Derogation of Rural Lands Law and changes on Environmental Rules
On December 21, 2023, President Javier Milei released Emergency Decree No. 70/2023 (“Decree 70”), that entered into force on December 29, 2023.
While emergency decrees are constitutionally required to go through Congress, they are binding until they are overturned.
Among other provisions, Decree 70 revoked Law No. 26,737 that set forth the “Regime for the Protection of the National Domain on the Ownership and Possession of Rural Lands” (the “Rural Lands Law”). The Rural Lands Law contained certain restrictions to foreign land ownership, which do not longer apply.
Separately, on December 27, 2023, the President sent to the Congress an omnibus reform (the “Omnibus Bill”) proposing certain changes regarding several environmental rules.
The implications of the derogation of the Rural Lands Law and the Omnibus Bill on the below selected matters are as follows:
I. Derogation of Rural Lands Law
The Rural Lands Law was passed with two main objectives: (i) determine the ownership and possession, under any title or factual situations, of rural lands; and (ii) with respect to foreign individuals and legal entities, set the limits to ownership and possession of rural lands.
By its derogation, foreign entities or persons are no longer bound to land ownership restriction.
II. Reform of environmental laws
- Land Burning: the Omnibus Bill amends Law No. 26,562 on the “Regime of Minimum Environmental Protection to Control Land Burning”. Namely, the Omnibus sets forth that the authorization for burning activities must be issued within a maximum period of thirty (30) working days following its request, otherwise it is considered as tacitly issued.
- Native forests: modifications to Law No. 26,331 on the “Regime of Minimum Environmental Protection to Native Forests” include the elimination of the prohibition to deforest native forests categorized as red or yellow, in turn allowing to carry out deforestation activities in such categorized areas.
- Glaciers: the Omnibus Bills specifies the scope of Law No. 26,639 on the “Regime of Minimum Environmental Protection of Glaciers”. In this regard, this law originally protected glaciers and the periglacial environment, while the Omnibus Bill indicates that its rules will apply to: (i) uncovered and covered glaciers in the glacial environment; and (ii) active rock or debris glaciers in the periglacial environment, located in Argentina, and that comply with certain conditions.
- Fertilizers control: the Omnibus Bill revokes section 6 of Law No. 20,466 on the “Control of Fertilizers” that established the obligation to inform in advance, to the appropriate agency, the commercialization of fertilizers in bulk.
For additional information, please contact Nicolás Eliaschev, Javier Constanzó, Daiana Perrone, Milagros Piñeiro, Pablo Arrascaeta, Florencia Martínez Trobbiani, Rocío Valdez, and/or Victoria Barrueco.
Establishment of the Environmental Protocol for Massive Events
On December 7, 2023, the Ministry of Environment and Sustainable Development published Resolution No. 465/2023 (the "Resolution"), that created the Environmental Protocol for Massive Events (the "Protocol"). Organizers of massive events are invited to adhere to such Protocol.
The Protocol is framed in the 2030 Agenda and the Sustainable Development Goals (SDGs), as an additional public policy to achieve observations of the SDGs and to reduce the negative impact that urban life has on the environment, especially in managing mass events. It aims to provide tools that contribute to the reduction of the environmental impact produced before, during and after the development of mass events, through concrete actions and indicators to measure the performance of the environmental management of the event.
Thus, in order to carry out a correct management of environmental impacts in a mass event, it is important to consider all the impacts derived from the procurement of raw materials, production, transportation, and end of life of all the elements used for its realization.
The Protocol identifies the following lines of action for the sustainable management of mass events:
- Waste;
- Responsible consumption;
- Communication and environmental education;
- Sustainable mobility;
- Energy;
- Water; and
- Inclusion and Diversity.
Based on these, the Protocol proposes certain qualitative and quantitative indicators to monitor and have metrics that serve to set goals and improvements in the future.
For additional information, please contact Nicolás Eliaschev, Pablo Arrascaeta, Milagros Piñeiro, Rocío Valdez and/or Victoria Barrueco.
Relevant aspects on the Guidelines for the development of Environmental Impact Reports and Public Participation in Environmental Impact Assessments
On November 30, 2023, the Secretary of Climate Change, Sustainable Development and Innovation of the Ministry of Environment and Sustainable Development released the “Guideline for the development of Environmental Impact Report” (the “EIR Guideline”) and the “Guideline on Public Participation in Environmental Impact Assessment” (the “PP Guideline”), both approved by the Resolution No. 23/2023 (the “Resolution”).
