Regarding the validity of a consultation on the relevance of submitting the SEIA, in environmental and criminal matters

The entry into force of the Economic Crimes Law in Chile (Law No. 21,595) has created an incentive to submit Relevance Consultations to the Environmental Assessment Service (SEA). Obtaining a resolution that indicates the activity or project should not be subject to the Environmental Impact Assessment System (SEIA) before execution exempts from criminal liability for improper environmental impact by circumventing the SEIA (Article 311 sexies, final paragraph, in conjunction with Article 305, both of the Criminal Code).

However, this exemption does not apply if the resolution of the relevance consultation was obtained through deception, coercion, or bribery of SEA officials, or if it was or became manifestly inadmissible with the project proponent’s knowledge.

Currently, there are no pronouncements regarding the scope of the aforementioned circumstances. However, there is a pending case (Casino Dreams Talca) in which the question is being raised as to whether a relevance assessment that was resolved without requiring entry into the Environmental Impact Assessment System (SEIA) could be overturned if the project owner subsequently submitted information indicating that the project is being carried out under terms different from those considered in the relevance assessment.

In this case, a key point in determining if submission to the SEIA was unnecessary was the dismissal of the potential impact on an urban wetland (“Cajón del Río Claro and Estero Piduco”) as defined in subparagraph (s) of Article 10 of the General Environmental Law (Law No. 19,300). One of the measures considered by the project proponent to mitigate this potential impact is that the project excavations would be limited to a depth of 1.4 meters, thereby avoiding the water table, which is located at a depth of 3 meters. In this way, the Environmental Assessment Service (SEA) determined that there would be no drainage, drying, extraction of water or aggregates, or alteration of the flora and fauna present within the wetland (among other criteria for wetland susceptibility to impact), since the foundations and pillars of the project building are located “above the water table level, therefore their intervention is not contemplated.”

However, this project’s approval was not exempt from problems with the community, conflicts that even reached the courts. In one of these lawsuits, the project proponent himself presented a notarized certification indicating that the excavations intended to place a drinking water tank for the task would be approximately 3 meters deep. Based on this information, a corporation (Bioecoterra) filed an extraordinary appeal with the Environmental Assessment Service (SEA) requesting the authority to analyze whether it should modify its ruling regarding the project’s relevance, specifically whether it should be included in the Environmental Impact Assessment System (SEIA).

But that’s not all: the same corporation filed a lawsuit against the project proponent, SEA officials, the Superintendency of the Environment, and the Municipal Works Department for their alleged participation in a scheme to circumvent the SEIA, which supposedly allowed the project’s execution despite its potential impact on the wetland. Specifically, the crimes alleged are: presenting information that conceals or diminishes environmental impacts and the splitting of projects to circumvent the Environmental Impact Assessment System (SEIA); undue environmental impact through circumvention of the SEIA; and serious damage to environmental components (Articles 37 bis of the Organic Law of the Environment and the Environment (LO-SMA), and 305 No. 5 and 308 in relation to 310 bis of the Criminal Code).

Beyond the environmental crimes alleged, the novel aspect of this case is that the officials of the aforementioned public services are also accused of potential administrative malfeasance and bribery (Articles 228 and 248 et seq., of the Criminal Code). All those offenses are classified as economic crimes,

of the second and third categories, under Law No. 21,595.

Without prejudice, these facts are under investigation as the criminal complaint is being processed. It should be noted that if any resolution about the relevance was obtained through deception, coercion, or bribery of SEA officials, or was or had become manifestly inadmissible with the holder’s knowledge, the resolution of the relevance consultation could be rendered ineffective, losing its value as an exemption from criminal liability facing a possible crime of evading the SEIA (a hypothesis that is also being investigated).

The effects of a ruling on environmental relevance (determining whether a project or modification needs to be submitted to the Environmental Impact Assessment System) could be annulled if the project in question does not conform to the same terms of relevance. This may occur after a declaration by the Environmental Assessment Service (SEA) or a competent court. Consequently, this could also have criminal implications (since the ruling on relevance, if declared null and void, would no longer exempt the individual from the crime of circumventing the Environmental Impact Assessment System).

This will be particularly relevant in cases involving sensitive environmental components, such as urban wetlands, where the entry criteria of Article 10, section s), will be analyzed based on risk assessment (susceptibility to impact). This could change if the works are not carried out according to the ruling terms, opening avenues for reviewing the ruling on relevance, hindering project execution, and even leading to potential criminal liability.

The projections in this case remind us of the strategic importance of relevance consultations in our current system. But more importantly, the effects of the Environmental Assessment Service’s (SEA) ruling only remain in place if the  project effectively complies with the consultation. Similarly, it is crucial that project proponents’ Crime Prevention Models remain up-to-date, identifying risks such as the commission of environmental crimes and the disclosure of information to authorities, and setting controls to mitigate or reduce them.