Environmental law
Our firm provides comprehensive advice for compliance with environmental regulations.
We carry out a constant collaboration before all the public and private organizations that intervene in the development of your company or project, standing out in the environmental impact assessment processes contemplated by current legislation, and in the same way in the processing of all environmental permits and regulatory requirements for the development of our clients' goals.
Furthermore, we represent our clients in environmental litigation, including administrative processes before the Environmental Assessment Service (SEA), the Superintendency of the Environment (SMA) and judicial proceedings before the Environmental Courts and Courts of Justice.
We focus on adapting environmental standards and norms applicable to our clients' projects.
Here is a legal guide to provide you with guidance on environmental law in Chile:
What is Environmental Law and where is it regulated in Chile?
Environmental law is a branch of public law - being able to locate it as an area of specialized knowledge of administrative law - made up of a set of principles and legal norms that regulate the relations - or rather, the interaction - of man with the environment , trying to prevent or, where appropriate, repair and sanction, the damages caused to it.
Its object, therefore, as a legal discipline , is the study and analysis of the existing regulation on the matter, which must tend to the protection and conservation of biological diversity and renewable and water natural resources, in order to promote sustainable development.
The regulation of environmental law , in its origins, has been taking shape, in essence, from public international law , which has been a manifestation of the concern of the subjects of international law - States and International Organizations - in order to create an international legal statute that allows due protection of the environment . Thus, in the context of International Conventional Law , it is worth noting the existence of numerous International Treaties that deal with or affect the subject, such as: 1) The Convention for the Protection of Flora, Fauna and the natural scenic beauties of America - dating from 1940, promulgated and published in Chile in 1967 -; 2) International Convention for the regulation of whaling - dated 1946, promulgated and published in Chile in 1979 -; 3) Antarctic Treaty –data of 1,959, promulgated and published in Chile in 1,961-; 4) Convention on wetlands of International Importance, especially as waterfowl habitat (RAMSAR) - dated 1971, promulgated and published in Chile in 1981-; 5) Convention on the Conservation of Antarctic Seals - dated 1972, promulgated and published in Chile in 1980 -; 6) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) - dating from 1973, promulgated and published in Chile in 1975-; 7) Convention on the Conservation of Migratory Species of Wild Fauna –data of 1979, promulgated and published in Chile in 1981-; 8) Convention for the Conservation of Antarctic Marine Living Resources –data of 1980, promulgated and published in Chile in 1981-; 9) Convention for the protection of the environment and the coastal zone of the Southeast Pacific –data of 1981, promulgated and published in Chile in 1986-; 10) Agreement on regional cooperation to combat pollution of the Southeast Pacific by hydrocarbons and other harmful substances in case of emergency –data from 1981, promulgated and published in Chile in 1986-; 11) United Nations Convention on the Law of the Sea - dating from 1982, promulgated and published in Chile in 1997-; 12) Vienna Convention for the Protection of the Ozone Layer –data of 1.985, promulgated and published in Chile in 1.990-; 13) Montreal Protocol on Substances that Deplete the Ozone Layer - dated 1987, promulgated and published in Chile in 1990-; 1 4) Basel Convention for the Control of Transboundary Movements of Hazardous Wastes and their Disposal - dated 1989, promulgated and published in Chile in 1992 -; 15) Treaty between the Republic of Chile and the Argentine Republic on the Environment - dating from 1991, promulgated and published in Chile in 1993-; 16) Protocol to the Antarctic Treaty on Environmental Protection –data from 1991, promulgated and published in Chile in 1998-; 17) United Nations Framework Convention on Climate Change –data of 1992, promulgated and published in Chile in 1995-; 18) Convention on Biological Diversity - dated 1992, promulgated and published in Chile in 1994-1995, respectively-; 19) United Nations Convention to combat desertification in countries affected by severe drought or desertification , in particular Africa - dating from 1994, promulgated and published in Chile in 1997-1998, respectively-; 20) Chile -Canada Environmental Cooperation Agreement –data from 1997, promulgated and published in Chile in 1997-; 21) Kyoto Protocol - dates from 1997, Chile having signed the agreement in 1998 and having ratified it in 2002 -; 22) Rotterdam Convention on the Prior Informed Consent Procedure applicable to certain Pesticides and Dangerous Chemical Products subject to international trade –data from 1998, Chile having signed the agreement in the same year-; 23) Cartagena Protocol on Biosafety –data of 2,000, Chile having signed the agreement in the same year-; 24) Stockholm Convention on Persistent Organic Pollutants –data of 2.001, Chile having signed the agreement in the same year-; among others. Additionally, the State of Chile has signed other International Environmental Instruments such as the Stockholm Declaration on the Human Environment ; the Declaration of the World Climate Conference ; the Convention for the Creation of the Latin American Flora and Fauna Protection System ; the Declaration of Santa Cruz de la Sierra for Sustainable Development in the Americas ; the Rio Declaration ; Agenda 21; among others, international covenants that to the extent that they are ratified by Chile and are in force - it should be noted that some of the aforementioned have been ratified and are in force - are fully binding international standards, especially under article 5, subsection second of the Constitution - every time they deal with an essential right that emanates from human nature, as it is, in broad terms, the right to live in an environment free of contamination -, being the obligation of the State Organs to respect and promote them.
