Isaías Urzúa, lawyer. Research Assistant at the Center for Environmental Law of Universidad de Chile.
At the beginning of 2020, the Chilean government presented an update of its Nationally Determined Contribution (NDC), as provided for in the Paris Agreement. At first glance, this NDC is novel in several aspects, especially when compared to its previous version. For example, the updated NDC provides that our country is committed to a maximum of emissions that are quantified and divided into periods, without subjecting them to other factors as was the case with the previous NDC where the reduction of CO2 emissions was subject to an increase in the Gross Domestic Product (GDP).
It is also of interest to note how, by recognizing the progress made in economic and human development in recent decades, we have been able to identify some goals that need to be reinforced, such as income and gender inequality, access to housing, education, and health, among others. This is consistent with the emissions reduction objectives of the 2030 Agenda for Sustainable Development and the Sustainable Development Goals (SDGs), in addition to the synergies between both, widely developed in the so-called social pillar of the NDC.
During the development of the new NDC there was significant involvement by civil society (COP25 Scientific Committee, NGOs and trade unions), which contributed to incorporating the above-mentioned social pillar. This experience, also developed in the NDC’s previous version, served to highlight the role of the various social stakeholders and the need to include them in climate action. As such, the updated NDC emphasizes that:
“The cultural, social and natural diversity of our country is one of its most important assets; consequently, the incorporation of diversity into decision-making is crucial to building a resilient country, including, where possible, the knowledge of our indigenous and local communities, the preservation and restoration of our biodiversity and the expansion of nature-based solutions. Local communities and municipalities are also key, as they will suffer the direct impacts of climate change, and their ability to respond to such impacts is essential in reducing the damage and losses caused by extreme events. Therefore, strengthening the responsiveness of the population and institutions facing the challenges of an uncertain and changing future is a crucial element of the process of adapting to climate change.”.
In other words, designing responses to the effects of climate change cannot dispense with the opinions and knowledge of different civil society actors.
Specific mentions to citizen participation
The above is illustrated by the inclusion of “active participation” as an essential element of the NDC’s social pillar. Thus, this update seeks to align the climate agenda with the SDG, particularly under the conceptual umbrella of sustainable development and just transition, which also includes elements such as water security, gender equity and equality, among others.
Based on the above, citizen participation is characterized as follows:
“[T]he design of instruments and measures arising from the implementation of this NDC will consider the active engagement of citizens through participation mechanisms established by each State Entity, and in those expressly indicated under Law No. 20,500. There will be additional mechanisms established to deepen citizens’ participation.”.
In other words, citizen participation becomes an axis of climate policy, being one of the criteria for implementing the NDC, that is, one of the criteria of compliance with Chile’s commitments under the Paris Agreement.
This issue is more explicitly developed in the section on adaptation commitments. Regarding this matter, the NDC indicates that: “During the implementation period of this NDC, the inclusion of non-governmental actors in the planning and implementation of adaptation measures will be strengthened.” To this end, the following compliance indicators were established:
“a) By 2025, an implemented and updated record of adaptation actions by non-governmental actors.
- b) By 2030, public-private cooperation mechanisms for the execution of adaptation actions, at the national and local scale, will be in place.”.
This goal and its indicators or targets, as outlined in the NDC, are in keeping with SDG 13, which refers to climate action. A joint reading of the two instruments could serve to confirm that what is intended to be strengthened is the promotion of means to increase efficient management capacity in connection with the adverse effects of climate change.
Regarding this point, a clarification must made as to whether in referring to “non-governmental actors” (and their record) the NDC is solely referring to NGOs, since focusing only on this type of organization could have two effects to be considered: 1) participation that does not take place through NGOs could be discouraged, and b) the capture of the regulator through NGOs with particular agendas that are not necessarily representative of the population’s overall vulnerabilities. This is not to say that any mention of these types of organizations should be eliminated, but rather that it should be expanded to cover citizen groups or social movements at both the local and national levels, within which many NGOs actively participate.
Likewise, it is unclear as to whether the criterion of participation will be developed for the purposes described:
Will this entail a participation similar to the one that takes place in the preparation of Quality Standards and Prevention and Decontamination Plans?
Will citizen observations be treated by the authority similarly to the standard of the Environmental Impact Assessment Service?
Will it be coordinated with the objectives of the Indigenous Consultation?
