MOVING FLOORS: THE OBSTACLES TO GUARANTEEING ENVIRONMENTAL PROTECTION OF NATIVE FORESTS IN THE CONTEXT OF ARGENTINA’S FEDERALISM A Thesis submitted to the Faculty of the Graduate School of Arts and Sciences of Georgetown University in partial fulfillment of the requirements for the degree of Master of Arts in Development Management and Policy By John Luft, B.A. Buenos Aires June 7th, 2013 Copyright 2013 by John Luft All Rights Reserved ii MOVING FLOORS: THE OBSTACLES TO GUARANTEEING ENVIRONMENTAL PROTECTION OF NATIVE FORESTS IN THE CONTEXT OF ARGENTINA’S FEDERALISM John Luft, B.A. Thesis Adviser: Dr. Ricardo Gutiérrez ABSTRACT At the end of 2007, Argentina’s Congress passed a forest law intended to provide a national floor of environmental protection for the country’s remaining native forests. The law was a response to the environmental problems and social conflicts that have accompanied the high rate of deforestation over the past several decades, which was the result of the conversion of native forests into agricultural and pasture land. This thesis will show how the northern provinces have accomplished the lowering of the law’s protection floor, using the province of Salta as an in-depth case study. It will argue that the Argentina’s Secretary of the Environment and Sustainable Development (SAyDS) has allowed this to happen because President Cristina Kirchner (2007-the present) has appointed environmental secretaries who favor the province’s control of their natural resources over the national government’s constitutional obligation to provide its citizens with a safe environment. The President has appointed such secretaries because environmental protection has never been a policy priority for her or her husband, the late President Nestor Kirchner (2003-2007), and enforcing the law’s protection floor would require that the SAyDS challenge economic priorities of both governors and the national government. This could have political costs, as almost all northern governors have been close allies of the Kirchners since at least 2007, and it could also limit the iii growth of agricultural exports, which have been the anchor of macroeconomic stability in Argentina since its default and ensuing crisis in 2001. This attitude toward environmental protection has not been uniform in the state. A Supreme Court ruling improved Salta’s implementation of the law, but the province still managed to lower the law’s protection floor significantly. This suggests that the national government will have to take a more active role in environmental policy and its enforcement if legislation like the Ley de Bosques is to achieve its objectives. iv Acknowledgements: There are too many people to thank and too little space with which to do so, but I will try. I would like to start by thanking my parents and grandparents for having worked hard to give me the opportunity to study, and for having trusted the paths I’ve chosen. My girlfriend for having listened to my arguments, suffered my thesis-induced absent- mindedness, and for having supported me along this road. My thesis director, Dr. Ricardo Gutiérrez, deserves a lot of the credit for this thesis. He suggested the topic, invited me to join a doctoral study group whose reviews strengthened my thesis, and patiently corrected and improved numerous drafts. His suggestions and attention to detail made this a better thesis. I would also like to thank Dr. Arturo Fernandez, one of the gentlemen and scholars of the Argentine university system, for his generosity over the past several years. His dedication to students and learning is unrivaled, and he always made time for an American struggling to make sense of Argentine politics and policy. I can only hope that I learned a thing or two from him. I would like to thank the staff at UNSAM’s School of Politics and Government for never having lost patience with me, despite the fact that I never managed to do things the right way. I would also like to thank all the people in Argentina who agreed to speak with me about my thesis. Many professionals opened their doors and offices to discuss the Forest Law with me. Without their kindness and generosity, this thesis would have been many pages shorter (readers might soon wish more doors had been shut) and less informed. Finally, I would like to thank my friends and classmates for keeping me grounded throughout all of this. v Table of Contents: Chapter I…………………………………………………………………...1 Introduction………………………………………………………………..1 Environmental Legislation in the Context of Argentina’s Federalism…….3 Explaining No-Action………………………………………….………….6 No-Action by All…………….…………………………………………….11 Structure of the Thesis………………………………………………….….16 Chapter II: The Problem, the Bill, and its Reglamentation…….……….…18 The Nature of the Problem……..