Swans,Conflicts,and Resonance

Abstract

A major legal reform of Chilean environmental institutions was approved in November 2009, at the end of Michelle Bachelet’s administration. In sharp contrast with the external pressures that provided the impetus for the establishment of the country’s environmental institutions in the early 1990s, this time the driving forces came mainly from an “internal demand,” a broad social and political consensus about the need to improve the environmental framework. This consensus was a consequence of the institutional breakdown revealed by a local movement that emerged in Valdivia, southern Chile, in response to a major ecological disaster produced by the effluents of a pulp mill that polluted a protected wetland and caused the death and migration of an endangered population of black-necked swans. Although the Valdivian movement did not succeed in stopping the disaster and restoring the wetland, it triggered an unprecedented examination of the performance of environmental institutions, finally forcing the 2009 environmental reform. The resonance of the Valdivian movement can be understood in the context of dozens of environmental conflicts that had been accumulating for more than a decade, largely as an effect of the crisis of legitimacy of environmental institutions. Although this recently approved legislation represented an overall advance, it failed to address the issues that led to the institutional breakdown, in particular the need for democratization of decision making and the broadening of public participation. Paradoxically, thus, the reform perpetuated the crisis of legitimacy that underlay its origin, reinforcing the exclusionary mechanisms that largely explain socio-environmental unrest and ecological destruction in Chile.

Una reforma mayor a las instituciones ambientales de Chile fue aprobada en noviembre de 2009, cerca del fin del mandato de Michelle Bachelet. En claro contraste con las presiones externas que impulsaron el establecimiento de las instituciones ambientales del país a principios de la década de los noventa, las fuerzas impulsoras de dicha reforma provinieron de una “demanda interna” que dio paso a un amplio consenso político y social sobre la necesidad de mejorar el marco legal ambiental. Tal consenso fue consecuencia del quiebre institucional provocado por un movimiento local surgido en Valdivia, en el sur de Chile, en respuesta a un agudo desastre ecológico producido por los efluentes de una celulosa, los que contaminaron un humedal protegido y causaron la muerte y migración de una población amenazada de cisnes de cuello negro. Aunque el movimiento valdiviano no logró su propósito de detener el desastre y restaurar el humedal, gatilló una revisión sin precedentes del desempeño de las instituciones ambientales, forzando finalmente su reforma a fines del 2009. La resonancia del movimiento valdiviano puede ser mejor entendida en el contexto de decenas de conflictos ambientales que venían acumulándose por mas de una década en Chile, en gran parte como efecto de la crisis de legitimidad de las instituciones ambientales. A pesar de que la reforma legal recientemente aprobada representa un avance general, ella falló en dar respuesta a las causas que condujeron al quiebre de las instituciones ambientales, en particular a las demandas por la democratización de las decisiones y la ampliación de la participación ciudadana. Paradójicamente, por tanto, la reforma perpetuó la misma crisis de legitimidad que le dio origen, reforzando el carácter excluyente de un marco legal que largamente explica el malestar socioambiental prevaleciente así como la destrucción ecológica en Chile.

Keywords

Environmental reform Local movements Resonance Chile Valdivia

In November 2009, near the end of Michelle Bachelet’s administration, the Chilean Congress adopted a major reform of the environmental law passed in 1994 (Ley 19.300 de Bases del Medio Ambiente) by the first democratic government after Pinochet’s rule. In contrast with the external pressures that had provided the impetus for the establishment of the country’s environmental institutions in the early 1990s (Silva, 1996; Tecklin, Bauer, and Prieto, 2011), the driving forces this time came mainly from an “internal environmental demand,” a broad social and political consensus about the need to improve the environmental framework.

This consensus, we argue, was a consequence of the institutional breakdown revealed by a local movement that emerged in Valdivia, southern Chile, in response to a major ecological disaster produced by the effluents of a pulp mill that polluted the Río Cruces protected wetland, causing the massive death and migration of an endangered population of black-necked swans. Although the Valdivian movement did not succeed in stopping the disaster and restoring the wetland, it triggered a political crisis that led to a profound examination of the performance of environmental institutions. Thus, the resonance of the Valdivian movement went far beyond its local goal, forcing authorities, politicians, and the business sector to review the legal tools, technical proceedings, and institutional functions whose failure explained the disaster. The consequence of this reassessment, which unfolded for years alongside the landmarks of the Valdivian conflict, was a major reform of the country’s environmental law (Sepúlveda and Rojas, 2010).

A convergent factor leading to the reform was a report prepared in 2005 by the Organization for Economic Cooperation and Development (OECD) recommending fundamental improvements in Chile’s environmental framework (OECD, 2005). These recommendations were considered critical for the country to become a full member of the OECD, which finally occurred in May 2010. It has recently been argued that Chile’s achievement of full OECD membership acted as the main driver behind the 2009 environmental reform (Tecklin, Bauer, and Prieto, 2011). This would mean that an external demand related to Chile’s international economic performance was once again the determinant factor in shaping the country’s environmental institutions. Here we propose instead that, despite the undeniable importance of Chile’s prospective OECD membership in building a favorable momentum for the reform to occur, it was the irreversible crisis of legitimacy of environmental institutions that became evident with the Río Cruces disaster that generated the ample political consensus needed for the depth and scale of the changes finally introduced (Sepúlveda and Rojas, 2010). In particular, we contend, it was this institutional crisis that convinced conservative politicians and business organizations, who had until then opposed substantive changes in the environmental legislation, of the need to overcome the legal shortcomings responsible for the escalating environmental unrest. This turning point is illustrated by several articles by representatives of business in the main newspapers linked to right-wing and economic sectors stressing the need for improvements in the environmental institutions as an effect of the Valdivian disaster some months before the 2005 OECD report was publicly released (El Mercurio, June 13 and 17, 2005; El Diario, June 13 and 14, 2005).

