This country-specific Q&A provides an overview of Environment laws and regulations applicable in Chile.
What is the environmental framework and the key pieces of environmental legislation in your jurisdiction?
Chile’s environmental framework is built upon a) Article 19 N° 8 of our 1980’s Constitution; b) Law 19.300 called Enviromental Framework Law; c) Law 20,417 which amended Law 19.300 and created the Superintendence of Environment; d) Presidential Decree N° 40, which contains specific regulations to interpret and execute Law 19,300; e) Law 20.600, that creates the Environmental Courts; f) Sectorial regulations with environmental aspects, such us Urban Planning and Construction Law, Sanitary Code, Protection of Native Forest Law, etc.
The Chilean Constitution guarantees the right to live in a pollution-free environment,and requires the State to protect this right and see to the preservation of nature. To safeguard this right, specific restraints may be imposed on other rights, such as the right to exercise any business activity or to own property.
The Environmental Framework Law was originally enacted to tackle a system that had been most readily recognised by its abundance of scattered, fragmented and sector-specific regulations which had created, in time, environmental competencies freely apportioned among several entities. Ammended by Law 20.417, it contains today our system of environmental liability, environmental quality standards, emission standards, prevention and decontamination plans, the Enviromental Impact Evaluation System (called SEIA), and other environmental management instruments.
Law 20,417, that created the Superintedence of Environment, oversees environmental compliance and a significant portion of sector-specific regulation.
Law 20.600, created 3 special environmental courts which, distributed throughout Chile, entertain all matters involving environmental issues within its corresponding jurisdiction.
Sectorial regulations with environmental aspects are very relevant, in matters such us urban planning, sanitarian issues, native forest regulations, or even odour contamination.
Who are the primary environmental regulatory authorities in your jurisdiction? To what extent do they enforce environmental requirements?
There are three governmental bodies related with the application of environmental regulations in Chile:
First, the Environmental Ministry, which is in charge of the design and application of environmental policy and all of its corresponding complements. They also oversee all national protected areas (through the Biodiversity and Protected Areas Service, which has not been created, though the Bill has been laying in Congress for more than 10 years), international treaty compliance, and climate change policy. Finally, they have all necessary power to compile, collect and analyse environmental information.
Second, the Environmental Evaluation Service (known as “SEA” for its Spanish acronym), whose main function is to manage the SEIA, leading projects to obtain their environmental permit, called Environmental Permit Resolution (or “RCA” for its Spanish acronym).
Third, the Environmental Superintendence (“SMA” for its Spanish acronym), which is a public service that executes, organizes and coordinates follow-up and compliance of RCAs, as well as of prevention and decontamination plans, environmental quality and emissions regulations, management plans, and other environmental instruments established by law.
Finally, there are Environmental Courts, that entertain all environmental affairs, such as environmental damage lawsuits, and SMA or RCA sponsor claims, among several others.
What is the framework for the environmental permitting regime in your jurisdiction?
The main environmental permit in Chile is the RCA, that is granted after the approval of the Environmental Impact Study (“EIS”) or an Environmental Impact Declaration (“EID”), both different types of environmental assessments. The first one assumes significant environmental impact hence offers mitigation or compensation measures. The second one is an affidavit of sorts by which the sponsor declares that its project will fully comply with all environmental legislation.
Though the RCA is the environmental license, all sector specific permits must be obtained before the corresponding authorities to execute and operate the project. Moreover, some of the more complex sectoral permits, are also part of the environmental assessment, guaranteeing that all of the projects main components are environmentally screened as part of the Project and not independently. These permits are called “PAS” for their Spanish acronym.
If the owner of a given project already obtained and RCA, then the sectorial authority may not reject an application for a PAS on environmental grounds.
Can environmental permits be transferred between entities in your jurisdiction? If so, what is the process for transferring?
Yes, and though the procedure seems simple since transferor and transferee, must only inform the transfer to the SEA, they could (and regularly are) both be subject to several information requirements, since the SEA must have the certainty that the current sponsor is not evading environmental liability and the new sponsor will have the ability to comply with the RCA.
What rights of appeal are there against regulators with regards to decisions to grant environmental permits?
