CHILE Law and Practice Contributed by: Pablo Méndez, Christian Rojas, Pablo Neupert and Vicente Huidobro, TM Abogados
4.2 Environmental Permits/Approvals Environmental Permitting In Chile, environmental permits are a layered system composed of the following. • A general environmental permit ( Resolución de Calificación Ambiental , or RCA) issued through the Sistema de Evaluación de Impacto Ambiental , or SEIA proceeding. • A series of sectoral permits with environmental content ( Permisos Ambientales Sectoriales , or PAS) integrated into the SEIA proceeding under the “one-stop shop permitting” philosophy. A project or activity must undergo environmental assessment – and therefore obtain an RCA – when- ever it is likely to cause environmental impacts, as defined in Article 10 of Law No 19,300 and Article 3 of D.S. No 40/2013. The Law provides an exhaustive list of 18 categories, including: • mining; • energy; • industrial, or infrastructure projects above certain thresholds; • waste treatment and disposal facilities; • dams; and • developments in protected areas. To this end, project owners shall submit either an Environmental Impact Study (EIA) or Statement (DIA) – depending on whether the project causes significant impacts on human health, natural resources, reset- tlement, cultural heritage or protected areas – before the SEA. Appeals Two main avenues exist for challenging or reviewing environmental permitting decisions. • Administrative appeal – before the SEA (Article 20 of Law No 19,300), by the project owner and any person who participated in the public consultation phase, within 30 days of its notification. The appeal is decided by the Committee of Ministers (in the case of EIA) or the SEA’s National Director (in the case of DIA).
• Judicial review before environmental courts – once the administrative appeal is resolved, the deci- sion may be judicially challenged within 30 days. The court cannot issue the administrative act of replacement and must always return the file to the administration for further proceeding. With some exceptions, the judicial decision is subject to cas- sation review by the Supreme Court. 4.3 Regulators’ Approach to Policy and Enforcement Environmental authorities typically use a traditional regulatory approach (command and control) in their regulatory policy, through strong instruments such as (among others): • environmental quality standards; • emission standards; • instructions; or • general regulations. Forms of self-regulation are not typically recognised in Chilean environmental law. Since its creation (in 2012), the SMA’s enforcement approach has been based on “responsive regulation”, incorporating alternative mechanisms to sanctions, including: • warning letters; • compliance programmes; and • self-reporting. 4.4 Transferring Permits/Approvals Environmental permits can be transferred in accord- ance with the SEIA Regulations (S.D. No 40/2012). Agreements between private parties shall be notified to the SEA, which in turn shall notify the SMA of the change in ownership. 4.5 Consequences of Breaching Permits/ Approvals As explained in detail below (see 5. Environmental Liability ), breaching of environmental permits may result in: • administrative sanctions; • civil sanctions; and
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