Is Chile building good climate governance? Reflections on the drafting process of the climate change framework law

Introduction

This article provides a critical account of the genesis of the first climate change law in Chile. In this regard, it is important to remember that ‘the discussion on climate laws cannot be detached from an assessment of the constitutional specificities of each country’. ¹ Along with the constitutional context, legal history also represent a valuable lens through which to explore a piece of legislation. ² It has been noted that ‘any legal topic can gain from its contextualization. This is clearly visible in the multifarious studies which have been made of particular legal events, such as the enactments of individual pieces of legislation or the making of individual legal decisions’. ³ Putting this into practice, this piece will explore the enactment of and the context surrounding Chilean climate law, both of which are testaments to the current inability of Chilean climate change governance to cope with the climate change crisis we face.

What follows is a deep dive analysis of the provisions of the draft Chilean climate law. Scholarship on this piece of legislation is still very limited and there are only a handful of climate change law and governance academics in Chile. As such, the article draws on both the publicly available documentation on the draft law and author’s personal experiences: both as a participant in the public participation process surrounding the draft law and as a speaker before the Environmental Law Committee of the Chilean Senate that was formed for the discussion of this law.

The article will first offer a contextualisation of the time and place in which this account takes place and the circumstances that surrounded this legislative process. It will then go on to briefly describe the main provisions of the draft climate law which will provide readers with a general understanding of objectives and instruments put in place to attain those objectives. This article then turns to examine the drafting process, with a special focus on the actors involved and public participation. This discussion will demonstrate a centralised decision-making process which lacked meaningful public participation. These violations to the right of democracy lead to the disappointing prediction that this climate change law and the instruments that will be enacted to implement it will be unfit to respond to the climate crisis in a country that – like many others – desperately needs to take climate change-related action.

Chile – Some relevant geographic and sociopolitical factors

Chile occupies a long and narrow strip of land in South America, with the Andes to the east and the Pacific Ocean to the west. This geography makes the climate very diverse through the different areas of the country and multiplies climate change impacts. While evidence indicates an increase in temperatures nationwide, there is greater intensity in the northern area (1.5–2.0°C above the historical average) and in the mountainous areas of the Andes, compared to coastal zones. ⁴ Decrease in rainfall and other factors threaten agricultural activities in the most populated and productive area of the country (the central area). Other challenges are extreme climate events in different parts of the country, such as floods, mass wasting, intensification of forest fires and sea swells and ocean acidification.

This geography – a challenge in itself – is accompanied by sociocultural, economic and political factors that make action in relation to climate change more complex. Centralism is at the core of the Chilean sociopolitical system. Since the Spanish colonisation, Santiago was erected as the main city and remains the capital. Of the 17.5 million population of Chile, over 8 million people live in Santiago. ⁵ The 1980 Constitution establishes a strong presidential regime where parliament has no control of the legislative agenda and is limited to passing or rejecting laws proposed by the Government, which also controls the congressional timetable. ⁶ The Constitution also establishes political and legal centralism, which leaves regional and local government with very few powers. ⁷

Chile has a neoliberal socio-economic model rooted in the Constitution. ⁸ The impact of the economic system on the environment and climate resilience is broad. In brief, and according to an extreme political liberalism, the State is kept to a minimum, while private property and freedom of enterprise hold the strongest constitutional guarantees. ⁹ Incentives are designed to promote economic activities in the private sector at large scale, which leads to intensive fishing, mining, farming and forestry, among other activities. The state relies on command and control regulation, with a strong emphasis on inspection and sanctions, which entails significant public expense with no revenue for the government while also being very ineffective. Social and environmental rights are regarded as freedoms, and not as rights. Hence, they are not guaranteed for Chilean citizens. Education, pensions, access to water and health, among other essential rights are privatised, where market failures and inequality leave a large part of the population with no access to these and other essential rights. This explains the current social uproar that started in October 2019 and led to a referendum held in October 2020, where a vast majority of 78 per cent of the population voted ‘Yes’ to constitutional reform. This social uproar motivated the government’s decision to displace COP 25 to Madrid. ¹⁰

Indeed, COP 25 – the Conference of Parties of the United Nations Framework Convention for Climate Change (UNFCCC) – was going to take place in Chile, which created an atmosphere of large local attention and involvement in the climate crisis. The President and high authorities ¹¹ placed climate change as a priority in 2019 for the first time and the topic then gained media coverage. When launching COP 25, President Piñera stated that ‘the ever-increasing urgency of our objectives requires that we be more ambitious and demand more of ourselves’. ¹² This ambition on a domestic level led to addressing the need for a Chilean climate change law. This law was drafted during 2019 by the Ministry for Environment and presented at Congress in January 2020, where it is still being discussed.