RCA’s are granted by the Environmental Assessment Commission (“CEA” for its Spanish acronym). Any decisions made by the CEA may be challenged and appealed. If it is an EIS, the appeal will be filed before the Ministry Council. If it is an EID, the appeal will go to Executive Director of the SEA. Any decision ruled by either of them, may be appealed finally before the Environmental Court. As a last resort or even in parallel, sponsors or stakeholders may submit an annulment action before the Supreme Court.
Though this is the regular channel of action, several other claims, contained in Law 19.880, of Administrative Procedures and Law 20.600, of Environmental Courts, may be filed against the decision made by the CEA, the most important one being the Void Request Declaration, with which third parties ask civil judges or an environmental court (depending on the action) to declare that the RCA is null and void.
Are environmental impact assessments (EIAs) for certain projects required in your jurisdiction? If so, what are the main elements of EIAs and to what extent can EIAs be challenged?
As of December 2020, between Law 19,300 and Supreme Court precedent, any project subject to environmental concern can be required to submit an EIS or an EID. Indeed, the actual standard is a mix between a list of projects that must submit themselves to the SEIA, and some environmental criteria of impacts focused on the significance of them.
The list is contained in article 10 of Law 19,300 and names the following projects:
A) Hydraulic works
B) High-voltage power lines and substations.
C) Powerplants over 3MW.
D) Nuclear reactors and related facilities.
E) Mass transit facilities
F) Ports, shipping lanes, shipyards and maritime terminals.
G) Urban development projects for the tourism industry.
H) Industrial or real estate projects built in air-pollution saturated zones
I) Mining projects.
J) Oil, gas, ore and other similar pipelines.
K) Factories used in the metallurgy, chemical, textile industries and in the production of construction materials.
L) Agribusinesses, slaughterhouses, animal husbandry facilities, dairy farms and fattening facilities of industrial dimensions.
M) Timber production projects on fragile lands.
N) Intensive exploitation and harvesting projects and processing plants for biological resources.
Ñ) Production, storage, transportation, disposition or reutilization of toxic, explosive, radioactive, flammable, corrosive or reactive substances.
O) Sanitary Remediation projects
P) Execution of works, programs or activities in protected areas.
Q) Massive application of chemical products in urban areas or rural areas close to populated zones.
R) Projects that use genetically modified organisms with production purposes in non-confined areas.
S) Any project that could harm a wetland or any of its components.
All the activities above must go through the SEIA, and if it generates one or more of the effects listed in Article 11 of Law 19,300, then the sponsor must file an EIS. The effects listed in article 11 are the following:
A) Risk to human health, due to the quantity and quality of waste produced
B) Negative impact effects on the quantity and quality of renewable natural resources, including soil, water and air.
C) Resettlement of human populations or significant alteration to their lifestyles and customs.
D) Adverse effects to the environmental value of the territory of the intended activity as well as to the protected settlements, resources and areas, priority conservation areas, protected wetlands and glaciers in or adjoining it.
E) Significant disturbance, in terms of magnitude or duration, to the landscape or tourism value of any area.
F) Alteration of monuments or sites of an anthropological, archaeological, historical or generally cultural value.
The decision of the SEA in connection with the granting of the RCA may be challenged by the owner or third parties as explained in 2.3 above.
What is the framework for determining and allocating liability for contamination of soil and groundwater in your jurisdiction, and what are the applicable regulatory regimes?
Environmental damage is defined by the law as any significative loss, reduction, detriment or impairment produce to the environment or to any of its components.
Liability for environmental damage in Chile is “subjective”. Therefore, a plaintiff seeking the reparation of the damaged environment must demonstrate (a) the existence of damage; (b) that the damage was caused by the defendant, and (c) that the defendant acted negligently or fraudulently in causing the damage.
However, the law also establishes that a person who causes the environmental damage is legally presumed to be liable if there is a final ruling declaring a noncompliance of environmental quality standards, emissions standards, prevention or decontamination plans, special regulations for environmental emergencies, or rules on the protection, preservation or conservation of the environment. Nowadays, the interpretation of this legal presumption is extensive.
On the other hand, there are some cases of strict liability, like the contamination with pesticides under Decree Law 3,557, or damages to the sea in the case of oil spilling under Decree Law 2,222.
