Policy Brief | Comments on the Climate Change Framework Bill (2nd part)

Pilar Moraga, Deputy Director of the Center of Environmental Law of the School of Law of Universidad de Chile and Principal Researcher of the Governance and Science-Policy Interface line at the Center for Climate and Resilience Research (CR)2

This paper is a continuation of the policy brief “Comments on the Climate Change Framework Bill (1^st Part)”, which can be found on the website of the Climate Change Law Observatory.

3. Instruments and Adaptation

The bill has a sectorial approach to adaptation, and the response to the impacts of climate change exceeds this logic. From this perspective, experience dictates that coordination efforts by a sectorial Ministry with a productive vocation compared to other State services is not enough to tangibly and efficiently face this problem. As such, the bill under discussion does not epitomize substantial progress in relation to the current situation. An example of this is the Fishing Sector Adaptation Plan’s zero contribution to the environmental crisis originating from the dumping of 9,000 tons of dead salmon into the sea during an algae bloom, of which the sectorial authorities were aware, after the rise in sea level temperature in the Reloncaví area.

In light of this, we need an understanding and development of public policies and adaptation actions that seek to remedy the impacts of climate change revolving around the specific problems the country is encountering, such as issues relating to heat waves, drought, floods, coastlines, red tides and cities. These climate change impacts, which generate problems in our country, involve different State bodies and agencies, and sectorial coordination is insufficient to address these problems when there is no hierarchical superior entity to whom to report or otherwise no rendition of public accounts is made to the population through National Congress. Indeed, the problems caused by the impacts of climate change must be addressed in an articulated but intersectoral manner. There may be coordinating ministries, but involvement of the sectors that must respond to this issue must be had.

The foregoing also requires taking into account regional particularities and the vulnerability of various communities (mentioned generically in the bill) in adaptation plans. Given the country’s geographic and climatic diversity, adaptation plans should consider the regional, geographic and problematic diversity of climate change, as is currently occurring with sectorial adaptation plans involving fisheries and aquaculture or cities. Accordingly, if what is being sought is a concrete and efficient response that manages to protect the population from the impacts produced by this phenomenon, it seems essential to break the logic of the territory’s organization as we know it and the organization of the State in its sectors, since they fail to provide the necessary response in terms of adaptation.

The current state of the Climate Change Framework Bill, by reinforcing the sectorial and coordination approach and not enhancing the regional and local viewpoint, makes no progress in adaptation policy and simply reproduces the current model, which is broadly insufficient in the face of the climate emergency and the impacts suffered by the territory in terms of drought, heat waves, and other climatic phenomenon. It also fails to identify the vulnerable communities and omits any reference to indigenous communities and ancestral knowledge, despite the social crisis that the country is currently experiencing.

4. Participation

The concept of participation is one that is complex and broad, different from that of public consultation. There are two policy briefs published on the Climate Change Law Observatory’s website (www.leycambioclimatico.cl) that analyze participation in the bill’s discussion process.

According to the evidence provided by these analyses, the participation of the Ministry of the Environment in drafting the bill is limited to furnishing information and not to the development of citizen participation processes, as defined in our own legal system (Law 19,300) and International Treaties.

Furthermore, how the observations from the regional consultations contributed to the development of the draft bill is unknown. Despite the fact that a consultant (WSP) was hired to execute this process, there is no final report that provides an account of the observations made and would allow for us to confirm that these comments and observations were received and included in the draft bill published by the Ministry.

Also unknown is how the observations of the draft bill are accepted or rejected for the purposes of assembling the bill, since at the time the bill was submitted to the National Congress, the Ministry of the Environment had not yet published the responses to the observations made. Nor are the criteria used by the Ministry of the Environment to accept or reject comments made regarding the bill known. There are examples in comparative experience in this regard – for example, Peru has clear guidelines that include criteria for accepting or rejecting an observation in this area.

The weaknesses observed in the area of citizen participation constitute a clear step backwards in relation to how we currently understand this institution within the framework of Law 19,300 and of international legislation, by limiting citizen participation to a public consultation. Such an option in defining public policy is not permissible in the current social crisis that the country is going through, in the context of which, precisely, the authorities’ disregard of citizen concerns is being claimed. The situation becomes more worrying and sensitive still in the year in which the Minister of the Environment has assumed the presidency of the COP 25 and, consequently, leadership of the international negotiations on this subject.

Participation, access to information and access to environmental justice are fundamental rights, recognized as such by various international treaties. In this regard, there have been serious questions from international organizations about the State’s violation of human rights against the population during the social unrest, in response to which the government has reaffirmed its commitments to human rights. Nevertheless, human rights are indivisible and, therefore, their protection cannot be based on affording respect to certain rights and ignoring others, as in the case of Chile, where the signing of the Escazú Treaty was tossed aside based on arguments that are completely challengeable from a legal perspective.

Climate change exacerbates human rights violations (including participation, access to information and environmental justice), as seen in the specialized literature and addressed in international climate change negotiations. Thus, the step backwards taken by the Climate Change Framework Bill in terms of citizen participation and the Chilean government’s refusal to sign the Escazú Agreement in the year when it heads the COP 25 presidency weakens the population’s situation in the face of the risks generated by this global phenomenon.

Other comments

The Climate Change Framework Bill addresses various topics that are of extreme relevance to the country’s climate problem. However, the definition in its current state fails to contribute to providing concrete answers. We refer in particular to:

The SEIA. There is a clear demand in terms of defining how the SEIA will address climate change, both from operators, the SEA and civil society. The bill in question mentions the issue without directly solving it, as it generically points to the need to consider climate change for future effects and omits to incorporate the GHG measurement into the projects and activities that are entered into the system.

Water security. It seems of the utmost relevance that this issue has been incorporated in the bill. However, the water basin management plan fails to provide an actual and concrete answer to the water crisis situation the country is currently facing which requires, of course, a new regulation at both the constitutional and legal levels (Water Code), as far removed as possible from the ideology and protection of individual interests and as close as possible to safeguarding the public interest and the protection of people’s fundamental rights, regarding a vital element for human life.

Territorial Planning and Strategic Environmental Assessment (EAE for its acronym in Spanish). A Land Use Planning Law for our country is a pending and fundamental issue to be able to significantly advance in terms of adaptation and mitigation so as to thus define the uses of the territory under criteria of equity.

The draft bill submitted for discussion is not enough in itself to achieve its own purpose. To do so, the definition of the public policy instruments mentioned in the bill is necessary and other legal bodies must also be amended. Concerning this, a research team from the Climate Change Law Observatory has initiated a study to identify which of these rules, regulations and laws must be amended. Preliminary results have already been prepared by 30 experts, which have been submitted for comments from the general public.