PRESS RELEASE

Chile: bill that modernizes the environmental impact assessment system

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Tuesday, August 7, 2018

Press release of the Presidency of Chile

MESSAGE FROM THE PRESIDENT OF THE REPUBLIC WITH WHOM HE LAUNCHES A PROJECT OF LAW THAT MODERNIZES THE ENVIRONMENTAL IMPACT ASSESSMENT SYSTEM

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_______________________________

Santiago, July 27, 2018.-

MESSAGE No. 062-366_ /

Honorable Chamber of Deputies:

n use of my constitutional powers, I have the honor to submit to the consideration of the National Congress, a bill that seeks to modernize the Environmental Impact Assessment System, and the environmental institutional framework.

I. BACKGROUND

For a while now, Chile has gone through a path that was set many years ago: the establishment and consolidation of a sustainable development model, which has the human being as the center of its concerns, as indicated in the Principle 1 ° of the Rio Declaration on Environment and Development (1992).

In environmental matters, and especially in matters of institutionality and environmental management instruments, Chile has made enormous strides in the last 40 years. Before the promulgation of the law N ° 19.300, and following the trend of the other countries in the world, the country regulated many environmental aspects in a sectoral way, in many regulations, because natural resources are the main source of our development economic.

The most significant advances of that entire period were two. First, recognition for all people of the constitutional guarantee of living in a pollution-free environment; establishing the possibility of appealing for protection by those who consider that this guarantee is violated or threatened in the terms indicated in the Political Constitution of the Republic. Secondly, the consecration of the property right recognized in the Fundamental Charter, that the conservation of the environmental patrimony constitutes one of the aspects of the social function of the property, and that therefore limitations to the domain can be imposed because of it .

Subsequently, with Law N ° 19.300, On General Bases of the Environment, which regulates the constitutional right to live in a pollution-free environment, the protection of the environment, the preservation of nature and the conservation of environmental heritage; the concept of Sustainable Development was included for the first time in our legislation, pointing out in its message that this development aims to achieve "a healthy relationship between economy, nature and human community".

To achieve this objective, the law created an environmental institutional framework based on an eminently coordinating model. Thus, the National Environment Commission ("CONAMA") was created, which maintained the powers of the sectoral agencies; and a series of environmental management instruments, such as quality standards, emission standards, prevention and decontamination plans, management plans, an Environmental Impact Assessment System ("SEIA"), and a special liability regime for damage environmental.

The model proved successful for the first years, but after the time it was necessary to continue advancing in the path of environmental protection, which led to an ambitious reform that involved replacing the CONAMA by the Ministry of the Environment ("MMA "), the Environmental Assessment Service (" SEA ") and the Superintendence of the Environment (" SMA ").

However, national and international experience indicates that there is still a long way to go, and that both the institutional framework and the SEIA need to be modernized and improved through the reforms we seek to implement through this bill.

II. FUNDAMENTALS OF THE PROJECT

As we pointed out, Law No. 19,300 created the SEIA as an environmental management instrument, which, over the years, has proven to be an effective instrument for environmental management in Chile, especially when incorporating the environmental variable into projects or activities that They must be evaluated.

This efficiency has also received international recognition. Indeed, the Organization for Economic Cooperation and Development ("OECD") has indicated this in its report entitled "Environmental Performance Evaluation Chile 2016" (hereinafter "2016 Report"), which states that the SEIA is the "oldest, most important and most advanced instrument of the Chilean environmental regulation", being administered since 2010 by the SEA.

However, twenty-one years after its entry into operation, and eight since the last major reform, the SEIA has been criticized and victim of one of the major crises that today affects our society, mistrust.

Indeed, in recent years we have seen how the lack of confidence in the SEIA has made citizens and project owners consider that, in some cases, the environmental qualification resolutions approve or reject projects for reasons that are not strictly technical. , or, they estimate that the projects are approved without sufficiently considering the opinion of the communities or without making a final evaluation of all the impacts that will occur in the environment.

On the other hand, that the environmental qualification of the projects is decided in purely political instances, such as the Committee of Ministers, has ended up undermining any aspiration that the processes of environmental impact assessment be carried out based on eminently technical considerations.

These criticisms are not new. Already in the message of the law N ° 20.417 reference was made to similar deficiencies of the environmental institutionality in its generality, noting in what refers to the SEIA, difficulties regarding i) "the intervention of the political authority in matters that are eminently of technical decision ", as well as ii)" at the regional level, the environmental institutionality has been contradictory with the transversal model ".

Therefore, it is necessary to modify the environmental management instrument in order to end the paradigms already analyzed.

