(1) Introduction In 2016, environmental matters attracted significant attention in Chile. The greatest development was Chile’s ratification of the Paris Agreement; the treaty was signed in September 2016 and finally adopted on 10 February 2017. Perhaps it was the toxic phenomenon of the red tide, which hit the archipelago of Chiloé in the Region of the Lakes (Región de los Lagos) between April and May 2016, that contributed to impressing political and public opinions. The red tide is an algal bloom that, in this case, was particularly toxic. In addition, the tide lasted longer than usual and heavily affected a number of families and their fishing activities. The government compensated the families with 100,000 Chilean pesos each (approximately €150), which was deemed insufficient. Although the red tide is a natural phenomenon that was identified by the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific, and Cultural Organization in 1992, biologists have also pointed to those adverse effects of climate change that are particularly evident in Chile, such as the reduction of the ozone layer, the greenhouse effect, and the acidification of the oceans. In mid-December, the Centre of Public Policies of the University of Chile (Centro de Análisis de Políticas Públicas del Instituto de Asuntos Públicos de la Universidad de Chile–INAP) published the Report on the State of the Environment in Chile (Informe País Estado del Medio Ambiente en Chile). This report declared a negative trend, particularly in regard to pollution, native forest, and fishing. The experts underlined that erosion and desertification were expanding (for example, from 1979 to 2010, 7 percent of the whole territory was eroded); almost 80 percent of the national territory was at risk of degradation; the areas of native forests were decreasing; fishing had reached a state of over-exploitation; the potentially affected population reached a worrying 67 percent; and another twenty areas or localities—which are highly affected by air pollution—will need to be labelled as ‘saturated zones’ (Zona Saturada). The Centre of Public Policies finally highlighted that protected areas have the potential to hinder such negative trends. The past year also saw the relaunching of the debate on reforms to environmental legislation. In particular, the Environmental Commission of the Senate (the Upper Chamber of the Chilean Parliament) discussed and urged the adoption of the draft law on the Service on Biodiversity and Protected Areas (Draft Law no. 9404-12 of 2014). The commission also flagged the need for more incisive penalties and the criminalization of environmental damages. The former may be framed within environmental legislation (Draft Law no. 9397-12 of 2014), the latter as a reform to the criminal code (Draft Law no. 8920-07 of 2013). In fact, the Chilean General Environmental Law poorly punished such damages (Law no. 19,300 of 1994). In late 2015, the Superintendency of the Environment published a sort of white book on the determination of administrative environmental sanctions (Bases metodológicas para la determinación de sanciones ambientales (Methodological Basis to Determine Environmental Sanctions)). These guidelines contribute to streamlining the criteria for the application of such sanctions by the judiciary. However, there is still no legislation regarding damages due to iron pollution notwithstanding the extensive iron mining activities, particularly in the northern parts of the country. Finally, the minister of the environment, Pablo Badenier, submitted to President Michelle Bachelet a 480-page report to reform the System of Environmental Impact Assessment (SEIA) in late July 2016 (Informe final de la Comisión Asesora Presidencial para la reforma del Sistema de Evaluación de Impacto Ambiental (Final Report of the Advisory Commission for the reform of the System of Environmental Impact Assessment)). A team composed of politicians, academics, civil society organizations, and public and private partners contributed to this report, which contains twenty-five recommendations that would reform Supreme Decree no. 40 of 2013 on the SEIA. Among them, the authors propose new criteria for setting the impact assessment instruments; more participation by the citizenry, including indigenous peoples; and stricter evaluation measures (for a general description of Chilean environmental legislation, see volumes 20, 21, and 26 for the years 2009, 2010, and 2015, respectively, of this Yearbook). As for civil society, it is also worth mentioning that another edition of the Environmental Festival FEMAS (Festival Medioambiental de Santiago) successfully took place in Santiago in October. The festival brings in an average of 5,000 participants during each gathering and is likely to increase public concern over environmental matters. Indeed, in late 2015, the Ministry of the Environment carried out a survey on the opinions, behaviours, and main environmental concerns of the Chilean citizenry (Segunda Encuesta