CHILE: An Introduction to Environment

New Regulatory Boost 

Chile is immersed in an unprecedented constitutional process (which will soon give rise to a proposed text for a new constitution that will be submitted to a plebiscite on 4th September 2022). The issue of climate change has been an important part of this debate; evidence of this is that the Plenary of the Constitutional Convention, with the support of more than 2/3 of the convention members (quorum required to approve the rules proposed by the thematic committees in the Plenary), approved a set of highly innovative environmental regulations, some of which relate specifically to climate change. These are some of them:

i) It establishes the state's duty to take action to prevent, adapt and mitigate risks, vulnerabilities and effects caused by the climate and ecological crisis, as well as to promote dialogue, international cooperation and solidarity to adapt to, mitigate and respond to the climate and ecological crisis and protect nature. These obligations that Chile assumes at the global level are coherent with the commitments that our country assumes in our continent through the ratification and approval of the Escazú Agreement (currently in the National Congress).

ii) The principles of progressivity, precautionary and preventive environmental justice, intergenerational solidarity, responsibility, just climate action and good living are incorporated. These should guide the actions of the courts of justice in the application and interpretation of current environmental regulations.

iii) The state's (and society's) duty to protect biodiversity is made explicit, including a duty to preserve, conserve and restore the habitat of wild native species, in such quantity and distribution, that adequately sustains the viability of their populations and ensures the conditions for their survival and non-extinction.

iv) It provides that "it is an integral duty of the state to conserve, preserve and care for continental, insular and Antarctic marine and coastal ecosystems."

v) The rights of nature are established, indicating the state's obligation to guarantee and promote these rights in order to respect and protect its existence, regeneration, maintenance and restoration of its functions and dynamic equilibrium (including natural cycles, ecosystems and biodiversity).

vi) The concept of common goods is established, which includes the territorial sea and its seabed, beaches, waters, glaciers and wetlands, geothermal fields, air and the atmosphere, the high mountain, protected areas and native forests, the subsoil, and others declared by the Constitution and the law.

vii) In the case of natural commons that are in the private domain, the state has the duty of custody, which implies the power to regulate its use and enjoyment (in line with its duties to take prevention, adaptation and mitigation actions as mentioned above).

viii) In the case of natural commons that are non-appropriable (water, air), the state must preserve, conserve and, when appropriate, restore them. It has a duty to administer them in a democratic, solidary, participatory and equitable manner, in addition to the authority of the state to deliver administrative authorisations for the use of these goods "with specific conservation obligations justified in the public interest, the protection of nature and the collective benefit."

ix) A regulation was added that provides that "any person may demand the fulfilment of the constitutional duties of custody of natural commons," leaving it up to the legislature to determine the procedure and requirements of this action.

x) In general terms, it was established that Chile is a social and democratic state governed by the rule of law, with plurinational, intercultural and ecological character, in addition to the indissoluble link between nature and human beings.

xi) Finally, with respect to protected areas, the state, through its national system of protected areas, shall ensure the preservation, restoration and conservation of natural areas. This obligation should be supplemented, once it is finally approved by the National Congress, with the new biodiversity and protected areas system (currently under legislative discussion).

In short, we know that the climate crisis, which affects us as a planet, is here to stay. This situation must be confronted with determination (both nationally and internationally), increasing the level of ambition in mitigation policies and adaptation and with more innovative and effective environmental regulations. Our country did not wish to shy away from this challenge.