Introduction
While the Paris Agreement sets the goal of keeping a global temperature rise below 2 °C (and attempting to limit the increase even further to 1.5 °C), as well as the consequent need to move toward carbon neutrality by 2050, its implementation requires adequate national legal frameworks. The Climate Change Framework Bill, Bulletin 13,191-12, which recently entered the Senate for legislative discussion, confirms this.
Generally speaking, the 2050 carbon-neutrality goal enshrined in the bill is redeemable, notwithstanding the need to review the terms defined in the bill so that its implementation represents an effective response to the problem of climate change in the country in light of the global climate emergency and the interests of future generations.
The bill addresses various aspects of climate change governance, including: 1. Institutional Framework; 2. Instruments; and 3. Participation.
- With regard to the institutional framework, one of the bill’s merits is that it enshrines, in a legal text, the institutions of climate change that have thus far participated in the development of climate change public policy and creates the Scientific Committee, whose role is limited to constituting a bridge between scientific evidence and public policy. In this way, the bill partially touches upon the recommendations made in the 2016 OECD report.
- In terms of instruments, these include public policy instruments rather than management instruments, with the exception of emission standards, which poses numerous barriers to moving toward carbon neutrality within the timeframe and with the urgency required.
- As for participation, as defined in the bill, this constitutes a step backwards in relation to Law 19,300 by limiting participation to a public consultation mechanism (provision of information), very different, for example, from the standard of participation enshrined in the SEIA’s framework or in the international and regional treaties that the Chilean government refuses to sign (Escazú Agreement).
In view of this, and according to the analysis carried out further below, the bill submitted to Congress for discussion is insufficient in itself to achieve its own carbon-neutrality goal by 2050; it is necessary to not only afford content to the public policy instruments mentioned in it, but also to amend other legal bodies that the bill does not mention.
That said, recognizing that the Climate Change Framework Bill is of extreme importance for purposes of moving our country forward, in a just transition toward an economy low in greenhouse gas (GHG) emissions that is respectful of human rights and in solidarity with the interests of future generations and our environment, it seems necessary to review some aspects, developed below.
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Institutional Framework
The draft bill describes the institutional framework for climate change, recognizing the role of the various state bodies and agencies that have thus far been involved in managing climate change in the country (7 sectorial ministries). This means: 1. Stretching the competencies of the Ministry of Environment (MMA) in climate change matters; 2. Enshrining the competencies and jurisdiction over climate change matters of certain sectorial Ministries; 3. Creating the Scientific Committee; and 4. Redefining the members and role of the Council of Ministers for Sustainability and Climate Change.
With this, the bill takes on, in part, the recommendations made in the 2016 OECD Report regarding the need to formalize the role of sectorial Ministries that, until now, have not prioritized this issue as a result of which, in the face of any sectorial urgency, climate change-related actions are delayed.
Nevertheless, the bill recognizes those authorities indicated in Article 16 as sectorial authorities on climate change. Article 16 mentions, incidentally, the most relevant ministries for climate action on mitigation, such as: Energy, and Transport and Telecommunications. However, the exhaustive list in Article 16 lays bare the difficulty in recognizing climate change as a cross-cutting issue for the Chilean State, in which each national or sub-national body or agency has a role to play. In fact, climate change is a complex problem due to its multi-sectoral, multi-causal, long-term nature, with high levels of uncertainty, which makes it imperative to assume the problem as a State matter. From this perspective, it seems appropriate to accord competencies over climate change to all State bodies. This idea is reinforced in Article 21 of the same draft bill, which recognizes the need for State bodies and agencies to consider, where appropriate, the variable of climate change in the development and evaluation of their policies, plans, programs and regulations. As such, Article 21 seems to contradict Article 16. However, it is feasible that in this scenario Article 16 will take precedence; for the other ministries, taking on the issue of climate change is merely optional and not mandatory as is the case for those expressly mentioned in Article 16.
From the perspective of the national level of government, it is worth underscoring, for example, the role of the Ministry of the Interior and Public Security or the Ministry of Women and Gender Equality, which have much to contribute in the development of public policies on internal security (for example, in the area of extreme climate events, national and population security, and new risks to human settlements, redefining the role of the ONEMI, mentioned in Article 2(e), with regard to sectorial adaptation plans) and gender policies (in reference to the gender perspective included in the bill in various articles, e.g. Article 2, 18, 31). It also highlights the role of the Ministry of Social Development and the definition of the social price of carbon in public investment.
From the sub-national perspective – unlike the guidelines developed internationally, comparative experience and the observations made during the bill’s public consultation process – the bill under discussion does not constitute any progress in relation to the current situation, except for the legal enshrinement of the existence and role assumed until now by the CORECC (Article 23) and the ETICC (Article 22). In the case of the Municipalities (Article 24), their role is relegated to collaborating in climate change management and their participation in the CORECC and, as such, in the drafting of the Regional Action Plans. Under this perspective, the bill does not recognize Municipalities as having new specific competencies in the area of climate change that would allow them to play a leadership role locally and to directly tackle the impacts caused by this phenomenon on the territory.