The most relevant aspects are detailed below:
I. Guidelines for the development of Environmental Impact Report
The EIR Guideline is intended to professionals responsible for the development of the Environmental Impact Report (“EIR”) and to the agencies involved in the technical review and environmental licensing of the projects.
It also promotes the integration of the climate change variable in the different phases of the EIR, incorporating information throughout the Environmental Impact Assessment (“EIA”). The inclusion of the climate change variable in the EIA is suggested through two approaches:
- Adaptation: evaluates how climate change may influence the project, considering possible climate scenarios and risks that could affect the expected life cycle; and
- Mitigation: considers how the project may influence the emission of greenhouse gases ("GHG"), regarding actions by the proponent to avoid or reduce GHG emissions or even increase their absorption through reservoirs or sinks.
II. Guide on Public Participation in Environmental Impact Assessment
The PP Guide seeks to broaden and diversify the mechanisms for public participation in environmental matters. It is mainly intended to the proponents, promoting agencies, professionals responsible for the elaboration of EIR and other offices of the Public Administration involved.
Public participation has different scopes depending on the type of involvement promoted by the evaluating authority or the proponent. Thus, at least four levels of participation can be identified (information, consultation, dialogue, and decision making) that can take place at various points in the project cycle, depending on the size of the project and the strategy defined for stakeholder involvement.
The PP Guide also proposes the qualitative technique of "stakeholder mapping", which makes it possible to identify stakeholders, understand their interests and how each one can affect the viability of the project.
Consultation mechanisms may include multisectoral workshops, virtual consultations, co-creation events, dialogue tables, mediation, or negotiation hearings, direct (door-to-door) visits to communities, participatory management tables, monitoring, and follow-up committees, among others.
The PP Guide proposes the presentation of a disclosure document to optimize access to environmental information and participation in effective decision-making and facilitate the understanding of EIR for the general non-specialized public.
For additional information, please contact Nicolás Eliaschev, Pablo Arrascaeta, Daiana Perrone, Milagros Piñeiro, Rocío Valdez and/or Victoria Barrueco.
Approval of the guide of contents, formats and presentation of the reports related to the Environmental Management System of certain agents of the MEM
On March 29, 2023, Resolution No. 1/2023 of the Public and Environmental Safety Area of the National Electricity Regulatory Entity ("Resolution 1") was published in the Official Gazette with the purpose of approving the guide of contents, formats and presentation of the reports provided for in Resolution No. RESOL-2022-558-APN-ENRE#MEC ("the Guide"). The purpose of the Guide is to establish the criteria for the registration, submission and processing of the documentation that integrates the Environmental Management System ("SGA", for its Spanish acronym, Sistema de Gestión Ambiental) and the environmental plans to be prepared by the agents of the Wholesale Electricity Market ("MEM", for its Spanish acronym, Mercado Eléctrico Mayorista).
I. Background
Resolution No. RESOL-2022-558-APN-ENRE#MEC ("Resolution 558") approved new methodological guidelines and deadlines for the execution of the tasks related to the SGA and the submission of information by certain agents of the MEM.
In this regard, Resolution 558 delegated to the head of the Public and Environmental Safety Area (the "ASPA", for its Spanish acronym, Área de Seguridad Pública y Ambiental) of the National Electricity Regulatory Agency (the "ENRE", for its Spanish acronym, Ente Nacional Regulador de la Electricidad), the necessary powers to provide the measures to comply with the aspects related to communication, procedures for submitting information, approval of minimum contents and design of forms and tables to be included in the reports for their effective implementation.
Based on the experience gathered gained as a consequence of the application of Resolution ASPA No. 1/2010, ASPA considers necessary and convenient to update the formats, contents and procedures used.
II. Information about the Guide
The Guide is made up by the following annexes:
- Annex I: Contents and formats for the presentation of the environmental planning;
- Annex II: Contents and formats for the presentation of management reports;
- Annex III: Registration of the results of the monitoring of environmental parameters in the ENRE's web environmental system and mandatory forms according to the type of agent of the MEM;
- Annex IV: Contents and formats of additional reports;
- Annex V: Contents and formats of the environmental planning and management reports of the agents reached by the alternative procedure set forth in article 7 of Resolution 558; and
- Annex VI: Management reports of the agents reached by the alternative procedure set forth in Article 8 of Resolution 558.
