Medina Rodríguez, Nidia Elena et al. v. Estado Nacional et al.

M. 1312. XLIII.
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The plaintiff  filed a guarantee of protection of individual constitutional rights (amparo protection) in the terms of articles 41 and 43 of the National Constitution and law 25.675 with the Supreme Court of Justice against the National State, the province of Buenos Aires and the municipality of Lomas de Zamora to initiate the public work “Arroyo del Rey PGA” that was agreed between the respondents in 2005 in order to solve the recurrent inundations that take place in the “Unamuno” and “Del Rey” streams. They claim that the contaminated water of the Del Rey stream overflowed causing streets, housing and lands to flood which cause a serious risk in the populations health. The omission of initiation of the public work violate the constitutional rights from articles 41 of the National Constitution and articles 28 and 192 of the Province of Buenos Aires’ Constitution.

The plaintiffs base their claims in national law 25.675 (General Environmental Law) and local law 11.723 (Protection of the Environment and Natural Resources Law) and in amparo law 16.986.

The plaintiffs claim original jurisdiction of the Supreme Court of Justice based in the National character of the respondent (article 117 National Constitution).

The Supreme Court of Justice found that it was not a case of original jurisdiction. Original jurisdiction can be based on the subject of the respondents. In this case, the subject is not a competence of highest Court because the provinces have the competence over the protection of the environment in the Province of Buenos Aires and not the National State. Law 25.675 in its article 7 established that the local courts have the jurisdiction over the application of the environmental law. Also, it cannot be based the original jurisdiction by the character of the respondent because for this to occur, only the National State should be brought to court.  The Province of Buenos Aires signed the public work and should be carrying it out. The National State only financed the public work, but the obligations of the public work were incurred by the Province of Buenos Aires so it should not be brought in the same trial with the Province of Buenos Aires. So the original jurisdiction is dismissed and the case should return to provincial jurisdictions. In case the plaintiff wanted to sue the National State it should be done before the Federal Courts.

"[...] los desbordes que se producen en las cuencas de los arroyos "Unamuno" y "Del Rey" [...] se ubican en la Provincia de Buenos Aires, y los problemas ambientales y sanitarios que se denuncian, tendrían origen en el territorio de ese Estado provincial. [...] Es entonces la Provincia de Buenos Aires quien deberá responder y llevar a cabo los actos necesarios para lograr la recomposición del medio ambiente que se dice afectado, en el supuesto que se determine que ha incurrido en actos u omisiones en el ejercicio de facultades propias, cual es su poder de policía en materia ambiental."

"The overflows that take place in the "Unamuno" and "Del Rey" streams [...] are located in the province of Buenos Aires and the environmental and health problems denounced are originated in the provincial territory [...] The Province of Buenos Aires is who should take action to achieve the re composition of the environment that is said to be affected, in the case that the province is responsible for the acts or omissions in the ejercice of its competence, that is their police power of the environment."

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