It should also be noted that the State of Chile participates in different Global International Forums , such as the United Nations Commission for Sustainable Development ; the Inter-American Commission for Sustainable Development of the Organization of American States ; the Valdivia Group; the World Environment Fund and the Council of Ministers of the Environment of Latin America and the Caribbean.
Without prejudice to the extensive international regulation on the matter, in Chilean domestic law , environmental regulations find their first recognition at the constitutional level, with Article 19 No. 8 - provision in which the right to live in an environment free of contamination -, in accordance with article 19 nº 1 -standard in which the right to life and physical and mental integrity is recognized and guaranteed - and 19 nº 9 -precept in which it is recognized and ensured the right to health protection.
Likewise, article 19 nº 24 of the Constitutional Text –which recognizes and ensures the right of property- indicates as one of the integral elements of the social function of property and that, therefore, invoking it, allows its limitation or restriction, everything that tends to the conservation of the environmental heritage.
A separate mention deserves the Constitutional Action for the Protection of Constitutional Guarantees , enshrined in Article 20 of the Fundamental Charter , a provision that in its subsection 2 establishes the possibility of protecting, through the exercise of said action, the right to live in an environment free of contamination , when it is affected by an illegal act or omission attributable to a specific authority or person.
Regarding the guarantee of article 19 N ° 8 of the Political Code in relation to that of article 19 N ° 24, our Excellency the Supreme Court has ruled: “The Fundamental Charter assures all people the right to live in a free environment of contamination , establishing the duty of the State to ensure that this right is not affected and that of protecting the preservation of nature , authorizing the legislator to establish specific restrictions on certain rights or freedoms to protect the environment. Likewise, the Constitution , after guaranteeing the free exercise of property and its attributes (use, enjoyment and disposition), accepts, however, that it is limited by law, given its social function , which includes everything the general interests of the nation , national security , public utility and health, and the conservation of environmental heritage . The " environment ", the " environmental heritage ", the " preservation of nature " of which the Constitution speaks and which it ensures and protects, is everything that naturally surrounds us and that allows the development of life and both refers to the atmosphere as to the land and its waters , to the flora and fauna , all of which make up nature with its ecological systems of balance between organisms and the environment in which they live.
The environment is affected if it is polluted or if it is altered in a way that is detrimental to the better development of life ”- See Supreme Court Judgment , December 19, 1985, RDJ, t. 82, sec. 5th, p. 261-.
On the other hand, on 9 March 1994, was published in the Official Journal Law No. 19.300, "Approves Law on Bases General Environment", hereafter, Law No. 19,300 - of the General Secretariat of the Presidency the Republic.
Law No. 19,300 previously individualized, which has undergone important modifications since its entry into force - See Law No. 20,417 , creates the Ministry, the Environmental Assessment Service and the Environment Superintendence , published in the Official Gazette on January 26 from 2010 onwards, Law No. 20,417 -, implied a notable advance in the regulation related to the protection of the environment in Chile , making the existence of a legal regulation consistent with the values, principles and mandates contained in our Constitutional Text . Its article 1 already indicates the object of the law, which is, to regulate by its provisions the right to live in an environment free of contamination ; The environmental protection; the preservation of nature ; and, the conservation of the environmental heritage , without prejudice to what other legal regulations establish on the matter.
Brief description of the Environmental Institutionality in Chile , prior to the entry into force of Law No. 20,417:
In Chile, prior to the entry into force of Law No. 20,417 , the Environmental Institution was based and organized on Law No. 19,300 , a legal body that structured it through a fundamental and specialized public service in the matter, which it was the National Environment Commission - hereinafter, CONAMA -, regulated in articles 69 and following of its text. Along with granting it an organic and functional regulation, it was also assigned the responsibility of being the person in charge of environmental issues in Chile .
