Published on Tuesday 30th April 2019
Are there any environmental rights or protections included in your Constitution? If so, please describe the provisions and their implications.
The Chilean Constitution, in section 19 No. 8, guarantees all persons the right to live in an unpolluted environment. It is mandatory for the state to ensure that this right is not affected and protect the preservation of nature. In this sense, statutory provisions may establish specific restrictions on the exercise of certain rights in order to protect the environment.
Anyone who believes that his or her right to live in an unpolluted environment has been unlawfully affected may file a constitutional action (recurso de protección), to ensure the immediate protection of his or her constitutional right.
What is the environmental statutory and regulatory framework? Are environmental requirements imposed by sector or on a general basis? Please identify the primary environmental statutes and regulations and the agencies with responsibility for environmental regulation and enforcement.
Though Chile has a wide unconsolidated framework of environmental regulations, the main statutory framework is given by Law No.19,300/94 (the Environmental Act), by the provisions of which the Environmental Impact Assessment System (SEIA) was enacted, through which any project or activity that may cause an environmental impact during either construction, operation or shutdown phase must be assessed.
This Law established important environmental authorities, mainly:
Additionally, as regards the main authorities with responsibility in environmental issues, Law No. 20,417/10, which amended the Environmental Act, established the Environmental Superintendency (SMA), which is the public service responsible for the oversight of Environmental Qualification Resolutions (RCA), Prevention and Decontamination Plans, Environmental Quality Standards, Emission Norms, Management Plans and any other environmental instrument established by law.
Also, by means of Law No. 20,600/12, Chile now has specialised environmental courts whose function is to resolve the environmental disputes that arise in the country.
Regarding regulatory framework, the Environmental Act is complemented by several other statutory provisions, such as:
Moreover, considering the significance and particular nature of certain environmental matters, Chile has enacted specific environmental statutes, among which are:
Other public services related to environmental matters include:
Please identify major environmental treaties and conventions that your jurisdiction has ratified or to which it is otherwise subject?
Chile has developed an active participation in the global agenda for sustainable development, for which it has signed a series of protocols and agreements aimed in that direction, such as:
The Environmental Act allows community participation during the environmental impact assessment of projects, including indigenous communities and tribal people as considered in the ILO 169 (see question 27). For purposes of complying with the contents of ILO 169, Chile enacted the Supreme Decree No. 66/2014, of the Social Development Ministry, which established the regulations governing the procedure for indigenous consultation following the provisions of the ILO 169. Among other matters, this norm establishes requirements and conditions that must be complied within the community participation stage during the environmental impact assessment procedure when indigenous communities and tribal people are involved.
What is the environmental permitting process in your jurisdiction? Are separate permits required for air, water and waste? Are permits required as a condition to commencing construction of a facility? What is the average timeline for a facility to obtain environmental permits?
The basic rule of the SEIA is that projects or activities that may have an environmental impact in any of their phases can only be executed or modified upon assessment of their environmental impact. Depending on the extension or magnitude of such impact, the project title holder shall submit to the SEA either a statement or a study. As a result of the environmental assessment process, the authority issues a resolution either rejecting or approving the project (RCA), the latter meaning that the project fulfils the environmental requirements and provisions. The project is then authorised to acquire all other necessary specific legal authorisations (ie, air, water, waste, etc) before the corresponding sectorial authority, which cannot deny them for environmental reasons.
The environmental authority has 120 business days (which may be extended up to 180 business days under qualified circumstances) to issue a decision regarding a study. For statements, the time frame is 60 business days (which may be extended up to 90 business days under qualified circumstances). Notwithstanding the aforementioned, these terms may be longer if the project title holder suspends the environmental assessment.
For those projects or activities that are not required to be subjected to the SEIA, each specific authorisation or permit must be sought before each corresponding authority. The terms to obtain said authorisations or permits may vary due to the particularities of each individual permit and the time frames of the corresponding authority.
Construction of any habitable facility requires both the construction permit and the final approval permit before the corresponding Municipality (Municipal Construction Department). The process of each of these permits should take not more than 30 business days.
Please explain the role of a "social licence to operate" in your jurisdiction.