The Guide is mandatory for generating agents, self-generators, co-generators, high voltage electric energy transporters, electric energy transporters by trunk distribution, international interconnection electric energy transporters and electric energy distributors of federal jurisdiction of the MEM.
Likewise, it is mandatory to inform to the ENRE the documentation required in Resolution 1 and its annexes.
Sanctions and penalties set forth in the respective concession contracts or in Article 77 of Law No. 24,065 will apply in case of non-fulfilment of the abovementioned obligations.
For additional information, please contact Nicolás Eliaschev, María Eugenia Muñoz, Pablo Arrascaeta and/or Rocío Valdez.
Creation of the Sustainable Public Buildings Program for National Public Sector Agencies
Resolution No. 107/2023 of the Ministry of Environment and Sustainable Development (the "Resolution 107") was published in the Official Gazette on March 21, 2023. The goals are to create the Sustainable Public Buildings Program for the National Public Sector Agencies (the "Program") and approving the Implementation Guide for Sustainable Public Buildings (the "Guide"). The Program will be executed by the Advisory Cabinet Unit of the Ministry of Environment and Sustainable Development (the "Executing Unit").
I. Background
Decree No. 31/2023 (the "Decree") declared as a priority the sustainable management of the resources used by the agencies of the National Public Sector (the "NPS").
In addition, the Ministry of Environment and Sustainable Development (the "MEySD") was appointed as enforcement authority to approve complementary regulations that may be necessary for the execution of this Decree.
The Decree applies to the entire NPS, pursuant to Section 8, subsections a, b and c of Law No. 24,156 –i.e., the national administration, state-owned companies and corporations, and public entities expressly excluded from the national administration–.
II. Objectives
The Program has the following goals:
- Promoting the sustainable management of resources through the incorporation of good sustainable practices of consumption and habitability;
- Reducing the environmental impact generated by the activities carried out by the NPS in public buildings;
- Providing assistance to NPS agencies in their processes aimed at implementing good sustainable consumption and habitability practices; and
- Awarding badges that highlight the commitment of NPS agencies to sustainability in public buildings. Specifically, it is expected that buildings of the NPS agencies will obtain the distinctions of "Public Agency Committed to Sustainability" and "Sustainable Public Agency" within a maximum of two and six years, respectively.
Sustainable practices to be implemented by the NPS include the efficient management of electric energy, water use, natural gas, waste, public procurement, accessibility, sustainable mobility and green surfaces and spaces.
III. Implementation
The implementation of the Program will be undertaken through the following phases:
- Preparation of the sustainable environment: survey of relevant information;
- Assessment and diagnosis: the entities to complete a self-diagnostic assessment to inform the MEySD of their own sustainability status;
- Presentation of an Improvement Action Plan: the agencies to prepare an improvement action plan, taking into account the good sustainable practices listed in the Guide;
- Follow-up and monitoring: the MEySD, through the Executing Unit, to follows up and monitors progress in the implementation of good practices.
- Awarding and distinction: the MEySD to awards a sustainability badge to the organizations according to the progress in the implementation of good practices.
Furthermore, Resolution 107 requests NPS agencies to appoint a responsible person for sustainability matters in their jurisdiction to act as a liaison with the Executing Unit.
For further information, please contact Nicolás Eliaschev, María Eugenia Muñoz, Pablo Arrascaeta and/or Rocío Valdez.
Modification of the Procedure for Certification and Authorization of Importation of Batteries
Resolution No. 31/2023, enacted by the Ministry of Environment and Sustainable Development on January 23 (“Resolution 31”), modified the provisions of Resolution No. 443/2020 of the Ministry of Environment and Sustainable Development ("Resolution 443") regarding the procedure for the certification and authorization of importation of cells and batteries.
Relevant aspects of Resolution 31
As a reminder, Resolution 443 established the guidelines for the permanent or temporary importation of primary cells and batteries.
In this regard, Resolution 31 replaced Annexes III and V of Resolution 443 by Annexes I and II, respectively, of the new resolution.
The current Annex I and Annex II establishes (a) the procedure for the certification provided for in article 6 of Law No. 26,184 (which obliges those responsible for the manufacture, assembly and importation of cells, to certify for that cells and batteries do comply with the requirements indicated in such law) and (b) the procedure to obtain the authorization to import cells and batteries.
