CHILE Law and Practice Contributed by: Pablo Méndez, Christian Rojas, Pablo Neupert and Vicente Huidobro, TM Abogados
• (in specific cases) criminal sanctions.
of the Environmental Impact Assessment System (SEIA), along with other pollution-related offences that had previously been dispersed across different statutes. • In addition to this general regime in the Criminal Code, there are provisions contained in sectoral laws, such as Law No 17,288 (the “National Monu- ments Law”), which punish damage to national monuments (Articles 38 and 38 bis), and the General Law of Fishing and Aquaculture, which establishes penalties for water pollution by hydro- carbons, with special emphasis on marine environ- ments (Article 136). 5.2 Liability for Historical Environmental Incidents or Damage Each regimen establishes specific rules on limita- tion periods that determine whether actions may be brought against current operators or project owners. • Administrative violations (Organic Law of the Superintendency of the Environment) are subject to a limitation period of three years from the date on which they were committed. This means that the administrative authority cannot punish acts that occurred outside that period, except in the case of permanent offences that continue to have an effect over time. • Civil liability – ordinary compensation claims for non-contractual liability, which prescribe four years from the occurrence of the act, in conformity with the Civil Code (Article 2332). Environmental dam- age claims must be filed within five years from the date the environmental damage becomes evident (Article 63, Law No 19,300). The limitation period is suspended while the harmful conduct persists and only begins to run once the damaging activity has effectively ceased. • Under the Criminal Code, environmental offences are subject to limitation periods depending on the classification of the conduct (Article 94) – (a) felonies ( Crímenes ): 10–15 years; (b) misdemeanours ( Simples delitos ): five years; and (c) minor offences ( Faltas ): six months.
5. Environmental Liability 5.1 Key Types of Liability Administrative Liability
• The Organic Law of the Environmental Super- intendency (Law No 20,417, or LOSMA, by its Spanish acronym) establishes violations of envi- ronmental regulations. These cover both situations of environmental damage and non-compliance related to the execution of projects (Article 35). Under this law, violations are classified as minor, serious or very serious depending on the effects, characteristics or circumstances of the events (Article 36). • In addition, sectoral regimes usually have a cata- logue of violations whose penalties are imposed by the agencies with jurisdiction over the correspond- ing environmental component. Civil Liability • Law No 19,300 establishes that any person who causes damage to the environment through negli- gence or wilful misconduct shall be liable for such damage (Article 51). This is a judicial action aimed at obtaining environmental compensation for dam- age caused to the environment, brought before the environmental courts and whose sole purpose is to restore the conditions of the affected environment to its state prior to the damage (Article 53). • Law No 20,600 also establishes that a final ruling by the environmental court declaring the existence of environmental damage may serve as a basis for subsequent action for damages before the civil • Law No 21,595 (2003) on Economic and Environ- mental Crimes reinforced the existing framework in the Criminal Code, which covered relevant offences such as the improper spread of pollutants (Article 291) and forest fires (Article 476 No 3). The new law added crimes against the environment (in the Criminal Code, Articles 305 to 312), expressly classifying behaviours such as intentional or negligent environmental damage or circumvention court (Article 46). Criminal Liability
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