In Chile, there is no social licence, in the form of an authorisation, to operate a project. However, considering that certain projects (such as mining and energy projects) have experienced strong opposition movements from local communities, several companies are developing strategies to voluntarily approach the involved communities in order to consider the social concerns within the development of the project, proposing environmental improvements for the project not necessarily required by the law. Notwithstanding the aforementioned, please note that within the environmental assessment process, certain projects are obliged to undergo a community consultation process, in which the community has the possibility to make questions and raise observations to the project.
Is there private ownership of oil, gas and minerals in your jurisdiction? If not, how are concessions granted and what environmental considerations apply?
According to the Chilean Constitution, the state has the absolute, exclusive, inalienable and imprescriptible ownership of all mines, including, among others, oil and gas reserves and mineral deposits.
Oil and gas may only be explored, exploited or processed directly by the state, state-owned companies or through administrative concessions or special operating contracts, with the requirements and conditions that the president may determine, in each case, by Decree. (The same rule also applies to lithium and deposits of any kind located in areas considered by law important to national security or undersea within Chilean jurisdiction.)
Regarding all other mineral deposits, metallic and non-metallic (except for the aforementioned), any person is entitled to request a mining concession in order to develop exploration or exploitation activities within them.
Note that property rights over mines and mining concessions are different from property rights over surface lands where both mines and mining concessions are located. In this sense, the Chilean Constitution states that surface lands shall be subject to the obligations and limitations that the law may provide with the purpose of facilitating the exploration, exploitation and processing of mines.
Additionally, most mining development projects, including oil and gas projects, shall be environmentally assessed within the SEIA, considering the environmental impacts that these activities may cause.
What is the regulatory environment for renewable and alternative sources of energy and fuels, and for the development of energy storage facilities?
The main regulation applicable for renewable and alternative sources of energy is DFL No. 4/07, which promotes, among other things, non-conventional renewable and environmental friendly energies, such as biofuels, as privileged sources of power. This regulation requires from electricity companies that generate more than a 5 per cent of their energy from non-conventional renewable energy sources – to be increased yearly up to a ceiling of 10 per cent by 2024 for such power purchase agreements executed until 1 July 2013, and 20 per cent by 2025 for such power purchase agreements executed after 1 July 2013.
This law also provides non-conventional sources of electricity with other benefits, including exemption from certain transmission charges.
Additionally, with regard to biofuels, Decree No. 11/08 establishes definitions and quality specifications for the production, importation, transportation, storage, distribution and sale of bioethanol and biodiesel. Moreover, biofuels have important tax benefits (fuels specific tax and oil price stabilisation fund are not applicable).
Regarding energy storage facilities, Law No. 20,936/16, which created the new electric transmission system, included several provisions regulating their liability, safety and compensation issues and broadening their definition and creating new opportunities for innovative energy storage solutions. In this sense, energy storage systems are defined as technological equipment capable of retrieving energy from the electric system, transforming it into another type of energy (chemical, potential, thermal, among others) and storing it with the purpose of, by means of an inverse transformation, injecting it again to the electric system, contributing to the safety and economic sufficiency or efficiency of the electric system. Furthermore, Decree No. 109/18 approved the safety regulation of electric facilities destined to the production, transportation, provision of supplementary services, storage systems and distribution of electric energy.
How are environmental laws and regulations enforced in your jurisdiction? Describe the approach to enforcement and the roles of the authorities responsible for enforcement.
The SMA is the responsible authority for implementing, organising and coordinating the monitoring and control of RCAs, Prevention and Decontamination Plans, Environmental Quality Standards and Emission Norms, Management Plans, and any other environmental instrument established by law.
However, there are other public services with surveillance attributions in environmental matters that shall exercise their attributions only in connection with matters and instruments not subject to the jurisdiction of the SMA.
What types of administrative, civil and criminal penalties can be imposed for violations of environmental laws?
In case of violation of environmental regulations, Law No. 20,417/10 contains a catalogue of offences classified according to their seriousness, in consideration of which the SMA may impose warnings, fines of up to approximately US$10 million per each breach, temporary or permanent closures, and revocations of the RCAs.