A person who is held liable for environmental damage may be compelled by environmental courts to repair the environment, and can also be required to compensate any monetary damage arising from the environmental damage by civil courts. In addition, that person may face administrative fines imposed by the SMA if the damage entailed the violation of any specific environmental law or existing RCA.
Finally, even when there are some crimes related to environmental aspects, in Chile there is no such thing as environmental crimes. Because of this, several bills have been submitted into Congress in order to criminalize the most relevant conducts and imposing jail time for the perpetrators.
The statute of limitations for the liability arising from environmental damage is 5 years from the moment in which the damage becomes evident.
Under what circumstances is there a positive obligation to investigate land for potential soil and groundwater contamination? Is there a positive obligation to provide any investigative reports to regulatory authorities?
If the project has an RCA, both aspects will have been assessed and considered by it, and the SMA can inquire and ask for all pertinent information. Indeed, base line studies included in the EIS or the EID must contain a detailed analysis of the area that may be affected by the project or activity. In this context, alleged contaminated soil or water will be subject to an SMA investigation, and the sponsor will have to comply with the SMA’s requirements to inform, mitigate and repair whatever damage is found, while the final ruling is not issued.
If the project has no RCA and doesn´t need one, there is no general legal rule establishing the obligation to investigate land for potential soil and groundwater contamination, nor a positive obligation to provide investigative reports. However, sectorial regulations should be considered, such as the Water Code.
If land is found to be contaminated, or pollutants are discovered to be migrating to neighbouring land, is there a duty to report this contamination to relevant authorities?
Just like the answer before, it will depend on whether the project has an RCA or not. It´s relevant to take into account that in Chile there is no such thing as a Soil Protection Law. Just very recently a special group was formed to discuss and produce a bill regarding soil protection and remediation, to submit it to Congress.
Does the owner of land that is affected by historical contamination have a private right of action against a previous owner of the land when that previous owner caused the contamination?
The legal action for reparation of the environmental damage may be filed by any affected party (including a new owner), the correspondent town hall or the Government through the Department of Justice.
In addition, within the same action, the interested party may require a monetary compensation for said damages.
However, in the case of a purchase of a piece of land with historical contamination, the new owner will not be able to file this action if the buyer purchased the land knowing that it was contaminated.
What are the key laws and controls governing the regulatory regime for waste in your jurisdiction?
In connection with liquid waste, there are 3 main bodies of law:
A) The disposal of industrial liquid waste into the public sewage system is regulated by Presidential Decree N° 609/98 of the Ministry of Public Works. This decree regulates the monitoring process and the maximum concentrations of polluting substances permitted in the discharge of industrial liquid waste into sewage infrastructure.
B) The disposal of industrial liquid waste into superficial water sources, including oceans, lakes, channels, rivers, lagoons, aqueducts, etc is regulated by Presidential Decree N° 90/00 of the Ministry of the Presidency’s General Secretariat. This regulation controls the monitoring process and the maximum concentrations of polluting substances permitted in industrial liquid waste discharged into inner and maritime waters or any other surface water sources.
C) Finally, the discharge of industrial liquid wastes into groundwater through an infiltration system is regulated by DS 46/02 of the Presidency General Secretariat Ministry, which also contemplates a monitoring process and the maximum concentrations of polluting substances permitted in the emission of industrial liquid waste in underground waters.
These regulations establish effluent standards that all industries that produce liquid wastes must comply with. For this purpose, industries must have clean production mechanisms, which may even involve operating a liquid waste treatment plant. Under Law 19,300, the construction and operation of an industrial liquid waste treatment plant must go through the SEIA.
In connection with solid waste:
A) Presidential Decree N° 148/03 of the Ministry of Health contains the Regulations for the Management of Hazardous Waste. This decree establishes the minimum health and safety conditions to which the production, possession, storage, transportation, treatment, reuse, recycling, final disposal and other forms of disposal of hazardous waste is subject of.
B) Presidential Decree N° 4/2009 of the Ministry of Health contains the Regulations for the Management of Sludge Generated in Sewage Treatment Plants, which regulates the handling of sludge from wastewater treatment plants. It establishes the sanitary classification of sludge and the minimum sanitary requirements for its handling, as well as the restrictions, requirements and technical for the application of sludge to certain soils.
