The Chilean Constitution currently in force (Article 19 No 8), sets forth the right to live in an environment free of pollution and establishes that it is the state’s duty to ensure both that the environment is not negatively affected and the preservation of nature.
On 25 October 2020, Chile voted on a referendum to replace this constitutional text; as of the date of this writing, the democratically elected Conventional Convention is working on the new Constitution, creating different special commissions to discuss and make proposals to the plenary Convention for their approval. Among these, there is the Commission on Environment, Rights of Nature, Natural Commons and Economic Mode.
It is not entirely clear how protection of nature will be addressed in this new Constitution. However, in the current context, where the effects of climate change are becoming more apparent and the country is experiencing a decade-long drought, it is probably that some ideas – such as sustainable development, protection of nature and ecosystems, and access to water – will be issues of high relevance in the new constitutional text.
Law No 19,300
The mandate to the state to ensure both that the environment is not negatively affected and the preservation of nature present in the Chilean Constitution currently in force is further detailed in Law No 19,300 on General Bases of the Environment, which outlines the main aspects of several mechanisms to protect the environment, such as:
It also details the functions, organisation and other aspects of the Ministry of the Environment and the Environmental Assessment Service (Servicio de Evaluación Ambiental, SEA).
The key principles of environmental law in Chile are also found in Law No 19,300. These include the preventive principle, the participation principle and the efficiency principle.
S.D. No 40/2012
There is also the S.D. No 40/2012, Regulations of the Environmental Impact Assessment System, that detail the functioning of the SEIA. Any project or activity listed in Article 10 of Law No 19,300 must be assessed through the SEIA in order to obtain an environmental licence (Resolución de Calificación Ambiental, RCA).
A recent development is the new requirement for assessment in the SEIA of projects or activities that might affect wetlands located partially or totally within the urban radius (Article 10 letter s) of Law No 19,300, added by Law No 21,202 which amended, in turn, several statutes increasing protection of wetlands).
Within the SEIA, several public agencies comment on projects submitted and are able to impose conditions for those projects' operation within the sphere of their respective competencies. The project must then be carried out in accordance with the conditions established in its permit.
Law No 20,417
Another key environmental regulation is Law No 20,417, Organic Law of the Superintendence of the Environment (Superintendencia del Medio Ambiente, SMA), which provides the regulatory framework for that institution and its main functions, such as environmental inspections, punitive procedures and incentives for compliance.
Law No 20,600
Law No 20,600 creates the Environmental Courts. There are currently three Environmental Courts in Chile with jurisdiction in the northern (Antofagasta), central (Santiago), and southern (Valdivia) regions of the country. The Environmental Courts are collegiate bodies comprised of two judges who are lawyers and one with a degree in the sciences. This range of expertise enables them to grasp the technical complexities of the cases brought before these courts. It is important to note that, as this legislation is relatively new, the contours of the right to live in a pollution-free environment, and of environmental law in general, have been defined, in many respects, by jurisprudential criteria. Therefore, the Environmental Courts and the Supreme Court play an important role in the construction of environmental law application criteria, permanently shaping the limits and powers of each environmental agency when they regulate an issue or adjudicate over a dispute. They are not part of the executive branch; they are independent and impartial.
Other important regulations are air emissions standards, and prevention and decontamination plans, which are established by the authorities for certain geographical areas, depending on their pollution levels.
Ministry of the Environment
The main regulatory authority on environmental matters in Chile is the Ministry of the Environment (Ministerio del Medio Ambiente, MMA), which collaborates with the President of the Republic in the design and application of policies, plans and programmes on environmental matters, as well as in the protection and conservation of biological diversity and of renewable and water resources, promoting sustainable development, the integrity of environmental policy and its normative regulation.
The Council of Ministers for Sustainability is chaired by the Minister of the Environment and composed of the Ministers of: Agriculture; Finance; Health; Economy, Development and Tourism; Energy; Public Works; Housing and Urban Development; Transport and Telecommunications; Mining; and Planning. The main functions of this Council are proposing environmental public policy to the President of the Republic, and giving its opinion regarding environmental bills and administrative acts.
Another key regulatory authority is the SEA, which is in charge of managing the SEIA and, when applicable, the process of citizen participation and of participation of indigenous communities in the SEIA in accordance with ILO Convention 169.
The SEA, additionally, manages a public information system about the projects that are assessed within the system, handling the environmental licences and authorisations and a public register of certified environmental consultants.
Regarding its regulatory authority, the SEA is in charge of drafting guidelines that standardise and unify criteria for the application of environmental law. Also, the SEA interprets RCAs, whenever there are doubts over the scope of their text or their content.
Another key agency is the SMA, which is in charge of overseeing compliance with environmental licences, laws, regulations and other permits. The SMA also has broad authority to inspect, and request information from, regulated parties and is entitled to impose significant fines and penalties in cases of environmental breach. These penalties include fines up to 10,000 Yearly Tax Units (YTU) – approximately USD8 million – cancellation of the RCA, and temporary or permanent closure of facilities.
As an independent and impartial body, the role of the Environmental Courts, described in 1.1 Key Environmental Protection Policies, Principles and Laws, is also key, as they oversee the application by the SMA, SEA and MMA of the environmental law and regulations.
