Chile

In Chile, there have been at least 6 actions brought against the State due to the approval of projects that have contributed to climate change and fail to meet adaptation or mitigation measures.

In Chile, Project-Specific Litigation against the State revolves around the Environmental Approval Resolution (“EAR”) challenges. Usually, two channels are used: (i)constitutional action and (ii)judicial claim before the Environmental Courts. The Environmental Courts are specialised Courts with a mixed composition, created in 2012 to resolve administrative disputes of an environmental nature and lawsuits for environmental damage.

Challenging the EAR is restricted to those citizens, indigenous peoples, or organisations that have participated in the assessment procedure by making observations and/or exercised administrative resources. They can also be claimed through the Environmental Courts, by those third parties who requested the administrative invalidation of the Environmental Assessment Resolution. Usually, plaintiffs in these cases sought to nullify the administrative authorisation of the projects through a judicial claim before the Environmental Courts.

In the case Asociación de Prestadores de Servicios Turísticos de Mejillones v Director Ejecutivo del Servicio de Evaluación Ambiental, a group of neighbours filed a Constitutional Action against the Environmental Assessment Service, for the non-consideration of climate change in the review of the EAR of the Angamos Thermoelectric Power Plant. The action was rejected by the Court of Appeals, which ruled that the protection action is not the way to challenge environmental administrative acts. This judgment was appealed to the Supreme Court.

In the Compañía Minera Nevada v Servicio de Evaluación Ambiental case, the Environmental Assessment Service initiated a proceeding to adequate the Environmental Assessment Resolution that approves the mining project Pascua Lama. The project owner argued that due to climate change there had been relevant modifications in the ecosystem, which had affected the volume of glaciers. The claimants argued the glaciers were affected by the company. The Second Environmental Court rejected the claim stating that climate change modifies temperatures and other key factors, affecting fragile environments. Therefore, projects need permanent revision to evaluate new mitigation or adaptation measures in new scenarios caused by climate change. The Supreme Court confirmed the ruling.

In 2015, the mining company Cerro Colorado submitted a new project to the Environmental Assessment System to give continuity to the extraction until 2023. Both the Second Environmental Court and the Supreme Court ruled in favour of claimants and ordered to the Environmental Assessment Service to roll back the procedure and to apply climate change criteria during the assessment (specially to water resources) and evaluate adaptation and mitigation measures, even when claimants had not alleged the necessity to consider climate change. This ruling by the Supreme Court overcome the restricted view held in the case Corporación Privada para el Desarrollo de Aysén y otros con Servicio de Evaluación Ambiental, in which the Third Environmental Court maintained that environmental assessment is for the evaluation of local impacts of the project and that there is no legal requirement for the projects to consider climate change. The same argument had been held by the Third Environmental Court in the case Gabriela Simonetti Grez y otros con Servicio de Evaluación Ambiental still pending before the Supreme Court.

Finally, in the Jenny Patricia Montaño Olivares and other v Servicio de Evaluación Ambiental case regarding the mining project Mantoverde, the First Environmental Court ruled that the environmental authority must consider citizen observations to incorporate the conditions of extreme climate variability.

Considering these recent rulings held by Chilean courts and the future climate change framework law, there will be more opportunity for citizens and/or authorities to participate in the environmental assessment of projects, for the inclusion of measures for mitigation, and adaptation to climate change.