May 3, 2018

Pursuant to Section 57 of Law 20.417[1] ("LOSMA"), whenever the Environment Superintendency ("SMA") applies any of the sanctions provided for in paragraphs c) and d) of Section 38 of the same law, namely, total or definitive closure or revocation of the Environmental Qualification Resolution ("RCA"), respectively, the sanctioning resolution must be submitted to the Environmental Court for consultation.

LOSMA did not provide details regarding the manner in which the consultation proceeding was to be carried out. This has given rise to a number of issues, such as doubts as to whether or not the consultation and the eventual appeal should continue to be processed separately and in parallel—running the risk that the proceeding that gets resolved first will push forward criteria over the case to be resolved later—, uncertainty as to when the imposed sanction should come into effect; or whether or not the owner of the sanctioned project should become a party to the consultation proceeding, to name but a few.

For the most part, these problems have been resolved on a case-by-case basis by each Environmental Court. Thus, for example, the Second Environmental Court has decided twice (cases No. C-3-2014 and C-6-2015) not to rule on the SMA's consultation due to the existence of a pending claim against the resolution that was the object of the former, restricting its analysis of the legality of the sanction only to the latter proceeding. On the other hand, faced with the same dilemma, the First Environmental Court, taking the opposite stance, decided to continue the consultation proceeding despite there being appeals against the sanctioning resolution, arguing the nature of public order and irrenounceability of the rules that provide for the consultation process (S-5-2018).

The case of the Third Environmental Court has been different. Although to date it has not resolved on any consultations requested by the SMA, it did regulate early on, through an agreement, the consultation proceedings in terms of their timeliness and recently modified the previously established norms, showing clear concern for the issue.

As stated in the minutes of extraordinary session 3 of the Third Environmental Court, held on 9 December 2013, it was agreed, in its fourth paragraph, entitled "On the consultation of the sanctions established in letters c) and d) of Article 57 of Law 20.417," that:

"The resolutions of the Environment Superintendency that apply the sanctions established in letters c) and d) of section 38 of Law 20,417, must be sent to the Environmental Court within three days of their notification for consultation. Upon receipt of the records, the court shall review the resolution [2]."

Meanwhile, during Extraordinary Session 2/2018, held on 18 April, the Third Environmental Court agreed to amend the aforementioned agreement on consultation, noting that the time elapsed since its issuance made it possible to identify areas where adjustments could be made to formalities and requirements. Thus, former Agreement number four was replaced by the following:

“FOUR: Authorization of the resolutions of the Superintendency enforcing the sanctions set forth in letters c) and d) of Article 38 of the Organic Law of the Environment Superintendency raised in consultation. The resolutions of the Environment Superintendency enforcing the sanctions set forth in letters c) and d) of Section 38 of the second article of Law 20.417, which must be submitted to this Court for due authorization, shall be submitted prior to their notification to the interested parties, attaching an authenticated copy of the complete and duly foliated administrative file that served as grounds for the act, in accordance with the provisions of Law 19.880. Upon receipt of the case background, the court shall review the resolution."

Under the new rule, the consultation proceeding before the Third Environmental Court must be initiated prior to the notification of the sanctioning resolution to the interested parties; only once it has been completed and the sanction has been authorised will the notification be made.

Thus, the aforementioned amendment has several consequences. On the one hand, the sanction chosen by the SMA will be notified to the holder when it is ready to be executed, since it would have already been duly authorised by the Environmental Court. Therefore, this implies that the consultation proceeding will be carried out without the participation of the holder, with the Court deciding solely on the basis of the background information provided by the SMA. Finally, and also arising from the above, in this new scenario, the consultation proceeding, and the eventual claim would never coexist, since the latter can only be filed by the persons entitled to do so once they have been notified of the resolution.

In the future we will be able to see whether each Environmental Court maintains its own stance on the matter, as has been the case until now. In the case of the First and Second Courts, their decisions have only been grounded on the cases they have had to hear. Conversely, we have yet to see whether there will be coordination efforts to unify criteria and translate them into equivalent agreements for the three Courts.


[1]"Creates the Environmental Courts, the Environmental Evaluation Service and the Environment Superintendency".

[2]Emphasis added in this case and hereinafter.

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