The resonance and institutional effects of the Valdivian movement are the focus of this article. However, an analysis centered on the movement itself would fall short of explaining the role of this local mobilization in triggering the environmental reform. Although the movement has been considered as holding a particularly powerful agency by a wide variety of actors, including representatives of the private sector and government ministers (La Tercera, August 13, 2005), we argue that its role is better understood in its historical, cultural, and material connection to dozens of local environmental conflicts that preceded it and that had been accumulating for more than a decade. Thus, our approach will seek to situate the explanation for the resonance achieved by the Valdivian movement in the consolidation of an “internal environmental demand” forged in relation to the crisis of legitimacy of the environmental framework. This perspective allows us to explain how the claims of a strictly local movement, without meaningful external support, escalated into a national conflict that maintained the attention of the media and the major political and economic actors for years. In our view, the Valdivian case became the last straw (la última gota que rebasó el vaso), rendering institutionally unsustainable and politically unavoidable the institutional conditions that led to the Río Cruces disaster and had previously triggered dozens of conflicts throughout the country.

From External to Internal Environmental Demand

Chile’s return to democracy in 1990 opened the political space to establish the institutions that would for the first time take charge of the country’s environmental policy. The definitive impulse, however, did not come from domestic actors such as the academics who had been stressing the need for an environmental framework for almost a decade (CIPMA, 1991). Rather, it occurred in response to “external environmental demands” (Geisse, 1997; Geisse and Nelson, 1995; Tecklin, Bauer, and Prieto, 2011) —the pressure to meet the minimum environmental standards required by commercial treaties whose negotiation had become key to consolidating the neoliberal project under democratic conditions.¹ Thus, although the nascent environmental framework responded to the previous neglect of the environment under the dictatorship, it was conceived and designed by economic and political elites during a democratic transition characterized not only by a commitment to the neoliberal agenda—which prioritized an economic growth that deepened and expanded the exploitation of natural resources—but also by a weakened civil society (Carruthers, 2001; Garretón, 1993). Indeed, the massive grassroots movements that had played a central role challenging Pinochet’s dictatorship were displaced as an effect of the electoral path chosen to recover democracy. The overall success of this strategic option came at the cost of reenacting the elitist, centralist, and verticalist party politics so distinctive of Chilean society (Garretón, 1989; Salazar and Pinto, 1999).²

In agreement with the business community, the democratic government opted to establish a basic environmental framework that could meet the external environmental demands without sacrificing the goal of sustained economic growth (Silva, 1996). As a result, the new legal framework consisted of a few basic instruments that laid the foundations for policy making and were based on the general principles of prevention, polluter-pays, participation, and gradualism (Gobierno de Chile, 1994). “Hard-core” policy issues that could have led to politicized debates about priorities and approaches, such as standards for productive sectors, were left to future regulatory bodies to be designed by sectoral ministries that could operate without explicit policy guidance or public scrutiny (Silva, 1996).³

In the absence of explicit policies and standards and of specific instruments for land-use planning, the Sistema de Evaluación de Impacto Ambiental (Environmental Impact Assessment System—SEIA) became the core of the nascent institutional building (Sabatini and Sepúlveda, 1997; Silva, 1996). Consequently, the text of the new law devoted its most detailed section to describing the procedures of the SEIA, aimed at preventing environmental impacts and opening limited but unprecedented opportunities for public participation. In sum, the political logic behind the new institutional design was to narrow the focus of the environmental decision-making process and public involvement to case-by-case assessments of individual projects, leaving the standards and regulations that would finally determine decisions within the SEIA to experts, politicians, and business lobbyists operating behind the scenes (Silva, 1996). A direct consequence of this design was the fragmentation of emergent environmental actors, dispersed in an increasing number of local conflicts emerging from the assessment of new projects by the SEIA. Additionally, investors gained new sources of influence, since the “market-oriented” approach of the SEIA (Silva, 2004; Tecklin, Bauer, and Prieto, 2011) left entirely in their hands the responsibility for proposing the location for new projects, generating the environmental baselines, and preparing the environmental impact reports (Sepúlveda, 1999; Silva, 1996).

