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the legal framework of patagonian dams

by drbyos


the choke dam with aerial view

The energy from waterfalls and other hydraulic sources, including seas and lakes, constitutes something, legally considered different from water and land that make up said sources. With this disquisition established in article 5 of law 15,336, the national State kept the electrical energy generated using the hydraulic force of provincial waters.

Said law was sanctioned on September 15, 1960 and Arturo Frondizi promulgated it 5 days later. It is that for this it was the national State who should promote development, not the provinces.

Since its sanction, in any case, it was clear that it harmed the provinces. They revealed it from the outset, the legislators of the so-called radicalism of the people who did not support said project in Congress, withdrawing from the at the time of voting.

From the provinces of North Patagonia there were many voices that were raised to question this appropriation of the national State throughout the decades that have passed. One of them was that of engineer Luis Felipe Sapag.

But also this disquisition between water and hydraulic power to produce electricity was questioned in the field of legal doctrine. This was revealed by the treatise on administrative law Miguel Marienhoff. “I consider that the jurisdiction to ‘produce’ or ‘generate’ electrical energy using the hydraulic power of provincial waters is ‘provincial’ and in no way ‘national’, as the law says,” sentenced in an article in the magazine El Derecho in 1984. And he added: “When the waters, or energy-producing sources, are from the provincial domain, it goes without saying that the hydraulic force, used to obtain this energy, also belongs to the provinces, since said hydraulic force, or gravity energy, is nothing more than an accessory of the water course; It should be remembered that, in particular cases such as this, in public law the principle in force in private law is also applicable, according to which the ‘accessory’ -which is hydraulic force- follows the legal condition of the main thing, which it is the water course.”

It is significant, for this historical account, that it was precisely this reading of Marienhoff that Luis Sapag collected in a document dated in Neuquén, in December 1983, entitled “Hidronor SA: Against the honor of Comahue. Basis for the conversion of Hidronor SA”.

After citing the last paragraph of Marienhoff’s article, he maintained that the purpose of the central power to arbitrarily appropriate energy resources was evident.

And he finished: “The affirmation that the potential energy of water is a legal thing different from water is as irrational as supposing that a person who kills another with a knife is not a murderer, because the force used by him is something different from him. same.”

Law 16,882 creating the Chocón-Cerros Colorados Complex was based on a compromise formula. It was not against the doctrine established from the disquisition of article 5 of law 15,336 but it did advance in the multipurpose character that said hydroelectric project should have. This was established in subparagraph h) of article 19 of said law, which established that the benefits resulting from the exploitation of the Complex should be invested not only in other hydroelectric projects to be built in the same basin, but also in works tending to promote the integral development of the region.

LThe benefits obtained were also to be used in the construction of other hydroelectric projects outside the region as well as the Complex it was to become a state-of-the-art power plant that would provide electricity to Buenos Aires and the coastal region. This was ultimately the transactional formula that the informant member of said law, Senator José Enrique Gadano for Río Negro, drafted. It was the way to get the law.

What was established by it could not materialize due to the institutional interruption of 1966 and, as is already known, Law 17,574 of the creation of Hidronor, of 1967, repealed it.

It is also known that in its history Hidronor did not address the task of regional development. Only during the democratic governments did he timidly resume that purpose. For example, creating a Regional Interests Management.

The reform of the National Constitution of 1994 is the watershed of this story because it recognized in its article 124 the original domain of the natural resources of the provinces. And with this our provincial constitutions recovered normative force. In the case of the Río Negro Constitution of 1988, it established in its article 70 that the Province has the original ownership of the natural resources existing in its territory.

Now, it is significant in relation to the latter that natural resource theorists have also considered not only water as a natural resource but also hydroelectric power itself. This is the case, for example, of Guillermo Cano in his book Natural Resources and Energy. Law, Politics and Administration, published in 1979. In the classification and definition of natural resources, it considers the point “energy in its various sources” and there it includes hydraulic energy. It should be noted that this classification had already been formulated by Cano andn a work of his included in a document of the CFI, titled “Evaluation of the natural resources of Argentina”, dated in Córdoba, in 1960.

Of course, Law 15,336 is still in force, that the dams were built by the national State and that the concessions of the hydroelectric projects in our region provide that upon completion they will return to the national State. But it is also true that from the beginning it was said that said law was unconstitutional and that it was affirmed not only that the provinces were owners of the water but also of the hydroelectric energy produced by the enterprises carried out on the rivers of the region. The people of Neuquén did so with greater emphasis, by the way, but there was no shortage of voices in Río Negro who supported the same.

The fate of the hydroelectric plants in northern Patagonia has not yet been defined. The review of this rich debate that has been going on for decades, in any case, allows us to affirm thatThere was no lack of those who argued that hydroelectric energy is a natural resource and that it is of provincial domain and jurisdiction. The echoes of those voices still reach us.

*PhD in History. Adjunct Professor of Political Law. National University of Comahue.

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