Additionally, an environmental restoration action may be filed before Environmental Courts if an environmental damage is caused due to negligence or wilful misconduct (such damage being defined as "any significant loss, decrease, detriment or impairment caused to the environment or to one or more of its components"). This environmental action is notwithstanding the possibility to sue for damages according to general rules.
Chilean criminal law does not contain a systematic treatment for violations of environmental regulations; however, there are few particular provisions that are related to these matters. Commonly, reference can be made to section 291 of the Criminal Code that punishes all those who unduly propagate organisms; products; chemical, viral, bacteriological or radioactive elements; or any other elements that, by their nature, are likely to endanger animal or plant health, or the supply of the population. Other examples are sections 485 No. 2 and No. 3, 494 No. 17 and 495 No. 12, all of the Criminal Code.
How and under what authority are air emissions regulated in your jurisdiction?
Air emissions are mainly regulated by:
The main regulatory authority of air emissions is the Environmental Ministry, which is in charge of enacting the above-mentioned regulatory instruments.
Who is liable for environmental contamination of soil, surface water and groundwater, and is the liability based on fault or on status? What reporting and notification obligations apply in the event of a spill or release or upon discovery of historical contamination?
According to the Environmental Act, anyone who negligently or wilfully causes an environmental damage shall be liable for environmental contamination, regardless of any distinction as to the specific natural resource affected. Additionally, liability for environmental damage is legally presumed when environmental statutory regulations have been violated.
In connection with reporting obligations arising after the discovery of contamination, Law No. 20,417/10 established that:
What is the law governing the remediation of contaminated property? What standards are applied to determine clean up levels?
In Chile, there is no specific regulation for the remediation of contaminated property. All obligations applicable to a project owner regarding this issue, as well as the appropriate cleanup levels, should arise from the corresponding RCA or from what is required by the SMA in the context of a sanctioning procedure.
The SEIA Regulations establish that environmental sanitation projects with areas of terrain jointly covering an amount equal to or greater than 10,000m² related to the redress or recovery of polluted lands shall be assessed within the SEIA.
On 25 August 2009, the former National Environmental Commission (CONAMA) established the National Policy for the Management of Polluted Sites to strengthen the management of polluted sites in Chile and to reduce the associated risk to the population’s health and the environment through a coordinated management system. Since then, this policy has been supplemented through a series of methodological guides issued by the Ministry of the Environment, such as the "Methodological Guide for soil management with potential contaminant presence".
What is the nature of liability for damage to natural resources and who can enforce and recover for such damages?
The Environmental Act punishes negligent and wilful actions that cause environmental damages, for which purpose a "cause and effect" link between such action and the environmental impact shall be proven. Additionally, liability for environmental damage is legally presumed when environmental statutory regulations have been violated.
If any environmental damage is caused, two environmental actions can be filed.
The first is an action for the restoration of the environment to its original state, which may be filed before Environmental Courts by the individuals and entities that have suffered such damage, the municipalities for the damages occurred in their territories, or the state. Nevertheless, no such action shall be applicable if whomever committed the damage successfully implemented a repair plan approved by the SMA.
The second is an action seeking damages by the directly affected, according to general rules.
How are environmental issues typically addressed in property transfers or mergers and acquisitions? Are there any specific laws that govern environmental aspects of such transactions?
There are no specific laws governing the environmental aspects of property transfers or mergers and acquisitions. The only applicable regulation is given by the SEIA Regulations, which state that project owners must report any change in the ownership of such projects or activities to the Environmental Authority. Therefore, in case these transactions involve an environmentally approved project, they must be informed to the Environmental Authority.
Notwithstanding the aforementioned, any environmental due diligence in connection with a merger or acquisition should consider:
What environmental laws apply to the shut down or sale of a facility?
There are no specific environmental laws applicable to the sale of a facility. See question 14.
In connection with the shutdown of a facility, every project environmentally assessed that has a shutdown phase must submit it to such environmental assessment process. Thus, the RCA approving the project will contain applicable provisions for such phase.
Additionally, Law No. 20,551/11 regulates the shutdown of mining worksites and facilities. It establishes that every mining company must file a shutdown plan for the approval of the SERNAGEOMIN. In the case of mining projects with an RCA, the shutdown plan must be drafted in accordance with the same. It also provides that the shutdown plan is a sectorial permit and, as such, all of its environmental aspects must be presented, evaluated and approved during the environmental assessment of the mining project.
