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Wednesday, March 29, 2023

Justice does not escape the tensions between collective and individual rights

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In this specific case, the claim was aimed at obtaining the closure and subsequent definitive closure of the PORTA HNOS plant. SA, since they considered that the company would lack authorization to produce bioethanol and had not previously carried out the Environmental Impact Assessment Process.

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Although the first instance judge understood that environmental authorizations were the prerogative of the provincial or municipal government, he cited Porta Hnos SA as a third party in order to prove the effective implementation of the Environmental Impact Assessment Procedure, under the terms of Provincial Law No. #10,208. Said sentence was confirmed by majority by the Chamber.

Without prejudice to what was resolved, the truth is that Porta Hnos SA did not comply with the procedure, a situation that led to the complaint before the justice of the aforementioned actors and concluded with the sentence analyzed today.

The dissenting vote of the House sentence endorsed the proposal of Porta Hnos., on the understanding that the company had fully complied with the sentence, having carried out the necessary procedures before the application authority, which had concluded with Resolution 40/2020. A) Yes, considered that since the establishment had been in operation for more than 10 years, the Court could not require the application authority to comply with a procedure that exceeded those established in the regulation itself, therefore it constituted an advance of the judicial power in another state power.

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However, very different was the vote of the majority of the Court, who confirmed the judgment of first instance prioritizing the right contained in art. 41 of the National Constitution.

Thus, Dr. Avalos understood that the view that guaranteed greater protection of environmental or collective rights as opposed to a right of an individual nature should be privileged.

Dr. Navarro, for her part, adopted a position based on the most restrictive interpretation and that protected the constitutional rights to a healthy environment, the right to health and collective participation. Thus, she stated that the decision of the first instance judge had been very clear regarding the need to carry out an environmental impact assessment procedure, which had not been carried out adequately by Porta Hnos SA

The magistrate correctly considered that in these cases, it is the duty of justice to carefully and restrictively analyze any decision before concluding an environmental process, being able to deviate from the procedural codes in order to get to the bottom of the real truth of the events.

In this scenario, we The precedent established by the sentence analyzed today is decisive, since it adopts a more current position, valuing the collective right over the individual. This, in the understanding that the environment is essential for the healthy development of humanity.

Indeed, enhancing citizen participation in environmental assessment processes has been a determining point when resolving the case and the fact of providing the opportunity for judges to deviate from the application of the Codes of Procedure in search of the truth and due compliance with sentences in environmental matters is revealing.

We advocate for more decisions like the one analyzed here, where the collective right takes precedence over individual rights, and really, the judiciary is the guardian of compliance and respect for the right to the environment. as stated in their judgment by Dr. Avalos and Dr. Navarro.

It is important to note that, when sentencing, the magistrates did not advance on the prerogatives of another State power. On the contrary, they exercised the power that was given to them as guardians of the National Constitution, the last bastion of the Republic.

Partner of Biscardi & Asociados Law Firm

Source: Ambito

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