Will there be a contentious-administrative judicial body to settle any disputes arising in this regard?
These questions are not entirely irrelevant, especially if you bear in mind that a good deal of our environmental conﬂicts brought to the courts of justice has to do with deficiencies in issues of citizen participation.
To try to answer these questions, it is worth recalling that one heuristic element in approaching the new NDC is the need to read it through the lens of the Climate Change Framework Bill, as mentioned in the NDC’s foreword. However, as indicated in a previous policy brief, the current processing of this bill sheds little light on the matter given that any mentions of citizen participation are few and poorly defined. In fact, if we were to consider only the formulation of the update of a new NDC, according to the Climate Change Framework Bill, the updated version should contain a public consultation procedure, where the details on its regulation and control are left in the hands of a regulation to be subsequently enacted.
Lastly, it is worth noting that this NDC is more ambitious than the previous version if its mitigation goal, the inclusion of a social pillar and the search for synergies with the SDG are taken into account. In particular, the numerous mentions of participation as a prerequisite for adequate climate governance are remarkable. However, the criteria for this are still up in the air – aside from a mention of Law No. 20,500, no clear and distinct standards are established regarding how to integrate citizen participation and access to information. It is likely that this can be supplemented in the processing of the Framework Law and by various legal and infra-legal instruments that may refer to the issue, however it should be noted from the outset that the announcements regarding participation are very vague.
 Indeed, the current commitment states: “1. To reach a global peak in greenhouse gases (GHG) emissions as soon as possible; and 2. To reach balance between anthropogenic emissions by sources and removals by sinks in the second half of this century.” On the other hand, the previous mitigation commitment, excluding the land use, land use change and forestry (LULUCF) sector, indicated: “a) Chile is committed to reduce its CO2 emissions per GDP unit by 30% below their 2007 levels by 2030, considering a future economic growth which allows to implement adequate measures to reach this commitment. b) In addition, and subject to the grant of international monetary funds (grant), the country is committed to reduce its CO2 emission per GDP unit by 2030, until it reaches a 35% to 45% reduction with respect to the 2007 levels, considering, in turn, a future economic growth which allows to implement adequate measures to achieve this commitment.”
 NDC, p.18.
 “Essentially, the just transition is a future-oriented framework focused on action that identifies opportunities for public and private investment in both sustainable and inclusive economic development.” NDC, p.24.
 NDC, p.26
 NDC, p.42.
 Indeed, target 13.b of the climate action goal states that it should: “Promote mechanisms for raising capacity for effective climate change-related planning and management in least developed countries and small island developing States, including focusing on women, youth and local and marginalized communities.”
 I.e., a public consultation where there is no obligation of due consideration by the authority.
 In contrast to the above, here there is a duty of consideration of the citizen’s observations, which, if not complied with, will result in a substantive defect in the Environmental Qualification Resolution.
 “The current update of the NDC occurred in parallel to the preparation of the Climate Change Framework Bill in Chile. Thus, it was designed to align our international climate commitments with the guidelines and instruments proposed under the bill.” (p. 11)
 In its Article 6(6), the bill briefly describes the procedure for formulating the NDC: The procedure will be coordinated by the Ministry of the Environment with the support of the Ministry of Foreign Affairs and must include, at a minimum, the participation of the relevant sectorial authorities; a public consultation stage that will last for a period of thirty business days; a prior report of the Scientific Advisory Committee on Climate Change; and, a statement of the Council of Ministers for Sustainability and Climate Change.
 This is recognized by the Climate Action Tracker analysis. “Chile formally submitted its 2020 NDC in April 2020. Even though the updated NDC is more ambitious than the ﬁrst NDC and is a slight improvement from the draft released in October 2019, it is not compatible with eﬀorts to limit global warming to 2°C and even less to 1.5°C, and would fall within the CAT’s ‘Insuﬃcient’ range. Depending on LULUCF emission projections, its conditional 2030 target would be 2°C or 1.5°C compatible, but only if it were made unconditional. Both targets are more ambitious, therefore this update represents a progression beyond its previous NDC.” See: https://climateactiontracker.org/climate-target-update-tracker/chile-submitted-ndc-2020-04-09/
 The same has been recognized by the International Institute for Sustainable Development: https://sdg.iisd.org/news/in-updated-ndc-chile-aligns-climate-and-sustainable-development-agendas/
 NDC, p.26.