Thus, in order to continue perfecting and modernizing an instrument as relevant as the SEIA, it is necessary to introduce the following modifications: i) reduce the political component in the environmental qualification procedure; ii) expand and improve spaces for citizen participation; iii) allow greater and equitable access to environmental justice; and, iv) legally solve historically controversial aspects.

It should be noted that this desire to perfect the system is preceded by a long process of reflection, which also brought together: i) the analysis process of the SEIA reform initiated by the government of President Michelle Bachelet and, in particular, by the former Minister Pablo Badenier; ii) the experience acquired in the last 8 years; and, iii) the analyzes made by the OECD in the 2016 Report.

Thus, the fruits of this long work were collected in our Government Program, and are reflected in this broad consensus of reform, as explained below.

III. OBJECT OF THE REFORM

The present bill, which is submitted for consideration by this honorable Congress, aims to modernize, strengthen and improve the SEIA, introducing a reform that guarantees sustainable development, promotes citizen participation and gives greater confidence to all the actors of the society, which constitute the three fundamental pillars in the modernization of our evaluation system.

In effect, this bill establishes as one of its main objectives the strengthening of the Environmental Evaluation Service, technifying the sector pronouncements, improving the evaluation procedures and generating instances of early dialogue with the community, the holders of the project and the SEA.

In this way, through this act, this Government comes to fulfill the commitment acquired with all Chileans.

IV. PROJECT CONTENT

Bearing in mind the foregoing, the main contents of this initiative are described below:

1. Reduction of the political component in the SEIA

As has been pointed out, one of the problems that certain public institutions must face is that technical decisions are taken within a discretional framework, by institutions with a strong political constitution.

The SEIA, as an instrument, has not been oblivious to this problem, which in the eyes of the public has diminished its objective, which is the protection of the environment.

Therefore, a first objective of this project is to limit to the minimum those instances of political decision, modifying the conformation of the Commission of Environmental Evaluation of regional nature, in three macrozonal commissions conformed by authorities knowledgeable of the matters on which they will have to pronounce, and by technical actors, restricting the political factor.

Another modification that seeks to raise the technical standard of evaluation processes, is the creation of three macrozonal directions, North, Center and South, with their headquarters in Antofagasta, Santiago and Valdivia, respectively, replicating the administrative organization carried out by the Environmental Courts according to Law No. 20,600.

The purpose of this is also to decentralize and efficiently decentralize the territory, eliminating factors of disparity in the criteria and tending, in that way, to modernization and, consequently, better administration of the SEIA.

Likewise, the division proposed in macrozones responds to the fact that the current political and administrative division of the country does not adequately reflect the environmental reality of the national territory, nor does it recognize the specialization acquired in the regions with respect to certain types of projects that are subject to more frequently to environmental evaluation; criteria that were followed successfully, for example, for the establishment of environmental courts.

In this way, the qualification of a greater number of projects of the same nature, will allow the officials of each macrozone to reach a greater specialization on the matter, and adopt uniform criteria for the evaluation and qualification of these.

Finally, a third modification in order to achieve the objective of reducing the political interference in the SEIA to its minimum expression, is the elimination of the administrative recursive instance provided in the law N ° 19.300.

The foregoing, because although the doctrine and jurisprudence are answers in which administrative resources are a guarantee of those administered, the administrative recursive instances of Law No. 19,300 have been inefficient in terms of this guarantee, resulting, on occasion, a true double environmental evaluation of a project, without considering such an instance, for example, a public and transparent citizen participation process.

Therefore, the claim instance before the Committee of Ministers or the Executive Director of the Environmental Evaluation Service is eliminated, considering a judicial claim resource before the environmental courts, to be these bodies, created especially with the necessary legal and technical conditions to resolve this kind of controversy, the calls to resolve them.

Thus, the final decision will be in the hands of an impartial third party, endowed with the necessary knowledge, and who have achieved recognition for the work they have done all these years.

However, a special clarification resource is established, for effects that the proponents of projects, and the citizenship that participated in the procedure, can go before the same body that dictated the act, in order to clarify obscure passages of the administrative act.

2. Expansion of spaces for citizen participation

Perhaps, one of the most innovative elements in this bill that I propose to its discussion, is the incorporation of the anticipated citizen participation for the projects that intend to enter the SEIA, in order to generate a process of early dialogue between community and proponent. .

The foregoing seeks to advance in the realization of Principle 10 of the Rio Declaration on Environment and Development, which establishes that "the best way to deal with environmental issues is with the participation of all interested citizens, in the level that corresponds "adding that" the States should facilitate and promote awareness and participation of the population by making information available to all. "

In addition, this stage of early participation is inspired by the principles of equality, transparency and good faith, recently gathered in the "Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and Caribbean"...

This press release was published in English using an automated translation system

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