Perhaps the most explicit exclusionary features of the new environmental law were the procedures for public involvement in the SEIA (MINSEGPRES, 1997; Sepúlveda, 1999). The opportunities for the involvement of the affected parties were placed “at the end of the pipe,” when the fundamental decisions regarding the location, scale, and technological design of the project had been made, leaving scant room for meaningful changes and almost none for the rejection of a project considered environmentally or socially harmful by local inhabitants.⁴ Moreover, the establishment of the system was accompanied by the assurance by then-President Eduardo Frei (1994–2000) that “no project will be stopped for environmental considerations” (Rojas, Sabatini, and Sepúlveda, 2003)—an assertion known, following Sepúlveda (2006), as “the Frei doctrine of complete environmental impacts (doctrina Frei de impactos ambientales consumados).” As a result, the mechanisms for public involvement began to be considered by local communities as a whitewashing of decisions that had already been made, and the legitimacy of decision making within the SEIA began to be contested (Sepúlveda, 1999).

We argue here that it was the accumulation of local environmental conflicts from the establishment of the SEIA in 1995 to its institutional breakdown by the end of 2004 that led to the consolidation of what we have called an “internal environmental demand.” However, in the absence of the explicit environmental policies and land-use planning procedures that could have constituted privileged sites for the articulation of coordinated social responses, this emerging demand took the form of spatially fragmented and inorganic local disputes in response to shared environmental threats and institutional constraints. Although these local movements did not evolve toward any stable political articulation, they gradually converged in terms of experiences and demands. Together they made visible the structural crisis regarding the legitimacy of decisions by the SEIA, which finally became undeniable with the Río Cruces ecological disaster.

Local Conflicts and the Legitimacy of Environmental Decisions

Since the passage of the environmental law in 1994, not only have environmental problems multiplied (Camus and Hajek, 1998; Universidad de Chile, 2006) but socio-environmental unrest related to such impacts has escalated (Rojas, Sabatini, and Sepúlveda, 2003). Institutionally, processes of environmental degradation are largely due to a chronic lack of policies aimed at protecting natural resources and biodiversity (a native forestry law, mostly oriented toward production, was approved only in July 2008, and a law on biodiversity began to be discussed in March 2011) and the absence of binding processes of land-use planning outside urban areas (OECD, 2005). As result, the SEIA has de facto operated as the only venue in which the environmental and economic uses of territories are effectively decided. This fundamental function has, however, been performed on a case-by-case basis, driven by the interests of investors who have the privilege of proposing the location for their projects without the obligation of environmentally assessing alternatives as is required, for example, by the Environmental Protection Agency in the United States (Tecklin, Bauer, and Prieto, 2011). With the SEIA’s approval, investors have even been able to generate impacts in officially protected areas such as the Río Cruces wetland in Valdivia, an ecosystem protected not only under Chilean law but also under the Ramsar Convention.⁵ In addition, the assessment of individual projects has not considered the cumulative impacts of future projects. The obvious result has been an increase of conflicts over land uses and inability to anticipate environmental impacts (OECD, 2005).

The recurrence of environmental conflicts has also been explained as a result of the exclusionary and centralist character of the environmental decision-making bodies, in particular of the SEIA’s participation mechanisms (MINSEGPRES, 1997; Sabatini, Sepúlveda, and Blanco, 2000). In fact, the opportunities for citizen participation in the SEIA were narrow, unequal, and insufficient in timing and scope. They consisted of a window of 60 days, beginning with the formal submission of the project to the SEIA, in which citizens could present to the regional office of the Comisión Nacional del Medio Ambiente (National Environmental Agency—CONAMA) their written comments on the environmental impact reports prepared by the investors. These comments had to be considered by the Comisiones Regionales del Medio Ambiente (Regional Environmental Commissions—COREMAs) in their final decisions regarding environmental permits. The CONAMA was required to send a written response to anyone who had made formal comments, and citizens could appeal to the national level of CONAMA when their comments were not properly considered.⁶ Although the assessment of projects could take years, the period for public involvement was restricted to the first 60 days of the process (MINSEGPRES, 1997). Thus, any further changes made to the projects—in scale, technological design, or location, for example—went on to be assessed without the involvement of the affected parties. Similarly, the investors could modify or add fundamental information after the window of participation was closed. These limitations systematically frustrated the expectations of local communities and triggered the eruption of local conflicts (Ormazábal, 1997).

In particular, two grassroots conflicts that emerged in the mid-1990s exemplified the distrust and frustration of communities that underwent—or resisted—involvement in the SEIA (Rojas, Sabatini, and Sepúlveda, 2003; Skewes and Guerra, 2004). In the first case, the fishermen of Mehuin, some 70 kilometers northwest of Valdivia, actively opposed a pulp-mill effluent discharge pipe to the ocean proposed by Celulosa Arauco y Constitución (CELCO-ARAUCO). The community learned about the company’s plans through a local newspaper after the marine measurements for the pipe’s assessment had already begun. The discharge of wastes into the ocean was proposed after discharge into the Río Cruces had been declared environmentally unsafe by the SEIA because it could damage the wetland downstream. Since the pulp mill had received official political support from President Frei, the people of Mehuin considered that CELCO-ARAUCO’s pipe was de facto approved and that taking part in the assessment would only legitimate this decision. Instead, they opted out of the EIA process by preventing CELCO-ARAUCO from conducting the marine measurements (Sepúlveda and Mariángel, 1998). As a result, CELCO-ARAUCO returned to the original proposal to discharge the effluent into the Río Cruces—a decision that eight years later exploded in the Valdivian conflict.