Biodiversity and Protected Areas Service
It must be noted that, at the time of writing, Chile still does not have a public agency devoted to managing protected areas. The Bill creating the Biodiversity and Protected Areas Service (Servicio de Biodiversidad y Áreas Protegidas, SBAP), which is an institution envisioned in the institutional reform of 2010, is still under discussion in the Chilean Congress, after over ten years.
Finally, other authorities with relevant attributions in environmental terms are:
The enforcement of environmental licences, legal standards and regulations in Chile is carried out by the SMA. The SMA has powers to investigate and prosecute administrative liability due to environmental damage or to breaches of RCAs and other applicable regulations.
In this context, the SMA may impose fines and penalties, which include fines up to 10,000 YTU (approximately USD8 million), termination of the RCA, and temporary or permanent closure of facilities.
Additionally, the SMA manages several reporting and disclosure systems, which operate on web-based platforms and are not publicly available, unless the SMA starts a punitive proceeding against a regulated entity.
The SMA is also charged with managing several incentives for compliance, such as compliance programmes and self-reporting measures. A compliance programme is a set of verifiable measures to return a project or activity to environmental compliance. If the programme is accepted by the SMA and is successfully fulfilled, it will result in the non-application of the fine that would have been imposed otherwise.
Self-reporting, on the other hand, consists of the informing, by a regulated party, of an environmental breach to the SMA. The result of the self-report is that, if the party successfully completes a compliance programme, the fine that would have been applicable will not be applied by the SMA.
Finally, any person or entity may file a complaint before the SMA denouncing a breach of environmental licences or regulations. The SMA may further investigate and, if it deems it appropriate, will pursue a punitive proceeding.
The SEIA is an administrative process managed by a specialised agency, the SEA, in which several public agencies with environmental competencies, make observations within the scope of those competencies regarding the environmental impact(s) of the project or activity being assessed. As a result, these agencies can, with respect to the relevant statutes, impose measures and conditions on the project owner in order to mitigate these impacts.
Article 10 of Law No 19,300 lists the projects or activities that must be assessed under the SEIA, in order to obtain an RCA to operate. If the RCA approves the project assessed, it will also approve the environmental contents of sectorial permits applicable, which may not be rejected thereafter due to environmental reasons.
DIA and EIA
A project can enter the SEIA by means of an environmental impact declaration (declaración de impacto ambiental, DIA) or study (estudio de impacto ambiental, EIA). In general, a project that must enter the SEIA will be assessed by a DIA; unless it generates or creates any of the impacts, effects or circumstances described in Article 11 of Law No 19,300. If the project generates any of these more significant impacts, it must be submitted through an EIA.
These impacts, effects or circumstances are significant adverse impacts and consist of, among others:
The administrative record of the environmental assessment is always publicly available, whether on the website of the SEIA or in the offices of the SEA. Exceptionally, and at the request of the interested party, the authority may keep technical, financial or other background information under reserve so as to protect commercial or industrial confidentiality, or to protect patents or inventions linked to the assessed project or activity.
Additionally, communities affected by a project under assessment may participate in the process, making observations to the project being assessed. Communities may always participate in an EIA, and in a DIA if:
Whenever an indigenous community is affected by a project assessed in the SEIA, the SEA will open a special participation stage, tailored to the requirements laid out by ILO Convention 169.
Observations and comments made by the community or by indigenous communities will be considered by the SEA as an integral part of the assessment process and must be addressed by the SEA, who must issue a well-founded response to every one of these comments. If the SEA fails to properly respond to any of the observations and comments made by the community, the person who made the observation my file an appeal to invalidate the RCA.
Amendments and Permits
RCA provisions are strictly binding throughout the life cycle of the project. Any significant amendments must be assessed within the SEIA. Where there is doubt over whether an amendment is significant, it is possible to ask the SEA its opinion through an appropriateness letter (consulta de pertinencia). The answer of the SEA will not have the status of a permit or an authorisation, rather it will be merely the opinion of the SEA as to, in light of the information provided, whether the project or amendment studied should enter the SEIA.
Within the SEIA, the project’s owner must also request specific permits for the project. These are sectoral permits granted by different sectoral authorities, but that have environmental contents. These are the environmental sectorial permits (permisos ambientales sectoriales, PAS). Examples of these permits include
The environmental aspects of those permits are assessed and approved within the SEIA, and the RCA will duly note this circumstance. The project holder will have to then process these permits before the corresponding authority for the sectoral approval, showing the RCA. Although the authority might reject the permit for technical reasons, it will not be allowed to reject the sectoral permit for environmental reasons.
The project holder may appeal the RCA if it imposes onerous conditions or requirements; or if the RCA rejects the project assessed. Appeals against an RCA shall be filed before the Executive Direction of the SEA if the challenged RCA was based on a DIA, or before the Council of Ministers, if the challenged RCA was based on an EIA. In turn, these decisions may then be reviewed by the Environmental Court; whose decisions are subject to review by the Supreme Court via a cassation remedy, in applicable cases.
Also, as previously mentioned, members of the community that made observations of the project assessed, and who feel their observations were not duly considered in the RCA, may also appeal the RCA, following the same routes mentioned above.
The following are the key types of liability related to environmental damage or to the breach of environmental regulation.
