CHILE Trends and Developments Contributed by: Pablo Méndez, Christian Rojas, Pablo Neupert and Vicente Huidobro, TM Abogados
• To guarantee that regulation is proportionate, non- discriminatory, cost-effective and necessary in light of associated risks and impacts. • To ensure that norms are updated and compre- hensible, thereby strengthening transparency and public trust. This law is one of the most ambitious institutional reforms in recent years, seeking to overcome the fragmentation and delays characteristic of the Chil- ean permitting system, in which dozens of sectoral agencies operate with differing criteria, procedures and timeline expectations. As a practical matter, even projects that obtain a favourable Environmental Qualification Resolution (RCA) may languish for years waiting for the complementary sectoral authorisations needed to begin execution. By establishing shared principles, promoting inter- institutional co-ordination and advancing towards a more integrated processing regime, the LMAS seeks to reduce those delays and eliminate duplications, contributing to a more predictable and efficient sys- tem. In doing so, the law aspires not only to improve normative coherence, but also to shorten project development timelines and strengthen legal certainty at all stages of the administrative process, thus foster- ing investment in Chile. New alternative enabling techniques: notice and sworn declaration In tandem with the standardisation and co-ordination of procedures, LMAS introduces a substantive shift in how state bodies enable projects or activities, by incorporating what are known as alternative enabling techniques: the “notice” ( aviso ) and the “sworn dec- laration” ( declaración jurada ). • The notice is defined as the act by which the pro- ject holder informs the competent sectoral author- ity of the construction, installation, operation, sus- pension, closure or cessation of a regulated activity that – by its characteristics – does not require prior authorisation (Article 5 No 4). • The sworn declaration, on the other hand, is the document signed by the holder of a project or activity in which they state – under their responsi- bility – that they meet the requirements and condi-
tions imposed by the applicable sectoral regulation and thus proceed without needing a formal admin- istrative authorisation (Article 5 No 6). Both mechanisms represent a structural transforma- tion of the permitting regime, by introducing instru- ments that allow certain activities to be enabled without a formal decision by the competent author- ity. Under Article 11 of the LMAS, notices and sworn declarations will produce the same enabling effects as formal authorisations from the day after their submis - sion, without needing subsequent approval. This approach “deformalises” the traditional proce- dure, moving away from the authorisation model via administrative act that has historically dominated Chil- ean public law, towards a regime of self-declaration of compliance and ex post oversight by the sectoral agencies. However, the real impact of this innovation will depend on the regulations that clarify their content, scope and conditions of application, as well as the capac- ity to supervise and verify the actual fulfilment of the declared requirements. Therefore, its implementation (via several regulations, supreme decrees and other pieces of complementary rules) will be critical: only through careful application can these mechanisms translate into greater efficiency, lower administrative burden and better regulatory risk management, not into new sources of uncertainty or litigation. The regulatory stability regime: impact for investment projects One of the most significant innovations of LMAS is the regulatory stability regime, applicable to sectoral authorisations linked to projects that hold a favour- able RCA. Under Articles 76 and 77, holders may request that the regulatory framework in force at the time of filing their Environmental Impact Study or Declaration remain immutable for up to eight years, except in exceptional circumstances justified by public interest. It has been observed that this regulatory stability regime could become a decisive tool in regulatory risk management, especially in sectors where pro-
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