Chile's Environmental Law and Jurisprudence

Gonzalo Biggs
Figueroa & Valenzuela
Santiago, Chile

Introduction
Two current international developments are especially relevant to an examination of Chile's environmental laws and policies. The first is the resumption of negotiations for a bilateral free trade agreement with the United States. The second is the Third Summit of the Americas and the negotiations for a Free Trade Area for the Americas ("FTAA"). With respect to the bilateral trade agreement with the United States, the expectation is that Chile's environmental laws and policies will be an important part of the agenda. Three options are under consideration. First, the insertion of environmental provisions into the text of the agreement. Second, a parallel environmental agreement pursuant to previous models, e.g., the environmental agreements negotiated in connection with the NAFTA and the Chile-Canada Free Trade Agreement of 1997, and the environmental provisions of the recent agreement between the United States and Jordan. A third option is some form of ad-hoc environmental agreement that would reflect the special circumstances now prevailing between the two countries. However, for a variety of reasons, this bilateral agreement will probably break new ground. In contrast with Mexico, Chile has no geographical borders with the United States. Consequently, the NAFTA model would not have the same relevance. The same can be said of the U.S. agreement with Jordan, which responds to geopolitical factors that are not present in Chile. In any event, irrespective of what is stated in previous models, Chile will not likely accept such models as conditions to the negotiations. Moreover, trade sanctions in connection with the environment, as in the Jordan agreement, would probably not be acceptable from the perspective of Chile.

Until recently, Chile had profuse legislation relevant to the environment. Unfortunately, much of it was either obsolete, contradictory or impractical for purposes of promoting sustainable development. In 1990, with the advent of democracy in the country, the government adopted two important administrative decisions. The first was the establishment by the government of the National Environment Commission, or CONAMA. It was given the responsibility to formulate and implement environmental policy. In order to address the atmospheric pollution problems of Santiago, CONAMA in turn created the Special Commission for the Decontamination of the Metropolitan Region. Later, in 1994, came enactment of a framework statute for dealing with the environment: Law No. 19.300. In contrast with countries which have detailed and comprehensive environmental codes, Chile sought through Law No. 19.300 to establish a framework setting forth basic institutionality and key principles, while leaving flexibility for development of specific regulations in response to changing circumstances. An Environmental Impact Assesment System ("EIAS") was subsequently enacted, becoming effective in 1997.

These laws supplement the Political Constitution of 1980, which is itself instrumental to the protection of the Chilean environment. These provisions were at the time an isolated development with no institutional support or implementation. However, with the creation of CONAMA and the legislation enacted since 1994, they constitute the basic legal framework now applicable to the environment. This article will examine the environmental legal framework and institutions in Chile, and assess why and how the evolution of this regime could inluence the ongoing negotiation of bilateral and multilateral free trade negotiations in the hemisphere.

The 1980 Political Constitution
The Constitution contains two key provisions on environmental protection. The first is a guaranteed right to live in an environment free of pollution, bolstered by the duty of the state to ensure that this right will not be affected and nature will be preserved. The second protects the above and other rights when they are affected by an illegal and arbitrary act of a given person or authority. The protection consists of a judicial claim ("recurso de proteccion"), which an aggrieved party can submit directly to the respective Court of Appeals for the reestablishment of the rule of law, without prejudice to other rights. Until the enactment of Law No. 19.300 in 1994, these constitutional provisions were the only legal instrument for the protection of the environment. Their significance arose from the fact that, in contrast to their unresponsivenes during the period of the military government to human rights violations, the Judiciary, in general, responded positively to environmental protection claims.

CONAMA
CONAMA is not a sectoral ministry, but rather a functionally-decentralized public service, with its own legal personality and assets. Thus, in contrast with the US. Environmental Protection Agency, for example, CONAMA is not a fully autonomous and independent agency. It is reponsible, among other things, for: (i) proposing government environmental policy; (ii) acting as a body for consultation, analysis, communication, and coordination on environmental matters; (iii) maintaining a national and regional environmental public information system; (iv) administering the EIAS at the national level, including the coordination and creation of environmental quality standards and applicable programs; (v) coordinating support for international initiatives and acting as the national funnel for internationally funded projects; and (vi) financing projects and activities aimed at protecting the environment and the natural heritage.

