Revista de Derecho Ambiental

Land use planning and climate change. Dogmatic and critical study of the Regional Land Management Plan in Chile

2023-08-16T16:02:55+00:00

The Regional Land Management Plan (PROT) is an administrative planning instrument introduced in Chile in 2018 by Law n. 19.175, constitutional organic law on regional government and administration, whose national policy has been adopted in 2021 and whose regulations are under development. In the framework of the Chilean regionalization process, the legislator sought with the PROT to decentralize to the regions key administrative planning competences for sustainable development and the climate crisis. The instrument is regulated by a regulatory framework largely composed of recently adopted norms that have not been fully implemented, in particular due to the recent introduction by the Climate Change Framework Law of 2022, of the climate variable in numerous administrative procedures. The introduction of the latter impacts the creation, adoption and implementation of the PROT creating new duties for the Administration and making procedures more complex. This study, based on a dogmatic and critical analysis of the set of norms that regulate the PROT, argues that the absence of a stable and coherent regulatory framework, as well as the increase in conflicts between public entities, represent major obstacles to the fulfillment of the objectives of the instrument in terms of prevention and mitigation of the effects of climate change.

Red Raíces: a pedagogical experience for environmental democracy from the regions of Colombia

2023-10-04T17:27:09+00:00

This article objective is to unveil the challenges that the Colombian environmental and participative democracy faces after 30 years of the enacted Political Constitution of 1991, which consolidated the social state of law and the necessity of facing these through the strengthening of environmental and participative democracy and pedagogical experiences such as the Red Raíces, and educative and innovative educational project of the Grupo de Acciones Públicas (GAP) at Rosario University that contributes to strengthen the rights to access to justice and participation through the legal training of youth from the regions, especially from those where barriers persist to access education legal and environmental education. As from the Red experience this work concludes that the obstacles to fortify environmental democracy, proposed by the Constituent Assembly of 1991, persist and the legal clinics with their theoretical and practical training for new generations can strengthen the rights to information, public participation and environmental justice pillars of environmental democracy. This essay was elaborated based on a qualitative methodology, for its flexibility, using doctrinaire, normative and juridical sources combined with Red Raíces presentation.

The concept of defencelessness and the admissibility exam of the judicial claims filed against procedure acts issued by the Superintendence of the Environment

2023-10-27T12:12:33+00:00

This article seeks to propose a solution to the oscillating interpretation of the application of Article 15 of Law No. 19.880 regarding the concept of “defenselessness”, to resolve the admissibility of legal claims filed against proceeding acts issued by the Superintendence of the Environment (SMA). According to the proposal, the concept of defenselessness -understood as the concrete possibility of presenting allegations and defenses throughout the administrative procedure, and that these may influence the decision adopted in due time- must be linked to the right to challenge the decision. The two exceptions of Article 15 of Law No.19.880 seek to prevent the application of the general rule on the basis of which no appeal may be lodged against proceeding acts from generating situations of defenselessness due to the absolute impossibility of appealing. Hence, the second exception (when the act generates defenselessness) is equivalent to the first one (when the act prevents the continuation of the procedure). Whilst in the first exception it is impossible to amend the defect by appealing against the terminal act, because the latter will not come into existence, in the second exception the impossibility arises from the consolidation of legal and factual situations generated by the intermediate act. This approach is in line with the elements of interpretation recognized in our legal framework, makes the rule operative, and avoids the circularity that analyzing the admissibility requirements of the judicial claim based on its merit entails.

Integrated watershed management in Italy. Between the general and the particular

2023-12-01T10:17:14+00:00

This paper analyzes the Italian legislation in the field of integrated river basin management, paying particular attention to its institutional aspects and planning tools, mainly to the river basin management plan. In Italy, the integrated river basin management took its first steps through Law 183, of 1989, on soil defense, which divided the national territory into multiple areas, each with a newly established basin authority. The subsequent series of different regulatory measures, among which also the European Water Framework Directive (Directive 2000/60/CE), illustrates the strain, which occurs in this sector, between the general and the particular. This arises firstly in the territorial definition of the hydrographic basin and in the allocation of powers between different bodies operating in the identified area. The Italian experience suggests that the creation of excessively fragmented management units can generate hindrances in water governance, especially in the process of gathering and managing information on the availability and use of water resources at the national level. On the other hand, this paper aims at highlighting the need for legal tools that link basin plans with other measures, both of general and particular scope. In Italy, the Law 36/1994 and subsequent acts, in particular the Legislative Decree 152/2006, currently in force, have introduced relevant changes to the initial river basin management design, which have had an impact, among other things, on the coordination between the different planning tools and between the river basin plan and more specific administrative acts, especially concessions for the use of water resources.

