- 1.Are there any environmental provisions in your constitution? If so, please describe the provisions and their implications.
The Constitution of the Republic (Article 19 No. 8) guarantees to any person the right to live in a pollution-free environment. It is the state’s duty to enforce the protection of this right and the preservation of nature. Those who consider that their rights have been violated may appeal to the appropriate Court of Appeals under the “recurso de protección”, a constitutional action to require the Court to take the necessary measures in order to secure the no affection of their constitutional rights.
- 2.What is the environmental statutory and regulatory framework? Please identify the primary environmental statutes and regulations and the agencies (at all levels) with responsibility for environmental regulation and enforcement.
Law No. 19,300 or the Environmental Framework Law (Law 19,300) provides the basis for the organisation of environmental laws in Chile. It establishes the regulatory framework for environmental activity in Chile such as the environmental impact assessment system (EIAS), strategic environmental assessment, the right to access to environmental information, liability for environmental damage, quality and emission standards, and pollution prevention and decontamination plans, among others.
In addition, there are several statutes that are environmentally relevant given their environmental content, such as the Native Forest Law, which aims to protect native forests from indiscriminate logging; the Fishing Law, which establishes certain bans on discharging waste into seawater; and the General Urbanism and Construction Law, which contains certain rules on scenery protection, among others.
Regarding environmental agencies, Law 19,300, as modified by Law 20,417 of 2010, created the Ministry of the Environment, which is in charge of designing and applying environmental policies and programmes; the Council of Ministries for the Sustainability, in charge of discussing and approving environmental policies and programmes; the Environmental Assessment Agency (SEA), in charge of managing the EIAS; and the National Bureau of the Environment (SMA), in charge of overseeing compliance with environmental laws. Also, a law that creates special environmental courts has been recently approved and it is expected that they will start functioning in the short term, which in turn will trigger the full operation of the SMA.
Additionally, there are other public agencies with the authority to establish environmental regulations and oversee their compliance such as the Health Authority, the Agricultural and Livestock Service (SAG), the General Water Bureau (DGA), the National Mining and Geology Service (SERNAGEOMIN), the National Forest Corporation (CONAF), the National Monuments Council, the Superintendence of Sanitary Services, the General Directorate of Maritime Territory and Merchant Marine, and the Superintendence of Electricity and Fuels. Each of these agencies plays a specific environmental role in relation to their specific attributions.
- 3.Please identify major environmental treaties and conventions that your jurisdiction has ratified or to which it is otherwise subject (eg, Kyoto Protocol, Basel Convention, POPs)?
Chile had subscribed and enacted as Chilean domestic law a number of environmental treaties. The main Conventions are the following: the Convention for the Protection of Flora, Fauna and the Scenic Natural Beauties of America of 1940, or the Washington Convention; the International Convention for the Regulation of Whaling; the Convention for the Protection of the Marine Environment and Coastal Area of the Southeast Pacific; the Vienna Convention for the Protection of the Ozone Layer; the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; the Stockholm Conventions on Persistent Organic Pollutants; the Convention on Biological Diversity; and the United Nations Climate Change Convention, and the Kyoto Protocol, among others.
- 4.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 construction of a facility? What is the average timeline for a facility to obtain environmental permits?
Since the Environmental Impact Assessment System (EIAS) is in force (1997), public and private projects listed in the EIAS regulations cannot be executed or modified unless they are first submitted to the EIAS and approved by an Environmental Approval Resolution (EAR). Projects and activities subject to the EIAS refer to energy generation, mining and industrial activities and, in general, to projects that entail relevant environmental impacts whether by reason of their magnitude or hazardous nature.
In case a project or activity must be submitted to the EIAS, the EAR operates as a global environmental permit certifying that a project complies with all applicable environmental requirements and regulations, and entitles the project owner to obtain the permits related to specific environmental components such as permits for air, water and waste, among others. Once the EAR is granted, no specific environmental permit may be denied for environmental reasons, thus the EAR operates as an “umbrella” environmental licence.