C) Presidential Decree N° 1/2013 of the Ministry of the Environment, which contains the Pollutant Release and Transfer Register Regulations, must also be taken into account. According to this decree by March 30 of each year, all companies managing hazardous waste must report all movements of said waste to the National System of Waste Declaration, including its origin, type, quantity, destination, and reference of transportation.
D) Finally, Law 20.920, that regulates waste management, extended producer responsibility (EPR), and promotion of recycling, is the newest and most important legal body for solid waste, where producers will have to organize themselves in an individual or collective management system for the waste they produce.
Do producers of waste retain any liabilities in respect of the waste after having transferred it to another person for treatment or disposal off-site (e.g. if the other person goes bankrupt or does not properly handle or dispose of the waste)?
If the disposal is made in an authorized place, the producer effectively transfers liability. However, if the producer disposes its waste at an unauthorised location, or if it lies about any of the waste’s features, it may be held liable for the infringement committed and for any environmental damage.
To what extent do producers of certain products (e.g. packaging/electronic devices) have obligations regarding the take-back of waste?
Law 20,920 that regulates EPR imposes on producers and importers of certain “priority products”, the obligation to recover a percentage of these products at the end of their lifespan; and to organise and finance the management of waste derived from their products that have already been used.
There are six priority products: lubricating oils, electrical and electronic devices, batteries, packaging and tires.
Regulations are still being prepared to implement the obligations established in this law.
What are the duties of owners/occupiers of premises in relation to asbestos, or other deleterious materials, found on their land and in their buildings?
Pursuant to Presidential Decree 656/00 of the Ministry of Public Health, the owners or users of any building, equipment, facility or machinery that have friable asbestos need an authorization by the Health Authority before conducting any activity in connection with those facilities, such as demolishing, dismantling or modifying them.
In order to get this authorization, the owner of the building, equipment, facility or machinery must present a work plan which must include security and mitigation measures that will be implemented to protect the health of the employees and the surrounding population.
If friable asbestos is found in any work, any activity must be suspended until the Health Authority grants an authorization.
Facilities or buildings where non-friable asbestos could be found, will require a working plan to be approved by the Health Authority, before beginning operation.
In general terms, Presidential Decree N° 656/00 imposes a ban on production, importation, distribution, sale and use of crocidolite asbestos (blue asbestos) and of any product containing it. The production, importation, distribution and sale of any type of asbestos-containing construction materials are also prohibited.
However, it must be considered that in the manufacturing of elements, other than construction materials, if asbestos cannot be replaced with other components in a technically or financially viable way, the use of asbestos is permitted. To this end, the aforementioned Presidential Decree established several regulations that describe an adequate handling of this substance.
Finally, Presidential Decree N° 594/99 of the Ministry of Public Health prohibits the use of asbestos in the workplace.
Regarding other deleterious materials such as mercury, Chile does not have a specific regulation, though several policies have been set in place following the Minamata Convention (which fully entered into force on November 25, 2018 by Presidential Decree 269). Indeed, there are several emissions standards applicable to mercury (for example, D.S N° 28/2013 of the Ministry of Environment, D.S N° 13/2011 of the Ministry of the Environment) and sectorial regulations such us Presidential Decree N° 148/2003 of the Ministry of Health or Presidential Decree N° 594/2000 of the same Ministry, among others.
To what extent are product regulations (e.g. REACH, CLP, TSCA and equivalent regimes) applicable in your jurisdiction? Provide a short, high-level summary of the relevant provisions.
The Ministry of Public Health is implementing the Globally Harmonized System of Classification and Labelling of Chemicals (GHS) considering types of risks and categories established in Annex IV of CLP. Currently Title XII of Presidential Decree 43/15 of the Ministry of Public Health allows the use of the GHS system in the labelling of hazardous substances, as long as they also include the hazard pictogram under Chilean Standard NCh 2190 Of. 2003 that was enacted by Decree 43/04 of the Ministry of Transportation and Telecommunications.
Regarding the classification of hazardous substances, the Chilean Standard NCh 382 Of. 2004 (equivalent to the DOT classification) contains a vast list of materials and substances, all classified in classes and divisions, following international standards.
In connection with classification of hazardous materials, the Chilean Standards NCh 2120/1 to NCh 2120/9 Of 2004 establish definitions and calculation methodologies. These regulations provide that the United Nations 4-digit identification system must be included. They also include Kemler codes.
