CHILE Law and Practice Contributed by: Pablo Méndez, Christian Rojas, Pablo Neupert and Vicente Huidobro, TM Abogados
5.3 Key Defences Administrative Proceedings
• Invocation of justifying or mitigating causes, depending on the nature of the case.
In response to the sanctioning procedures of the Chil- ean SMA, the most frequent defences focus on ques- tioning the validity of the charge or the proportionality of the sanction. Among these, the following stand out. • Statute of limitations on the offence, given that the provisions of Article 35 of the LOSMA prescribe a three-year statute of limitations from the date of the offence. • Disproportionality of the sanction in relation to the actual gravity of the facts. • Insufficient evidence of the alleged environmental damage or of the extent of the impacts attributed to the offender. • Improper consideration of the circumstances rel- evant to determining the sanction. • Unjustified delay in initiating the administrative sanctioning procedure. Civil Judicial Proceedings In judicial proceedings, both in environmental reme- diation actions and in claims for compensation, the most common defences focus on substantive and procedural aspects. • Insufficient substance of the alleged facts to con- stitute environmental damage. • Absence of a causal link between the defendant’s activity and the damage caused. • Statute of limitations, either under the Civil Code (four years) or Law No 19,300 (five years from the evident manifestation of the damage). • In environmental restoration claims, challenging disproportionate or punitive measures that go beyond what is strictly necessary to restore the environment. Criminal Proceedings Regarding criminal offences, common defences include the following. • Absence of the constitutive elements of the offence or the atypicality of the alleged conduct. • Lack of a causal link between the conduct and the damage caused to the environment.
6. Corporate Liability 6.1 Liability for Environmental Damage or Breaches of Environmental Law As mentioned above (see 5.1 Key Types of Liability ), Law No 19,300 establishes that any person (entity/ natural person) who causes damage to the environ- ment through negligence or wilful misconduct shall be liable for such damage (Article 51). This is a judicial action aimed at obtaining environ- mental compensation for the damage caused to the environment, brought before the environmental courts and whose sole purpose is to restore the condition of the affected environment to its state prior to the damage (Article 53). 6.2 Environmental Taxes Chile has developed carbon offsetting mechanisms, including the “Green Tax” (Law No 20,780), which allows certain taxpayers to offset their emissions by acquiring certified GHG reductions. In addition, this law allows offsetting taxable emissions through emis- sion reduction projects, provided that the reductions are additional, measurable, verifiable and permanent. 6.3 Incentives, Exemptions and Penalties In the Chilean legal system, there are no specific incentives, exemptions or penalties for good environ- mental citizenship. 6.4 Shareholder or Parent Company Liability The general principle under Chilean law is that a com- pany is a legal entity separate from its shareholders, so they are not liable for the actions of the company itself. However, recent Chilean judicial decisions have rec- ognised that in certain exceptional circumstances it is possible to apply the “principle of piercing the corporate veil”. As a result, a shareholder or parent company could be liable for a company’s obligations.
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