The legal timeline to obtain an EAR is a maximum of 180 business days for an Environmental Impact Study and 90 business days for an Environmental Impact Statement. In practice, these terms may be longer, considering that the owner of the project may request suspensions during the process in order to prepare the answers for the questions that the authorities may have in regards to the project.
In case a project or activity is not of those that must be submitted to the EIAS, environmental permits must be applied for before the corresponding authority. The timeline to obtain such permits will depend on the type of permit and the complexity involved.
For the construction of a facility, construction and final approval permits, which are granted by the Works Department of each Municipality, are also required. The processing of these municipal permits can take approximately 15 business days.
- 5.Please explain the role of a ‘social licence to operate’ in your jurisdiction.
Currently in Chile, social licence to operate has become a voluntary instrument for companies to launch new investment projects in areas like energy, mining, aquaculture, among others. This licence is associated with the execution of an activity in a sustainable way with the environment and local community considerations.
- 6.Is there private ownership of oil, gas and minerals in your jurisdiction? If not, how are concessions granted and what environmental considerations apply?
Article 19 No. 24 of the Constitution provides that although the state is the owner of all mines, any individual or entity may apply for a mining concession to explore and exploit them. Ownership of mines and concessions are different from that of the surface land, which may be subject to obligations and limitations to facilitate mining exploration and exploitation activities.
The Constitutional Organic Mining Law regulates mining concessions and establishes that all metallic and non-metallic substances may be subject to concessions, except for oil and gas deposits, lithium, and deposits of any kind located in the sea bottom under Chilean jurisdiction or in areas deemed, by law, to be important to national security. These non-claimable mineral substances may be mined by the state or state-owned companies or under administrative concessions or special operational contracts, all of them governed by their own legal statute.
Regarding the environmental scope, Law No. 19,300 establishes the obligation to submit to environmental evaluation mining development projects, including exploration, exploitation, processing plants and waste and barren, and the industrial extraction of arid, peat or clay.
- 7.What is the regulatory environment for renewable and alternative sources of energy and fuels (wind, solar, nuclear, biofuels, synfuels)?
In 2008, Law 20,257 was enacted in order to promote renewable energy such as geothermal, wind, solar, biomass, tidal, small hydro and cogeneration. This law amended the Electricity Law and imposed the obligation on all electric utilities that withdraw electric energy from interconnected electrical systems with an installed capacity of over 200MW to guarantee a pre-set percentage of energy coming from non-conventional renewable energy whether self-owned or purchased from third parties. This pre-set percentage is gradually increasing from 5 per cent to reach up to 10 per cent in 2024.
Currently, the government is promoting renewable energy to foster changes in the energy grid, which is currently based on thermal energies. New bills have been announced by the government which will focus on subsidies and other benefits for renewable energies.
- 8.How are environmental laws and regulations enforced in your jurisdiction? Describe the approach to enforcement and the roles of the authorities responsible for enforcement.
Law 20,417 introduced a major change as to environmental enforcement approaches. On one hand, it has concentrated enforcement of environmental laws exclusively on the SMA which supervises compliance with environmental approval resolutions, quality and emission standards, and prevention, decontamination and management plans. This has changed the previous approach by which a diverse array of authorities had the power to enforce environmental laws depending on the scope of their attributions. It has also set a clear framework for the imposition of sanctions by increasing their entity, classifying infractions according to their seriousness, and setting aggravating and attenuating circumstances.
On the other, it promotes self compliance conducts through setting incentives such as the decreasing of fines in case of self-reporting, compliance programmes, environmental damage repairing plans, governmental assistance for compliance, public registry of sanctions, and citizen rights to denounce.
- 9.What types of administrative, civil and criminal penalties can be imposed for violations of environmental laws?
Relevant public agencies have the authority to impose administrative penalties according to their sphere of competence for breaches by the project holder (ie, closure of the facility by the relevant health authority).