Finally, Resolution N° 408/16 of the Ministry of Public Health contains a list of substances that are hazardous for health and substances that are subject to importation controls. This list includes explosive substances, liquids and gases, substances that affect the ozone layer, radioactive substances and pesticides.
What provisions are there in your jurisdiction concerning energy efficiency (e.g. energy efficiency auditing requirements) in your jurisdiction?
Chile passed an Energy Efficiency Law during the first week of 2021, which aims at large consumers such as big mining, big infrastructure and the wood industry, so as to reduce energy consumption 10% by 2030, and 12% by 2035, for an accumulated total of 28,6 million tons of CO2.
This new legislation give energy efficiency an official framework and an institutional place in energy and sustainable policy in Chile. The first 5-year plan covers the following objectives:
Reduce energy consumption in big consumers by 4%
Energy efficiency measures along state property and employees.
Creation and regulation of an Energy Management System (or SGE) to increase data collection on energy consumption and other energy indicators.
Housing will require an Energy Certification prior to its final reception
Creation of efficiency standards for electric vehicles and promotion of construction and interconnection of charging stations.
Explicit legal recognition of hydrogen fuel as a commercially tradable fuel, giving the Ministry of Energy the power to regulate it and promote it as an energy resource.
What are the key policies, principles, targets, and laws relating to the reduction of greenhouse gas emissions (e.g. emissions trading schemes) and the increase of the use of renewable energy (such as wind power) in your jurisdiction?
Chile is an active party to the United Nations Framework Convention on Climate Change, including the Paris Agreement.
There are many mechanisms in place in order to reduce greenhouse gas emissions, such as prevention and decontaminations plans for latent or saturated areas, according to which it is not possible to execute new contaminating economic activities, unless new emissions are offset with 1.5 times the existing ones.
On the other hand, it has been set as a national goal that by year 2025, at least 20% of the energy injected to the national grid will be produced by “ERNC” or non-conventional renewable energy power plants, like wind, solar, geothermal, biomass, mini-hydro and tidal.
The General Law on Electricity Services provides that all power companies must demonstrate before the Grid Coordinator every year that certain percentage of the energy withdrawn from the grid by its customers was injected by ERNC power plants, which has ultimately created a market of ERNC energy. According to the information provided by the ACERA (a local NGO), during 2019, ERNC power plants amounted to 23,3% of the installed capacity of energy in Chile, and injected 19,4% of the energy generated, equivalent to 48% of the regulated demand of energy.
Currently, there is also a bill of law that will regulate climate change by targeting carbon neutrality by 2050 and enabling several sectorial management plans for climate change mitigation and adaptation, among other policies. One of main innovations will be the greenhouse gas emissions standards and emission reduction certificate to comply with them.
To what extent are environmental, social, and governance (ESG) issues a material consideration in your jurisdiction? Is ESG due diligence for transactions and ESG due diligence in supply chains becoming mandatory or more common? To what extent are companies obliged to report on ESG matters? Has COVID-19 had any impact in relation to companies’ approach to ESG in your jurisdiction?
ESG issues have become increasingly important over the years, and leaving aside the lack of proper and precise legislation regarding social issues, environmental and governance affairs have become material in big companies’ decision-making process, though there is still no definitive standard to which compare companies’ operations or by which to approve a due diligence.
That being said, duly and updated ESG information is correctly seen as critical by investors to understand the complete risk profile of a company, though there is still a poor differentiation between sustainable company policies and environmental and social compliance, which has allowed for misleading communication.
Unless internal company guidelines or specific financial or environmental legal provisions instruct sponsors to report an event to the competent authority, ESG issues per se are not subject of reports.
COVID-19 has enormously reduced in-person meetings as well as the capacity of authorities or third parties to inspect projects, on-site operations, or review financial, environmental or labour records. This in turn has naturally triggered legal certainty and distrust issues between project sponsors, investors, authorities and stakeholders, increasing project judicialization and slowing down development.
To what extent can the following persons be held liable for breaches of environmental law and/or pollution caused by a company: (a) the company itself; (b) the shareholders of the company; (c) the directors of the company; (d) a parent company; (e) entities (e.g. banks) that have lent money to the company; and (f) any other entities?