A second emblematic dispute arose over the construction of the North Riverside (Costanera Norte) highway in Santiago, a project of the Ministry of Public Works designed to be privately built and managed under the for-profit toll-road concession system in place since 1996 (Sepúlveda and Du Monceau, 1998). Instead of the strategy followed by the people of Mehuin, the residents affected by the urban highway decided to make intense use of the public involvement opportunities under the SEIA. The result was an impressive mobilization centered on a technical analysis of the project and the proposal of alternatives based on a comprehensive vision of urban sustainability (Sagaris and Araya, 1997). Local citizens became increasingly frustrated, however, as their proposals were systematically neglected during the decision-making process and critical information about the project, including maps of its routes, was not made publicly available. Although the approved project included some key changes that partially responded to the citizen campaign, the community’s overall conclusion was a loss of confidence in what they considered pseudo-participation mechanisms of the SEIA (Sepúlveda and Du Monceau, 1998).

These cases serve here as an illustration for what gradually turned into substantive critiques raised by local communities involved in the environmental assessment of projects. The most relevant of these pointed to what has been termed as “political intervention” in the SEIA decision-making process, calling attention to the exclusionary logic of environmental institutions and in particular of the COREMAs. Before the 2009 legal reform, the COREMAs were in charge of the final decisions regarding environmental permits by the SEIA. Although they were decentralized administrative organs and, thus, supposed to be autonomous from the national decision level, all COREMA members were appointees of the president and his/her ministers with the exception of two regional councilors appointed through the agreement of political parties’ representatives at the municipal level. Moreover, the COREMAs were presided over by the regional governor (intendente), a public servant directly appointed by the president. Their fundamental task was to approve or reject the projects assessed by the SEIA on the basis of the reports prepared by public agencies and the recommendations of a technical committee.

The political role of the COREMAs became evident during their first years of operation. The explosion of environmental conflicts that overloaded the public agenda by the late 1990s raised strong doubts about the approval of several megaprojects. This was the case, for example, of the Ralco dam of the Empresa Nacional de Electricidad (National Electric Company—ENDESA) on the Río Bío-Bío, Trillium’s timber project in Tierra del Fuego, and CELCO-ARAUCO’s pulp mill in Valdivia. In all these cases unfavorable recommendations by the technical committees were reversed by the COREMAs in response to President Frei’s public backing of these projects (Rojas, Sabatini, and Sepúlveda, 2003). This “political intervention” of the SEIA soon began to erode the fragile legitimacy of the nascent environmental institutions, and the COREMAs began to be recognized as undemocratic enclaves controlled by the national authorities, raising questions about the effectiveness and ultimate sense of local public involvement in the SEIA (Castillo, 1998). As a result an “internal environmental demand” for the improvement of the legitimacy of environmental decision making, centered on the broadening of the scope, timing, and effective involvement of public participation, and the elimination of proceedings vulnerable to the centralist intervention of the COREMAs, began to coalesce by the end of the 1990s.

In 2002, during President Lagos’s administration, a first partial reform of the environmental institutions occurred. However, it was intended to respond to the demands of the productive sector. The changes to the SEIA aimed to expedite the delivery of environmental permits (MINSEGPRES, 2002). By the end of 2004, still during Lagos’s administration, the institutional breakdown caused by the Río Cruces disaster forced some years later a much more profound revision of the environmental setting.

The Río Cruces Case

The Valdivian movement arose from one of the worst environmental disasters in Chilean history, which began to occur in 2004 in a protected wetland near Valdivia (160,000 inhabitants, 850 kilometers south of Santiago). In February 2004 CELCO-ARAUCO opened a new pulp mill 30 kilometers upstream from Valdivia and began to discharge untreated wastes into the Río Cruces Sanctuary, a national and internationally protected wetland (Lagos, 2008; Lopetegui et al., 2007). By October 2004 local experts confirmed that the largest reproductive population of the South American black-necked swan, a cherished but threatened species protected by Chilean law, was massively dying and migrating from the protected Río Cruces wetland (Di Marzio and McInnes, 2005; UACH, 2005b; WWF, 2005). A local movement calling itself Acción por los Cisnes (Action for the Swans), a name with strong emotional resonance among Chileans, sprang up in Valdivia to stop the disaster and restore the wetland.⁷

CELCO-ARAUCO had submitted its pulp-mill proposal to the SEIA in October 1995. Four months later the technical committee of the COREMA had rejected the project because of the pollution it could generate in the Río Cruces wetland, but President Frei’s backing pressured the regional commission into issuing an environmental permit in May 1996 on the condition that the discharges be kept out of the Río Cruces or receive tertiary treatment before being dumped into it. (As noted, CELCO-ARAUCO then attempted, without success, to extend its waste pipe to the ocean, in Mehuin.) Finally, the pulp mill began to operate in February 2004, discharging wastes into the Río Cruces after chemical treatment.

The environmental consequences were soon apparent. The population of swans, which for 25 years had averaged 6,000, declined to less than 200 by January 2005, only a year after CELCO-ARAUCO’s mill began to operate (CONAF, 2006a; 2006b; Lagos, 2008). Many other species, mainly herbivores, were also affected, along with economic activities such as river tourism and bird watching, which disappeared from the sanctuary (Extreme C.A. Consultora, 2005; Lopetegui et al., 2007). Hundreds of dead swans not only appeared floating in the Río Cruces wetland and its tributaries but began to fall from the sky over Valdivia and its surroundings, where they were found on roads and urban wetlands and in backyards (Sepúlveda, 2007).