Administrative liability arises from a breach of environmental regulations, of the project RCA, or from the causation of environmental damage, regardless of any further environmental or civil liability that might arise. The SMA, as stated in 2.1 Key Regulatory Authorities, can investigate any project or activity in order to verify environmental compliance. Note that the SMA usually considers any deviation from the RCA a breach of its contents.
If a breach is detected, the SMA can file charges against the project owner, starting an administrative procedure that can conclude with penalties ranging from a written reprimand to fines of up to 10,000 YTU (approximately USD8 million), including total or partial closure of the respective project and/or revocation of its RCA.
Alternatively, if environmental damage can be repaired, the SMA can order the project owner to execute a repair plan. If the damage cannot be repaired (such as damage to an archaeological site), then the SMA can impose a fine, or other measures such as the ones detailed above.
When indicted, a project holder can also submit to the SMA a compliance programme for its approval. Note that compliance programmes can be presented only once and cannot cover very serious violations.
This plan must be executed in its entirety, and any breach in the programme will result in the reopening of the penalty proceeding and imposition of up to twice the original fine. If the plan is completely executed, and this is approved by the SMA, then the proceeding will be concluded and no other penalty will be imposed.
Penalties imposed by the SMA can be appealed before the Environmental Court.
Civil liability arising from environmental damage is set forth in Articles 51 to 55 of Law No 19,300. According to this Law, anyone causing environmental damage, whether by malice or fault, must restore those damages. In addition, breach of any administrative regulations will result in a presumption of liability. After the Environmental Court has established liability, the affected parties may seek redress as per general rules before the civil courts.
At the time of writing (October 2021) there are no general provisions setting forth a general regime for criminal liability linked to environmental violations. The Criminal Code and other statutes set forth few specific provisions of limited scope related to criminal offences of an environmental nature.
For example, the Criminal Code punishes, among other things, the malicious poisoning or infection of water intended for public consumption as well as withdrawal of water flows without water rights. Another environmental criminal offence is found in the General Law on Fishing and Aquaculture, which punishes anyone who introduces, or orders the introduction of, any pollutants into any body of water causing damage without previous neutralisation.
Indeed, the Chilean criminal environmental liability system has been considered as insufficient. There is currently a Bill in Congress whose purpose is to set forth a broader scheme for criminal liability linked to environmental crimes and damage. It should be noted that, under the current legislation, environmental damage is not a criminal offence.
In Chile, there are no special regulations regarding the environmental liability of current landowners arising from historical incidents or past owners’ actions.
In accordance with Law No 19,300, there is a five-year statute of limitations to file an environmental damage claim, beginning from the definitive cessation of the event causing the damage.
Regarding civil damages, if the claim is filed directly before a civil court (without a ruling from an Environmental Court establishing the existence of environmental damage), the term to file the claim is the general term for torts (four years from the occurrence of the event).
Administrative liability has been addressed in the 4.1 Key Types of Liability. As previously discussed, the SMA can file charges against the project owner, who may:
Please note that these are either/or alternatives.
If a project owner decides to submit a defence, it can use all means admitted by law, which will be evaluated by the SMA pursuant to the logical and reasonable rules of evaluation and procedure (sana crítica).
Environmental Damages Liability
In relation to liability due to environmental damage, Chile operates a fault-based system, and apart from specific cases where the law sets forth a strict liability scheme (such as application of pesticides, hydrocarbon spillages into bodies of navigable waters, etc), fault expressed as malice or negligence is required to establish liability. Additionally, the following requirements must be met:
Environmental damage claims such as these must be filed before the Environmental Court by:
In this case, the burden of proof lies on the plaintiff. Key defences include:
It is important to note that, in order to give rise to environmental liability, the damage must be “significant”. It is accepted that any human activity will cause some sort of injury to the environment, so that not any effect to the environment can be considered as environmental damage. Therefore, the damage must be significant in order to allow a claim for reparations from the person or entity that caused it. The law does not define the concept of “significance”, so the Environmental Courts and the Supreme Court have defined some criteria to establish the existence of significative damage on a case-by-case basis, which include:
According to Chilean legislation, environmental damage can be caused by any person or legal entity, and the same can be said of breaches of environmental law.
There is a general provision related to corporate liability in Chilean Law No 18,046, on Stock Corporations, transferring the liability of the company to its administrators or representatives unless their lack of participation in, or their opposition to, the act constituting the infringement is proven. In other words, in case of breach of environmental law, or in case of environmental damage, the administrators or legal representatives of a stock corporation will be liable unless it is proven that they did not participate or that they opposed to the act constituting the violation.
A recent development is the enactment of Law No 20,393 that established criminal liability of legal entities, in relation to specific crimes. Some of these crimes are set forth in the General Law on Fishing and Aquaculture, and involve some environmental contents; such as the contamination of water bodies resulting in harm to hydrobiological resources; extraction or commercialisation of resources subject to extraction bans; and the unauthorised extraction of resources within benthic resources management areas.
However, this could change in the future, as there is currently a Bill in Congress aimed at expanding the scope of criminal liability of legal entities (Bill No 13204-07).