Nacional de Medio Ambiente; Second National Survey on the Environment). They announced the results in March. Four-fifths of the interviewees agreed that climate change will adversely affect their daily lives. The statistics also indicated that more than 70 percent of the population concurred that environmental protection may support, rather than hinder, economic growth. However, more than 60 percent pointed out that Chile is not making significant efforts in environmental matters and that environmental legislation could be more incisive. When questioned about central environmental issues, citizens identified air contamination, the lack of dirt and waste management, and pollution in general. Indeed, recycling is perceived as one of the main challenges. Finally, it is worth mentioning that almost 90 percent of the interviewees agreed on restriction measures such as limiting the use of fresh-cut firewood (leña verde) or the circulation of vehicles. (2) Environmental Agenda for 2016 As is customary every year, the Chilean president gave her official speech (mensaje presidencial; presidential message) to the citizenry on 21 May. President Bachelet did not spend many words on the environmental agenda but highlighted the engagement Chile took at the twenty-first Conference of the Parties to the United Nations Framework Convention on Climate Change regarding the reduction of greenhouse gas emissions. Finally, she added a number of initiatives regarding the creation of marine natural parks. No further announcements or references were made in regard to the two initiatives launched last year—that is, the design and approval of programs of environmental and social recovery (programas de recuperación ambiental y social) for the delicate ecosystems of Coronel and Huasco in the central and northern parts of the country, respectively. However, in both municipalities, the minister of the environment—in cooperation with local authorities—created a council and drafted a program of environmental and social recovery that was submitted for public consultations in both localities between June and September 2016. This adds credibility to the accountability of President Bachelet’s environmental agenda. In concomitance of the presidential message, the Ministry of the Environment published its Public Account (Cuenta Pública 2016), which also contains the 2016 Environmental Agenda. For the purposes of this report, it is worth mentioning the renovated commitment vis-à-vis atmospheric decontamination until 2018 (Estrategia de Planes de Descontaminación Atmosférica 2014–18; Strategies of Plans for Atmospheric Decontamination 2014–18); the promotion of vulnerable land recuperation programs; and the above-mentioned reforms to environmental legislation and institutions, with particular regard to climate change-related actions. (3) Legislative Developments and Implementation (A) Energy (i) Current developments As mentioned in volume 26 of this Yearbook, Chile partially depends on energy importations, while internal production relies mainly on hydroelectric plants or non-renewable resources (gas, oil, and carbon). In her 2016 presidential message, President Bachelet highlighted once again the need for more diversified sources of electric energy and a reduction of the costs of energy for human consumption. In regard to the former, between 2015 and 2016, she reported the extension of the electric power transmission system and the construction of another 700 kilometres of overhead power lines. Furthermore, she promised that by 2018 internal production of electricity will be generated by renewable sources and that it will be eolian, solar, or geothermally based. As to the latter, President Bachelet recalled the adoption of Ley de Equidad Tarifaria Residencial (Law on Equal Residential Tariffs) in June 2016 (Law no. 20,928, Establece Mecanismos de Equidad en las Tarifas de Servicios Eléctricos). This law, announced and promised in 2015, finally addresses and levels off the huge variations in the expense for energy supply for human consumption in varying areas of the country (for example, in Linares, it costs twice as much as in Santiago). President Bachelet finally announced that Chile will start to export electric energy to Argentina for the first time. The Bachelet government has also achieved the adoption of another law in the energy sector. This new law regulates more substantially the transmission of electricity and creates an independent institution that will coordinate and monitor the internal energy system and market (Law no. 20,936, which was adopted in July 2016, Establece un Nuevo Sistema de Transmisión Eléctrica y Crea un Organismo Coordinador Independiente del Sistema Eléctrico Nacional). The establishment of this institution would improve the application of the fragmented energy legislation and increase transparency. Other energy-related initiatives announced in 2015 remain pending (that is, new legislation on the promotion and regulation of energetic efficiency, new geothermal