We may be here for a while: Chile's Environmental Impact Review Process

Since August 2008, many key developments in NRDC’s BioGem campaign against the proposed HidroAysén mega-dam scheme in Patagonia have taken place within the arena of the environmental impact review system (called SEIA, or Sistema de Evaluación de Impactos Ambiental).  This process has proven complicated, and I’ll admit often baffling, to understand.  Since this is such a fundamental part of our campaign, I think a short summary of the process will be a helpful resource, especially as it now seems that participants on both sides of the controversy will be playing in this arena for a while longer.

Overview… and acronyms

The SEIA was established in 1994 in Chile’s Law No. 19,300.  The law states that owners of proposed projects must provide either a Declaration of Environmental Impacts (DIA) for projects with smaller effects, or a Study of Environmental Impacts (EIA) for projects causing, for example, one or more major impacts on the quantity and quality of natural resources and significant effects on the landscape.  I will only discuss EIAs, since DIAs are irrelevant within the context of HidroAysén.

If a project affects more than one of Chile’s 15 regions, the National Environmental Commission (CONAMA) conducts the review.  If a project’s impacts remain within a single region, the review process is conducted by the respective Regional Environmental Commission (COREMA), under direction of that COREMA’s Intendente.  If HidroAysén mega-dams and the transmission lines had been considered one project, then the process would have fallen under the jurisdiction of CONAMA.  However, since they are being evaluated as two separate projects, the Region of Aysén’s COREMA has jurisdiction over the review process for HidroAysén currently underway. 

Project submission and review

A company proposing a project officially begins the environmental review process when it publishes an excerpt from its EIA in the official gazette and regional newspaper.  The environmental authority (either CONAMA or COREMA) distributes the full EIA to the relevant state agencies (e.g. the National Water Authority, the Ministry of Agriculture, etc.) and local municipalities, which have 120 days to review the document and submit their comments to the authority.  In the case of HidroAysén, the company submitted its 10,500-page EIA to Aysén’s COREMA on August 14, 2008, which circulated the document to 36 state agencies.  In mid-November 2008, 32 of those agencies delivered some 3000 criticisms, overwhelmingly finding the EIA inadequate for approval. 

At this point, COREMA would be expected to convene all of the state agencies to discuss and vote on the EIA.  The agencies could approve, reject or send the environmental study back to the company to make improvements (which they would deliver in an additional document called the Addenda).  In this last option, the agencies would consolidate their observations into one document (called an ICSARA, or Informe Consolidado de Solicitud de Aclaraciones, Rectificaciones y Ampliaciones) and deliver it to the company.  This was a controversial moment for COREMA last November, when the Intendente decided not to convene the agencies, but instead independently granted HidroAysén a nine-month suspension period to create the Addenda to its EIA.  (A team of lawyers consequently filed a motion to declare the Intendente’s action illegal, and are expecting a final decision in less than two weeks.)

Importantly, the public has an opportunity to participate in this phase of the process.  All EIAs are available to the public online.  Effected citizens, universities, NGOs, professional groups and others can submit their own comments on the EIA to COREMA (or CONAMA, as the case may be), which is expected to consider these observations when making its own decision on the EIA.  However, there is no legal requirement for the company to address the public comments.  In 2008, the public filed literally thousands of comments on HidroAysén’s EIA.  But the 60-day period for public participation was cut short by five days when the Intendente granted the company the nine-month suspension.

Addenda submission and second review

HidroAysén had until August 26th, 2009 to create the Addenda to its EIA, with the purpose of addressing the agencies’ criticisms in the ICSARA.  Five days before the deadline, the company asked for and was granted an additional two months.  So on October 20th, the second review process began when HidroAysén delivered its 5000-page Addenda to COREMA, which then distributed the document to the 32 state agencies.  These agencies had 15 business days to review their respective sections of the Addenda and file comments with COREMA.  During this second review phase, there is no opportunity for public participation. 

What could happen next

This brings us to the present:  COREMA now has the agencies’ comments, and must decide whether to convene the agencies for a vote, or act independently again.  The agencies could approve the EIA with its Addenda, reject them, or send them back to HidroAysén with a new ICSARA for another round of the same steps.  In theory this cycle could go on indefinitely, the only limiting factor being the number of days that the environmental authority, COREMA, has the process in its control (it’s limited to 180 days).  Last week, COREMA announced that it would delay its decision until after the first round of the presidential elections.  Since the elections took place yesterday, the decision can be expected any day.

Eventually, when the company has addressed all of the agencies’ criticisms to satisfaction, the agencies will each submit their final reports to COREMA, which will then prepare the Final EIA.  The agencies will then have 5 days to review the FEIA and issue a final approval or final rejection of the project.  These are sent to COREMA’s board, which will vote on whether to approve or reject the EIA.

A few notes and observations

Several important details about the SEIA also deserve mention here.  For one, this process is designed to encourage development, that is, it is biased towards the companies and not the environmental authority.  Proof? 

  • First, the number of days that the process is in the hands of the authority is limited to 180 days total; the number of days the company controls the process is unlimited. 
  • Second, any absence of response on the part of the authority or state agencies is effectively understood as an approval. 
  • Third, if an agency does not submit comments on the EIA or Addenda, not only is it effectively approving the EIA, but it is also implicitly agreeing to grant any permits within its authority that are required for the project.

Also noteworthy is the weight given to—or not given to—public participation.  Although the first review phase does include an opportunity for the general public to submit their observations, the Intendente’s preemptive decision to grant HidroAysén’s request for more time before the public participation period was over illustrates the lack of importance of citizens’ opinions in the overall process.  Equally telling is the complete absence of public participation after this first phase. 

Finally, on November 11th, 2009, Chile’s Parliament passed a new environmental law that creates a full Ministry of the Environment.  Among other structural changes, the law also establishes an Environmental Evaluation Service and modifies the SEIA.  The law is currently being reviewed by the Constitutional Tribunal.  Let’s hope the final result addresses some of the blaring flaws of the current SEIA and creates a fair, even and thorough environmental review process for development projects in Chile.