Currently, in Chile, shareholders or parent companies are not liable for breaches of environmental law. As stated in 6.1 Liability for Environmental Damage or Breaches of Environmental Law, the party liable before environmental authorities is the project owner. However, it should be noted that this could change in the future with the Bill regarding the expansion of criminal liability of legal entities (Bill No 13204-07).
In some cases, however, financial entities had been held liable for environmental damage. In a 2013 ruling, the Supreme Court ordered the company Forestal León Ltda. and the Banco de Chile to jointly repair the environmental damage caused in the El Peñasco estate by the illegal cutting down and burning of native forest (Supreme Court, Case No 8593-2012).
According to Chilean legislation, any person – whether a natural or a legal entity – wilfully or negligently causing environmental damage is liable both to restore the damaged environment and also to compensate those affected by that damage.
Breaches of an RCA or of environmental law, prosecuted by the SMA, may result in fines of up to 10,000 YTU (approximately USD 8 million), as well as closure or cancellation of that RCA.
In case of stock corporations, liability can be transferred to its administrators or representatives unless their lack of participation in, or their opposition to, the act constituting the breach is proven.
In relation to obligations arising from a mine closure plan, Law No 20,551 provides that the mining company or the mining entrepreneur are responsible for compliance with the closure plan, whether that plan is executed directly or by a third party. If the requirements of the mine closure plan are infringed, the legal representatives of the mining company, and whoever is responsible for the breach, will be sanctioned with a fine ranging from 100 to 1,000 YTU (approximately USD6,750–67,500). The specific amount to be applied will be determined on a case-by-case basis by the Superintendent of the Environment, depending on the seriousness of the breach and the criteria provided in Law No 20,417, which include: intent, prior conduct, economic benefit and endangerment to the environment or public health.
There is no regulation in Chile regarding insurance against environmental liability. However, insurance could be purchased to cover the civil damages related to this liability.
The party appearing as the project holder before the environmental authority is liable for breaches of environmental laws and regulations, or for environmental damage according to Article 24 of Law No 19,300.
Therefore, financing or lending entities are not liable before the environmental authorities in the case of a breach of environmental laws and regulations, or in the case of environmental damage.
Even though lender protection is not regulated in Chile, and lenders will not be liable before the environmental authorities if they are not listed as the project owners before those environmental authorities, there are several steps that can be taken in order to protect their investments.
For example, lenders could protect themselves by conducting environmental law due diligence to investigate potential environmental liabilities, and by drafting contractual clauses limiting their liability in the case of an environmental offence or contingency.
Environmental liability arises from the generation of environmental damage. If environmental liability is established, it is possible to claim reparation for civil damages derived from the environmental ones.
This claim must be filed before a civil court, only after the Environmental Court has determined that environmental damage exists.
If the Environmental Court rules that there was no environmental damage, there could still be liability to compensate those civil damages caused, actionable as per the general rules of civil liability before civil courts.
Chilean legislation provides that compensation should cover only the damage caused according to the principle of “integral damage reparation” (ie, the claimant should be restored to the position they would have held if the damage had not occurred). Therefore, the courts cannot award exemplary or punitive damages.
There are no class or group actions in Chilean environmental law. Parties with standing to claim environmental damage are those directly affected (whether natural or legal entities), municipalities or the state.
In some cases, the Supreme Court has broadened the definition of "standing", admitting a more relaxed evidential standard for parties to prove they have been “affected” in relation to the constitutional right to live in an environment free of pollution. However, this broader standing does not fall into the definition of a class or group action. The only class actions recognised in Chilean law can be found in consumer protection legislation.
As there are no class actions in Chile, there are no landmark cases to highlight.
The holder of an environmental licence is solely responsible for its fulfilment and is the only liable party in the case of a breach of permits or regulations, or in the case of environmental damage. Because of this, the relevant environmental authority must be informed of any change in ownership of a project that has been environmentally approved.
Even though it is possible to transfer or apportion liability among the parties, these agreements are only binding among the parties, and not to the regulator. In other words, the party registered as the project owner before the authority is the only liable party, regardless of any private agreement to the contrary.
Chilean legislation does not provide for overall environmental insurance covering environmental damage or breaches of environmental legislation. There are, however, forms of private insurance that could cover such events, such as policies covering the costs of compensation to third parties or the costs derived from a clean-up operation. These are governed by the common rules applicable to insurance.
There is no special legal regime related to remediation of contaminated land in Chile, which shall fall under the environmental damage regime.
If environmental damage is caused with negligence or intent, it will give rise to two different liabilities:
Usually, the SMA will pursue reparation, and then the government might pursue civil liability against the responsible parties.
Chile has been an active part of the international negotiations regarding climate change, and is part of the UN Framework Convention on Climate Change, the Kyoto Protocol and the Paris Accords. However, Chile is not among those countries with binding greenhouse gas emissions reductions targets.
In 2020, Chile presented its Nationally Intended Contribution (NIC), which consists of different measures, aimed at reducing greenhouse gas emissions.
The NIC also proposes means of implementation and data to improve the quality of information and transparency.
It is noteworthy that, as per its NIC, Chile is aiming at reducing its greenhouse gas emissions by 30% by 2030 in relation to 2019 emission levels, with the long-term goal of becoming carbon neutral by 2050.
Moreover, the NIC states that under certain enabling conditions there is a 45% by 2030 emission reductions potential target, taking into account mitigation and/or carbon capture actions.
