Special Bulletin No. 1 | Climate change and new Constitution

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Authors [1]: Billi, M., Moraga, P., Bórquez, R., Azócar, G., Cordero, L., Ibarra, C., Maillet, A., Martínez, F., O’Ryan, R., Pulgar, A., Rojas, M., Sapiains, R.

Document based on: Billi, M., Moraga, P., Aliste, E., Maillet, A., O’Ryan, R., Sapiains, R., Bórquez, R. et al. (2021). Climate Governance of the Elements. Towards an Integrated, anticipatory, socio- ecosystemic and evidence- based climate governance of water, air, fire and land. Center for Climate and Resilience Research (CR)2, (ANID/FONDAP/15110009), 69 pp. Available in: www.cr2.cl/gobernanza-elementos/

The Center for and Resilience Research (CR)2 presents this document with various proposals that, we believe, could be part of the new Constitution. These proposals are based on the analyses presented in the Climate Governance of the Elements report with the understanding that climate change defines and will define the planet’s habitability conditions for humans and non-human species.

These are organized into four categories: proposals related to principles, which indicate the foundations for the construction of the constitutional text and the society and the State that it will define; proposals related to duties (state and private); proposals related to rights; and proposals for new instruments, mainly associated with environmental management and the organization of the territory.

Principles

• Just climate action principle. This principle is the axis of the new climate governance model of the elements proposed by (CR)2. It raises the need to transform progressively our way of relating to the planet without going backward. That means carrying out, when necessary, profound transformations in our economy and society in order to reduce emissions of greenhouse gases (GHG) and other compounds that contribute to climate change (what is known as “mitigation”). It also implies generating transformations that reduce the risks of climate change and other socio-ecological threats, of natural or human origin, on people, communities, nature, and productive systems (known as “adaptation”). These actions must be oriented as a priority to protecting the most vulnerable groups, conserving ecosystems, and safeguarding the interests of present and future generations. In addition, always seeking to distribute the different costs and benefits (economic, social, and environmental) derived from the actions implemented fairly and equitably. Therefore, all the actions implemented must be based on transparent and supportive procedures, including all social actors in decision-making and the attribution and enforceability of responsibilities.

Three other key principles emanate from this principle, the central axis of the proposal:

• Anticipatory approach principle. Implies operating with a preventive and precautionary perspective, acting in the present to reduce or moderate the possible future effects of climate change and increasing resilience. Always thinking in the short, medium, and long term, and operating with caution when there is not enough information or scientific evidence on factors or conditions that could cause a socio-environmental impact.

• Territorial and socio-ecosystem approach principle. Proposes promoting measures appropriate to each territory’s particular reality to reduce GHG emissions and adapt to the required changes. Always observing and respecting integrally the socio-ecological processes and limits that characterize each territory, and, at the same time, coordinating actions between different sectors and scales (local, regional, national, global).

• Good administration principle. Proposes a rational, objective, transparent, coordinated, efficient, and effective administration that chooses strategies based on the best available knowledge, including scientific evidence and ancestral, traditional, and local knowledge. It also seeks the broad, timely, continuous, significant, transparent, and informed participation of communities, indigenous peoples, and stakeholders. Finally, it also implies transparency and active accountability of all authorities.

Duties

• The duty of the State, at all its levels and agencies, is to implement just climate actions that allow the construction of a carbon-neutral society that is resilient to climate change. That implies that all State agencies must have climate change mitigation and adaptation policies, with a long-term strategic view, including the conservation and restoration of ecosystems as public goods and the safeguarding of their sustainable use to meet the needs of present and future generations.

• The duty of private parties to work on climate change matters. In the first place, by assuming the costs of mitigating or neutralizing the greenhouse gases they generate, following the polluter pays principle. Secondly, actively promoting the conservation and restoration of the ecosystems in which they operate, thereby favoring their adaptation to the impacts of climate change, their ability to regulate the climate, and mitigation.

Rights

• Right to a healthy environment. In national and international legislation and legal practice, a minimum floor has been set to recognize and interpret the right to a healthy environment that the new Constitution should consider. That refers to a socio-ecosystem approach to having a healthy, ecologically balanced, and pollution-free environment. In addition, the interests of present and future generations of human and non-human species and the balance of the atmosphere must be considered. That implies recognizing that ecological balance, conservation, and restoration are part of the habitability conditions for human beings on the planet.

• Human right to water and sanitation. In national and international legislation and legal practice, the human right to water should not be limited to just an issue of access (as the Supreme Court of Chile has indicated in recent rulings). International standards should be incorporated as water quality criteria, information (on availability, quality, and state of water bodies), and interests of future generations. This right must also contemplate access to water and adequate water and sanitation services. In addition, to guarantee this right effective over time, it is necessary to consider the conservation and restoration of water bodies and the ecosystems that depend on them.

• Right to energy [2]. Additionally, the right to access clean, safe, and high-quality energy is considered to satisfy domestic and subsistence activities, ensuring the entire population’s provision and access to energy services. Like the human right to water, the right to energy is a fundamental right and a necessary condition for exercising other fundamental rights and guarantees. In the context of the climate and ecological crisis, this right must be ensured through an energy transition that limits fossil and water sources for electricity generation for productive and industrial use. Socio-ecological limits must be respected, and at the same time, move towards new types of energy sources to ensure the use of future generations and the integrity of ecosystems.