Does your jurisdiction regulate or provide incentives to conduct environmental audits or assessments? If so, please describe.
Our jurisdiction does not generally stipulate incentives to conduct voluntary environmental audits or assessments; although, under section 27 of Law No. 20,417, the SMA may order environmental audits under certain circumstances. Considering the strong oversight powers granted to the SMA, it seems convenient to develop regular environmental audits in order to avoid administrative sanctions to be imposed in case of violation of environmental regulations.
However, Law No. 20,551/11, related to the shutdown of mining worksites and facilities, establishes that every mining company whose purpose is the extraction of, or the benefit from, one or more mineral deposits, and whose capacity of extraction is greater than 10,000 tons (gross) per month per worksite, shall audit their shutdown plan every five years according to a programme to be developed by the SERNAGEOMIN. Likewise, the SERNAGEOMIN may request that mining companies carry out extraordinary audits in case of serious situations specially related to the modifications of the shutdown plan, temporary shutdowns or partial closures. Moreover, mining companies may voluntarily submit to the SERNAGEOMIN audits of their shutdown plans when there is an alteration to the mining project that may affect the modification of the corresponding shutdown plan.
Are there any requirements for the conduct of environmental assessments or environmental impact assessments, such as a condition to obtaining a permit or in connection with a transfer of real property? If so, describe.
According to the Environmental Act, all permits required for the construction, operation and shutdown of a project which is subject to environmental assessment should be held until such project has obtained the approval RCA.
In connection with the transfer of real property, there is no need to perform an environmental assessment prior to the execution of such transaction. As mentioned in question 14, it is highly convenient to develop an environmental due diligence.
What is the process and timetable for conducting and receiving approval of environmental impact assessments?
Once the corresponding study or statement has been filed, the SEA forwards it to all public agencies with environmental competence in connection with the project so they can state their observations and requirements, which shall be considered in a document called ICSARA. The applicant shall respond the observations and requirements considered in the ICSARA in a document called ADENDA. Further observations and requirements from the agencies, and responses of the applicant, may follow. Once the applicant fulfils all the requirements and observations made by the public agencies, the Regional Assessment Commission or the executive director of the SEA, as the case may be, shall issue the corresponding RCA, rejecting or approving the project based on its accomplishment, or not, of applicable environmental regulations.
If, according to the Environmental Act, the project under assessment requires communities’ participation, the SEA shall initiate such process. Every person can file observations that must be considered by the authority when issuing the RCA.
The environmental authority has 120 business days (which may be extended up to 180 business days under qualified circumstances) to issue a decision regarding a study. Regarding statements, the time frame is 60 business days (which may be extended up to 90 business days under qualified circumstances). These terms may be longer due to the possibility of the applicant suspending the environmental assessment.
How are water rights allocated and transferred?
The Water Code regulates how water rights are granted and transferred regarding freshwater and underground water only – maritime water has its own regulations. Water rights are granted by the General Water Bureau (DGA) through a technical procedure initiated by a request filed by any person. Water rights provide full ownership to their title holders, who may freely transfer or encumber them without any limitation.
The transfer of any water right shall be conducted mainly according to the Civil Code, through the execution of a public deed, which shall be recorded in the Water Property Registry of the corresponding Real Estate Registrar. Any transfer of a water right shall be recorded in the Water Public Cadastre of the DGA, for purposes of maintaining an administrative public record regarding these rights.
What regulatory requirements apply to the discharge of industrial waste water in your jurisdiction?
The most significant regulations are:
Are there any laws or regulations in your jurisdiction addressing climate change in your jurisdiction, such as regulation of greenhouse gas emissions? If so, describe the regulatory regime.
We do not have a special regulation or law for climate change. Nonetheless, in general terms, the Environmental Act defines what is understood by climate change and establishes that the Ministry of the Environment is in charge of proposing policies and formulating programmes and action plans related to climate change.