Likewise, Resolution 31 also sets forth that the import authorizations for cells and batteries will be issued by the Secretariat for Environmental Control and Monitoring. Imports regarding devices that may include cells and batteries -whether incorporated to the device or not- will be allowed -exclusively- in case they are included by the Annex to the corresponding Certificate of Conformity, issued by the certifying entity.
In addition, Resolution 31 modifies article 14 of Resolution 443 and establishes the information that certifying entities must issue through the Distance Procedures Platform (“TAD”, for its Spanish acronym, Trámites a Distancia).
Finally, importers who were entitled with authorizations granted under the import procedure established in Annex V of Resolution No. 443 at the time of entry into force of Resolution 31 -scheduled for February 12, 2023-, may voluntarily choose to obtain new authorizations under the new regime.
For additional information, please contact Nicolás Eliaschev, Pablo Arrascaeta, María Eugenia Muñoz and/or Rocío Valdez.
New resolution of the Ministry of Environment and Sustainable Development
On November 14, 2022, Resolution 503/2022 of the Ministry of Environment and Sustainable Development (hereinafter, "Resolution 503" and "the Ministry", respectively) was published. This Resolution established the guidelines and minimum contents of the plans for the reconversion of the productive processes that use mercury.
I.- Legal Background
Prior to the entry into force of the Resolution, the regulation in Argentina was governed by: (i) the Minamata Convention on Mercury (the "Convention") and (ii) Resolution No. 299/2021.
The Convention regulates the use of mercury in production processes and the manufacture of mercury-added products and its exceptions and exemptions. In terms of exemptions, Argentina has two registered exemptions, for the production process of chlor-alkali and the manufacture of mercury thermometers.
Resolution No. 299/2021 established the guidelines for the management of elemental mercury, and its mixtures and compounds, as well as mercury-added products. This resolution established the procedure for requesting exemptions for the production process of chlor-alkali or the manufacture of mercury thermometers exclusively. It also established the need to submit a productive process reconversion plan as one of the requirements to obtain the exemption.
II.- Resolution No. 503/2022
Scope:
The Resolution seeks to establish the guidelines for the reconversion plans and to comply with the environmentally rational management of mercury, under the obligations arising from the Convention. Accordingly, it defines the " Reconversion Plan" as the schedule of activities to be carried out in an industrial establishment that uses mercury in its production or manufacturing process, aimed at the replacement and implementation of mercury-free technology.
For the drafting and filing of the Reconversion Plan, the following information must be included, at least:
- (a) Location of the facility.
- (b) Identification of the personnel involved and responsible for the conversion tasks.
- (c) Technical report and description of the technology currently used.
- (d) Technical report and description of the technology to be used for the reconversion.
- (e) Description of waste management, including storage, transportation, final disposal, treatment, labeling, and disposal.
- (f) Evaluation of environmental, social, and economic impacts.
- (g) Work schedule with a framework of all the stages of the proposed reclamation and the monitoring for its compliance, including the safety measures and contingency plans for the execution of the activities.
Enforcement Authority:
The Enforcement Authority of the Resolution is the Secretariat of Environmental Control and Monitoring of the Ministry of Environment and Sustainable Development. As enforcement authority, it may carry out inspections of industrial establishments and request the information and documentation it deems necessary to ensure compliance with the Resolution.
The National Directorate of Hazardous Substances and Waste is the competent authority to evaluate, approve and monitor compliance with the plans for the reconversion of production processes that use mercury.
Approval:
The Reconversion Plan must be submitted to the National Directorate of Hazardous Substances and Waste for approval. The Reconversion Plan will be approved together with the requested exemption according to Resolution MAyDS No. 299/21. Upon approval of the Reconversion Plan, a Certificate of Compliance of the Reconversion Plan under the Minamata Convention on Mercury will be issued, in accordance with the Resolution's Sec. 4.
The Resolution establishes as a prior condition for the approval of the Reclamation Plan that: (i) the Annual Environmental Certificate must be in force and (ii) the provisions of Law No. 24,051 and its Regulatory Decree 831 of April 23, 1993, and complementary regulations must be complied with.
Non-compliance:
In case of non-compliance with the obligations assumed in the Reconversion Plan, and once the term of the notice of compliance has expired, the approval of the reconversion plan will automatically expire thus generating the loss of the exemption regime and all the benefits obtained by the owner of the establishment due to its compliance with this regime.
The Resolution became effective as from 11/14/2022.
For further information or questions on these issues, please contact Dolores Reyes, Pablo Arrascaeta, and/or Marcos Moreno Hueyo.