones, adds to the lack of criteria to determine the intervention of the federal authority. This has led to a critical phenomenon: the constant judicialization of projects.
Judicialization implies a contingent participation of the national authority that depends on the criteria of the judicial authorities and does not contemplate a pre-established procedure or coordination guidelines with other agencies for decision-making. The creation of an Environmental Services Agency would be a proactive strategy to address this problem.
3
The federal environmental intervention is limited and lacks the necessary resources.
The national environmental authority intervenes exceptionally, that is, only in some EIA processes, and the federal level intervenes only where there is a rule establishing the national jurisdiction over the territory. As for the institutional framework in charge of carrying out the procedures, it is challenged by three aspects:
I) The instability of governmental structures. The governmental structure has been varying and suffering adjustments; it is enough to see the institutional degradation to which the current government has subjected the former Ministry of Environment of the Nation.
II) Atomization of environmental competencies. Many environmental legal powers relevant to project EIA procedures are scattered among different national agencies.
III) Lack of resources. The current structure in charge of assessing the environmental impact of federal projects does not have the necessary human, economic and technological resources of its own. In this sense, the national government does not charge any type of fee for carrying out the EIA procedures, so the state investment does not have any type of compensation.
4
It is necessary to provide a framework of certainty for investment
Most schemes to attract investment are focused on designing financial mechanisms and tax conditions and overlook compliance with environmental and social frameworks to make them happen. Including environmental institutionality when promoting investment would provide legal certainty.
The investments to which we aspire are fundamentally related to two large sectors in Argentina, identified as strategic: energy projects (energy production, transportation and distribution) and large infrastructure projects (water and sanitation, road connectivity, water risk and care infrastructure). To execute these strategic projects which, given their magnitude, are usually inter-jurisdictional, a national agency is needed to identify, evaluate and mitigate the potential impacts they may cause to the environment, and to verify compliance with the legal framework.
5
All countries with development strategies consider the environmental aspect to be critical for their projects
The comparative experience reveals a first point: environment ministries and environmental agencies are now ubiquitous throughout the world and include ministerial offices, licensing and/or permitting units, awarding bodies and regulatory divisions, as well as agencies responsible for the research, monitoring, technical review and auditing functions.
In this sense, countries with a development strategy consider the environmental aspect as key to attracting and carrying out productive and investment projects. Thus, we find that developed countries, such as Canada and the United States, and also countries of the Global South, such as Brazil, Chile and Peru, have developed a robust environmental institutional framework. Moreover, in these countries, the trajectory for the construction of such an institutional framework has been the result of addressing challenges similar to those faced by our country today.
Proposal for the creation of a National Environmental Services Agency
We have given five reasons for the creation of a National Environmental Services Agency. They are certainly not the only ones, but they are fundamental. This agency needs to meet certain conditions. Based on the previously presented scenario, the central points that should be addressed in a proposal for its creation are:
- The scope of competence.
- The cost recovery for services in order to make them possible.
- The organizational structure.
- The oversight and monitoring functions.
Ultimately, the creation of an agency should be considered in terms of efficiency since it would strengthen the structure of the National State to provide quality services to citizens and project proponents. Likewise, having adequate endowment and resources for its role, will speed up processing times and optimize the use of public resources.
The creation of an Environmental Services Agency might allow Argentina not only to place the EIA instrument in the environmental agenda but also to build an institutional framework with the potential to lead the adoption of international best practices in evaluation procedures, including the evaluation of cumulative impacts or the consideration of climate change, which is, in short, a substantial improvement in terms of environmental public policy and development.
