The Environmental Basic Law
National Environmental Commission
Other Government Agencies
Environmental Impact Assessment System
Actions for Damages
International Environmental Agreements
Chilean environmental law is a mixture of old and new regulations, founded on the principles and rights set forth in the Constitution and in the Environmental Basic Law of March 1994 (Law 19,300). The Environmental Basic Law provides a flexible framework in which environmental regulation and policy may evolve.
Article 19(8) of the Constitution establishes the "right to live in a pollution free environment". The state has the duty to safeguard this right through environmental preservation and it may impose restrictions on the exercise of certain rights or liberties in order to achieve this.
This constitutional right has two interesting characteristics. First, it may be enforced through the 'constitutional protection action', which prevents a party from carrying out contaminating actions or activities. Second, in theory, it requires the state to take some action that will actually improve the state of the environment. However, the courts do not have the capacity to enforce the performance of actions that would improve the environment. Therefore, the constitutional protection action only applies in the case of actions, not omissions.
The Environmental Basic Law establishes the framework of Chilean environmental law. Article 1 states:
"The right to live in a pollution free environment, environmental protection, the preservation of nature, and the conservation of environmental wealth will be regulated by the provisions of this law notwithstanding other legal provisions governing the matter."
The law is divided into five titles and its main contents are as follows.
Title I defines fundamental concepts such as contamination, contaminants, sustainable development, environmental impact assessment, environmental impact, baseline, pollution free environment, environmental damage, primary quality standard, secondary quality standard, emission standard, natural resources, restoration, latent zone, saturated zone, and others.
Environmental impact assessment
Title I also sets out the environmental impact assessment system (EIAS). It establishes when a project must be submitted for an environmental impact assessment, the procedure for this submission, and the procedure for assessment.
Environmental public policy
Title II sets forth public policy on a number of matters that should be considered by the legislature when regulating the environment, including:
- education and research;
- environmental impact;
- environmental quality standards;
- public regional programmes for monitoring and controlling environmental quality;
- a national system of protected public areas;
- a system of private protected areas;
- classification and inventory of fauna and flora species;
- emission standards;
- management, prevention and decontamination plans; and
- the use of economic instruments such as tradable emission permits.
Title III establishes the principles of environmental liability and the environmental damage restoration action.
Title IV establishes the enforcement and control powers of the public agencies including the Environmental Commission and the municipalities.
National Environmental Commission
Title V establishes and regulates the National Environmental Commission, which administers an environmental protection fund.
Chilean environmental law includes regulations on the following matters:
- air quality and emission standards;
- water quality and emission standards;
- solid waste accumulation, treatment and disposal;
- noise emission standards;
- land use;
- the handling, transportation, labelling, packaging, storage, usage, treatment and disposal of hazardous waste;
- technical standards for air, water and ground transportation;
- the public agency in charge of the enforcement of these regulations; and
- enforcement mechanisms, such as registration, authorization, declaration and inspection.
National Environmental Commission
The National Environmental Commission (Conama) is a decentralized public agency under the supervision of the president and the Environment Ministry. The following are the main functions of the commission:
- to propose to the president the environmental policy of the government;
- to maintain a national public environmental information system;
- to administer the environmental impact assessment system; and
- to coordinate the enactment of quality and emission standards, the declaration of latent and saturated zones, and the enactment of prevention and decontamination plans.
Conama executes its functions in the different regions of the country through independent and decentralized regional agencies - the regional environmental commissions (otherwise known as Corema).
The other public agencies with environmental jurisdiction include:
- the Health Service;
- the General Water Bureau;
- the National Energy Commission;
- the National Mining and Geology Agency;
- the National Forest Agency;
- the National Monuments Agency;
- the Superintendence of Water Companies;
- the General Directorate of Maritime Territory;
- the National Fishing Agency; and
- the Superintendence of Electricity and Combustibles.