power generation projects, and incentives for the production of energy at the municipal level). Also, those draft laws that were mentioned in volume 26 of this Yearbook are still under scrutiny by the Chilean Parliament (Draft Law no. 7730-12 of 2011 on the Assessment of Geothermal Exploration and Exploitation Projects, Draft Laws no. 8550-14 of 2012 and no. 9578-14 of 2014 on Building Energetic Efficiency, and Draft Law no. 10412-04 of 2015 on Energetic Education at School). (ii) Pending issues Notwithstanding these developments, the production of electricity remains highly (and fairly) contested by those local communities that are directly affected by the construction of hydroelectric plants. For instance, in 2016, the local algal fishermen opposed the building of the El Gato plant on the River Maullín in the municipality of Los Muermos in the Region of the Lakes (Región de los Lagos). The environmental impact assessment was deemed favourable. However, the Handicraft Fishermen Confederation ‘Conapach’ (Confederación Nacional de Pescadores Artesanales de Chile) argued that such a project would adversely affect not only the fishing activities but also tourism, river biodiversity, and wild migratory bird patterns of a bordering municipality (Maullín), which was excluded from the public consultation. In the municipality of Panguipulli, which is located in the same region, another small hydroelectric plant is disputed. In this case, the environmental impact assessment has not been initiated yet. In January 2017, the local indigenous peoples living in the sector of Tranguil—who have strenuously opposed the project since the beginning—denounced that the multinational company RP Global has already partially diverted the river flow and left part of the community without a water supply. In addition, the death of local activist Macarena Valdés in August 2016 is allegedly linked to the construction of the plant. The overall situation continues to be extremely delicate. The hydroelectric project ‘HidroAysén’ remains pending (see details in volume 26 of this Yearbook). Although the parties and the activists expected a decision by the Environmental Court of Santiago in 2016, the court has not yet ruled in this case. This delay may be due to delays in appointing the new attorney general of this court. The post remained vacant for almost twenty months. In September, the Supreme Court finally appointed Alejandro Ruiz Fabres, a well-known environmental lawyer. However, the environmentalist organization Council for the Defence of Patagonia (Consejo de Defensa de la Patagonia) denounced that Ruiz Fabres also worked for the consultancy agency that developed the contested environmental impact assessment of the HidroAysén project. They alleged a lack of transparency in Ruiz Fabres’s appointment procedure. They also complained that since he had previously been declared to be in favour of the HidroAysén project, the upcoming trial might be biased. (B) Freshwater Resources and Oceans (i) General developments In late 2015, the Bachelet administration adopted two regulations to safeguard the environmental quality of the river basins of Valdivia and Biobío (Norma secundaria de calidad ambiental, Secondary Norms of Environmental Quality, Supreme Decrees/Decretos Supremos nos 1/2015 and 9/2015, respectively, both published on 27 November 2015). They also drafted a similar regulation for the river basin of Aconcagua (Resolution no. 946 of 17 September 2015). These measures were part of the freshwater agenda announced for 2015 and 2016, as discussed in volume 26 of this Yearbook. Draft Law no. 10319-12 of 2015, which would introduce the use of saltwater in the mining sector and thus reduce the quantity of freshwater for such commercial use is still pending. While the demand for freshwater is increasing, particularly in the north (Region of Arica) and in the city of Santiago, its availability is likely to become a central issue in the next few years. The scarcity of freshwater is not only due to limited accessibility to the springs but also to the retreat of glaciers in the Andes. Indeed, the Ministry of the Environment announced in its 2016 Public Account that they have reached a preliminary agreement and will start elaborating a draft law on the management of glaciers and their protection against aggressive economic exploitation. In her 2016 presidential message, Bachelet instead recalled the need to safeguard the marine ecosystems of the country. She announced the creation of two marine natural parks and a small network of such parks. Among the former, there are the Parque Marino Nazca-Desventuradas (which surrounds the islands of San Félix and San Ambrosio), the Parque Marino Montes Submarinos Crusoe y Selkirk (in the archipelago of Juan Fernández), and a marine protected area in the Eastern Island/Island of Rapa Nui, for which a consultation with the indigenous peoples has been announced. The Network of Marine Parks (Red de Parques Marinos) is instead composed of the parks of