Moreover, the violation of an environmental law by a project that has been submitted for environmental evaluation may be subject to fines up to US$39,000 for each breach, or even the revocation of such approval, imposed by the relevant sectorial authority. This inspection and sanctioning structure has been modified by Law 20,417 in that the SMA is the agency in charge of sanctioning, and fines were increased up to US$9,300,000. As mentioned, the new structure will only be operative when Environmental Courts start functioning.
Chilean criminal laws contain no specific penalties for the violation of environmental laws. However, there are some criminal laws that address environmental issues. For example, Article 291 of the Penal Code states that those who propagate unduly organisms, products, components or chemical agents, viral, bacteriological, radioactive, or any other order that by their nature are liable to endanger the animal or plant health, or the source of the population, shall be punished with imprisonment for less.
- 10.How and under what authority are air emissions regulated in your jurisdiction?
The authority to regulate emissions to the atmosphere is the Ministry of the Environment, which dictates emission and quality standards. Emission standards establish the maximum limit of air pollutant emission allowed for point sources. Emission standards relate to particulate matter, arsenic and annoying smells arising out from the production of cellulose. On the other hand, quality standards establish the maximum limits of air pollution allowed in the atmosphere. These standards determine whether the affected area must be declared as ‘latent’ or ‘saturated’ by a pollutant, in which case a prevention or decontamination plan must be prepared and implemented. Some of the most important quality standards relate to sulphur, arsenic, particulate matter, lead, ozone, sulphur dioxide, nitrogen dioxide and carbon monoxide.
- 11.Who is liable for environmental contamination of soil, surface water and groundwater, and is the liability based on fault or on status?
According to Law No. 19,300, anyone who causes environmental damage – including soil, surface water, groundwater and other natural resources – could be required to restore the environment through an environmental restoration action for environmental damage and to compensate any monetary damages through an environmental civil tort action. This environmental liability is based on the negligence of the offender. Thus, it is necessary to maintain a high standard of care and precaution in performing activities that pose a risk to the environment.
- 12.What is the law governing the remediation of contaminated property?
There are no generally applicable regulations regarding the cleaning of contaminated sites. However, this issue may arise when an EAR imposes certain clean-up obligations upon the project owner. Failing to clean up the site would breach the relevant EAR, triggering consequent penalties.
In 2009, the National Environment Commission (Conama), now replaced by the Ministry of the Environment, approved the “National Policy for the Management of Sites with contaminants”, whose general objective is “strengthening the management of contaminated sites in the country, aimed at reducing the risks associated with population health and the environment through a coordinated management system and cost efficient”. This policy promotes specific instruments for the management of contaminated sites, such as a Register of Contaminated Sites, Risk Assessment and Remediation Plans.
- 13.What is the nature of liability for damage to natural resources and who can enforce and recover for such damages?
Under Articles 3 and 51 of Law No. 19,300, environmental liability is subjective as it requires that environmental damage must be repaired if it has been caused by fraud or negligence. The law provides for a catalogue of circumstances of law infringement in which such negligence is presumed and the burden to contest it is on the offender.
The environmental restoration action may be filed before regular courts (the environmental courts when these start functioning) by the affected person, the municipality in whose jurisdiction those damages occurred or the Chilean state through the State Defence Council. The environmental tort action may only be filed by the affected person.
- 14.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?
One of the most important issues to consider in the merger or acquisition of a company that conducts activities which might affect the environment is whether the obligations imposed by the EARs that approved the project have been properly fulfilled. A breach of these obligations may lead to the imposition of fines, sanctions and penalties, while repetitive breaches may result in the revocation of the EAR. Hence, the analysis of how well environmental mitigation and compensation activities are being implemented and the proper level of this compliance are particularly important in any merger or acquisition. Additionally, several other environmental-related issues may be considered important such as the review of whether specific environmental permits have been granted, the location in accordance with zoning plans, the relationship with environmental authorities and communities, etc. However, there are no specific laws that govern environmental aspects of such transactions.