Law No. 19.300
Law No. 19.300 is the basic environmental protection statute. The Law reaffirms the constitutional right of every person to live in an environment free of pollution and includes rules concerning, among other matters, citizen participation, the polluter-pays principle, the issuance of primary and secondary quality and pollution emission standards, the establishment of national protected wildlife areas in both park and marine reserves, a ification procedure for enforcing the protection of wild flora and fauna, and approval of natural resources protection plans for specific areas. Among the instruments for achieving the objectives of prevention or decontamination plans, the Law mentions, among others, taxes or tariffs and tradeable emission permits. These instruments require special legislation, however, which has not yet been enacted. The government decrees that establish primary or secondary quality or emission standards, that declare latent or saturated areas, or that declare prevention or decontamination plans can be challenged by any injured person for reasons of illegality.

The Environmental Impact Assesment System ("EIAS")
The EIAS was established by Law No. 19.300 in 1994, but did not come into effect until its regulations were approved in 1997. The system requires projects or activities specified by law to submit to CONAMA or the respective COREMA, an environmental impact assesment which, according to its significance, may consist of an Environmental Impact Declaration ("EID") or a more substantive Environmental Impact Study ("EIS"). The system applies to both the private and public sectors but not to government programs. A resolution which rejects an EID or an EIS can be challenged before the Executive Director or Governing Council, respectively, and the latter's decisions may be appealed before a local court. Citizen organizations and individuals that are directly affected by the proposed activity can submit observations to an EIS (but not to an EID) which must be duly considered in the corresponding resolution.

Significant Jurisprudence
Some of the major decisions in the areas of hazardous waste and hydroelectric power are summarized briefly below to provide a flavor of the practice of environmental law in Chile's court system. The cases listed below have, generally, been based on the constitutional right to an environment free of pollution.

Hazardous Wastes
After receiving government approval, a U.S. company was sued in 1989 on the charge its capital investment consisted of hazardous wastes whose recycling would threaten the plaintiff's constitutional right to an environment free of pollution. Health authorities concurred and, on that basis, the courts prohibited import of the wastes.

After authorizing the import of crude selenium for its transformation into refined selenium to be re-exported overseas, health authorities cancelled the authorization after determining it was a hazardous waste whose import was prohibited by the Basel Convention. The injured party charged there was no proof selenium was a hazardous waste and, as the Basel Convention did not impose such prohibitions, the import ban was illegal and arbitrary. The courts agreed and ordered the health agency to re-allow the imports.

Hydroelectric Power: Pangue
The Bio-Bio river basin covers an area of 2.4 million hectares, has an estimated population of 730,000 inhabitants and is Chile's major source of hydrographical resources. The construction of major hydroelectric power plants such as the one in Pangue have been especially controversial. The construction of this 400 MW power plant by a private company resulted in two separate environmental actions. The first was submitted in 1992 by a fisheries cooperative which charged that the operation of the plant, among other environmental impacts, would severely alter the quality and quantity of the water and adjacent ocean fisheries. The court was not persuaded and rejected the claim. A second action was submitted in 1993 by area residents and ethnic communities seeking a suspension of construction in 1993. They charged the project would dry up 14 km of the river for 20 hours a day or 150 days each year. Among other consequences, flora and fauna would suffer, soil erosion would arise, land irrigation and access to drinking water would be affected and populated areas would be flooded. The Court of Appeals found that the project had not complied with the applicable legal specifications and ordered the company to adjust its construction accordingly. The Supreme Court, however, did not find evidence of a real and concrete environmental threat as alleged by the plaintiffs and revoked the Court of Appeals decision.

Conclusion
From this brief description of Chile's environmental laws and jurisprudence, it is evident that the country has the basic institutions, laws, and policies to accomplish sustainable development. Thus, without prejudice to the difficulties posed by negotiations, a mutually satisfactory treatment of the environment should be achieved in a free trade agreement with the United States, and possibly other countries in the hemisphere. In the case of bilateral free trade negotiations with the United States, however, Chile's position has been that, on account of their different economic development levels, the country's primary or secondary quality or emission standards should be in harmony with, but not equivalent to, those of the United States.

Editor's Note: As this is written, negotiations between the U.S. and Chile on a free trade pact continue in earnest. We are pleased to add in this connection that IELC Vice Chair Anne Rowley is deeply involved in these negotiations, on behalf of the U.S. Environmental Protection Agency. Keep up the good work, Anne!