Finally, at the time of writing, there are Bills being discussed in the Chilean Congress that relate to climate change. One of these is the Framework Law on Climate Change, which lays the foundations for drafting and implementing long-term climate policy. Another one is the Glacier Protection Law, which establishes an absolute prohibition on mining or any other type of industrial activity on glaciers of any type (whether white or rocky) glaciers, except for those activities intended for scientific research, tourism or sustainable sports.
In April 2020, the Chilean government presented its 2020 NIC to the UN Framework Convention on Climate Change, which contains Chile’s commitment to reduce its greenhouse gas emissions by 30% by 2030 (compared to 2019 emission levels) and to become carbon neutral by 2050.
Additionally, the Ministry of Energy has set the goal of closing every thermoelectric power plant in Chile by 2040. Regarding this matter, a Schedule of Withdrawal or Reconversion of Coal Plants was presented. It establishes the closure of the eight oldest plants by 2024, which represent 19% of Chilean carbon-based power plant capacity. The schedule also establishes a commitment to define dates in worktables formed every five years, which will allow the setting up of specific retirement schedules in the future.
As a way to reduce greenhouse gas emissions and promote decarbonisation, the Chilean government is developing a strategy to develop and promote the green hydrogen industry, which can be produced without emitting greenhouse gases or pollutants. It should be noted that Chile has a great potential for renewable energies to generate green hydrogen, and could reach more than 1,800 GW of installed capacity if this potential is exploited.
The national green hydrogen strategy is a long-term policy that establishes Chile's ambitions to create a new industry in this sense, having as its axis the promotion of investment and financing of renewable energy generation, international co-operation on the matter and the revision of the applicable regulations. For its elaboration, technical tables, citizen workshops and an advisory council have been formed. A public consultation process was also carried out, whose results and conclusions must be published by the Ministry of Energy.
Since the enactment of S.D. No 656/2000, the production, import, distribution, sale and use of asbestos or any other product of material that contains it is forbidden, with the exceptions set forth in the mentioned regulation.
Asbestos is also addressed in S.D. No 594/2000, which provides for minimum health and safety standards in workplaces, forbidding the use of blue asbestos-crocidolite, and considering asbestos (both dust and fibres) as a hazardous waste material to be handled as per the regulations set forth in S.D. No 148/2003.
There are various statutes governing the handling, storage, transportation and final disposal of waste according to the different classes of waste involved:
Generation, transport and elimination of waste, whether hazardous or not, must be reported through the Pollutant Release and Transfer Registry (Registro de Emisiones y Transferencias de Contaminantes, RETC) web platform. It should be noted that the above-mentioned statutes merely include provisions governing the handling of waste that has already been generated and do not provide any mechanisms for incentivising waste minimisation, recycling or recovery.
Law No 20,920 on extended producer responsibility and recycling promotion (Ley de Responsabilidad Extendida del Productor, REP Law), is the broader statute pertaining to waste and includes an economic instrument for waste management, seeking to reduce waste generation and increase recovery. The MMA will gradually set goals for waste generation and recovery, and compliance will be overseen by the SMA.
The REP Law sets forth a hierarchy for waste handling:
Waste elimination is seen as the last resort for waste handling. Also, the REP Law represents an important step towards a more comprehensive waste-handling policy, that includes recovery and recycling in the life cycle of waste.
The REP Law sets forth an extended liability for the producers of products designated as a “priority” by the Law due to their size, hazardous characteristics, or the presence of exploitable components, with the purpose of decreasing generation of waste and promoting their reuse, recycling and other types of recovery. Those priority products are lubricating oils, electric and electronic equipment, packaging and containers, tyres, and batteries.
The extended producer liability set forth by the REP Law entails that the producer of priority products will remain responsible for them until they are properly recovered or eliminated by another authorised entity, such as a waste-treatment facility or a landfill.
The REP Law sets forth a hierarchy in waste handling where elimination is the last alternative (see 14.1 Key Laws and Regulatory Controls). This way, any waste with the potential to be recovered must be recovered. This is one of the obligations that form the extended responsibility of the producer of a priority product.
The MMA will issue regulations considering different instruments to prevent generation of waste, such as eco-design, labelling and rebates. Also, the MMA will set goals for waste collection and recovery. To date, the regulations in force are the Regulations of the Recycling Fund (S.D. No 7/2017) and the Regulations Setting the Procedure for Setting Recycling Goals for priority products (S.D. No 8/2017).
As of the date of this writing (October 2021), the Ministry of the Environment has enacted two regulations setting the recollection goals for priority products: S.D. No 8/2019 setting collection goals for tires and S.D. No 12/2020, setting collection goals for packaging and containers. These regulations will enter into force in 2023.
Other laws related to the use of single-use plastics have been passed, such as Law No 21,100 for the elimination of plastic bags, and Law No 21,368 that limits the generation and use of disposable plastic products (prohibiting the delivery of plastic cutlery, light bulbs and others in food establishments), to be fully implemented in November 2024.
Additionally, a new Bill banning the use of non-compostable plastic products in political campaigns is being discussed in Congress (Bill No 14024-12).
