"Glaciers Under Pressure: What the Law Has Achieved After Nearly Two Decades"

Collab: Soledad Sede, environmental and Indigenous rights advocate, highly experienced professional in the design and management of social and environmental projects, focusing on community strengthening and promotion of Indigenous rights.

I. Introduction: Water as the Axis of a Structural Dispute:

The Glacier Law in Argentina represents one of the most relevant socio-legal processes of recent decades and reflects a structural dispute over water control. It is not merely an environmental regulation but a conflict that strains federalism, minimum protection standards, sovereignty over strategic resources, and pressures from extractive interests.

Glaciers and periglacial environments are key natural infrastructures for water regulation, aquifer recharge, and watershed stability, particularly in arid regions. Therefore, their protection is directly linked to national water security.

Over more than 18 years, a constant pattern has emerged: mining pressure to limit the law’s scope. In this context, the controversy fits into a broader dynamic conceptualized as the “water war” in which strategic water reserves are contested amid scarcity, climate change, and extractive expansion #ForABetterWorld.

II.  Pascua Lama, Presidential Veto and Interprovincial Strategy:

The conflict began with the binational Pascua Lama, project by Barrick Gold, which planned to intervene in glaciers to enable mining. This triggered reactions from communities, scientists, and environmental organizations, revealing a legal gap: no national law protected glaciers or periglacial environments.

In 2008, Congress unanimously passed the first Glacier Law, but it was vetoed by President Cristina Fernández de Kirchner, generating intense political and institutional controversy. This veto opened a federal dispute regarding the scope of national authority versus provincial ownership of natural resources.

Subsequently, in 2010, the then-president and governors of mining provinces traveled to Canada to meet extractive sector executives. Upon return, they coordinated the enactment of provincial laws that provided more limited glacier protection, excluding the periglacial environment, which is key for water regulation. This strategy sought to preserve the feasibility of mining projects and limit the scope of a future national law, transforming the conflict into a multilevel dispute involving provincial, national, and corporate actors.

Province	Law N°	Submission Date	Enactment Date
Santa Cruz	3123	Not available	April 8, 2010
La Rioja	8773	July 7, 2010	July 8, 2010
Jujuy	5647	July 6, 2010	July 8, 2010
San Juan	8144	July 2010 (immediate)	July 14, 2010
Salta	7625	July 2010	August 3, 2010

Under provincial pressure, Congress reactivated a national project that consolidated minimum protection standards for glaciers and periglacial environments. On September 30, 2010, Law 26,639 was enacted, avoiding a new veto and creating the National Glacier Inventory for monitoring and safeguarding. The inclusion of the periglacial environment was key, establishing limits on mining expansion in critical zones and forming the core of the ongoing regulatory conflict.

III. Judicialization and Supreme Court Ruling:

Following the enactment of Law 26,639, in the case “Barrick Exploraciones Argentina S.A. and another v. National State, declaratory action of unconstitutionality”, mining companies and the province of San Juan challenged it, claiming it violated Article 124 of the National Constitution.

The Supreme Court confirmed its constitutionality, holding that the law establishes minimum indispensable conditions to protect a strategic resource without affecting provincial ownership of resources. Furthermore, the Court reaffirmed that Congress can establish minimum environmental standards (Article 41 CN) and that glacier protection is part of the right to a healthy environment and the preservation of water resources.

The ruling consolidated cooperative environmental federalism, where provincial authority is not absolute in the face of strategic resources.

Key points of the ruling include:

“The protection of glaciers responds to the need to preserve strategic freshwater reserves”

“Congress has the authority to establish minimum environmental standards even when natural resources are under provincial ownership.”

“Environmental protection constitutes a constitutional mandate that cannot be subordinated to sectoral economic interests”

These statements reinforce that glacier water preservation is not a discretionary policy but a legal obligation derived from the right to a healthy environment.

IV. Half-Sanctioned Bill and Risks of Normative Regression:

In the context of recent reforms regarding mining investment and environmental regulation, a legislative project with half-sanction was introduced, proposing substantial changes to Law 26,639. Among the most controversial is the redefinition of the periglacial environment, limiting it to areas with visible or dynamic ice and excluding regions that, while lacking permanent ice, perform critical functions in water regulation, groundwater storage, and streamflow stabilization. The project also reinterprets prohibited activities, incorporating conditional compatibility criteria subject to environmental impact assessments, which opens the door to operational exceptions that could weaken the preventive effectiveness of the existing legal regime.

rom a legal perspective, these modifications pose risks of normative regression, as they compromise the minimum environmental protection scope established. Legal and doctrinal literature on the principle of environmental non-regression asserts that achieved protection levels must not be reduced, and any reform lowering protection standards could conflict with constitutional (Article 41 CN) and international obligations. In this case, restricting the concept of periglacial environment and relaxing prohibitions could enable the expansion of extractive activities in strategic areas, affecting water security and rights related to a healthy environment and access to essential resources.