Although the ecological signs of the disaster had been evident in the monthly monitoring reports prepared by CELCO-ARAUCO, CONAMA’s public servants in charge of supervising the industry were technically incompetent to interpret them as warnings (Sepúlveda and Villarroel, 2010). Indeed, a full year of monthly reports was accumulated by the regional office of CONAMA before an outside consultant was hired, largely in response to the public pressure. He concluded that three major discharges of highly toxic untreated wastes (known as black liquor) had been dumped into the Río Cruces, significantly changing its chemical composition, electrical conductivity, and acidity, among other parameters (Zaror, 2005).

Several local marches of some 2,000 to 4,000 people—a massive number compared with the scale of the mobilizations that occurred in Valdivia under either the dictatorship or the Concertación—were led by Action for the Swans, overwhelming the country with the breadth and cohesion of the protest (Sepúlveda, 2007). The main demand of the movement was the adoption of a precautionary approach that would stop the operation of the mill until CELCO-ARAUCO’s responsibility could be clarified (Acción por los Cisnes, 2005b, 2005c). The mobilization received unusually sustained attention from the national media, in particular from the three most important national television channels, which became key in amplifying its resonances (Sepúlveda, 2007). The pressure grew so great that less than a month after the first march, in November 2004, the national director of the CONAMA announced in Valdivia that the government had hired the Valdivian Universidad Austral de Chile (UACH) to conduct a scientific study of the causes of the massive death and migration of the swans.

Simultaneously, and on the basis of its own analysis, including an assessment of CELCO-ARAUCO’s compliance with the environmental permit issued in 1998 by the SEIA, review of the monitoring reports prepared by the company, and an aerial census of swans conducted by its members, Action for the Swans revealed an amazing list of technical, legal, and management failures committed by CONAMA, the COREMA, and other public services (Acción por los Cisnes, 2005a; 2005b; 2005c; 2005d; 2005e; 2006). These included the building of a plant with significantly larger (60 percent) productive capacity than the one approved (MA&C Consultores, 2004; COREMA, 2005a). The movement also revealed changes introduced in the 1998 environmental permit by the COREMA in order to relax the monitoring plan that CELCO-ARAUCO was responsible for implementing, including the elimination of the monitoring of luchecillo (Egeria densa), an aquatic plant that turned out to be the key indicator of the disaster (Lopetegui et al., 2007; WWF, 2005).

By early 2005, and in response to citizens’ arguments, the COREMA fined the company and ordered a temporary shutdown of the mill based on the accumulated evidence of multiple violations. Although the closure lasted only a month, it became a concrete demonstration of the influence achieved by the Valdivian movement. Never before in Chile had such a measure been applied to this type of industry. At stake was not only the productive scale of the mill (an investment of US$1.3 billion), with all its consequences in terms of reactions from unions of timber workers and subcontractors, but also the strategic economic relevance of the mill, by then CELCO-ARAUCO’s largest and most modern plant. Not only is the forest sector the second-most-important economic sector after mining in Chile but the pulp industry is the most important export-oriented activity within the forest sector—chemical pulp amounted to 48.2 percent of the country’s forest exports and 8.1 percent of the world’s pulp exports in 2008 (INFOR, 2009). CELCO-ARAUCO being the largest timber and pulp holding in the country, it had enormous economic and political influence by the time of the Valdivian disaster, and this was reinforced by the fact that its owner, Anacletto Angelini, was then the wealthiest Chilean, with a fortune estimated at US$6 billion (Forbes, 2007). (Angelini died in 2007, in the midst of the conflict.)

Finally, in April 2005 the UACH published its final report. The unambiguous conclusion was that the discharges from the mill were enough to explain the disaster (UACH, 2005b). The report included geochronological, ecological, chemical, and industrial analysis based on empirical data and laboratory experiments that together pointed to the spatiotemporal and chemical relationship between the mill’s discharges and the changes observed in the waters, sediments, and ecological communities of the wetland (UACH, 2005a, 2005b). A major finding was that CELCO-ARAUCO had been dumping into the Río Cruces huge amounts of chemicals—equivalent to 60 tons of sulfates and 470 kilograms of aluminum daily (SISS, 2005)—that had not been declared in its environmental report and therefore had not obtained the required permit (UACH, 2005a). Coinciding with the publication of the UACH’s report was a ruling by the local court in favor of Action for the Swans, ordering the company to stop the operation of the mill and conduct a new assessment of the changes not yet legally approved. CELCO-ARAUCO appealed, and in May 2005 the Supreme Court reversed the local ruling on the basis of studies provided by the company and supposedly prepared by the Universidad de Concepción but in fact produced by the company itself. ⁸

The CONAMA never made public its opinion about UACH’s conclusions, leaving room for a campaign to discredit the scientific report that was launched by the company. Even more striking, it dismissed the finding of unauthorized discharges despite the fact that these violations had been officially reported to CONAMA by the Superintendencia de Servicios Sanitarios (Oversight Agency of Sanitary Services—SISS) a month before the UACH’s report was published. On the basis of these violations the CONAMA’s ad-hoc technical body for CELCO-ARAUCO’s mill, the Comité Operativo de Fiscalización (Operative Supervisory Committee—COF), recommended, just as the Valdivian court had, that the mill stop discharging unauthorized compounds until a complete assessment of their impacts had been conducted (COF, 2005a; 2005b). At this point, the demands of the Valdivian movement had received not only broad social and media support but also the legal, technical, and scientific backing so far described. However, the final word was still pending, and it came, as it had many times before, from a “political intervention” of the SEIA.