- 15.What environmental laws apply to the shutdown or sale of a facility?
For the sale of a facility, it is necessary to consider the operating license issued by the Sanitary Authority. According to the Sanitary Code, municipalities could not grant municipal licenses or final permits for the operation or undertaking of certain activities that require authorization from the National Health Service, without first proving they have complied with this requirement.
The shutdown of a facility may be imposed as a sanction by the Sanitary Authority in cases of breach of health standards, ie, when there is an imminent risk to health. Furthermore, the SMA may temporarily suspend the environmental approval of a project, thus stopping the activity, when its operation generates unforeseen environmental impacts and, as a consequence, a serious environmental damage may be caused.
Additionally, Law No. 20,551 of 2011 regulates closure obligations for mines and their ancillary facilities. From the law entering into force (in November 2012) companies may not initiate the operation of their projects without having a closure plan previously approved by the National Geology and Mining Service.
Finally, projects or facilities temporary shutdowns may be included, in the corresponding EAR, as measures in case of special and extraordinary circumstances.
- 16.Does your jurisdiction regulate or provide incentives to conduct environmental audits or assessments? If so, please describe.
There is no regulation that requires conducting environmental audits or assessments. However, Law No. 20,417 provides incentives to individuals that self-report themselves in case of infringement of environmental laws such as the exemption or the decreasing of fines. Likewise, and given the fact that a new structure of enforcement and fines has been imposed, environmental audits are a customary and required conduct among companies.
- 17.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.
In Chile, there are no specific laws that require companies or individuals to perform assessments of the environmental condition of a property or to audit the environmental compliance status of a facility. There are no requirements for environmental assessments or environmental investigations prior to the sale of a property, neither.
However, in practice, it is highly recommended to undertake such assessments during the process of acquiring a property or a facility given the statute of limitations applicable to environmental liability which may be pursued up to 5 years after the damage is evident. Considering that environmental damage may be patent after several years it has occurred and the liability may be difficult to pursue, this is an important issue to delimit responsibilities.
On the other aspect, public and private projects listed in the Law 19,300 cannot be executed or modified unless they are first submitted to the EIAS and approved by an EAR. As explained above, all permits required for the construction, operation and abandonment of such projects are held until the environmental approval is granted.
- 18.What is the process and timetable for conducting and receiving approval of environmental impact assessments?
First of all, the project holder must submit the project to the EIAS through either an environmental impact study (EIS) or environmental impact declaration (EID), depending on the significance of its environmental impacts. Such documents must be submitted to the relevant SEA, which after a formal admissibility check notifies them to public agencies with environmental attributions over the project. These public agencies comment on the project and deliver their observations to SEA. The project holder must then answer such observations and comply with the requirements made by such authorities in a document called an ‘addendum’. Once the project holder complies with all requirements and observations made during the evaluation, the environmental assessment process culminates with the issuance of an environmental approval resolution (EAR), provided that the authorities consider the project complies with applicable environmental laws. This EAR is issued by the relevant SEA and is based on the reports of the public agencies that participated in the evaluation of the project or activity.
Additionally, during the assessment process there might be a public participation phase depending on the characteristics of the project, especially considering the magnitude of it impacts.
- 19.How are water rights allocated and transferred?
The Water Code considers water to be a national asset, but it grants individuals the right over a specified flow of water, with the same constitutional guarantees as those provided for property. Water rights provide full ownership to their holders; thus, they can be freely transferred or encumbered.
Any person is entitled to request water rights, which are granted (or denied) by the administrative authority according to a technical procedure. Prior to the granting of water rights, the General Water Bureau (DGA) is required by law to protect the environment by establishing a minimum ecological flow that must be left to run in the watercourse under all circumstances. Pursuant to Law No. 20,417, the criteria by which this ecological flow is determined will be fixed by a specific regulation, which has yet to be implemented.
