Chile

In Chile, there have been cases presented against private actors for their role contributing to climate change impacts and for lack of mitigation and/or adaptation measures through constitutional actions and the environmental liability regulation.

Judicial action is available for people whose constitutional rights could eventually be affected by any illegal or arbitrary action caused by a public or private actor. The case Lidia del Carmen Muñoz Iturra v Forestal Arauco is an example of this action as this was used against private actors due to their lack of adaptation measures against climate change. Citizens filed a constitutional action due to increased forest fire requesting prevention measures to be taken by the owners of the electrical lines, forestry companies and property owners. The actors contended that the defendants had a social liability with their adjacent environment. The action was interposed stating that Chile was going through one of the largest fires in its history with more than 520 thousand hectares consumed, although allegations did not refer directly to climate change. The action was rejected in first and second instance, without referring to climate change as the Courts did not find any urgent remedy to be provided by means of a constitutional procedure. In addition, the judgment of the Court of Appeals indicated that the establishment of mandatory preventive measures on private property owners was not possible, nor was it possible to determine such measures, since they depended on a multiplicity of technical information such as atmospheric factors (temperature, humidity or wind speed) that the Court did not have and could not evaluate in a summary procedure.

There may be more opportunities for further constitutional actions against private actors depending on the approval of a new constitution. Human Rights Treaties signed by Chile could also be a viable avenue to pursue a lawsuit against private actors, particularly those related to the right to access to drinkable water.

Environmental liability actions can be pursued by any natural and legal person who can demonstrate a connection with the damaged ecosystems. The Chilean State, represented by the State Defense Council, could present a lawsuit before the competent Environmental Court. In these actions, municipalities have standing and a legal obligation regarding events carried out within its borders and citizens could request to municipalities to present liability claim. The following liability cases could provide precedents for future cases against private actors.

In the Rubén Cruz Pérez and others v Compañía Minera Nevada case, a mining company was sued for the damage that the Pascua Lama project could cause to glaciers. The company defended itself, stating that the decrease in the volume of frozen water occurred was a result of climate change and not directly from their actions. After analysing the evidence and gathering scientific background on the relation between climate change and glaciers, the Court rejected the lawsuit due to lack of proof, understanding that it was likely that the glaciers diminish their water reserves as a consequence of climate change. Nevertheless, the Second Environmental Court stated that, given the new climate conditions and extreme meteorological events, it would be environmentally reasonable, that both project owners and the Authorities consider measures for protection, mitigation or compensation, addressing the environmental situation of the glaciers in the areas of influence of the project.

In the lawsuit against the Bocamina Thermal Complex (Herminio Bautista Carillo and other v Empresa Nacional de Electricidad S.A. and others) as a result of the emissions generated by the Central for the production of coal-based energy, the Third Environmental Court analysed the damage inferred to the air component. They found that the particulate material and gases generated by the thermoelectric plant produced a series of harmful effects, among them “indirect” contributors to climate change.

In the Manuel Humberto Vega Puelles v Minera Montecarmelo S.A. case the mining company Montecarmelo was sued due to operating with a bad drainage system. Chemicals drained led to heavy metals intersecting a stream and the plaintiffs’ properties, who requested reparation for the ecosystem damage. For the recovery of the affected territory, the Second Environmental Court ordered that climate criteria be considered such as the “El Niño phenomenon”, seasonality, and climate change.

Regarding environmental liability claim, plaintiffs have considerable difficulties to act against private actors, particularly regarding proof. As a general rule, the Chilean environmental liability regime is subjective, that is, anyone who culpably or maliciously causes environmental damage, must answer for it. Therefore, claimants must prove, before the Environmental Court, a cause and effect relationship between the offense committed and the damage caused. Moreover, in the case the projects have the environmental permits required, private actors usually argue that the activity is allowed and licit.