Projects with an RCA, and also those sources subject to emissions standards and other instruments named in R.E. No 885/2016, must inform the SMA of any environmental emergency or event associated to them. The SMA, from time to time, also issues general reporting requirements applicable to certain classes of projects, such as: R.E. No 2257/2020, applicable to regulated parties who discharge treated waste water into continental bodies of water as per S.D. No 90/2000; and R.E. No 680/2021, applicable to thermal power plants required to report emissions online.
Also, RCAs often include different disclosure obligations to the SMA, which are determined on a case-by-case basis. Reporting must be conducted online through the RCA follow-up system of the SMA, within 24 hours of the event.
The SMA also has different computer systems to report environmental variables, for example:
Finally, projects with an RCA must inform the SMA whenever the development stage of the project changes (ie, the start of construction, commissioning or abandonment).
Public services in Chile are guided by the principle of transparency. All information held by the administration, and all administrative proceedings, shall be public unless there are reasons provided in the law for making that information reserved or secret. If the information has not been made publicly available by the authority, the public is allowed to request access to such information, which will be granted unless there is a legally valid reason for not releasing such information.
There are several public databases of environmental information. The most relevant of these are the following:
There are different regulations providing the corporate disclosure of environmental information. For example, release of emissions and waste must be reported through the RETC carried by the MMA. Different emissions standards provide reporting requirements. Also, many RCAs establish the obligation to provide monitoring and reports that must be disclosed to the relevant authority.
Finally, all regulated parties have the duty to disclose any information requested from them by the SMA.
The party liable for the breach of environmental obligations is the party appearing as the holder of the project before the SEA. Therefore, environmental due diligence is usually conducted whenever there is a relevant transaction involving projects, activities or facilities governed by environmental law.
The review is usually composed of documents and information provided by the seller, public information sources and rounds of questions and answers targeted to determine compliance and possible exposure to liability due to the breach of environmental obligations.
Liability is determined by the statute of limitations, which runs for five years following the environmental damage being evidenced, and for three years for administrative breaches in general.
Although Chilean contract legislation is built upon the principle of good faith, there is no specific obligation to disclose environmental information to a prospective purchaser.
Considering that environmental liability falls upon the party registered as the project owner before the authority, environmental due diligence is a useful tool for having a clearer view of the risk involved in a specific transaction. In addition, indemnity clauses, even when they have no validity before the regulator, can be an aid to recovery of costs associated with liability.
Chile recently established a tax on emissions to the atmosphere of carbon dioxide, particulate matter, nitrogen oxide and sulphur dioxide produced by facilities whose fixed sources, formed by heaters or turbines, add up to 50 MWt or more.
The tax is also applicable to new vehicles, light and medium, depending on their performance, emissions and sales price. The tax levied amounts to USD5 per ton.
This regulation was modified by Law No 21,210, which removed the requirement that these emissions should be produced by establishments whose fixed sources are heaters or turbines, as well as the requirement of thermal power. This modification will come into effect on 1 January 2023.
Writing Process for a New Constitution
In October 2020, Chileans voted on a referendum to replace the Constitution of 1980 with a new text, to be drafted by a Constitutional Assembly formed by 155 citizens, elected according to a criteria of gender parity and with reserved seats for members of indigenous peoples.
The Constitutional Assembly commenced its functions on 4 July 2021, and has devoted itself to preparing the regulations for its operation, the text being finally approved on 29 September 2021. The Constitutional Assembly started working on the constitutional text on 18 October 2021, divided in seven different commissions. It is expected that the Constitutional Assembly will start working on the constitutional text itself during October 2021.
As a part of the regulations, seven commissions were created to discuss specific aspects of the future constitutional text that will be then proposed to the plenary Convention for their approval. Among them, there will be a Commission on Environment, Rights of Nature, Natural Commons and Economic Model. This Commission will discuss, among others, issues pertaining to the climate crisis, the duty to protect nature, intergenerational justice, environmental crimes and several principles of environmental law, such as the non-regression principle, and precautionary and preventive principles.
In this context, it can be highlighted that there is a certain consensus in strengthening the role of government in preserving nature and the environment, as well as the possibility to include an ecocentric view of the environment. These visions aiming at a stricter protection of nature have arisen from the increasingly common view that prior legislation has not been able to avoid "sacrifice zones" (areas that have become environmentally impaired due to the impacts of intensive economic activities) and that, in the current context of extreme drought, have not been successful in providing access to water to communities affected due to the lack of this resource.
Note that the Constitutional Assembly has a nine-month deadline for delivering a new constitutional text, extendable for three additional months. After that term, then there will be a referendum on the adoption or rejection of this new text.
Bill of Law for the Framework Law on Climate Change
In January 2020, the Chilean Senate started to discuss the Bill for the Framework Law on Climate Change (Bill No 13.191-12). It is noteworthy that, prior to its submission to the National Congress, the Ministry of the Environment subjected a draft of this bill to a public participation process, allowing the community to submit its input before the bill was sent to Congress.
The purpose of the bill is to face the challenges of climate change, moving towards a development that is low in greenhouse gas (GHG) emissions, to increase resilience to the effects of climate change, and to comply with international commitments.