…………………….……………………21 The Environmental Risks of Indiscriminate Deforestation in the North and Northwest……………………..…………………………………..….….....26 The Road to Congress………………………………….………………..…31 Reglamentation of the Law: Decree 91/09………………………………....37 Chapter III: The Lowering of the Protection Floor and the National Authority’s Response…………………………………………..………….40 The SAyDS’s Response………………………………………………..….46 What Enforcing the Law’s Real Protection Floor would Require………...51 Environmental Protection and Institutions under the Kirchners…………..56 The Secretaries…………………………………………………….............64 vi The Low Institutional Hierarchy of the SAyDS and its Dirección de Bosques…………………………………………………………………….70 The “Problem” with the Law: The Fund……………………….………….76 Why the Ley de Bosques may conflict with executive priorities…………..79 The Governors………………………..……………………....82 Macroeconomic Factors………………………………………85 National Agricultural Policies……………….…………..….93 Chapter IV: The Case of Salta……………………………..……………..98 Juan Carlos Romero’s Environmental Record……………..………….….101 Salta Changes Course?................................................................................103 Star-Crossed Processes: the OTBN and the Review of Romero’s Deforestation Permits in 2007……………..……………….……………..105 The Discarded OTBN……….………………………………………….....109 The Second OTBN…………………………………………………..……110 The March to the Supreme Court………………………………...……….112 Urtubey’s Response to the Court……………………………………..…..116 Limits of the Court's Ruling and the Agricultural Sector's Response to Urtubey………………………………………………………………...….119 The Second Lowering of the Protection Floor………………………..…..122 Where Things Stand………………………………………………………130 vii Chapter V: Conclusion………………………………………….………...136 Policy Suggestions……………………………………………..…………146 Bibliography………………………………………………………...…….155 viii List of Maps: Map of Argentina…………………………………………………………xi OTBN of the Province of Formosa………………………………………..44 Map of the Province of Salta……………………………………………..98 OTBN of the Province of Salta…………………………………………...118 OTBN of the Province of Santiago del Estero……………………………126 ix List of Acronyms Used: AFIP: Administración Federal de Ingresos Públicos (República Argentina) ARI: Afirmación de una República Igualitaria. A former Argentine political party. BCRA: Banco Central de la República Argentina COFEMA: Consejo Federal de Medio Ambiente CONICET: Argentina’s National Scientific and Technical Research Council CSJN: Corte Suprema de Justicia de la Nación DB: Dirección de Bosques Defensoría del Pueblo: Argentina’s National Ombudsman FPV: Frente para la Victoria IANIGLA: Argentine Institute of Glaciology and Environmental Sciences INTA: Instituto Nacional de Tecnología Agropecuario OTBN: Territorial Ordering of Native Forests PDO: Pacific Decadal Oscillation. SAyDS: Secretaría de Ambiente y Desarrollo Sustentable (Argentina’s national Environmental authority. UCR: Unión Cívica del Radical USDA: United States Department of Agriculture x xi Introduction: At the end of 2007, Argentina’s Congress passed the Ley de Bosques, a minimum standards of environmental protection law designed to provide a national floor of environmental protection for the country’s remaining native forests1. The law was a response to the environmental problems and social conflicts that have accompanied the high rate of deforestation over the past several decades, which were the result of a combination of new agricultural techniques, increased rainfall and sustained international demand for grains and animal proteins that has led investors and producers out of the country’s traditional agricultural region (the Pampas) and into the less favorable soils and climates of the northern provinces (Di Paola: 2011; Grau and Gasparri: 2005; Manuel- Navarette et al.: 2005; SAyDS: 2008). These provinces, which are home to around 80% of Argentina’s remaining forests, are attempting to lower the law’s protection floor, and the Secretary of Environment and Sustainable Development (SAyDS), the national authority of application for the law, has allowed the provinces to effectively lower it. This thesis will show how the provinces have accomplished the lowering of the law’s protection floor, using the province of Salta as an in-depth case study. It will argue that the SAyDS has allowed this to happen because President Cristina Kirchner (2007-the present) has appointed environmental secretaries who favor the province’s control of their natural resources over the national government’s constitutional obligation to provide 1Native forests are distinguished from plantations. Argentina has a law, 25.080, designed to promote the latter. 1 its citizens with a safe environment. These secretaries have, in turn, made limited and inconsistent use of the law’s relatively weak enforcement