The debate is not only technical but also jurisprudential, since the Supreme Court upheld the constitutionality of Law 26,639, confirming it sets minimum conditions to protect a strategic resource without affecting provincial ownership. Thus, any reform that reduces protection could be subject to litigation and judicial review, creating a scenario of high environmental contentiousness and reaffirming the relevance of the precautionary approach and cooperative federalism in Argentine environmental law.

V. Water Wars and Environmental Federalism:

The dispute over the Glacier Law fits within the dynamic conceptualized as the “water war” understood as structural competition for strategic water reserves amid scarcity, climate change, and extractive expansion. In Argentina, this tension is exacerbated by unequal resource distribution and mining pressures on watersheds supplying productive systems, ecosystems, and urban centers.

The conflict reflects structural tensions in Argentine federalism: provinces claim original ownership of natural resources, while the Nation may set minimum environmental protection standards. The Supreme Court resolved this tension through cooperative federalism, establishing that provincial ownership does not guarantee absolute normative autonomy over strategic resources whose degradation may affect fundamental rights. Glacier protection thus combines regulatory sovereignty, water security, and limits to extractivism

VI. Climate Change and the Social Dimension of the Conflict:

Glacier retreat in the Andes, accelerated by climate change, intensifies the relevance of Law 26,639 by altering seasonal streamflows and increasing regional hydrological vulnerability. Legal protection of glaciers and periglacial environments acts as an adaptive measure against climate uncertainty, preserving strategic freshwater reserves.

The controversy also has a pronounced social and territorial dimension: local communities, Indigenous peoples, and productive sectors depend on glacier water for agriculture, livestock, tourism, and urban supply. Intervention in these systems could deepen inequalities, generate territorial conflicts, and affect regional socio-economic balance.

VII. Conclusion and Prospective Scenario: The Glacier Law as a Frontier of Water Security:

Nearly two decades after the conflict began, the Glacier Law has consolidated as a key instrument for protecting Argentina’s water resources. Mining pressure, judicialization, and reform attempts demonstrate that the dispute over strategic reserves remains active. Water security depends not only on physical water availability but also on robust regulatory frameworks capable of resisting extractive pressures and safeguarding critical natural infrastructures, especially under climate change.

The potential enactment of a reform reducing periglacial protection would represent a significant normative regression, with structural effects on water security, federal governance, and extractive dynamics. The most relevant risks include:

1. Weakening of the preventive system: Redefining periglacial environments would limit protection to areas with visible ice, excluding essential water-regulating areas and shifting the law toward a reactive approach.

2. Impact on water security: Relaxation would allow extractive activities in strategic zones, compromising storage, gradual water release, and streamflow stability, particularly affecting arid and semi-arid regions.

3. Legal risks and litigation: The reform could violate the principle of environmental non-regression, triggering judicial conflicts and reactivating Supreme Court intervention in balancing economic development and environmental protection.

4. Alteration of environmental federalism: A more flexible law could be interpreted as delegating authority to provinces, weakening uniform national standards and creating regulatory heterogeneity.

5. Expansion of extractivism and socio-environmental conflicts: New mining authorizations in fragile ecosystems could affect soils, waterways, biodiversity, and local communities or Indigenous peoples dependent on water resources.

6. Geopolitical and reputational consequences: Reduced protection could impact Argentina’s position in international debates on climate change, conservation of strategic resources, and compliance with environmental commitments.

7. Intensification of the “water war”: Expanded extractive access to strategic reservoirs could deepen competition between productive uses, human consumption, and ecosystem preservation, generating territorial and social disputes.

In sum, any reform is not an isolated episode but a turning point in the historical dispute over the control, use, and preservation of Argentina’s water resources. It could redefine the relationship between economic development, environmental federalism, and water security. Beyond its environmental function, the Glacier Law is reaffirmed as an instrument of water sovereignty and a pillar of fundamental rights and the Argentine environmental legal framework.

Bibliografía:

Bonasso, M. (2011). El Mal: el modelo K y la Barrick Gold.

• Filmus, D. (2010). Debates parlamentarios sobre la Ley 26.639.

• Ley 26.639: Minimum Standards for the Preservation of Glaciers and the Periglacial Environment.

• Supreme Court of Argentina. “Barrick Exploraciones Argentina S.A. and another v. National State, declaratory action of unconstitutionality.”

• General Environmental Law 25.675.

• Argentine National Constitution.

• United Nations (2010). Resolution on the Human Right to Water.

• Escazú Agreement (2018).

• ECLAC (2022). Water Security and Climate Change in Latin America.

• IPCC (2021). Sixth Assessment Report.

• Svampa, M. (2013). The Commodity Consensus and Valuation Languages in Latin America.

• Gudynas, E. (2011). Extractivism and Development.

• OAS (2019). Human Rights and the Environment.