Chile

In Chile there have been no actions filed against the state for their climate policy on the grounds of inadequate mitigation and adaptation to climate change directly. This may be due to the fact that the discussion has been focused inside the Congress (since 2020) regarding the Bill Project of the Climate Change Framework Law. The legislative processing of the law was preceded by a citizen participation process initiated by the Environmental Ministry in 2018, where different actors expressed their opinions before the authorities. Moreover, Chile has been relatively active in the topic within the international and national stage, assuming its own contribution to climate change. On the other hand, in Chile it is unusual to litigate against the lack of public policies.     

Despite this, there have been remarkable cases relating to issues on adaptation regarding violations of human rights caused by climate change impacts and the deficiencies in the State response, capacity, regulations and policies where climate change is not the main point, but it is a ground of the conflict. Those cases have been channelled through constitutional actions. Indeed, in Chile any citizen can file a case against the government through the “Recurso de Protección” (constitutional action) against arbitrary or unlawful acts or omissions that deprive, disrupt or threaten the legitimate exercise of some of the rights and guarantees set forth in Article 19 of the Constitution such us the right to life and the physical and psychological integrity of the person (Art. 19 no. 1), arbitrary non-discrimination (Art. 19 no. 2), the right to live in an unpolluted environment (Art. 19 no. 8), the right to develop any economic activity (Art. 19 no. 21) or the right to property (Art.19 no. 24). This action aims to immediately adopt the necessary measures to re-establish the rule of law and ensure the due protection of the affected party, notwithstanding any other rights that may be asserted before the relevant authority or courts.

The main relevant case (“S.T.T.N2 de Marineros Auxiliares de Bahía de Pto. de Tocopilla v. Ministerio De Energía”) refers to three workers unions of thermoelectric plants, that filed a protection action against the Ministry of Energy for a reform to a Decree No. 62/2006 “Regulation of Power Transfers between Generating Companies established in the General Law of Electric Services” that seeks to accelerate the gradual closure of thermoelectrical plants. The workers indicated that their source of employment depends directly or indirectly on the generation of energy based on coal, which is why this act is illegal as it does not contemplate measures in their favour for, specifically, a labour reintegration. The Supreme Court accepted the constitutional action, ruling that mitigation measures must comprehend a “just transition”, which must include the environmental, social and economic effects of climate change. It affirms that, along with the technical grounds, the authority must be especially diligent and concern itself with the social acceptance of the measure and the protection of the most vulnerable citizens. Therefore, it orders the authority to implement a just transition public policy in favour of climate change mitigation which will consider workers, in the shortest possible time.

In a second relevant case (Sindicato Trabajadores Independientes Pescadores Artesanales v National Fisheries and Aquaculture Services and 3 others), a group of small-scale fishermen file a constitutional action against the maritime authority (DIRECTEMAR), the fishing authority (SERNAPESCA), and Environmental Authorities (Ministry of the Environment and Superintendency of Environment) for the dumping of 9,000 tonnes of dead salmon into the sea which, together with the increase in sea temperature, triggered the phenomenon known as “red tide”. The Supreme Court found that there was a lack of technical grounds for authorising the dumping into the sea, considering the complex environmental and climatic context which violated the constitutional rights to live in a pollution-free environment (Art. 19 no.8 of the Constitution). The Supreme Court hold that authority must act preventively on those complex and risk scenarios and must take their decisions based on scientific evidence. With this case, the Supreme Court imposed a high standard public policy decision, which must take into account the effects of climate change.

The third (Gallardo v Anglo American Sur S.A.) and fourth (Instituto Nacional de Derechos Humanos v Gobernación Provincial de Petorca) case spotlighted are related to the desertification of an extended region in Chile due to the impact of climate change. The Supreme Court hold that the authorities must take enough measures to provide at least 100 liters of drinkable water to people living in places facing extreme droughts, otherwise, they are infringing the human right to life and water. Even when the Constitution and regulations doesn’t recognise the human right to water, Supreme Court hold that it is justiciable, and it must be respected even though the law authorise to private actors to use the water of the rivers. The parliamentary discussion on this matter has been reactivated since those cases, with climate change as the main cause of droughts, as an assumption.

In all these cases, the fundamental rights and the constitutional protection action presents itself as a suitable means of jurisdictional intervention for people whose rights could eventually be affected by the impacts of climate change.

Considering the recent developments in Chile, future cases could increase depending on (i) the approval of a new Constitution and the new standard, rights, values and future institution; (ii) the implementation of adaptation measures, especially related to water access; (iii) the evolution of effects of Climate Change in Chile in relation with the natural vulnerabilities and risks of the country; and (iv) disproportionally affected places by industrial complex like coal plants.