In fact, all the evidence that pointed to the causal relation between the mill’s discharges and the ecological disaster was dismissed by President Ricardo Lagos, who in June 2005 ordered the COREMA to issue an ad-hoc permit allowing CELCO-ARAUCO to discharge the compounds that had not yet been legally assessed and had been identified by the UACH’s report as causally linked to the disaster (COREMA, 2005b; Sepúlveda and Villarroel, 2010). In doing so he was ordering the commission to disregard its own legal frame by granting an administrative permit that did not comply with the legal requirements of an environmental assessment process. The commission also required the company to improve its monitoring plan and finance a program aimed at restoring the wetland. Although these measures have apparently prevented CELCO-ARAUCO from committing new critical violations, they have been insufficient to restore the wetland, as is confirmed by public agencies and independent experts.⁹

The Resonance of the Río Cruces Struggle

It has been widely acknowledged that the Valdivian conflict marked a turning point in the history of Chilean environmental institutions (Larraín, 2006; Pizarro, 2006; Tecklin, Bauer, and Prieto, 2011). Moreover, the Valdivian movement has been considered as key in triggering the reform of these institutions. The general secretary of the important Sociedad de Fomento Fabril (Industrial Development Society), for example, declared that despite the political resistance to the environmental reform “it was the scandal over the migration of black-necked swans . . . that finally triggered it” (Concha, 2008). Likewise, for the president of the Corporación Chilena de la Madera (Chilean Timber Corporation), the most influential timber association, the CELCO-ARAUCO case marked a “before and after” in Chilean environmental management because of “how unprecedented it was for a US$1.3 billion investment to be stopped because of its environmental impact” (Meriches and Castañeda, 2005). Other actors also linked to right-wing and productive sectors have considered this case a milestone (El Mercurio, June 13 and 17, 2005; El Diario, June 13 and 14, 2005). In addition, more subtle transformations have been attributed to the Valdivian mobilization, such as changes in the policies of the timber industry (Guillermo Geisse, personal communication; Paola Berdichevsky, personal communication). Likewise, Action for the Swans has been described as a particularly powerful movement. Even President Lagos—famous for his arrogance—asked the movement for a meeting in Valdivia a day after Action for the Swans had met with the president of CELCO-ARAUCO’s board of directors. And according to Eduardo Dockendorff, who was the head minister of the environmental agency when the disaster occurred, the main thing that prevented Lagos from backing the permanent closure of the mill was his fear of “the effect that this precedent could have on future governability. Because if the citizen mobilization had succeeded in making the government rescind the plant’s environmental permit, it was likely that other groups would have been inspired to take similar actions. We would have had a domino effect” (La Tercera, August 13, 2005).

Despite its salience, however, the agency of the Valdivian movement is better understood in terms of its material and symbolic connection to the larger process of consolidation of the “internal environmental demand” that evolved as a result of the crisis of legitimacy of Chilean environmental institutions. The dozens of environmental conflicts that preceded the Valdivian movement constituted an inorganic corpus of fragmented and contingent local responses materially and politically connected through the accumulation of common experiences of environmental degradation, increasing frustration of the expectations of public involvement, and the resulting distrust of environmental institutions. In the Valdivian conflict, the breakdown of environmental institutions made the structural crisis of the SEIA evident to the wider public to such an extent that confronting it became unavoidable for political and economic elites.

Indeed, top industry leaders who had never supported the need for reform agreed not only that the costs CELCO-ARAUCO had paid were “the strongest blow such an emblematic company ever received” and that the conflict had opened “a period of loss of trust [in companies] by the rest of society,” deepened by the “environmental institution’s loss of credibility” (Meriches and Castañeda, 2005). Similarly, think tanks linked with the main industry associations declared that the Valdivian mobilization had revealed a “crisis in the COREMAs’ credibility” that left the citizenry exposed to “a sensation of defenselessness” (Pinochet, 2008). These critiques were reinforced by the 2005 report on Chile’s environmental performance prepared by the OECD, which stated that in some areas Chile still had “a long way to go before reaching an environmental convergence with the majority of the member countries” and would have to “considerably strengthen and expand its environmental institutions” (OECD, 2005: 128).

The resonance of the Río Cruces conflict was also expressed in the platforms of the presidential candidates during the 2005 campaign. In particular, the program of Michelle Bachelet devoted key passages to environmental participation, stating that “the mechanisms for citizen participation in environmental decisions are insufficient” and, therefore, “people’s participation in the SEIA” would be intensified, “citizen participation in land-use planning” would be strengthened, and “the time frames for participation” in the SEIA would be extended (Bachelet, 2005: 55). It added that “assistance to communities” involved in environmental assessment process would be offered (Bachelet, 2005: 55). The impulse for reform was established. The next step was to make it a reality.

