Written by Francisca Silva, Paralegal and Chilean Qualified Lawyer
Behind the backdrop of Chile’s breathtaking landscapes lies a dynamic intersection between economic progress and the need to safeguard the Andean nation’s rich natural heritage. At the heart of this delicate equilibrium is the rigorous environmental assessment process governing investment projects, a critical initiative aimed at harmonizing the nation’s robust economic aspirations with the imperative of sustainable development. In Chile, a country revered for its diverse ecosystems and pristine wilderness, the pursuit of growth is inseparable from the commitment to preserving its natural resources. This blog post delves into Chile’s environmental assessment framework, exploring how it works to balance the interests of promoting economic prosperity and environmental conservation.
Legislative framework
Chilean environmental law and its institutional framework are primarily based on a set of principles and norms derived from international law and international treaties signed and ratified by the State of Chile, currently in force. Furthermore, the current Political Constitution of Chile recognizes and guarantees people’s right to live in an environment free of pollution. It also allows for limitations or restrictions on property rights based on their social function, which includes the conservation of environmental heritage. These rights are constitutionally protected through the “Recurso de Protección” established in the Magna Carta.
Subsequently, the legal framework encompassing the so-called Environmental Institutionalism is contained in Law No. 19,300, called the Law of the General Bases of the Environment. This law was later amended by Law No. 20,417, which, in an effort to modernize the existing environmental institutionalism, created, among other entities, the Ministry of the Environment. This ministry is responsible for the Environmental Impact Assessment of investment projects through the Environmental Assessment Service (SEA), which administers the Environmental Impact Assessment System (SEIA) for projects. The Superintendency of the Environment (SMA) is also established to oversee and penalize compliance with environmental regulations. Additionally, the Regulation of the Environmental Impact Assessment System (Decree 40/2012, RSEIA) establishes the provisions governing the SEIA.
Finally, Law No. 20,600 created the Environmental Tribunals responsible for resolving contentious-administrative matters. These tribunals consist of specialized judges in environmental issues, providing greater legal security to stakeholders and investors.
When Should a Project Undergo the SEIA?
An investment project or its modifications must undergo the SEIA when it is susceptible to causing environmental impact and is listed in Article 10 of Law 19,300 such as: i) Mining Development Projects, including those related to coal, oil, and gas, encompassing prospecting, extraction, processing plants, and waste disposal, as well as the industrial extraction of aggregates, peat, or clay.
How is a Project Submitted to the SEIA?
A project can be submitted to the SEIA through a Declaration of Environmental Impact (DIA) when it does not generate significant environmental impacts. Alternatively, it can be submitted through an Environmental Impact Study (EIA).
The DIA is a statutory declaration sworn by the project’s holder, with specific mentions evaluated by the SEA to determine compliance with environmental regulations.
The EIA is a detailed document describing anticipated impacts and propose appropriate measures for mitigation, compensation, or remediation. However, the law requires the submission of an EIA for projects that pose:
- Health risks to the population,
- Significant impacts on the quantity and quality of natural resources,
- Resettlement of human communities or significant alteration of their lifestyles and customs,
- Proximity to certain protected areas,
- Significant impact on the scenic or touristic value of the area,
- Alteration of monuments, sites with archaeological value, etc., or belonging to cultural heritage.
If the project holder has doubts about the entry mechanism into the SEIA, they can submit a Relevance Inquiry – “Consulta de Pertinencia” – to the SEA regarding whether the project is susceptible to causing significant environmental impacts.
This provides greater certainty to investment project holders.
Community and Indigenous Consultation
It should be noted that the entry of a project through an EIA or a DIA involves processes of Community Consultation (PAC) or Indigenous Consultation, depending on the characteristics and location of the projects.
Termination of the Environmental Impact Assessment Process
Upon completion of the Environmental Impact Assessment process, the SEA will issue an Environmental Qualification Resolution – “Resolución de Calificación Ambiental”- (RCA). If favourable, this resolution will allow the project holder to proceed with the development of the project and obtain the Sectoral Environmental Permits – “Permisos Ambientales Sectoriales”- (PAS) relevant to the approved project conditions.
The PAS are sector-specific statements issued by various State entities. If they only have an environmental component, they must undergo the SEIA and be granted through this system. In cases where PAS have a mixed nature, involving both environmental and other aspects, State entities cannot deny the issuance of these PAS for environmental reasons if the project holder has a favourable RCA.
Conclusion
The SEIA is designed to reconcile the rights of investment project holders with the rights of citizens to live in a pollution-free environment and protect Chile’s stunning natural landscapes and wilderness areas. HGG METS Law Specialists ® can assist project holders interested in investing in Chile by facilitating the processing and obtaining of the necessary environmental permits to carry out the investment.