Good governance and the climate change law draft

Legal scholarship in Chile is mainly doctrinal. This means that its main focus is to describe and understand regulation. This also applies to environmental law, where the majority of the field is devoted to studying environmental institutions and their decision-making processes, as well as environmental regulation. The study of norms is in many cases also highly descriptive, with some (more limited) analysis, comparative law references and critiques. ¹³ Given that that the 2019 Chilean Climate Change Law is still under parliamentary discussion, there is not much analysis available. However, the University of Chile, through its Centre for Climate and Resilience Research, has launched a Climate Change Act Observatory to monitor the discussion of this law, enhancing transparency of the legislative process and offering academic and scientific analysis while collaborating with actors from the public and private sectors and civil society. This platform produces policy briefs on the law, which will be used as the main secondary source through this section not only to help in the description of the law but also to identify the main concerns and criticisms raised by Chilean legal scholars.

The 2019 climate change law draft starts by setting out its objective, which is to:

face the challenges arising from climate change, move towards low emission development, up to the point of reaching and sustaining emissions neutrality; reduce vulnerability and increase resilience to the adverse effects of climate change; and, to fulfil the international commitments assumed by the State of Chile in this matter. ¹⁴

What does the law aim to achieve? President Piñera presented the draft to the Congress with a ‘message’ that expresses a more realistic version of the Article 1 goal: ‘the proposed law aims to create a framework that allows specific responsibilities to be assigned for the implementation of mitigation and adaptation measures’. ¹⁷ Being a framework regulation, this draft law does not set out specific measures. Essentially, it provides a basis for the adoption/formulation of public policy instruments by already existing institutions. The instruments to be developed fall under the category of ‘diagnoses’, ‘strategies’ and ‘plans’ which are not regarded as management instruments. The Government has defended this legislative choice by arguing that comparative study of climate change laws demonstrates that setting specific targets or policies would deprive the legal framework of a necessary dynamism to adapt to new challenges. ¹⁸ In a time of climate urgency, and in the context of high vulnerability to climate change impacts, where concrete solutions are needed, this defence seems rather weak. ¹⁹ The instruments which are meant to flow from the draft framework climate change law are still in the planning stage, and their implementation and monitoring are yet to be defined.

The draft law only identifies long-term climate strategy as the main policy instrument. It intends to give climate change policymaking a long-term view, to prevent government changes reversing national efforts to tackle the crisis. This strategy – when designed – will define long-term and general strategic policies that the country will follow over a 30-year time period in order to reach the legal objective of carbon neutrality. ²⁰ This instrument will include national and sectoral greenhouse gases (GHGs) budgets, adaptation guidance, integration and adaptation synergies, risk evaluation and reporting and verification obligations. While the strategy needs to be adopted through a multi-sector, multi-actor and multilevel process, each ministerial sector will define in isolation how to comply with their own carbon budget, ²¹ posing a threat to the necessary integration and coordination of sectors to accomplish the overall carbon neutrality goal. In addition to this isolated design problem, each sector can also request not to comply or adjust (downwards) their own carbon goal, as set out in Article 5 of the draft climate law. ²² These modifications can potentially compromise the national carbon budget and should not be a legislative option. Specific requests not to comply with carbon goals will be decided by the Minister’s Council for Sustainability and Climate Change, ²³ the group of ministers defined as relevant to climate change decision-making. It seems perverse that a single ministerial body should be able to set aside carbon strategies that have been the result of a participative and integrative process. ²⁴

Adaptation is also an objective of the long-term strategy, which should include the adoption of adaptation guidance. To that aim, the draft framework climate law prescribes an obligation to formulate adaptation plans for 11 challenges (i.e. biodiversity, health, infrastructure, cities, fisheries and aquaculture, etc.), and each is allocated to a specific ministry responsible for developing that particular plan. None the less, it would be very difficult to allocate a specific theme to one ministry only. For example, the hydro resources plan is to be developed by the Ministry of Public Works. However, there are 47 institutions in Chile relevant to water resources, and only a fraction of those are under the Public Works Ministry. ²⁵ Similarly, the coastline plan is assigned to the Defence Ministry, which organises the Army, Navy and Air Force. This is representative of how outdated Chilean approach to climate regulation is, as there are different forms of adaptation related to the coastline beyond the ones managed by the Navy (which are focused mostly on navigation and pollution). For instance, coastal critical sanitary infrastructure is under the Public Works Ministry, while harbours are under the administration of specially created state-owned companies. These examples are illustrative of a broader need for integration and collaborative work. Cities represent an even more dramatic example, given the complete lack of involvement of local governments in the adaptation plans.