Legally, CONAMA was a functionally decentralized public service , with legal personality and its own assets , which was directly related to the President of the Republic and whose domicile was in the city of Santiago , without prejudice to the special addresses that it could establish in other points. of the country -article 69 of Law No. 19,300 -.
Its functions were established in article 70 of Law No. 19,300 , but with regard to environmental impact assessments , it was the administration of the system at the national level - letter e) of article 70 of Law No. 19,300 -.
As prescribed in Article 69, final paragraph of Law No. 19,300 , CONAMA , internally, was divided into five organs: 1) Board of Directors ; 2) Minister President of CONAMA ; 3) Executive Direction ; 4) Advisory Council ; and, 5) Regional Environmental Commissions - hereinafter COREMA -.
The President of CONAMA was an official of the exclusive confidence of the President of the Republic who, with the rank of Minister of State , acted as his direct collaborator in environmental matters .
It corresponded to the Minister President of the Commission to exercise, together with the Directing Council , the superior direction of the Commission, in accordance with the law - Article 74 bis of Law No. 19,300 -.
CONAMA was territorially deconcentrated through COREMA , each led by a Regional Director - Article 80 of Law No. 19,300 -.
The COREMA were integrated in the manner prescribed by article 81 of Law No. 19,300 , namely, by: The Mayor, who presided over it; the Governors of the region; the Regional Ministerial Secretaries of the Ministries referred to in article 71; four regional councilors elected by the respective Council, in a single vote; and, the Regional Director of the Environment Commission , who acted as secretary.
The essential attribution of these Regional Commissions was - as required by article 85 of Law No. 19,300 - to coordinate environmental management at the regional level, and to fulfill the other functions entrusted to it by law, including qualifying studies and declarations of environmental impact.
The Current Environmental Institutionality in Chile , after the entry into force of Law No. 20,417:
In order to give effect to the mandates that the Constitution and international standards impose on the State of Chile in environmental matters , the legislator has created - Law No. 19,300 - and has been improving over time - Law No. 20,417 - a series of bodies that constitute what is known today as the Environmental Institutionality .
Thus, at present, we find ourselves in first place, with the Ministry of the Environment –article 69 Law No. 19,300 -, created through the promulgation of Law No. 20,417 , which amended –perfecting and modifying the morphology of the Environmental Institutionality existing prior to its entry into force - Law No. 19,300 , being responsible for the development and application of various instruments of environmental management in normative or regulatory matters , protection of natural resources , environmental education and control of pollution, among other matters -See: www.mma.gob.cl -article 70 Law No. 19,300 -. In its internal organization, it has an Undersecretariat and it is territorially concentrated in Regional Ministerial Secretariats - additionally, the Ministry of Environment is organized in Divisions, finding the Division of Natural Resources and Biodiversity ; the Studies Division; the Division of Environmental Policies and Regulation ; the Division of Environmental Education ; the Administration and Finance Division; and, finally, the Legal Division -
On the other hand, at the same time, there is a Council of Ministers for Sustainability , which is chaired by the Minister of the Environment and made up of the Ministers of Agriculture, Finance, Health, Economy, Development and Reconstruction, and Energy , Public Works, Housing and Urban Planning, Transport and Telecommunications, Mining and Planning. Its powers are indicated in article 71 of Law No. 19,300.
On the other hand, Law No. 19,300 , cited above, provides for the existence of a National Environmental Advisory Council and Regional Environmental Advisory Councils , whose organization and powers are found in articles 76, 77 and 78 of the law in question.
Now, all this change in the Environmental Institutionality , is largely due to the Environmental Performance Evaluation Report carried out by the Organization for Economic Cooperation and Development - OECD -, regarding the evaluation period carried out between 1990-2.004, the which included a series of recommendations to the Government of Chile , among which stood out: "Develop and strengthen Environmental Institutions at the national and regional levels." In conjunction with this, it called for strengthening “the capacity for compliance and oversight , including through institutional reforms , such as the establishment of an environmental inspection body ” –See: www.sma.gob.cl -.
Well, after said report and the publication of Law No. 20,417 , in the year 2010, the same norm that created the Ministry of the Environment, the Environment Superintendence was created, a decentralized public service that coordinates a single system of inspection, integrated and associated with budgets for results, taking root in it, powers of a punitive nature.