These agencies must enforce all environmental regulations (including the obligations and conditions established by Conama) when they review environmental impact studies. Conama itself does not have enforcement authority. The other agencies mentioned must ask Conama to penalize facilities that are found to infringe environmental law.
Environmental Impact Assessment System
The Environmental Basic Law regulates the EIAS of public and private investment projects. The law provides that the projects or activities listed therein may only be executed or modified after an assessment of their environmental impact. Corema or Conama make findings based on the reports of the relevant public agencies. If the assessment is favourable, and final approval given, no public agency may deny specific environmental authorizations.
The person (natural or legal) that proposes a project must submit an environmental assessment of the project to the EIAS (ie, an environmental impact study or through an environmental impact statement. An environmental impact study involves community participation (discussed below), while an environmental impact statement does not.
The Environmental Basic Law states that it is the obligation of the government to facilitate citizen or community participation in matters connected with environmental protection. The law guarantees mechanisms for a minimum of citizen participation in three areas:
- creating environmental standards;
- making plans and regulations; and
- establishing environmental impact assessment procedure.
Article 3 of the Environmental Basic Law states:
"Anyone who willfully or negligently causes damage to the environment will be obligated to, if possible, materially restore it, at his cost, and indemnify the same in accordance with the law."
Therefore, under Chile's environmental framework, environmental damage may give rise to two actions: (i) an ordinary civil claim for damages and (ii) an environmental restoration action.
The ordinary civil action for damages corresponds to a tort liability action (for negligence). This action is regulated by Article 2314 of the Civil Code and Articles 52 of the Environmental Basic Law.
According to the Civil Code, tort liability arises when an action or omission to act, willfully or negligently, causes damages to a third person. The Environmental Basic Law makes all the principles and provisions of the Civil Code applicable to environmental matters. However, the Environmental Basic Law establishes two additional principles. First, Article 52 creates a rebuttable presumption of the existence of fault in case of an infraction of an environmental regulation. Second, Article 55 establishes that damages can be claimed even if the 'emission source' is complying with decontamination, prevention or emergency plans.
Further, the law establishes two definitions - for 'environmental damage' and 'environment' - that are relevant to environmental torts. 'Environmental damage' is defined as "any significant loss, diminution, detriment or impairment caused to the environment or to one or more of its elements." 'Environment' is defined as:
"the global system composed by natural and artificial elements of a physical, chemical, biological or socio-cultural nature and their interaction, in continuous modification by the activity of humans or nature, and which organizes and determines the existence and development of life in its various forms."
Environmental damage is therefore interpreted very broadly and covers not only personal damages but also damage experienced by the public at large. However, an ordinary civil action may only be exercised to protect personal or individual interests, not public, social or collective interests. A civil action cannot be used by a person to receive compensation for damage to environmental assets that are not within his or her private sphere of interests.
The filing of an environmental restoration action does not exclude the filing of the ordinary civil action by one who is directly affected. Those who may file an action for restoration are set out in Articles 54 of the law and include:
- natural or juridical persons, whether public or private, who have suffered some sort of damage;
- municipalities that experience environmental damage within their territory;
- the state through the attorney general; and
- any person domiciled in a damaged municipality.
This restoration action must fulfil the same requirements as the ordinary civil action (ie, action or omission, intention or negligence, causation and damage).
The statute of limitations set forth in Article 63, both for the restoration and ordinary civil action, is five years from the date on which the damage becomes apparent.
The National System of Protected Wildlife Areas includes approximately 13 million hectares, which are divided into six categories.
The national parks are large areas where different and unique natural environments of great educational, scientific and recreational use coexist. They are created over public land by the National Assets Ministry pursuant to the Forest Law, the Washington Convention, and Law Decree 1939 of 1977. There are 30 national parks and they are under the supervision and administration of the National Forest Agency.
