The last forty years has seen a dramatic shift in the role of the judiciary in addressing difficult socio-environmental conflicts. Historically, the Argentine courts tended to take an extremely restrictive view on issues such as standing and the test of reasonableness in reviewing government decisions on land use (see Walsh). Regulations were designed and enforced in a specialised and somewhat technocratic process with little to no citizen participation and only occasional judicial review. However, with growing awareness of anthropocentric environmental impacts, and increased recognition of the need for sustainability in the 1980s, Argentine courts began to relax their restrictive approach.

Raising the bar for sustainability

Even before the 1994 constitutional reforms, the jurisprudence began to reflect a shift in judicial attitudes from a passive stance, focused mainly on compliance with formal administrative requirements, to a more active role in reviewing the reasonableness of administrative decisions, particularly where the concerns of citizens’ groups and collective rights were at stake. The courts found ways to address environmental protection concerns by resorting to other provisions within the Constitution, such as the implied rights contained within the rights to life and health (see Nonna).

The Federal Court went a step further in Kattan, a 1983 landmark decision, by granting standing in environmental protection cases to the general public. Thus, a law professor was able to successfully challenge permits granted to a Japanese company to fish skunk dolphins. The Court viewed the action as seeking to defend the ‘true subjective rights’ of society as a whole. In reaching its decision, the Court took note of the spirit of the Stockholm Conference and the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

Operationalising constitutional environmental rights

Apart from developments in international law, the constitutionalisation of environmental rights in 1994 had a strong influence on judicial approaches to environmental governance. The judiciary demonstrated greater willingness to review administrative decisions and contribute to shaping the interpretation of environmental laws to ensure sustainability (see Carballo). The courts also broadened recognition of the collective nature and diffuse interests implicated by environmental problems, interpreting the right to a healthy environment as ‘an extension of the sphere of human personality’ in Almada.

Some have argued that the judicial shift away from a conservative and deferential approach was motivated by a desire on the part of the Argentine Supreme Court to improve its image and restore its legitimacy (see Etchichury). Regular purging of the judiciary by successive governments throughout the 20^th century had resulted in a decline in judicial autonomy and effectiveness, and the court system was held in low public esteem. However, clauses strengthening the position of the judiciary were included in the 1994 constitutional amendments, and recognition of new rights offered an opportunity for the Court to demonstrate care and concern for vulnerable groups. The approach of the judiciary shifted dramatically, roughly coinciding with changes in the public’s interest in addressing environmental challenges.

Since then, the right to a healthy environment has been operationalised to address air, noise and water pollution, protect ecological reserves, biological and cultural diversity, and prevent deforestation. It has been used to order the government and private entities to: cease harmful activities and address environmental harm; provide information regarding compliance with environmental assessment requirements; seek reports regarding possible environmental contamination; and order compensation for environmental damage. The courts have found that both public and private actors have a duty to respect the environment and take measures to mitigate environmental impacts, even in the absence of express regulation.

In light of the possible seriousness of environmental consequences, the courts have preferred a flexible approach and rejected excessive adherence to procedural rules that may result in a denial of injunctive relief. The courts have also strengthened access to justice in environmental matters by affirming that, where collective rights are threatened, any person has standing to seek a remedy for the protection of constitutional rights, to stop environmentally damaging activity. In doing so, the judiciary has sent a clear message to other branches of government that environmental, social and cultural considerations are important (see Carballo).

Going a step further… but is it too far?

The Supreme Court has now become an important political actor and often contributes to defining public policy, in the hopes of improving corporate and government accountability for environmentally harmful activities. Moreover, the growing importance of resolving environmental conflicts has led to institutional changes, including the appointment of a specialised prosecutor with training in environmental matters and crimes. In 2013, an Environmental Management System for the Supreme Court and an Executive Committee of the Environment and Sustainability Commission were created to coordinate policies and plans relating to environmental protection and conservation and sustainable use of natural resources.

This was broadened in 2015 to include a specialised department, the Oficina de Justicia Ambiental (Office of Environmental Justice), made up of court officials who represent the Supreme Court before the Sustainability Commission. The Oficina was to ensure the improvement of resource management, promote projects and practices consistent with environmental protection, and monitor actions taken through the Environmental Management System and the Sustainability Commission. It also coordinated the dissemination of decisions and environmental justice initiatives at the national and international levels and was responsible for research, training and information programs on environmental education.

Although some argue that judicialisation may generate an accountability crisis for communities affected by environmental decisions, a concerted approach to environmental governance that engages the judiciary in this manner can be of great benefit to vulnerable or marginalised communities. This is particularly so where a government has fallen short in its responsibilities vis-à-vis the environment, as the judiciary can ensure compliance with the highest standards set out within the constitution. Of course, whether such an approach is effective is an ongoing question, especially since issues around enforcement remain unresolved. Nevertheless, as environmental and climate conflicts increase, the courts may serve as an important arena for tackling the difficult environmental challenges that society will face in the years to come.

More than 120 scholars from all over the world will share their findings and views on 8 and 9 July 2022 at Leiden Law School during the conference Courts as an Arena for Societal Change. Several blogs will be published on the Leiden Law Blog on the themes of the conference.