Lobería Selkirk, El Arenal, Tierra Blanca, and El Palillo (also in the archipelago of Juan Fernández). The Parque Marino Nazca-Desventuradas was officially created on 24 August 2016. It hosts a huge variety of biodiversity (about 72 percent of the marine fauna living in it are unique), and it covers an area of 300,035 square kilometres. On the same date, they also created a Committee of Ministers for the Oceanic Development and Policy (Consejo de Ministros para el Desarrollo de la Política Oceánica), which is made up of the Ministries of Environment, External Relations, Economics, and Defense. The Parque Marino Montes Submarinos Crusoe y Selkirk and the Red de Parques Marinos were recently created by Decree no.10 of 2016 of the Ministry of the Environment (published in the Official Gazette no. 41.668 of 26 January 2017). The former covers 1,078 square kilometres; the latter covers 3.45 square kilometres. The creation of these parks will hopefully contrast with the level of marine pollution. In 2016, the coasts of Chile were hit not only by the aforementioned red tide but also by oil leakages in Quintero (Region of Valparaíso). In addition, a study of the inter-university Centre for Interdisciplinary Aquatic Research (Centro Interdisciplinario de Investigación Acuícola) registered a high concentration of pesticides used in the salmon fish farming, such as azamethiphos, deltamethrin, and emamectin benzoic acid, in the central coast line of Chile and of the Islands of Chiloé. (ii) Ongoing reform to the Water Code The Chilean legal regime of freshwater courses is extremely peculiar. It is governed by the Water Code, adopted pursuant to Decreto con Fuerza de Ley no. 1,122 of 1981 and following amendments. This law, together with the bizarre constitutional formulation of the rights to ‘own’ a spring in Article 19.24, gives privileges of water use to private companies. This regime has also dramatically reduced the availability of springs (see further discussion in volume 26 of this Yearbook). The draft law on the Reform of the Water Code was initiated in 2011 and was long discussed in 2016 as well (Draft Law no. 7543-12 of 17 March 2011 (Reforma el Código de Aguas)). Inter alia, this reform shall reframe the concept of the ‘right of water use’ (derecho de aprovechamiento de aguas); reduce the duration of such a right, which is currently given on a permanent basis; prohibit the establishment of such rights over protected areas and glaciers; legalize those ‘water right uses’ that have not yet been registered; categorize the water uses; and assign priority to some uses rather than to others (first, for human consumption; second, for the protection of ecosystems; third, for industry and productive activities). The Chilean Lower Chamber (Chamber of Deputies) eventually endorsed the project on 22 November 2016 by a large majority (64 percent). It is currently under the scrutiny of the Senate, at the Special Commission for Hydric Resources, Desertification and Drought (Comisión Especial de Recursos Hídricos, Desertificación y Sequía). The law might be finally adopted in 2017. However, the reform regards only those springs that are still ‘free’ from the ‘rights of water use’ (approximately only 10 percent of the total springs) and, therefore, it may have a very limited impact. (C) Air and Atmosphere Air pollution, particularly in urban areas, remains a crucial issue in Chile. In June, Santiago faced eight episodes of critical concentrations of fine particles. Within its 2014–18 strategy (Planes de Descontaminación Atmosférica, Estrategia 2014–18; Plan for Atmospheric Decontamination, 2014–18), the Ministry of the Environment ultimately published a number of local air decontamination plans in March (for example, for the town of Coyhaique by Decree no. 46/2015, for Osorno by Decree no. 47/2015, for Chillán and Chillán Viejo by Decree no. 48/2015, and for Talca and Maule by Decree no. 49/2015). As in 2015, another decree has set an additional ‘saturated zone’ (zona saturada)—that is, the province of Curicó (Decree no. 53/2015, 8 March 2016). The ministry continued the program of ‘health alerts’ (alertas sanitarias) together with the Ministry of Health in the cities of Rancagua, Talca, Curicó, Temuco, and Osorno. They registered a significant decrease in premature deaths due to air pollution-related diseases (750 less than in 2013). Finally, Article 8 of Law no. 20,780 of 2014 and the following amendments (Reforma Tributaria que Modifica el Sistema de Tributación de la Renta e Introduce Diversos Ajustes en el Sistema Tributario; Fiscal Reform that modifies the Rental Income Tax System and Introduces Various Adjustments to the Fiscal System) imposes an annual fee on fine particles of nitrogen oxide, sulphur dioxide, and carbon dioxide to all those legal and natural persons who possess sources that produce fifty thermic megawatts or more. However, the fee is relatively low ($5 for each metric ton of carbon dioxide). Indeed, the revenues from these taxes are among the lowest