The long-term climate strategy must be approved within a year of the passing of the draft framework climate law and will be a significant step forward towards clarifying the means proposed by the Government to achieve the objectives of the law. This has motivated the government to start working on the strategy, despite the fact that this law is not yet passed. Academia and civil society – called to make observations on the strategy – have criticised the non-mandatory character of the strategy, regarding it as weak approach. ²⁶

The Chilean draft framework climate law also introduces a novel mitigation instrument. Following the Chilean style of regulation, the command and control approach entails the imposition of GHGs emission limits. The Ministry for Environment is allowed by law to set out statutory emission limits regarding noise, pollution levels and emission of GHGs. This directly aligns with the work of the Environmental Agency, an independent body, which will monitor these emissions and issue sanctions accordingly. However, human resources are limited in public agencies. Inspection and sanctions are not very useful or effective mechanisms, especially in a highly centralised country such as Chile. This is coupled with a challenging geography that renders inspection difficult. Thus, the effectiveness of command and control approach by imposing emission thresholds may be limited bearing in mind reduced capacity of agencies to supervise compliance.

Noting the difficulties of command and control regulation, the GHG emission limits proposed by the climate change law open the possibility to issue reduction, absorption and surplus certificates, as incentives to comply. These certificates allow for the development of projects in Chile or abroad that should result in emission reduction or absorption and thus can be used to comply with emission limits. Regulation of these certificates is not included in the draft framework law, which mandates the Ministry for Environment to enact such a regulation. Leaving definition of this market mechanism to statutory regulation seems highly inadequate, given need to guarantee as much as possible the environmental integrity of the mechanism. There is sufficient record of comparative experiences showing how poor regulation of market mechanisms has led to their collapse or to fraudulent use of projects and certificates. ²⁷ This issue has been raised by the author during the parliamentary consultations before Senate Commission, emphasising the need to further regulate certificates by primary legislation, as a mean to ensure parliamentary discussion and analysis in order to guarantee a better regulation and the environmental integrity of this mechanism. ²⁸

This demonstrates that many questions remain open and important aspects of the regulatory jigsaw need to be further developed. At this point, the efficacy of the law, understood as the possibility to achieve its own goals and objectives, is highly questionable.

The drafting process as a testimony and cause for poor climate change governance

Following the traditional legislative process in Chile, where laws are drafted by the Government, the draft framework climate law was prepared by the Ministry for Environment and submitted to Congress by President Piñera. At present, Chile has 24 ministries ²⁹ that work separately from one another. Bearing in mind complexities surrounding the regulation of climate change, this policymaking approach raises concerns. While the same law declares a principle of integrative governance (multi-actor and multilevel) ³⁰ and was signed by the all the ministers in cabinet, some important ministries have not been included in the legal drafting. For example, it would have been advisable to have had the Ministry for Energy and the Ministry for Foreign Affairs ³¹ participating in the legal drafting. These two ministries have been the main actors in developing the climate change agenda, well before the creation of the Ministry for Environment in 2010. Their absence in the drafting process had an impact on the output. Actually, the first draft of this law did not vest any responsibility to the Ministry of Foreign Affairs to participate in the implementation of the law, renegading its essential role in climate change governance. This has now been amended, but this anecdote demonstrates consequences of silo-style and non-participatory climate change governance.