Finally, the legal norm in question, created the Environmental Assessment Service -articles 80 and following of Law No. 19,300 -, whose functions or powers are indicated in article 81 of Law No. 19,300 , summarized in functions that relate purely with evaluation systems - See: http://www.sea.gob.cl/ -.
As it is possible to notice, with the Law No. 20,417 so many times cited, a notable modernization of the Chilean Environmental Institution existing to date, which resulted in the separation of functions in the matter, taking root in the Ministry of the Environment Environment , eminently regulatory powers; in the Environmental Evaluation Service , as its name implies, evaluation functions; and, in the Superintendency of the Environment , powers of inspection and sanction .
The new Environmental Institutionality, is completed with the creation of the Environmental Courts , jurisdictional bodies - administrative disputes - specialized and independent, which are under the supervision of the Supreme Court.
Pursuant to Law No. 20,600 that creates the Environmental Courts , published in the Official Gazette on June 28, 2012, the Environmental Courts are competent to hear and resolve various matters, including claims that are brought against resolutions of the Superintendency ; the claims that are filed against the decrees that establish quality and emission standards; the claims that are filed against the decrees that establish decontamination or prevention plans ; of claims for environmental damage ; etc. Finally, the creation of the Biodiversity and Protected Areas Service is in the legislative process .
Advances and Issues Pending Resolution:
Undoubtedly, the creation of a new Environmental Institution , notoriously more modern, with administrative bodies with clearly separated and defined functions, constitutes a great political and legislative effort that demonstrates the commitment of the State of Chile to the protection of the environment , an issue which ultimately benefits the quality of life of people.
Furthermore, the creation of a specialized judiciary -special administrative litigation- in the knowledge of legal disputes of an environmental nature, constitutes a novel and notable advance in the matter, since these disputes will be known and resolved by highly qualified judges. and with technical knowledge , which is to be expected results in better decisions.
As is readily apparent, in recent years, environmental issues have been increasingly prosecuted - See, LAMB VEGA, Luis, Supreme Court and the Environment. Why is the Court revolutionizing Environmental Regulation ? In Public Law Yearbook 2012, Diego Portales University. P. 359-375-, which has generated some criticism -see Supreme Court ruling pronounced in the Castilla case, Case Rol N ° 7167-2010-, since this situation, is translated in not a few occasions, in a replacement of the administrative organs with environmental competence, which are technical and specialized , on the part of the ordinary courts of justice , which lack these attributes - prior to the entry into force of the Environmental Courts -.
Notwithstanding the foregoing, as the professor of constitutional law , Mr. Mario Verdugo Marinkovic, has well summarized, “some sectors linked to mining or energy business activity have expressed, through the press and social networks, their confidence in that the technical preparation of its members –refers to the Environmental Courts–, guarantees better judicial review standards in the future, contributing to greater certainty for investors… ”
Adds the aforementioned author, who without prejudice to the above, from the ecological path, looks with suspicion at the work that the environmental courts can carry out, by a kind of commitment to the “establishment”. "There is also no lack of those who think that the coexistence of the newly created contentious-administrative , assigned to environmental justice , with the protection resource , whose survival is maintained, by constitutional imperative, will generate an increase in the judicialization of this type of matter ..." –See Executioner Marinkovic, Mario. Environmental Courts : Its Controversial entry into force. In Legal Gazette No. 389, November, 2012, p. 3-.
We agree with the aforementioned professor, in the sense that it is necessary to await the results of the entry into force of the Environmental Courts , hoping that they will focus on the substantive discussion regarding environmental matters, reserving the protection resource , only those urgent situations of affectation of rights or constitutional guarantees , that require a quick and immediate reaction, since it is not admissible that it is used as an ordinary administrative contentious mechanism, which is not and has never been its object.
Wolfenson Abogados provides legal advice specialized in environmental law, with lawyers specializing in the environment.
Links of interest on Environmental Law :
one.- Administrative Procedures Law (Law No. 19,880)
2.- Organic Constitutional Law of General Bases of the State Administration (Law Nº 18.575)
3.- Law on General Bases of the Environment (Law No. 19,300)
4.- Constitutional Journal - Environmental Law and its Bases of Regulation in Chile
Wolfenson Lawyers. Chile Law Firm.
If you need more information and legal advice regarding environmental law, we invite you to contact our lawyers in Santiago. We are located at Avenida Apoquindo 2930 in the commune of Las Condes, Santiago de Chile.