CHILE: An Introduction
A New Constituent Processes
During 2023, Chile will be immersed in its second constituent process, following on from the failed process of 2022 in which the people rejected the proposed draft by 61.9% of votes. The current constituent process, which started in March 2023, was praised by all the political sectors of the nation, being seen as more moderate and having clearer boundaries in comparison with the first process. Currently, the process is in its first stage, where an Expert Committee integrated by 24 members designated by the Congress is preparing a preliminary draft which will serve as the main input for the definitive draft that must be developed by the Constituent Council, a new assembly elected by the people in April 2023.
Among the chapters and provisions being discussed and drafted by the Expert Committee, there are some remarkable articles related to environment, property and sustainability, such as:
1. it enshrines nature and biodiversity conservation as one of the primordial duties of the State, which has to protect the environment as well as promoting sustainability and development;
2. in the Fundamental Rights chapter, it seeks to guarantee, as a constitutional right, the right to live in an environment that is free from pollution in such a way as to allow the existence and development of life in its multiple forms;
3. the same article provides that the legislative regulation may establish specific restrictions to other rights or liberties (such as economic initiative, property or freedom of movement) with the aim of protecting the environment;
4. there is a chapter proposed entitled “Environmental protection, sustainability and development”, which states the general duty of environmental protection for every member of the community, and establishing at constitutional level the responsibility for environmental damage;
5. the same chapter contains the State’s duties to balance the protection of nature and environmental improvement with economic development and social progress, as well as its duty to foster sustainable, harmonious development of the entire national territory, promoting private collaboration in these tasks; and
6. substantial and basic institutions like property, mining concessions, and judicial independence are present in the draft being discussed by the Committee.
Overall, the current process (at least in the present first stage) can be considered a serious and legally solid one, especially when compared with the last process and its proposed draft.
It is expected that the Expert Committee will finalise its functions in June 2023, when the Constituent Council elected by the people begins its functions. Then, in November 2023, the Councill is set to finish its work and to present the new draft Constitution to the nation, which will be voted upon in a referendum in December 2023.
Reformation Process for the Environmental Impact Assessment System
In order to adapt the Chilean Environmental Impact Assessment System (SEIA) to the Framework Law on Climate Change, the Law on Extended Producer Responsibility (Law on EPR) and the Escazú Agreement, in March 2023 the Ministry of Environment started a public consultation process on the amendments and reforms to the SEIA by-law.
The main proposed reformations in the draft by-law are the following.
1. With regard to climate change regulation, it contains the obligation to consider the adverse effects of climate change on the different components of the environment, especially ecosystems, on human health and well-being during an environmental impact assessment (EIA) process.
2. As for the Law on EPR, it aims to harmonise the SEIA Regulation with the contents of the aforementioned law, related to the recovery and/or elimination of waste. In this context, some entry thresholds to the SEIA are varied, particularly for aggregate extraction projects, due to the high environmental impact of said activity, and for residential waste treatment plant projects, in order to differentiate initiatives of waste recovery from those for final disposal.
3. To implement the Escazú Agreement, the objective is to guarantee effective community participation during the environmental impact assessment process, reducing information gaps and guaranteeing adequate and timely participation in the process.
Framework Law on Climate Change Implementation
Despite the fact that it entered into force in June 2022, as of April 2023, the implementation of the Framework Law on Climate Change is still incipient as no GHG emission standards have been designed and implemented by the environmental authorities. Moreover, the regional, local and sectoral climate strategies have not been finished completely and the final implementation of the offset system for the carbon tax to create a national carbon market linked with the Article 6.3 of the Paris Agreement is still pending.
Law on Urban Wetlands Implementation and Judicial Challenge of Decrees of Protection
This year marks the third anniversary of the entry into force of the law that seeks to protect urban wetlands through the declaration by the Ministry of the Environment. This law determines the areas of wetlands located within the urban areas of the country which are subject to the general restrictions of any other protected area. The main restriction is that all activity to be carried out in or near these areas must be submitted to an EIA process.
In these three years, there has been a high level of judicialisation of the declarations made by the Ministry, mainly because those affected by them believe that during the elaboration of the resolutions their procedural rights were violated or that processes were not carried out according to suitable technical methodologies. In some cases, portions of territory have been identified that that, in reality, are not wetlands.
The country’s environmental courts have exercised control of the declarations through the claims presented by those affected by them. In their rulings, judicial guidelines have been established, such as the powers of the Ministry to declare certain areas as urban wetlands and that the declarations must accept a legitimate limitation to the property; however, this necessarily implies that the procedural rights of the interested parties must be respected and that all the decisions of the Ministry must be technically and legally well-founded.
Regulatory Fostering of Green Hydrogen Projects
Finally, and within the framework of meeting the goals of the Paris Agreement, together with the country’s national energy strategy, Chile is focusing great economic and regulatory efforts on positioning itself as a focal area for the development of green hydrogen production technologies, since there are projects of this type in motion, as well as others submitted to EIA processes pending environmental approval.
In this context, the State has sought to provide certainty and regulatory clarity to national and foreign investors regarding the environmental impacts of the green hydrogen activities that must be assessed in an EIA process and how these impacts will be taken into account by the authority, through the publication of explanatory guides.
Likewise, in terms of electric and urban regulation, important regulatory advances have been made, such as the preparation of a draft regulation on safety for green hydrogen facilities and administrative interpretations by the urban authority aimed at giving green hydrogen facilities the same nature as energy infrastructures in electrical matters (power plants or transmission lines), which allows them to be as wide as possible within the national territory.