Revista de Derecho Ambiental

Considerations regarding the environmentalization of Chilean water legislation

2024-10-21T12:27:44+00:00

As a result of the reform to the Water Code through Law 21,435/2022, the original budgets that supported the market logic to which the rules for allocation and reallocation of water were subject have been altered. Currently, sectoral legislation adopts a new approach in which the prioritization of water use for human consumption and sanitation coexists with protecting the ecosystem services provided by water. Both institutions significantly altered the water market, which was based on efficient resource allocation. We will see how, with the introduction of the ecosystem preservation function, there has been a greening of the legislation, which has had an impact on the purpose of water publification. In this way, the contours of ecosystem preservation, its relationship with water security, its foundations, and the tools through which the greening of water legislation occurs will be analyzed to conclude how the reasons that justify the publification of waters, currently, are discharged in an efficient and equitable use of the resource.

Forest fire regulation in Chile

2024-11-18T17:25:03+00:00

Over the past few decades, the scientific community and civil society have expressed concern over the increasing occurrence and severity of forest fires, which threaten and severely damage ecosystems. In this context, it is imperative to identify and critically review the regulations governing this issue, with the aim of determining whether national legislation adequately addresses the management of forest fires in their various dimensions. To achieve this, this study undertakes a comparative analysis aimed at identifying deficiencies in our legal framework, as well as opportunities for improvement. Finally, recommendations are formulated to strengthen the management of forest fires, integrating the knowledge and contributions of forestry ecology, as they are considered fundamental for the design of effective and sustainable forest management strategies.

Space debris

2024-11-25T20:53:37+00:00

This literature review addresses the challenge of the lack of management mechanisms in international law in relation to space debris accumulated in outer space, as well as the integration of this issue within the framework of international environmental law. The central objective is to determine whether the generation of space debris constitutes a threat to space sustainability, considering its implications in environmental, economic, and social dimensions. To this end, the article is divided into three main sections. The first part presents a conceptualization of the concepts of space debris and space sustainability, establishing a solid conceptual framework for the analysis. Second, an approach is presented for addressing the medium- and long-term environmental, economic, and social challenges that space-earth sustainability faces because of the debris accumulation caused by space debris' exponential expansion. The third and final part identifies and discusses the existing gaps in international environmental law in terms of sustainability and space debris management. Based on the analysis of theories like Kessler Syndrome and the reflection of global efforts such as UNISPACE+50, the article will propose a regulatory dilemma in the field of international space law. It points to outdated regulations that fail to adequately connect the necessary correlation between space debris issues and their impact on sustainability. The conclusion underlines the urgent need for an integrative approach to effectively address this global issue, calling for the revision and strengthening of the existing international regulatory framework from a holistic perspective.

Challenges of climate change and the right to adequate and sustainable food: Reflections on the Chilean scenario

2024-11-12T20:46:12+00:00

The present research addresses, in its first part, the increasing threat faced by particularly vulnerable groups in accessing adequate food, in the context of climate change. It highlights the emergence of guaranteeing developments in international and national legal instruments that seek to safeguard this fundamental right. Subsequently, the specific situation in Chile is examined, exploring international standards on climate change and their interaction with the right to food. To this extent, based on a descriptive and explanatory research, using the dogmatic methodology —classical of the legal sciences— and the systematic, analytical and factual sub-methods, the implementation of these standards in the Chilean context is critically observed, analyzing the justiciability mechanisms that seek to ensure the protection and effective realization of the right to food in a scenario of climate change. Finally, it is concluded that is imperative to adopt legal measures of protection of human right to adequate food, by incorporating the international law minimum standards on this matter. This legal enhancing would contribute to moderate the weak image of the Chilean climate law with almost no reference to the human right to adequate food

Project piecemealting

2024-05-27T01:06:12+00:00

The Sistema de Evaluación de Impacto Ambiental (SEIA) is a mechanism to collect and analyze data to predict and assess the environmental impact of a project, to gauge if they will be significant and to act in advance of its realization. This mechanism and its objective can be frustrated if a project is divided, and this results in evading its environmental assessment, totally or partially. In this paper, along with developing my understanding of ‘project splitting’ in its broader framework, I intend to answer two questions that I consider to be among the most important on this subject. Under the premise that 'project piecemealing' is inextricably linked to the SEIA, but that its use must be confined to the repressive context, I will explain what its requirements should be and I will defend that the standard of proof to have it proven is that of 'preponderant probability'. Then, regarding the SEIA framework, in the preventive context, I will uphold that the Chilean Environmental Assessment Service has the power to control part of its objective element, without invading any power of the Chilean Superintendence of the Environment.

Species classification as a constitutive environmental management tool: A review of the Chilean Supreme Court's ruling of June 11, 2024, rol 84.028-2023

2024-12-04T21:03:06+00:00

The commented ruling establishes that the legal nature of species classification under article 37 of Law 19.300 as an environmental management instrument is merely declarative, as there will only be a duty of the State related to the protection and management of a species when the respective recovery, conservation, and management plans are drawn up. The following commentary debates this thesis upheld by the Third Environmental Court and later by the Supreme Court, arguing that the species classification instrument indeed has a constitutive nature that creates obligations for the State. The proposed analysis is structured into three parts: the first aims to establish the central elements of the case; the second section will address and develop the arguments and regulations in constitutional and sectoral terms that support the constitutive nature of the instrument, as well as the civil, administrative, and criminal penalties associated with the violation of these regulations; the third will demonstrate that the proposed analysis aligns with the in dubio pro natura principle recognized by the Court's jurisprudence. The commentary concludes that species classification is a constitutive instrument and that the reasoning of the Third Environmental Court and the Supreme Court presents an interpretation incompatible with constitutional and legal norms, directly omitting the duties established by such precepts, resulting in a gap concerning the protection of species classified as critically endangered, endangered, vulnerable, near-threatened, or data deficient.

Reflections on the Role of Environmental Courts in Light of the Dominga Case

2024-12-24T19:31:02+00:00

The First Environmental Court of Antofagasta, located in northern Chile—a region characterized by significant mining development—has adopted an extensive interpretation of its powers in the context of the emblematic and controversial Dominga mining project. This interpretation pertains to the scope of action of the administrative body responsible for addressing claims filed by project proponents or third parties within the framework of environmental impact assessments, particularly referring to the Committee of Ministers. The issue is sensitive due to the conflict between industrial development and the preservation of a highly vulnerable area, rich in biodiversity and ecosystem services. In light of this, the present work will outline the grounds for defining the scope of action of the administrative body and will critically examine the interpretation adopted by this specialized court.