Regions (subnational political and administrative divisions of the country) and local governments were also under-represented in the drafting process and are, consequently, given a very discrete role in the climate change governance proposed by this law. The draft framework law calls for the adoption of regional action plans to contribute to climate change management at a regional level, in compliance with the central level instruments. Therefore, regional committees on climate change are invited only to implement this central-level instrument and not to design it, which reinforces a centralist climate change governance by depriving the regions of the possibility to determine their own climate change policies. Local governments are in an even more precarious position. The only role granted to local governments by this law is the formulation and implementation of strategic plans for water resources in aquifer basins. As expected, it is to be coordinated by the central government water agency, under the Ministry for Public Works. Each basin should have its own plan identifying availability and supply of water, diagnosing the amount and quality of information and proposing measures to manage water resources. ³² The obligation to formulate strategic water resources in aquifer basins and therefore engage local governments as actors on climate change governance were only included in the second draft of this law, after a public consultation process. This shows that the original draft not only was neglecting the urgent need to address water scarcity in Chile ³³ but also had not even considered the participation of local governments in climate change governance as relevant.

As regards public involvement, according to the Government, the drafting process included ‘broad and unprecedented early-public participation’. ³⁴ While it is true that the Government organised some preparatory activities – prior to the existence of a first draft – they only consisted of informative workshops and communicating the Government intention to start drafting a climate change law. Once the draft was completed, an online citizen consultation was put in place which allowed public to provide comments. None of these measures by the Government in the drafting of the framework law guarantees the right to citizen participation in an adequate manner. Those activities only allowed for a minimum level of involvement of citizens. For this reason, some social organisations refused to participate, as it entailed validating a process that openly violated the exercise of the right to participation.

Under the Rio Declaration (Article 10) and Chilean law, public participation is a right and comprises different levels and forms of citizens involvement in public management. ³⁵ It may entail a very basic level of involvement, such as citizen consultation, to a very high level of involvement, such as the co-creation of public decisions (referendums are an example of this level). When public participation entails the lowest levels of involvement, the right to public participation is threatened. ³⁶ The draft framework climate change law recognises the right to citizen participation. Article 31 establishes such involvement in ‘the preparation, review and updating of climate change management instruments’. However, it does not establish any minimum standard for the government to conduct the public participation processes in the formulation of these instruments. Regulation of processes to enact each instrument is completely delegated to statutory regulation, which is subject to lower standards of public involvement and does not need parliamentary approval.

These deficiencies and omissions would not matter as much if there was another piece of legislation guaranteeing the right of public participation in Chile. It is worth mentioning the Escazú Agreement, which is a regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean. ³⁷ This Agreement has been in the spotlight for the past 2 years, as it is in the process of ratification. Chile held a protagonist role in negotiating and promoting the Agreement. However, at the last minute, President Piñera announced that it would not be ratified. During the legislative discussion, ³⁸ the executive indicated that current Chilean regulations already contain provisions for public participation as described in the Escazú Agreement. This is simply not the case. If it was the case, the quality of citizen participation during the formulation of the draft framework climate change law would have been more meaningful. National authorities only relied on public consultation without any further meaningful involvement of citizens, civil society and indigenous population. For example, environmental NGOs were not specifically involved or invited to participate. They were able to participate only in their individual capacity as citizens. Collective action was not encouraged, as required by the Escazú Agreement. Finally, there was a complete absence of consultation with indigenous communities, openly violating the provisions of the Escazú Agreement and ILO Convention No. 169.

The draft framework climate change law does not guarantee the right of public participation, nor is this right regulated sufficiently in other Chilean legal instruments. A way forward would be to either to enhance public participation in the draft climate law or to ratify the Escazú Agreement, which would then apply to many other environmental policies in Chile that at the moment rely on lowest levels of public engagement. These ideas were shared by the Supreme Court in its review of the draft climate law, where judges have warned about the need to enhance public participation regulation, in alignment with obligations contained in the Paris Agreement. ³⁹

What to expect?

As the legislative process moves forward, questions on how this new draft law contributes to the existing climate change governance are raised. Will this law enhance our response to climate change? Is this law able to guarantee the achievement of its own objectives? The draft law is indeed creating new regulatory instruments, but those instruments are neither binding nor properly defined. The proposed law leaves definition of these instruments to the centralised executive power, with no reassurance of minimum standards for public participation and engagement. It also bears no hallmarks of multi-actor and multilevel governance processes in the enactment of such instruments. Hence, the law leaves too many questions unanswered, with too few actors involved in the drafting process. The Government seeks confidence and trust in the context of current social uproar and the greatest political crisis this country has seen since the Pinochet dictatorship. There is a great urgency for a climate change law that sets out a series of concrete actions towards building a climate change governance structure that will provide a useful framework to address the climate crisis.