- 20.What regulatory requirements apply to the discharge of industrial wastewater in your jurisdiction?
There are several emission standards that regulate the discharge of liquid waste into sea water, continental surface waters, ground water and sewers have been enacted such as the Executive Decree No. 90/01, which regulates liquid waste discharges into sea waters and continental surface waters; the Executive Decree No. 46/03, which establishes emission standards for liquid waste discharged into ground water; and, the Executive Decree No. 609/98 which refers to waste water discharges to sewers.
- 21.Are greenhouse gas emissions regulated in your jurisdiction? If so, describe the regulatory regime.
There are no regulations that impose limits on greenhouse emissions. However, in 2011 an emission standard for thermoelectric power plants was enacted that imposes limits on emissions of PM10, NOx and SO2. Regarding CO2, the rule only requires the monitoring of emissions.
- 22.Are there any chemicals or products that are subject to special environmental requirements in your jurisdiction, such as asbestos or PCBs?
Decree No. 656 of 2000, of the Ministry of Health banned the production, importation, distribution and use of crocidolite (blue asbestos) and any material or product containing it. Also, it banned the production, importation, distribution, and sale of construction materials containing any type of asbestos.
Regarding the use of PCBs, the only standard that relates expressly to these substances is the Exempt Resolution No. 610/82 of the Electricity and Fuels Agency (SEC), which prohibits the use of polychlorinated biphenyls, commercially known as ascareles as a dielectric fluid in transformers, capacitors and other electrical equipment. However, as a hazardous substance, also applies the general rule of the Sanitary Code on the use, import, export and distribution of hazardous substances.
- 23.What legal protections are afforded to patrimony or cultural heritage (protected areas, flora, fauna, species) and environmentally sensitive areas (wetlands, ecosystems)?
Executive Decree No. 701/74, or the Forest Law, regulates the protection of flora, specifically forests. Any activity that involves logging or exploiting native forest can be implemented only after a management plan is approved by the National Forest Corporation (CONAF). This obligation must also be fulfilled by planting forests on land apt for forestation. Additionally, Law No. 20,283, or the Native Forest Law, restated criteria regarding logging native forests, the intent being to recover and enhance native forests in order to assure forest sustainability and related environmental policies. On the other hand, Law No. 4,601/96, or the Hunting Law, stipulates that species of endangered wild fauna can only be hunted or caught in certain areas prior to authorisation of the Agricultural and Livestock Service. Finally, Executive Decree No. 75/05, or Regulations on the Classification of Wildlife, sets down a procedure to be followed to classify wild species of flora and fauna in any of the conservation categories contained therein, according to their risk of extinction.
- 24.What constraints are there on availability of landfills for disposal of waste?
Executive Decree No. 594/99 provides that the generation, handling, accumulation, treatment, commercialisation or final disposal of solid industrial waste, in or outside the industrial facility, is subject to the Sanitary Authority supervision, which grants the pertinent approvals and authorisations.
In addition, in 2005, the Sanitary Regulations on Solid Hazardous Waste Treatment came into force (Executive Decree No. 148 issued by the Ministry of Health), which established the minimum sanitary and security conditions applicable to the generation, handling, storage, transport, treatment, reuse, recycling, final disposal and other forms of hazardous waste disposal.
- 25.What regulations or government initiatives are there in your jurisdiction relating to extended producer responsibility or to sustainability?
A bill regarding waste management, which is currently being discussed at Congress, includes the concept of REP. Under the bill, producer responsibility rests on who first placed a priority product on the market. Priority products are those who may entail risks for the environment or have benefits related to its reuse. The producer must develop products or packaging that promotes prevention and facilitates their recovery and/or allow their harmless disposal, take over the management of waste from their products, and inform consumers.
Likewise, the Sustainable Procurement Policy has been implemented by the public sector, which aims to encourage buyers of governmental institutions to buy products or services considering environmental and social criteria.