The constitutionalization of nonhuman animals: analysis, reflections and proposals on the Chilean constitutional process

2023-10-10T20:17:52+00:00

The recognition of animals within constitutional texts has aroused growing interest in recent years. Chile has not been the exception to this trend, which is also part of a process of profound legal changes, which have implied an improvement in protection standards. In this regard, we will seek to systematize some of the strategies that would allow the constitutionalization of animal law, highlighting their differences and assumptions. In this respect, we will distinguish between what we call the protection mandate, the rights approach, and the indirect or environmental approach. Subsequently, we will analyze how these strategies were incorporated during the first part of the Chilean constituent process, focusing on its scope and main problems. We will also highlight the role of civil society, and how it influenced the articles of the project. We will point out that the Convention tried to take elements from each of these strategies, but that this decision was not preceded by a longer-term discussion about the advantages or disadvantages of the different models. The lack of further reflection on this point explained the normative tensions that arose from the fact of trying to support approaches whose foundations were different or even contradictory. The study of this experience can be very useful for future constitutional amendment or change processes.

Administrative infraction of EIA avoidance.

2023-11-10T14:30:07+00:00

Environmental Impact Assessment (EIA) avoidance is an infraction that has been primarily regulated in the Organic Law of the Superintendency of the Environment (LOSMA) and, more recently, in Law No. 21,595 on economic crimes. This study focuses on EIA avoidance as an administrative infraction (Article 35, letter b of the LOSMA) and on the procedures that the Superintendency of the Environment (SMA) uses to address it. The SMA employs two discretionary procedures to address this infraction: a regular punitive procedure and a special procedure known as “requirement for submitting to EIA”. Both procedures serve different purposes: the first aims to impose a sanction (with a punitive and deterrent objective), while the second aims to ensure compliance with regulation by subjecting avoidant activities to EIA without imposing a penalty (with a corrective objective). This discretionary power has been recognized by jurisprudence based on the administrative principles of opportunity, efficiency, and effectiveness. The objective of this study is to analyze the value of the requirement for submitting to EIA procedure. This, from the perspective of achieving its corrective purpose and to assess whether it can serve the broader interests of the SMA's supervisory work. It questions whether it is acceptable to solely demand the submission of a project in avoidance to EIA, mitigating the punitive function and its deterrent effect regarding this kind of infraction.

The indigenous consultation of investment projects within the Chilean Environmental Impact Assessment System: Background and results after a decade of Decree 66/2013

2023-12-19T10:07:53+00:00

A central element of ILO Convention 169 is the obligation for States to consult with indigenous peoples on legal and administrative measures likely to affect them to achieve agreement or consent on such measures. Chile ratified Convention 169 in 2008 and regulated Indigenous Consultation of investment projects in the Environmental Impact Assessment System through Supreme Decrees N° 40/2012 and N° 66/2013. The literature has criticized the alleged lack of results of the mechanism for indigenous communities, that the consultation is not binding for the outcome of the environmental assessment, and the effective duration of the consultation procedures. Using official data from the Environmental Assessment Service, it has been estimated that 72.3% of consultations have ended in agreements with indigenous communities regarding investment projects. Although the outcome of the consultation is not legally binding for the environmental assessment, obtaining full agreement in the consultation is associated in 90.5% of the cases with obtaining a favorable Environmental Qualification Resolution for the project. The average duration of consultations is 22 months, five times the period established in DS 66/2013.

Environmental Report. History of the Environmental Institutional Framework 50 Years on from the Military Coup

2023-12-27T22:22:02+00:00