The Law Today

Bill of law to modernize the Environmental Impact Assessment System (SEIA)

04 Sep 2018

Introduction

On July 31, 2018, the President submitted Bulletin No. 11,952-12 to the House of Representatives containing the bill of law to modernize the Environmental Impact Assessment System (“Bill of Law”), which will amend the General Environmental Framework Law 19,300 (“Law 19,300”).

The main objectives, as concluded from the Presidential Message on the Bill of Law, are:

– to reduce the political component in the environmental assessment procedure.

– to expand and improve citizen participation.

– to provide a greater and equitable access to environmental justice.

– to improve the assessment system by resolving historically controversial aspects.

Political Independence

It is proposed, in order to reduce the political component in the assessment procedure, that:

a. The Environmental Assessment Service (“SEA”) be territorially divided into three macrozonal offices that will have seats in the cities of Antofagasta, Santiago and Valdivia, which are the seats of the nation’s three Environmental Courts.  Each office will be run by a Macrozonal Director.

– Projects will be assessed by a Macrozonal Assessment Commission comprised of the following members:

– Macrozonal Director

– Regional Governor

– Regional Secretary of the Ministry of the Environment

– Regional Secretary of the Ministry of Economy, Development and Tourism for the region where the project will be implemented.

– An attorney and a scientist specializing in environmental matters who have at least 10 years of experience.  They will be appointed by means of the High-Ranking Public Office System.

b. Each member of the Macrozonal Assessment Commission must provide reasons for their vote on technical and environmental aspects to thus reduce discretion in decision-making.

c. The instance of an appeal to the Committee of Ministers is eliminated for Environmental Impact Studies (“EIA”) as well as the appeal to the Executive Director for Environmental Impact Statements (“DIA”).

Expansion and improvement of citizen participation

The Bill of Law establishes an early mandatory citizen participation for EIAs and a voluntary one for DIAs.  The activity must be held within no more than 18 months as from when the proposer publishes the notice of convocation of the first community meeting in the Official Gazette or in a regional or national newspaper.

The procedure will conclude in a document entitled “Environmental Terms of Reference,” which will be officially recorded and then presented to the Environmental Court for authorization.

The Environmental Terms of Reference must meet each of the information requirements in the law:

– It must contain a description of the initial proposal on the project or activity.

– It must systematize the actions taken.

– It must list participants or representatives, as relevant.

– It must discuss the matters identified as environmentally important by agencies involved in the stage and their recommendation on the assessment.

– It must state the concerns expressed by stakeholders.

– It must list the communities identified in the area of eventual impact of the initial proposal on the project or activity.

– It must state the result of the Early Citizen Participation Stage and eventual voluntary agreements.

– It must mention potential changes by the Proposer to its initial proposal on the project or activity after the Early Citizen Participation stage, including location, design, technology and other aspects. 

– It must explain the economic and social contribution of the final project that will be submitted for assessment as well as the environmental setting.

Upon approval, this document will be sent to the SEA and then an abstract of the document will be published in the Official Gazette.  The project owner will have a deadline of two years to submit the project to the SEA as from publication of the abstract.

Finally, the Environmental Terms of Reference will be evaluated as an integral part of the EIA or DIA in the SEIA.

Greater and equitable access to environmental justice

a. Under article 53 of Law 19,880 that establishes the Administrative Procedure Framework, government agencies have no power to invalidate Environmental Approvals or Denials (“RCAs”), resolutions deciding on the procedure in article 25-quinquies or any other resolution issued in the SEIA.

However, the Bill of Law specifies that an RCA holder may present an administrative appeal for clarification, correction or amendment within 30 days after the RCA has been issued in order to clarify or correct all aspects of such decision so that everything is congruent.

b. Only the potential illegality of an RCA can be appealed before the respective Environmental Court within 30 days after the RCA is notified.

Improvement of historically controversial aspects

a. All sectorial environmental permits that used to be issued by different government agencies for a project submitted to assessment will now be issued by the Macrozonal Assessment Commission in the RCA approving the project.

b. A Technical Committee will be created to technically analyze the requirements to issue sectorial environmental permits during the environmental assessment.

c. Inquiries on whether a project needs to be submitted to environmental assessment will be binding in terms of monitoring, oversight and environmental penalties.

d. RCAs will be divisible, if proposed by the holder to the respective Macrozonal Assessment Commission, provided the environmental impacts and their environmental monitoring can be differentiated in the proposed division.

e. The holder of an RCA may propose a coordinated, systematized and restated text of the RCA to the respective Macrozonal Assessment Commission that contains all changes to the project that have received environmental approval and the inquiries on the requirement to submit any changes to environmental assessment that have been decided by the authority.

f. Finally, it says that the RCAs approving a DIA or EIA may be revised by the authority at the request of the holder or the Environmental Commission when monitoring activities in the project confirm that some of the effects, characteristics or circumstances in article 11 of Law 19,300 have occurred, in the case of DIA, or the environmental variables have varied substantially in comparison to forecasts or have not occurred, in the case of EIAs.

Contacto

Should you need more information on this subject, please contact
Gabriel Del Favero gdf@jdf.cl
Dino Pruzzo dpruzzo@jdf.cl
Javier Ruscica jruscica@jdf.cl

JDF