In this vein, one of the goals of the Bill is to achieve neutrality in GHG emissions by 2050, in accordance to Chile’s National Determined Contribution under the Paris Agreement, setting forth a range of instruments to make this possible at both the national and the local levels. Among these instruments is the Long-Term Climate Strategy that will include: national and sectorial emissions budgets to the years 2030 and 2050; medium-term objectives, goals and indicators; and guidelines for cross-sectional adaptation measures.
On the other hand, the bill sets forth several instruments for managing climate change at the local level, such as strategic plans for hydric resources in basins and emissions-reduction certificates.
In relation to this matter, there is currently another Bill being discussed in Congress to modify Law No 19,300 on the General Bases of the Environment, in order to add the phenomenon of climate change in its provisions, as an element to be taken into account in the environmental assessment of projects and activities.
Bill of Law Creating the Service of Biodiversity and Protected Areas
The creation of a specialised government agency in charge of managing protected areas is long overdue in Chile.
First, Law No 18,362 on the National System of Protected Areas of the State (SNASPE), promulgated in 1984, never entered into force.
Second, the Service of Biodiversity and Protected Areas (SBAP) is the last outstanding institution to be created after the reform of the environmental institutions carried out by Law N 20,417 – and it still has a long way to go. The first bill creating the SBAP was submitted to Congress in 2011 and withdrawn on 2014 (Bill No 7,487-12). The second bill entered the Senate that same year (Bill No 9,404-12) and is still being processed in Congress. The bill has completed its review in the Senate and is currently being processed in the Chamber of Deputies, as the government has noted that it should be processed urgently.
The objective of the Bill is the integration of the attributions and responsibilities for the protection of nature and protected areas in a single agency, which co-ordinates the different actors around its management, with an integrated view of the country. Currently, these functions are dispersed among different ministries: Agriculture, Economy, Environment, Culture and National Property.
The Bill also seeks to create a single National System of Protected Areas (SNASPE), integrated by all the existing protected areas in Chile. It is a system that has not yet fully existed in the country, hindering management of protected areas.
Law Protecting Urban Wetlands and the Discussion on Commencement of Protection Status
On the initiative of some Chilean Senators, it was decided to create a law aimed at protecting urban wetlands, an initiative that was later sponsored by the Executive through the Ministry of the Environment: Law No 21,202 amending various legal bodies with the aim of protecting urban wetlands (Law No 21,202), which was published in the Official Gazette on 23 January 2020.
Law No 21,202 protects urban wetlands, which are declared by the Ministry of Environment or at the request of the respective municipality. One of the most relevant aspects of this law is the amendment it makes to Article 10 of Law No 19,300 on the General Basis of the Environment (Law No 19,300), that details the different projects or activities that have to be assessed in the Environmental Impact Assessment System (SEIA), having to attain an environmental licence (RCA) to operate.
This amendment adds a new type of projects or activities that must be previously assessed in the SEIA. These are activities that are carried out in or near a wetland located within an urban radius and that could generate its physical alteration, or the chemical alteration to the biotic components or their interactions or their ecosystem flows.
The amendment is written in broad terms, covering all types of activities that may affect wetlands located within an urban radius. In order to further specify activities falling into this category, the Executive – through the Ministry of Environment – drafted a regulation published on 30 July 2020, contained in S.D. No 15/2020 (S.D. No 15/2020), setting forth the minimum criteria for the sustainability of urban wetlands and the procedure for the recognition of a wetland as an urban wetland, whether as by the request of the relevant Municipality or by the Ministry of the Environment ex officio.
Since Law No 21,202 entered into force in January 2021, multiple processes for the declaration of urban wetlands have been initiated, both by the Ministry of the Environment and at the request of different municipalities. To date (October 2021), approximately 50 processes have been initiated by the Ministry of the Environment, of which 24 have resulted in the declaration of urban wetlands and 26 are still in process.
There has been, however, a discussion on the moment after which a wetland is considered as protected under the category of urban wetland. Does protection start when the urban wetland has been officially declared – or, does protection start whenever the procedure for declaring this protection commences?
The Supreme Court and the General Comptrollership of the Republic have been on opposite sides of this discussion, understanding in very different terms how this new protection category must be understood and applied.
On one hand, the Supreme Court required environmental impact assessment of a real estate project located nearby a wetland that was in the process of being recognised as a protected urban wetland, whose building permits had been granted before the procedure to recognise as an urban wetland had commenced (Case No 21970-2021).
On the contrary, the General Comptrollership of the Republic ruled that before its official recognition, a wetland could not be considered as an urban wetland protected under Law No 21,102. Therefore, a wetland that was in the process of being declared as a protected urban wetland could not yet be considered as protected under this new statute (Ruling No E129413/2021). The latter was partially reconsidered by the General Comptrollership of the Republic (Ruling No E157665), ruling that projects affecting wetlands that have not been declared yet, must enter the SEIA anyway, if said wetlands meet the criteria for being declared as protected urban wetlands.
This ruling might finally set the criteria for determining when protection status starts, with important consequences for any projects or activities located in the vicinities of wetlands that could be declared as protected urban wetlands.
In order to comply with Chile's nationally determined contribution under the Paris Agreement of achieving carbon neutrality by 2050, different mechanisms have been structured, such as the previously mentioned Framework Law on Climate Changed, and the decarbonisation plan.