of the Organization for Economic Cooperation and Development (OECD) countries, in accordance with the report published by this body on Chile in 2016 (OECD, Evaluaciones del desempeño ambiental Chile; Evaluations on the environmental performance of Chile). (D) Climate Change Between 2000 and 2010, the greenhouse gas emissions in Chile increased by 23 percent. Energy consumption and the developments of other economic sectors are likely to intensify such emissions. In the aforementioned report by the OECD, they calculate that the emissions caused by the transport sector alone may increase up to 95 percent by 2030. As mentioned earlier, Chile ratified the Paris Agreement in February 2017. In mid-December 2016, the Lower Chamber approved the ratification, which the Upper Chamber confirmed on 25 January. Chile committed to reduce its greenhouse gas emissions by 2030: up to 30 percent if the economic growth rate remains constant or up to 45 percent if Chile receives international financial assistance (as compared to 2007 figures). At the domestic level, the Ministry of the Environment concluded the project ‘MAPS Chile’ (on the identification, analysis, and evaluation of mitigation measures), while the Council of Ministers for Sustainability (Consejo de Ministros para la Sustentabilidad) approved an additional National Plan for Climate Change Adaptation for the fishing and aquaculture sectors (Plan de Adaptación al Cambio Climático para el sector de la pesca y acuicultura). The Ministers of Environment and of Agriculture submitted a project proposal to the Adaptation Fund to empower the capacities of resilience of rural communities in the dry coastal land of one of the central regions of Chile (Región del Libertador General Bernardo O’Higgins; Region of the General Liberator Bernardo O’Higgins). Most importantly, in her 2016 presidential message, President Bachelet announced the creation of an Agency on Climate Change and Sustainable Environment (Agencia de Cambio Climático y Desarrollo Sustentable). This body shall be in charge of the application of mitigation and adaptation measures as well as of training and dissemination activities. Notwithstanding this, the draft law mentioned in volume 26 of this Yearbook, which will introduce measures into the respective legislation aimed at safeguarding the environment, reducing greenhouse gases, and enhancing climate change adaptation capacities, is still under the scrutiny of the Senate (Draft Law no. 10,416-12 of 2015). (E) Biodiversity and Natural Protected Areas Chile seems to stand at the forefront in matters concerning biodiversity and natural protected areas. As mentioned earlier, in August, Chile created the largest marine natural park in the Americas—that is, the Parque Marino Nazca-Desventuradas. This country will host the fourth International Marine Protected Areas Congress in La Serena and Coquimbo in September 2017. Finally, Chile firmly supported the establishment of a marine protected area in the region of the Ross Sea in the Antarctic Southern Ocean. This area is likely to form part of a system of marine protected areas that would be created in the Eastern Antarctic, in the Weddell Sea, and in the Antarctic peninsula. These projects are also strongly supported by Argentina. Notwithstanding these initiatives, the OECD declared that Chile provides the majority of its marine areas with insufficient financial and human resources. Furthermore, the draft law that would create a service on biodiversity and protected areas (Draft Law no. 9404-12 of 2014) is still under discussion. The delays may be partially due to the process of consultation with indigenous peoples authorized by Resolution no. 5 of 8 January 2016. Furthermore, the draft law received about 1,200 proposals for amendments and corrections, which the Commission of Environment and National Goods of the Senate has been scrutinizing since December. (F) Waste The Law on Recycling was finally adopted on 17 May (Law no. 20,920 Establece Marco Para la Gestión de Residuos, la Responsabilidad Extendida del Productor y Fomento al Reciclaje; the law was former Draft Law no. 9094-12 of 2013). Inter alia, this law enhances recycling activities and green undertakings and gives the producers as well as manufacturers and importers of products the responsibility for managing the collection and recovery of products and packaging materials. The Ministry of the Environment is currently working on regulations (reglamento) that will give execution to the law. In regard to its international commitments, the minister of the environment reported in his 2016 public account that Chile had revised and updated its national plan and its regional (Latin American) monitoring plan for the implementation of the Stockholm Convention on Persistent Organic Pollutants. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: email@example.com
Yearbook of International Environmental Law – Oxford University Press
Published: Dec 28, 2017
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