The creation of a Scientific Committee (Article 18) composed of 9 members with regional representation is a step toward the development of evidence-based public policies. However, the definition of this body is limited, and its task will depend largely on the level of research carried out in our country and on the future policy of the Ministry of Science, Technology, Knowledge and Innovation. In this respect, the stability and the projection over time of the science and research policy that will feed this committee’s work is fundamental.
With regard to the Council of Ministers for Sustainability and Climate Change, the aforementioned 2016 OECD report indicated that this body does not have a strategic view of the climate policies submitted for its approval and that it limits itself to approving or rejecting public policy instruments. In this sense, the bill fails to advance a redefinition of this Council’s functions with a view to having the Council’s intervention in the approval of policies serve to more efficiently safeguard them.
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Instruments
2.1 Instruments and Mitigation
The greatest contribution of the bill is the enshrinement of the 2050 carbon-neutrality goal in accordance with the provisions of the Paris Agreement. This raises the question as to how to achieve this goal. The bill offers some definitions in this regard.
The most important public policy instrument contemplated by the bill is the Long-Term Climate Strategy (LTCS) (Article 5), which defines carbon budgets at a sectorial level and an update through the NDC. Nevertheless, how these budgets will be achieved or respected is up to each sector, defined through their sectorial mitigation plans. It is worth noting that sectors can request not to meet the target or to lower it.
In relation to the latter, if the LTCS involves a procedure with citizen participation, a consultation with the scientific committee, participation by the sectors, and approval by Supreme Decree signed by the Ministries of the Environment and Finance, among others, it does not seem permissible for the sector to later dissociate itself from that carbon budget defined in the Long-Term Climate Strategy. Indeed, according to the provisions of the bill’s Article 5, it is up to the Council of Ministers for Sustainability and Climate Change to decide on whether or not to approve the request. From that moment on, the review will be carried out in accordance with Article 8 on the preparation of sectorial plans. In this respect, it is necessary to make explicit, at least, the citizen participation stage and contribution of the Scientific Committee in the face of a decision that, precisely, could contravene one of the principles established in the bill – the principle of no regression.
Given the current state of climate emergency, the obstacles and barriers that sectors may face in order to comply with the carbon budgets defined in the LTCS should not be solved by lowering their commitments, but rather by having the State institute pathways to seek alternative solutions or compensation, always with a view to meeting the goals.
There is a lack of progress reports from the sectors. One report (National Climate Change Action Report) compiles and lists all the measures to which the sectors are committed; however, such a report seems insufficient in terms of implementing adequate monitoring and accountability if no one submits the report to a hierarchical superior or if there are no sanctions or pathways of collaboration to steer sectors toward their goals. It would be desirable to establish some mechanism to compel/steer sectorial Ministries toward meeting their own targets through incentives, sanctions and/or collaboration.
Emission standards are incorporated as a tool to support the achievement of sectorial targets for meeting the sectorial budgets defined in the LTCS. Nonetheless, there is no explanation as to why it is necessary to regulate emission standards in this framework law in circumstances where Law 19,300 already does, without any distinction or specificity.[1] In accordance with this, a broad interpretation of the current regulations is appropriate and desirable in order to be consistent with international commitments, as demonstrated by the experience of the region and, in particular, by the Colombian Supreme Court in establishing the causal link between deforestation in the Amazon, increased greenhouse gases, rising global temperatures, and the impact on the Colombian population and the world’s population of present and future generations. Conversely, adopting a restrictive interpretation of current regulations that precludes the immediate enactment of a greenhouse gas emission standard reminds us of the nefarious position adopted by U.S. authorities in the emblematic case of Massachusetts, which is incompatible with the leadership of the COP 25 presidency.
Ultimately, the issue of mitigation is well-developed in the bill, however we still do not know how the goal will be reached – we first need to have the Long Term Climate Strategy and sectorial mitigation plans in place, as such we have a long road ahead of us within an urgent context. In this respect, there seems to be no impediment for the Ministry of the Environment to move forward in issuing GHG emission standards in accordance with the competencies established in Law 19,300.
Notes
[1] Law 19,300, Article 2(o) Emission Standards: those which establish the maximum amount permitted for a pollutant measured at the effluent of the emitting source; Article 40. The emission standards shall be established by means of a supreme decree, which shall be signed by the Minister of the Environment and the competent minister according to the subject in question, which shall indicate its territorial scope of application. Law 20,417. The Ministry of the Environment shall be in charge of proposing, facilitating and coordinating the issuance of emission standards, for which it shall be subject to the stages set forth in Article 32(3), and in the respective regulations, as applicable, considering the environmental conditions and characteristics inherent to the area where they shall be applied, and may use the best available techniques as criteria to determine the values or parameters enforceable by the standard, when applicable. (d) Pollutant: any element, compound, substance, chemical or biological derivative, energy, radiation, vibration, noise, artificial light or a combination thereof, whose presence in the environment, at certain levels, concentrations or periods of time, may constitute a risk to people’s health, the quality of life of the population, the preservation of nature or the conservation of the environmental heritage.