The 2009 Institutional Reform: A Wasted Opportunity

In March 2007 President Bachelet named Chile’s first-ever minister for the environment with the mission of drafting the bill proposing the long-sought institutional changes. Despite its historic importance, the contents and scope of the proposed bill were never publicly discussed. Instead, the government held discretionary consultations with select actors and experts, including academics, think-tank experts, and representatives of the productive sector. Finally, on July 3, 2008, the government sent to the Congress the proposal to create three new autonomous entities: a ministry for the environment, an environmental oversight agency (superintendencia del medio ambiente), and an environmental assessment service (Gobierno de Chile, 2008).

In particular, the creation of the environmental assessment service (EAS), a decentralized organism specialized in the management of the SEIA, was intended to transform the environmental assessment into more a technical than a political procedure. Consequently, the COREMAs would be replaced by regional environmental assessment committees coordinated by the regional head of the EAS and composed exclusively of officials of other public agencies (Gobierno de Chile, 2008). It was expected that this new design would contribute to overcoming the questioned legitimacy of decision making under the SEIA by eliminating the COREMAs and all their appointed political authorities (Sepúlveda and Rojas, 2010). This aspect of the proposed bill clearly responded to longstanding critiques of “political intervention” historically raised by local movements. According to the newly appointed minister for the environment, the COREMAs had been causing “confusion and imprecision and, in many cases, affecting the system’s credibility” because they “politicize[d] decision-making” (El Mercurio, June 23, 2008). Among other aspects of the reform that also responded to citizen demands, one of the most significant was making insufficient information a reason to reject an environmental assessment permit.

In terms of public participation, however, the government’s legislative proposal did not fulfill all of Bachelet’s campaign commitments or respond to the main concerns associated with the emerging “internal environmental demand.” The two main reforms contained in the proposed bill were to extend the time frame for participation by allowing additional 60-day periods of public involvement when substantive changes were made to projects and allowing public access to environmental information produced by public agencies (Gobierno de Chile, 2008). The proposal did not include the technical support Bachelet had promised to communities in which environmental assessments were under way and—what was perhaps its major weakness—failed to overcome the lack of the land-use planning that had been committed to in Bachelet’s platform and considered critical by the OECD 2005 report for addressing the cumulative environmental impacts derived from the case-by-case approval of projects and for advancing toward participatory mechanisms at the regional level (OECD, 2005).

During the proposal’s consideration by the Chamber of Deputies from July 2008 to May 2009, important changes strengthened the provisions for public participation included in the government’s bill (Sepúlveda and Rojas, 2010). Chief among them was the inclusion of “mandatory participation” (participación vinculante) in a newly created strategic environmental assessment of public policies (Cámara de Diputados, 2009). Although “mandatory participation” was not concretely defined (this task being left to specific regulations), its inclusion represented a substantive advance aimed at broadening the prevailing procedures for public involvement. Another noteworthy aspect was the requirement to base the final approval or rejection of projects exclusively on the recommendations made by competent agencies involved in the environmental assessment process (Sepúlveda and Rojas, 2010). This was intended to prevent rejections for technical reasons from being reversed by the political authorities, as had systematically been occurring. However, the new regional assessment committees in charge of the SEIA could authorize investments rejected for technical reasons if outside reports backed this reversal. Thus, the opportunity for “political intervention” in environmental decisions remained.

The Senate discussion of the reform generated unprecedented interest, expressed in 1,350 proposals. Although sponsored by individual senators, a significant number of these proposals were prepared by social and environmental organizations, which helped make up for the lack of citizen participation in the legislative process. This active involvement of citizens, social actors, and experts in the reform process was, however, abruptly interrupted by a political agreement negotiated by the minister for the environment and the Senate’s Environmental Commission (Sepúlveda and Rojas, 2010). To guarantee the support of right-wing senators, the review of the many proposed amendments was suspended. Apparently, the negotiation was aimed at guaranteeing that the law would be approved in time for Bachelet to present it as one of her final achievements while also meeting one of the main requirements for Chile to become a full member of the OECD. On November 10, 2009, the Senate approved the new text.

In addition to preventing discussion of proposals for new advances in participation, the negotiated outcome represented a serious setback in comparison with the improvements approved in the Chamber. The main ones were the elimination of mandatory participation from the strategic assessment of policies and the reactivation of the COREMAs (Sepúlveda and Rojas, 2010). Additionally, the regional councilors who had been part of the original commissions and who could soon be democratically elected as result of an independent legal reform approved under Bachelet’s government¹⁰ were excluded from the redesigned COREMAs (Senado de Chile, 2009). The reactivation of the COREMAs and the elimination of their potentially only elected members reinforced the questions about the legitimacy of environmental decisions that had fueled the core demands of local environmental movements.