As roughly 78% of Greenhouse Gas emissions are generated from the energy sector, the government made the commitment to start the process of decarbonisation of the Chilean electrical matrix. For this purpose, a "Timeline for the withdrawal or reconversion of coal-powered plants” was presented, the main objective of which is to close the entirety of carbon power plants in Chile by 2040.
This timeline established the closure of the eight oldest plants by 2040, which amount to 19% of the capacity of Chilean coal power plants. The timeline also established the commitment to define dates by a task force formed every five years, which will allow the set-up of specific retirement schedules.
Moreover, in 2019, the President of Chile, Sebastián Piñera, announced the early closure of four coal-fired power plants by 2025, accelerating the decarbonisation plan, which contemplated their retirement by 2040.
This advance in the plan means 1,097 MW of power would be retired from the electric system and only ten of the 28 coal-fired plants would remain in operation between 2026 and 2040, equivalent to 20% of the current installed capacity.
Also, as a way to further reduce greenhouse gas emissions and promote decarbonisation, the Chilean government is working on a strategy to develop and promote the green hydrogen industry as a long-term policy. An advisory council and a public consultation process, among other initiatives, have been carried out by the government in order to develop the strategy.
New Jurisprudential Developments
In 2012, the entrance into functions of specialised Environmental Courts initiated an adjustment period, where the limits of the authority of these courts and the superior courts of justice in relation to the Constitutional Action for Protection of Fundamental Rights have been put to the test.
In this sense, a changing balance has been generated between the matters that can be subject of a Constitutional Action, and the matters that can be subject to a claim before the Environmental Court.
At first, until approximately 2016, the Courts of Appeals ruled that the proper legal forum to review the legality of an Environmental Assessment Resolution (RCA) was the Environmental Court. On the contrary, where the challenge was linked to community participation, ILO Convention 169 or another issue directly affecting constitutional rights, then the Courts ruled that Constitutional Action was the proper remedy.
Then, the Constitutional Action regained it prior relevance, returning to the Courts and, especially, to the Supreme Court, an active role in the creation of environmental policy, seeking not only to rule on the cases under its jurisdiction, but also seeking an additional result. For example, on one occasion the Supreme Court ruled that rejection of a request for a community participation stage during the assessment of an Environmental Impact Declaration (DIA) constitutes a violation of the constitutional right to equal treatment under the law (eg, rulings of the Supreme Court in the cases Tronaduras Mina Invierno and Prospección Minera Terrazas – respectively, Cases No 55,203-2016 and No 104,488-2020). In another case, the Court held that a real estate project located adjacent to a Nature Sanctuary, that did not fit into any type of projects that must be environmentally assessed, should have been assessed under an Environmental Impact Study (EIA) (Dunas de Con Con Supreme Court, Case No 12,808-2019). Both of these examples demonstrate ways in which the Supreme Court has sought an additional result when issuing a ruling on a particular case, even when it entails going beyond the text of the law.
There are more instances of the creation of environmental policy by the Supreme Court – in some cases, even replacing the Environmental Authority. For example, in relation to a desalination project that had been assessed by a DIA and had been environmentally approved, the Court voided such RCA, stating that the project should have been assessed by an EIA instead (Modulos de Desalación Ventanas, Case No 22,356-2021).
In other cases, the Supreme Court has expanded legal requirements for the assessment of projects within the SEIA, whether by a broad interpretation of statutes in force, or by the imposition of new requisites, not established directly in Law No 19,300.
We find examples of the Supreme Court’s broad interpretation of statutes in force in a recent ruling analysed above, where the Supreme Court ordered an environmental impact assessment of a real estate project located nearby a wetland that was in the process of being declared as a protected urban wetland pursuant to Law No 21,202 (Case No 21,970-2021).
With relation to the imposition of new requisites not directly provided in statutes in force, the Supreme Court ruled that an environmental impact assessment must cover not only impacts declared by project proponents, but also all other circumstances known to the authority that could have relevance in the effects of the project in the environment, such as climate change – thus proceeding to void the RCA of the operational continuation of a mining project, reopening the assessment process in the SEIA and ordering to assess the effects of the project in relation to climate change (Continuidad Operacional Cerro Colorado, Case No 8,573-2019).
We find another example in the recent ruling by the Supreme Court, related to a constitutional action filed by the workers of coal-fired thermal power plants that would lose their jobs as a result of the Decarbonisation Plan. On that occasion, the Court mandated the Ministry of Energy to implement, in the short term, a plan to help the career reinvention of those workers whose labour rights have been affected as a result of the Decarbonisation Plan (Case No 25,530-2021).
The creation of the Environmental Court has entailed a significant improvement on the access to environmental justice, enabling an institutional channel to resolve environmental conflicts through formal instances. However, from the perspective of project proponents, this means greater judicial challenges, where the results are often uncertain, and in a context where the Supreme Court has leaned towards a concept of environmental justice that goes beyond what is strictly stated in the relevant statutes.
In other words, in the past couple of years, the Supreme Court has led new approaches to environmental regulation, being a relevant actor with those administrative agencies that regulate different activities and investment projects. Often, the legal challenges mentioned above occur when a project has already been approved in the Environmental Impact Assessment System by an RCA, so that many times these challenges turn into a “new instance” of discussion on whether a determined investment project will – or will not – be executed.