- 26.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.
Law No. 20.417 guarantees the right to access to environmental information held by the administration; thus, any person who considers that their right has been aggrieved is entitled to seek proper remedy through Law No. 20,285 or the Transparency Law.
In addition, the Ministry of the Environment administers a National Information System which compiles and provides relevant information region by region.
Within the EIS all information provided by a project holder is public and may be accessed through the internet. The confidentiality of the information may be required to the authority when a project holder whishes to ensure the privacy of technical, financial and any other information related to his industrial or commercial activity, or protect patentable discoveries referred to his project.
- 27.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?
Law No. 19,300 establishes specific participation mechanisms for the evaluation of an EIS. That is, any individual or legal entity may participate in the environmental evaluation of an EIS of a determined project. For this purpose, an excerpt of the EIS submitted to evaluation must be published in the Official Gazette and in a local and national newspaper. After that, any individual or legal entity may submit their observations to the project within 60-business days from such publications. These observations must be considered by the authority during the evaluation process and weighted in the relevant EAR. Even though this phase contributes to inform the community of the environmental consequences of a specific project and to obtain communities’ opinions, its results are not binding on the authority.
It is worth noting that Law 20,417 introduced citizen participation mechanisms on EIDs when they refer to projects that pose an environmental burden on nearby communities and has extended citizen participation further into the evaluation process of EIS and EID when modifications incorporated to the project are of substantial character.
- 28.What are the most significant current trends in environmental regulation and enforcement in your jurisdiction?
The main trends in regulation and enforcement are derived from Law 20,417 which created new environmental institutions; clearly delimited regulation, environmental assessment, supervision and sanctioning powers; increased supervision faculties and sanction in case of non-compliance; and, created incentives for self-compliance. Likewise, the creation of special courts for dealing with environmental issues is a breakthrough and a major change in the way environmental justice has been understood up to now in our country.
- 29.Identify and describe the significance of any noteworthy court litigation in your jurisdiction regarding the environment.
As to environmental cases, it is worth noting a Supreme Court’s decision that confirmed a Court of Appeals’ ruling that revoked the environmental approval resolution (EAR) of a coal-fired power plant. By means of a recurso de protección, several communities and environmental NGOs requested the EAR revocation since the plant was wrongfully located according to applicable land zoning regulations. Although relevant sectoral authorities favourably informed the location of the project and the project holder relied on such position, the Supreme Court held that the environmental approval was granted in violation of land zoning regulations and consequently revoked the EAR. Such ruling meant stopping the construction of the plant, which had already started, based on the approval granted. This ruling is relevant since it is one of the few cases in which an EAR has been revoked through a constitutional protection action and has prompted the authorities to enact some modifications to the applicable regulation.
- 30.What features of your jurisdiction’s environmental laws are not covered by the previous questions?
Currently, indigenous people´s rights are a relevant issue in the environmental assessment of projects.
Law No. 19,253, or the Indigenous Law, establishes a special statute applicable to indigenous peoples and communities living in Chilean territory, their ethnic and cultural manifestations and customs. It recognises land as the principal reason for their existence and cultural background, thus the protection of indigenous land is regulated thoroughly in this Law. Environmental issues regarding indigenous people’s rights generally stem from the declaration of indigenous development areas (IDA) which correspond to lands where indigenous peoples and their ancestors have historically populated, allowing them to depend on the natural resources existing in that territory. Although IDAs are not considered protected areas within Chilean legislation and do not impose any specific legal restriction or requirements, investment projects carried out within its boundaries must be subject to consultation or participation procedures.
Furthermore, Chile ratified in 2008 the ILO Convention 169 on Indigenous and Tribal Peoples in Independent Countries. As a result, actions for the recognition and promotion of rights and the adoption of measures aiming at the development of indigenous populations acquired a relevant importance in Chilean legislation. Regarding the implementation of the Convention in Chile, the most controversial issue relates to the application of the Consultation Process.
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