Another problematic aspect of the negotiated agreement was the commitment to create environmental tribunals that would be autonomous from ordinary courts, replacing them in all environmental matters (Gobierno de Chile, 2009a; 2009b). The corresponding law was finally approved by the Congress on January 2012, establishing the creation of three environmental tribunals with multiregional jurisdictions across the country, each composed of three members (two lawyers and an environmental scientist) appointed by the president from a list of candidates proposed by the Supreme Court and ultimately ratified by the Senate. Among other features that could eventually raise concern, these tribunals will be competent to reverse extreme fines and major sanctions ordered by the newly created environmental oversight agency, as well as decisions involved in the environmental approval of projects by the COREMAs.

Overall, the new environmental institutional framework represented an undeniable advance, raising the priority of environmental issues, strengthening the authority of the entity responsible for environmental policy and norms, and unifying the procedures for supervision, control, and the sanction of violations of the law. However, the legislation suffered from a fundamental defect. Despite the key role of social participation by grassroots actors in forcing its enactment, the Bachelet administration not only failed to involve these actors in the legislative process but also excluded their main demands for deepening citizen participation and overcoming the lack of legitimacy of environmental decision making (Sepúlveda and Rojas, 2010). As long as the environmental approval of projects continues to be seen by citizens as undemocratic and illegitimate, the multiplication of environmental conflicts is to be expected, producing an increased “internal environmental demand.” In sum, then, the environmental reform was a wasted opportunity that perpetuated the causes of socio-environmental unrest that had brought it about.

Conclusions

By the time President Bachelet was elected, an internal demand for environmental protection had matured in Chile, as manifested in the resonance achieved by the mobilization of Action for the Swans. This resonance was sufficient to produce a new environmental law but not to ensure substantial legal advances in citizen participation and in the democratization of environmental decisions. Ironically, the unwillingness to do so came from Bachelet’s administration, which not only had called itself “a government of citizens” but explicitly included the broadening of participation in environmental decisions in its platform. In particular, the agreement reached by Bachelet’s government and right-wing senators, through which substantive advances made during the legal discussion of the reform—some proposed by citizens—were abruptly dismissed, laid bare the elitist and exclusionary democracy that still prevails in Chile (Salazar and Pinto, 1999). It also showed that the continuity of the dictatorship’s neoliberal project of depoliticizing civil society had never been abandoned by Bachelet’s Concertación (Posner, 2004; Valenzuela and Dammert, 2006).

Therefore, the reform of environmental institutions only reinforced the truncated Chilean democracy from which authoritarian enclaves have never been totally eliminated. Indeed, instead of advancing toward the democratization of environmental decisions, the new legal framework deepened the breach between institutions and citizens. Moreover, it failed to overcome the institutional shortcomings responsible for the escalating socio-environmental unrest that triggered the reform, demonstrating that, despite the growing strength of the internal demand for the democratization of environmental decision making, Chilean political actors have been unable to attune themselves to the participatory agenda that has matured throughout Latin America during the past three decades (Dagnino, Olvera, and Panfichi, 2006). Moreover, the neoliberal project that was expanded by the four consecutive administrations of the Concertación (1990–2010) not only favored the systematic obstruction of democratic reforms by right-wing actors but also impeded the establishment of participatory instruments and approaches incorporated worldwide in the “kinder” variants of the neoliberal agenda (McCarthy and Prudham, 2004). Paradoxically, regarding environmental participation, the once-progressive Concertación ended its rule positioned in some of the most conservative streams of neoliberalism.

This is why after 20 years of an increasingly truncated democracy it is not surprising that an impressive explosion of social mobilization has emerged under Sebastián Piñera’s administration (2010–2014). In particular, demands for the democratization of environmental decisions have become one of the major umbrellas under which broader calls for the deepening of democracy have begun to be articulated by emergent actors independent of the traditional political organizations. Historically massive protests have recently occurred throughout the country in response to the approval on May 9, 2011, of the Hidroaysén dam¹¹ by the newly established environmental institutions. In Santiago up to 80,000 people—for some the most massive mobilization since the return of democracy (Mendoza, 2011) and before the student movement of 2011—have marched demanding the reversal of the project’s approval, while surveys report that 74 percent of Chileans reject Hidroaysén and that more than 50 percent are willing to pay higher electricity bills if necessary to stop the dams (La Tercera, May 15, 2011). As expected, these mobilizations have once again placed the lack of legitimacy of environmental decisions at the center of debate, directly pointing to the “political intervention” in the COREMAs decision by the national authorities as one of the main factors triggering the protests. Citizens have demanded that the president order his ministers to reject Hidroaysén, and Piñera has declared that the project is “still not approved” and will not be until all the parties “reach a final agreement” (El Mostrador, June 11, 2011). Thus, despite the major reforms approved under Bachelet’s administration, which attempted to “depoliticize” the SEIA, environmental assessments have become more politicized than ever as citizens insist that what is at stake is the lack of meaningful opportunities for them to take an active part in decisions that are irreversibly shaping the future of their territories. The challenge of legitimate environmental decisions is still pending in Chile, along with increasing demands for a deepened democracy.

Footnotes

Notes

Claudia Sepúlveda is a sociologist and a Ph.D. student in human geography at the University of British Columbia.

Pablo Villarroel is an associate professor in the Social Communication Institute of the Universidad Austral de Chile. They thank Rosalind Bresnahan for her detailed comments and Adriela Fernández for inviting them to write this article.

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