Prevention and compensation of environmental damage: Theoretical problems from an Argentine perspective

Abstract

The determination of the obligations to prevent and repair environmental damage is linked to complex discussions of environmental justice, particularly with regard to the distribution of the burdens generated by these obligations. The article analyses who and under what conditions can decide this distribution. Two aspects are considered. The first is that of the balance between the Legislative and Executive branches, on the one hand, and the Judicial branch, on the other. The second refers to the way in which the environmental protection, implicit in the obligations to prevent and repair damage, is combined with other constitutional rights. For this analysis, Argentine constitutional law, which since 1994 expressly protects the environment, is taken as a starting point. The question of the object of constitutional protection and how key concepts such as environmental damage and hazardous activity should be delimited are addressed. It is concluded that the distribution of the burdens generated by the prevention and repair of environmental damage requires considering the dimension of democratic legitimacy and forces us to think about a new determination of the limits between constitutional rights.