• Right to participation. In environmental and climate decision-making, the right to participate of all people and social groups under equal conditions must be guaranteed, considering cultural, ethnic, territorial, and gender diversity. In addition, participation must be effective, broad, timely, continuous, significant, transparent, and informed.

The legal interest protected by these rights must be considered of a collective nature. Therefore, any person can request their protection, regardless of who is or is not directly affected by their violation [3]. The State must also make available an environmental public defender. Actions to protect these rights must be directed towards a low-emission and climate-resilient society. In addition, they must ensure that those who generate more greenhouse gas emissions or contribute to generating socio-environmental impacts assume the costs associated with the reduction of said emissions and impacts.

Instruments

• A climate change state of exception. In the current constitutional text, the state of exception grants various prerogatives to the country’s authority to face an extraordinary situation. There is a need to review the definition of a state of exception in a changing climate context, where extreme weather events are increasing and intensifying, exposing the population and the territories. This instrument should consider that the risks and threats caused by climate change require strengthening the anticipatory approach and thus establishing an exception regime that allows granting extraordinary powers and resources to certain territorial or sectoral authorities for a limited time. That will create the conditions to act proactively against identifying possible and severe risks associated with climate change. That implies establishing technical criteria that facilitate the need to declare an exceptional situation based on the available scientific evidence and technical support in decision-making.

• A special climate shelter regime. It is proposed as a new tool for the conservation and restoration of ecosystems characterized by their value as climate regulators and their ecological and scientific value. That implies applying a special regime of natural spaces for their development and conservation’s integrated and harmonic management. Based on the best available evidence, this regime must guarantee the care and protection of ecosystems and climate services that these ecosystems offer, understood as part of the national heritage. It should be noted that this regime can be applied both to areas (a region, a basin, or Chilean Patagonia) or to an ecosystem service that is not limited to a particular territory. Protection can be given, among others, to glaciers, peat bogs, and wetlands even if a wetland is within the limits of a human settlement. In turn, it is possible to apply this concept both to social systems and to a city. In this case, governance that respects the principles of climate governance is required and thereby guarantees safe conditions for the habitability of its population and other species.

• Basin climate governance. It is proposed to define hydrographic basins as a new management unit, encompassing all the socio-ecological processes involved in the carbon cycle and the effects of climate change on the territory and its elements, including, but not limited to water management. By defining this new management unit, the aim is to reorient, articulate, and provide new powers and resources to the mechanisms and institutions in charge of land use planning and planning, transportation policies, and regional and community development plans. That implies providing each basin with authorities with sufficient powers and resources to articulate the central, regional, and local levels towards integrated management of the territory and its elements, considering, when appropriate, the use of solutions based on nature. It should be noted that the regions currently have a division that is generally associated with the presence of basins (101 basins in total throughout the country, which could eventually be grouped into macro-basins). The basin can serve to coordinate actions between the different municipalities and encourage these actions to have an integrated ecosystem character and contribute to the decentralization of decision-making and the strengthening of local governments. Therefore, basin governance must be climate governance of elements, not only water but also air, soil, and fire (through fire management).

Associated with all of the above, and across the entire Constitution, it is necessary to ensure the creation of mechanisms for: (a) access to information, (b) access to justice, (c) decision-making based on the best available knowledge and evidence, and (d) transparency and active accountability of all decision-making and executive authorities. That is essential to enable just climate action that complies with the principles outlined in this document (especially the principle of good stewardship).

This proposal is addressed transversally to all the Commissions:

  • Commission 1: POLITICAL SYSTEM, GOVERNMENT, LEGISLATIVE BRANCH AND ELECTORAL SYSTEM (in short “Government Commission”)
  • Commission 2: CONSTITUTIONAL PRINCIPLES, DEMOCRACY, NATIONALITY, AND CITIZENSHIP (in short “Principles Commission”)
  • Commission 3: STATE FORM, REGULATION, AUTONOMY, DECENTRALIZATION, EQUITY, TERRITORIAL JUSTICE, LOCAL GOVERNMENTS AND FISCAL ORGANIZATION (in short “Decentralization and Territorial Equity Commission”)
  • Commission 4: FUNDAMENTAL RIGHTS
  • Commission 5: ENVIRONMENT, RIGHTS OF NATURE, COMMON NATURAL ASSETS AND ECONOMIC MODEL (in short “Environment and Economic Model Commission”)
  • Commission 6: JUSTICE SYSTEM, AUTONOMOUS CONTROL BODIES, AND CONSTITUTIONAL REFORM (in short “Justice Commission”)
  • Commission 7: KNOWLEDGE SYSTEMS, CULTURES, SCIENCE, TECHNOLOGY, ARTS AND HERITAGE (in short “Knowledge Commission”)
Notes

[1] Center for Climate and Resilience Research (CR)2

[2] This section was prepared in collaboration with the Energy Poverty Network (RedPE) and Chile Sustentable.

[3] That is, by means of popular actions.