Furthermore, Chile has ratified several treaties and conventions addressing climate change, such as the United Nations Framework Convention of Climate Change (1994) and the Kyoto Protocol (2002) and the Paris Agreement (2017), obliging our country to comply with the international standards set in this matter.
In this regard, our Congress is in the process to approve a bill that ratifies the Paris Agreement. Once approved, this agreement will commit Chile to reduce its greenhouse gas emissions.
Are there any chemicals or products that are subject to special environmental requirements in your jurisdiction, such as asbestos or PCBs?
There are certain chemicals and products not only regulated by general statutory regulation, such us Decree 725/68 (the Sanitary Code), but also by specific sanitary regulations, such as asbestos and PCBs. Asbestos is regulated by Decree 656/01 of the Ministry of Health, which establishes the prohibition to produce, import, distribute, sell and use crocidolite (blue asbestos), as well as any type of asbestos contained in construction materials. However, the health authority may authorise the use of asbestos in the manufacture of products that are not construction materials, provided there is no economic or technical feasibility to substitute asbestos.
In connection with polychlorinated biphenyls (PCBs), Exempt Resolution No. 610/82, of the Ministry of Economy, forbids the use of PCBs in electrical transformers, condensers or in any other electrical equipment. These chemicals are also regulated by Exempt Resolutions No. 1032/09 and No. 1554/11 of the Agricultural and Livestock Service (SAG), which prohibits the manufacture, processing, import, export, storage, distribution, sale and transportation of animal feeding products containing levels of dioxins or PCBs similar to dioxins, above the levels set out in such Resolutions.
Finally, regarding lead, Supreme Decree No. 374/1997 of the Health Ministry, establishes the maximum permissible limit of lead in certain paints, forbidding the production, import, distribution and utilisation of paints with a lead concentration higher than the maximum permissible limit.
What legal protections are afforded to patrimony or cultural heritage and environmentally sensitive areas?
Each of these matters has its own regulation:
What constraints are there on availability of landfills for disposal of waste?
According to the Environmental Act, landfills require environmental assessment. Decree No. 189/08 regulates the basic health and safety conditions for sanitary landfills, stating that they shall have an engineering project prepared by a qualified professional, duly approved by the Health Authority. Every landfill starting operation shall be approved by the same authority by means of an express sanitary authorisation, granted according to the corresponding RCA.
Furthermore, Decree No. 148/04, establishes minimum sanitary and safety conditions applicable to the generation, handling, storage, transport, treatment, reuse, recycling, final disposal and other forms for discarding hazardous waste.
What regulations or government initiatives are there in your jurisdiction relating to extended producer responsibility or to sustainability?
The main statutory framework is given by Law No. 20,920/16 (the Recycle Act), which regulates the management of wastes, the producer’s extended responsibility and the promotion of recycling. The main purpose of this law is to reduce the generation of wastes and encourage its reuse, recycle and recovery through the establishment of an extended producer’s responsibility regime and other waste management instruments.
With regard to the extended producer’s responsibility, the Recycle Act is based on the principle “from the cradle to the grave”, being the producer or importer responsible for the whole life cycle of a “priority product”, from its manufacture or importation to its recovery and recycle or final disposal. This responsibility translates in the obligation to organise and finance the waste management of the priority products they produce or import to Chile. All waste generators must deliver their priority products wastes to an authorised manager for their treatment and, in turn, every waste manager must treat the waste in a rational and environmental way, applying the best available techniques and the best environmental practices. The “priority products” are determined by the Ministry of the Environment.
Describe the laws in your jurisdiction regarding public access to information filed with environmental agencies and any protection from its disclosure to third parties. What right does the public have to access documents and reports filed with regulatory authorities? Describe the nature of and process for securing any protections for confidential business information or trade secrets.
According to the Environmental Act, the state is obligated to grant public access to environmental information. All information provided by a project applicant is public and can be found through the internet; however, the applicant is entitled to request that some information be kept confidential, especially technical and financial information, in order to ensure commercial or industrial confidentiality, as well as to protect intellectual property rights of the project.
Additionally, Law No. 20,285/08 (the Transparency Act), ensures the right to request and receive information from any governmental agency. If this obligation is not duly satisfied by the authority, by means of providing the information requested, the Transparency Act expressly grants remedies to the petitioner. However, for certain reasons, such as protecting the economic or commercial rights of a person, the corresponding authority may be entitled to deny access to some information.