The forest reserves are areas in which there are certain forest resources that must be managed with special care due to their vulnerability and importance. These protected areas are also created over public land by the National Assets Ministry, pursuant to the Forest Law, the Washington Convention and Law Decree 1939 of 1977. There are 26 forest reserves and they are under the supervision and administration of the National Forest Agency.
The national reserves are areas that harbour certain natural resources that must be used with special care due to their vulnerability and importance. These protected areas are created over public land by the Agriculture Ministry, pursuant to the Washington Convention. There are 40 national reserves and they are under the supervision and administration of the National Forest Agency.
The natural monuments are small areas where certain plant and animal species are protected. These protected areas are created over public or private land the Agriculture Ministry, pursuant to the Washington Convention. At present there are 11 natural monuments. This category also applies to endangered species of flora and fauna. They are under the supervision and administration of the National Forest Agency.
The protected tourist areas are established over properties that have great scenic and tourist value. These protected areas are created over public or private land by the Agriculture Ministry, pursuant to Law 18,378 of 1984. There are 30 of these areas.
These are wildlife areas of scientific or state interest or state interest. These protected areas are created over public or private land by the Education Ministry, pursuant to Law 17,288. There are 18 national sanctuaries and they are under the supervision and administration of the National Forest Agency.
Scientific interest areas
These protected areas are created over public or private land by the Mining Ministry, pursuant to the Mining Code. There are 20 of these areas.
International Environmental Agreements
The following are the main agreements regarding environmental matters to which Chile is a party:
- Convention on Biological Diversity (ratified in September 1994 and promulgated as national law in 1995);
- Cartagena Protocol on Bio-safety (signed in May 2000);
- Basel Convention on Control of Trans-boundary Movements of Hazardous Wastes and Their Disposal (ratified in August 1992);
- Vienna Convention for the Protection of the Ozone Layer (ratified in March 1990);
- Montreal Protocol on Substances that Deplete the Ozone Layer (ratified in March 1990);
- United Nations Framework Convention on Climate Change (ratified in December 1994);
- United Nations Convention to Combat Desertification (ratified in September 1994);
- Antarctica Treaty (took effect in June 1961);
- Madrid Protocol Related to the Antarctica Treaty on Environmental Protection (ratified in January 1998);
- Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (ratified in July 1981 and promulgated as national law in November 1981);
- Convention on International Trade in Endangered Species of Wild Fauna and Flora (ratified in September 1974 and took effect in July 1975);
- United Nations Convention on Sea Rights (ratified in August 1997);
- Treaty between the Republic of Chile and the Republic of Argentina on the Environment (promulgated by Supreme Decree 67 of the Ministry of Foreign Relations in January 1992);
- Convention for the Application of Procedures on Previously Informed Consent, Related to Certain Dangerous Chemical Products and Pesticides, for International Trade (signed in September 1998);
- Intergovernmental Committee for the Elaboration of a Document About Persistent Organic Pollutants (participant since inception);
- Convention on the Prevention of Pollution Caused by Ships (ratified in May 1995);
- International Convention Related to Intervention on the High Seas in Case of Accidents that Cause Hydrocarbon Contamination (ratified in June 1995);
- Protocol for the Convention on Intervention on the High Seas in Case of Accidents that Cause Hydrocarbon Contamination (ratified in June 1995);
- Convention for the Protection of the Environment and Coast of the Southeastern Pacific from Radioactivity (ratified in 1986);
- Convention for the Protection of the Plant and Animal Life and Scenic Natural Beauties of America (known as the Washington Convention) (ratified in October 1967);
- Agenda 21 (signed in 1992); and
- Environment Cooperation Agreement Chile-Canada (signed in February 1997).
For further information on this topic please contact Rafael Vergara or Jaime Ubilla at Carey y Cía by telephone (+56 2 365 7264/ +56 2 365 7203) or by fax (+56 2 633 1980) or by e-mail ([email protected] or [email protected]).
The materials contained on this web site are for general information purposes only and are subject to the disclaimer.