In general, legal liability in Chile is subjective. Therefore, only the person who has caused damage or violated a legal provision, and has been declared so by court, may be held liable. However, pursuant to the general rules of vicarious liability, a person or legal entity may be held liable for the damage or infringement caused by those persons that were under its control or under its supervision, like the employees.
That being said, a company may be held liable for the acts or omission of its employees or representatives. The corporate veil doctrine does apply, but only for calculating administrative fines and seeking or requesting information.
There is no specific legal action contemplated in the law against the directors of a company held responsible for environmental damage or sectoral noncompliance, notwithstanding fiduciary duty claims that shareholders may file against directors.
Liability of shareholders will depend on the type of incorporation. If it is a corporation, they will not be liable, if it is a partnership, it will depend on the extent of their liability agreement.
Banks are generally not liable, though they could forfeit a specific certification that requires environmental compliance of their lendees.
Other entities such as environmental consultants, or construction firms, will not be considered liable (assuming they are not the sponsors).
To what extent can: (a) a buyer assume any pre-acquisition environmental liabilities in an asset sale/share sale; and (b) a seller retain any environmental liabilities after an asset sale/share sale in your jurisdiction?
There are no legal restrictions in terms of what a party can assume when signing a contract or coming to an asset sale/shale sale agreement, though wrongful intent cannot be condoned. The general rule, however, is that that the buyer will not assume any liability whatsoever for a certain amount of years. This is notwithstanding legal obligations of both parties to inform the transaction to the environmental authority (SEA) and/or to sectoral authorities.
What duties to disclose environmental information does a seller have in a transaction? Is environmental due diligence commonplace in your jurisdiction?
There are no specific legal duties to disclose environmental information in the sale of any asset and though environmental due diligence is commonplace in Chile, there is no standard of compliance so it is left to the lawyer. General rules on contract law apply though, under which a seller is responsible for latent defects, unless the buyer knew or should have known the defects.
What environmental risks can be covered by insurance in your jurisdiction, and what types of environmental insurance policy are commonly available? Is environmental insurance regularly obtained in practice?
Chile does not have environmental insurance policies available, but some sponsors find a way to insure their most important assets by agreeing to specific clauses in regular insurance policies.
To what extent are there public registers of environmental information kept by public authorities in your jurisdiction? If so, what is the process by which parties can access this information?
There are 3 main public registers of environmental information: a) the National System of Environmental Information or SINIA, which includes general information about legislation and environmental variables; b) the electronic environmental impact assessment system or e-seia, that contains the complete registers of every environmentally assessed project and c) the National System of Environmental Inspections or SNIFA, which contains the details of every inspection, sanctioning procedures and fine imposed by the Superintendence of Environment, as well as general environmental information produced by them.
All three registers are online, and though some details of high-profile sanctioning procedure might be considered confidential, Chile holds its transparency standards in high regard.
To what extent is there a requirement on public bodies in your jurisdiction to disclose environmental information to parties that request it?
According to Chilean law, all documents issued by or submitted to any authority are public. This includes all documentation in connection with environmental matters. Any person may request a copy of such documents to the authority and, save some legal exceptions, the authority must provide the copy within 20 business days.
What impact, if any, has COVID-19 had in relation to environmental regulations and enforcement in your jurisdiction?
From a procedural point of view, COVID-19 has put a severe halt on all types of hearings, doubling or tripling the amount of time taken by courts to entertain and rule on their cases.
From a practical standpoint, the Environmental Superintendence has not been able to go on site, so it has required that each RCA sponsor report about the execution or operation of their projects.
Have there been any significant updates in environmental law in your jurisdiction in the past three years? Are there any material proposals for significant updates or reforms in the near future?
The most relevant legislation was enacted on 1994 and was substantially amended in 2010, when the Ministry of Environment, the SMA, the SEA and the Environmental Courts were created. No major amendments have been introduced to environmental law since then.
Currently, Congress is discussing a bill on environmental crimes, the biodiversity and protected areas service, some relevant adjustments to the SEIA, glacier protection, among others. However, this year Chile will be discussing a new Constitution, so it´s probable that all this laws will not have significant advances.
Privacy & Cookies Policy
Necessary cookies are absolutely essential for the website to function properly. This category only includes cookies that ensures basic functionalities and security features of the website. These cookies do not store any personal information.
Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.