What are the rights of the public or NGOs/environmental groups to participate in environmental permitting or enforcement of environmental laws? Is such participation typical?
The Environmental Act allows community participation (including indigenous communities and tribal people as considered in the ILO Convention No. 169) during the environmental impact assessment of studies and statements, as the case may be. Community participation is mandatory in every study, whereas in the case of a statement, community participation is stipulated only when the statement refers to projects that generate environmental burdens to nearby communities, and it is required by at least two citizens organisations or by 10 individuals directly affected. The Environmental Authority must consider the community comments and observations when issuing the corresponding RCA. Any individual or legal entity whose comments or observations have not been adequately considered in the RCA may be entitled to file an administrative remedy (recurso de reclamación) to amend the RCA.
In addition, Law 20,600 states that any third party with known technical qualifications on the relevant subject matter, can participate in the corresponding environmental judicial proceeding, giving their opinion and raising comments or suggestions as amicus curiae.
What are the most significant current trends or issues in environmental policy, regulation and enforcement in your jurisdiction?
Lately, our environmental courts have both partially and completely closed down projects that have failed to comply with their own environmental approval resolutions. At the same time, major fines have been imposed by the SMA to companies that neglected their own RCAs. Furthermore, the Supreme Court has growingly broadened its analysis and decisions from an environmental perspective, imposing additional environmentally related obligations to regulated entities and project developers. Several cases like these make the enforcement of environmental legislation tremendously relevant, posing a big challenge for both the regulated entities and the SMA.
This year, Chile will be organising the UN Climate Change Summit so, from a legislative point of view, focus will be put on laws that are currently under review by Congress and that relate to climate change, such as the Law for Climate Change and the Regulations for the Recycle Act.
Identify and describe the significance of any noteworthy court litigation or other disputes or controversies in your jurisdiction regarding the environment. Are there specialised environmental courts or any movement to create such courts?
In recent rulings, the Supreme Court has shown a tendency to expand the access to environmental justice and to extend the obligation to enter to the Environmental Impact Assessment System to projects that are not necessarily within the specific cases established for such purposes in the Environmental Act and in its regulation.
In this regard, in April 2018, a group of neighbours of Papudo, Valparaiso region, filed a constitutional action against the construction of a condominium of residential buildings. This group claimed, among others, that the construction of the project was being carried out without environmental authorisation. The Supreme Court ordered that both the petition for protection as well as the allegations made by the neighbours be filed before the environmental authority in order for it to determine the necessity that the project pursue an environmental assessment. The foregoing is of enormous relevance, since the Environmental Act specifically mentions the projects and activities that shall pursue environmental assessment. The Supreme Court interpreted the Environmental Act in a broad way, stating that the cases that must pursue an environmental assessment are not exhaustive and that any person may file a request regarding a certain project so that the environmental authority determines whether it will pursue such assessment. This ruling sheds uncertainty to the legal system since there is no assurance when determining the need of a project to pursue an environmental assessment. Furthermore, the judgment states that projects or activities that may involve a risk to the environment or to the health or life of the people living near it need to be filed before the environmental authority for it to determine whether they need to pursue an environmental assessment.
Law No. 20.600/12 created the Environmental Courts as specialised entities in charge of resolving environmental disputes. These courts are composed of lawyers and technical individuals that are experts in environmental matters.
What important features of your jurisdiction’s environmental laws are not covered by the previous questions?
Law No. 20.600/12 created the Environmental Courts as specialised entities in charge of resolving several environmental disputes. These courts are composed of lawyers and technical individuals who are experts in environmental matters. As expected, these courts have increased the technical standards behind environmental decisions. Notwithstanding the aforementioned, the constitutional action based on the right to live in an unpolluted environment has continued to be known by ordinary courts. This circumstance may mean that one project may be subject, at the same time, to the decisions of the environmental courts, on a technical basis, and to decisions of ordinary courts, on a broader basis, as it has been known until today.
* The author would like to thank Joaquín Rodríguez for his assistance in preparing this chapter.