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.

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.

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.