Unlike other areas, the principle of tipicidad (legal specificity of infractions) has a particular feature in environmental matters: the obligations subject to enforcement are not described in the law itself, but in environmental management instruments (RCAs, decontamination plans and others) that define what is required of the project holder. When is that description precise enough to ground or uphold a sanction? Two recent judgments, both with cassation appeals pending, take different approaches to this question.

The first came in June, when the Second Environmental Court (2TA) annulled part of a fine imposed by the Superintendence of the Environment (SMA) on a fuel company (Case No. R-500-2025), relating to one of the three charges brought. The charge faulted the company for failing to reduce its fuel discharge and transfer flows on days of poor or fair ventilation, as required by the operational plan for its terminal, approved under the Atmospheric Prevention and/or Decontamination Plan (PPDA) for Concón, Quintero and Puchuncaví. The company argued that the obligation did not specify which operations it applied to, what the baseline condition for the reduction was, or by how much flows had to be reduced.

The court agreed, applying the Third Environmental Court’s test for tipicidad by reference, which sets out the requirements for a statutory provision’s reference to an administrative rule to comply with the principle of tipicidad (Case No. R-23-2015). The 2TA held that the principle had been infringed because the percentage of reduction forms part of “the essential core of the obligation,” so a plan that merely orders flows to be “reduced” establishes an incomplete duty. It added that the PPDA’s preventive purpose cannot make up for this indeterminacy, since the holder was left exposed to a case-by-case, ex post specification of what was required of it, rather than a clear rule known in advance.

Two months later, the First Environmental Court (1TA) upheld a fine imposed on a mining company (Case No. R-87-2023) for the partial and late cleanup of a copper concentrate spill, in breach of an RCA that required the material to be recovered and the affected area cleaned. Without formally invoking tipicidad, the case raised essentially the same issue as the previous one: the obligation set no method, standard of sufficiency or deadline.

Unlike the previous case, the 1TA did not apply the tipicidad-by-reference test and treated the matter as a question of whether the infraction was made out, noting that the SMA may interpret RCAs when enforcing them. It concluded that the RCA clearly established the required outcome and that the lack of detail on methods or deadlines did not render the obligation indeterminate, as compliance had to be “full and timely, given its function within the operational context.”

Both judgments thus addressed when the obligation whose breach is sanctioned can be considered sufficiently described in the relevant management instrument. Comparing the two approaches reveals three tensions in how the issue is handled:

The first concerns the standard. For the 1TA, it was enough for the instrument to identify the required outcome, even without detailing how or when to achieve it. For the 2TA, the obligation is incomplete if it lacks a specific compliance standard that allows the holder to clearly know its content.

The second is methodological. Both judgments addressed the sufficiency of the description, but only one applied the tipicidad-by-reference test, reflecting an intermittent use of it.

The third concerns the weight given to the purpose of the instrument or measure. Both courts reasoned from the instrument’s purpose, but in opposite directions: for the 2TA, the PPDA’s purpose cannot make up for indeterminacy; for the 1TA, the purpose of the required cleanup is precisely what allows it to be considered determinate.

Various hypotheses could explain the differences between the approaches, such as the nature of each instrument, the way the parties framed the argument, or the facts regarding the conduct of the authority and the companies. In any case, the judgments invite a rethinking of the criteria by which the sufficiency of an environmental obligation’s description should be judged.

The answer matters because of the reach this debate could have, not only in environmental sanctioning proceedings but potentially also in environmental criminal law, given the role of tipicidad in both. The pending cassation appeals will allow the Supreme Court to rule on the issue and possibly set a standard that, with nuances, guides its application in both fields.

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