Opinion: Divisible RCAs?

One must bear in mind that, although there are some cases of division of RCAs in Chile, these have been exceptional and are currently not accepted by the environmental authority

A few days ago the Government presented a bill of law (Bulletin No. 11952-12) for modernizing the Environmental Impact Assessment System (“SEIA”), which proposes institutional changes, increase citizen participation and the regulation of pertinent consultations of a binding nature, among others. Among these proposals, the divisibility of Environmental Qualification Resolutions (“RCA”) draws one’s attention.

From the perspective of the owner of a project submitted to the SEIA, obtaining a favorable RCA is the expected result, since it is the environmental permit or license that will enable it to develop its project. In this context, the proposal that a RCA, which was obtained after having evaluated a project as a single unit, can be divided, generating two or more RCAs with different owners, is interesting.

In relation to this proposal, one must bear in mind that, although there are some cases of division of RCAs in Chile, these have been exceptional and are currently not accepted by the environmental authority. The main argument for this has been to avoid certain obligations, measures and environmental commitments established at the time the project was approved, remaining in no man’s land, without a specific responsible party, due to the division of the RCA.

Sharing this concern, I am of the opinion that the possibility of certain RCAs being divisible would be a positive measure, since it would make the system more flexible for the development of projects. I also believe that this can be achieved without compromising the effectiveness of the conditions established in the original RCA and, to this end, the Government’s proposal provides guidelines as to when an RCA would be divisible (when environmental impacts and the monitoring measures and conditions can be differentiated), and establishes an inclusive mechanism for infringements committed prior to the division.

Regulating the divisibility of RCAs is not contradictory to the rule that prohibits the division of projects (Art. 11 bis of Law No. 19,300), but rather complementary. On the one hand, the purpose of the division rule is for projects to be assessed as a whole, prior to their execution, even when they may comprise operative and/or temporarily identifiable units, in order to have a comprehensive assessment of the effects to be generated. Moreover, the possibility of dividing RCAs responds to an operational approach, which understands that a joint assessment does not necessarily have to make it mandatory for the approved project be executed by a single owner. It also recognizes the importance of each owner having its own RCA, for project financing purposes, for example.

By way of example, this tool could be useful for generating projects and transmission lines that were jointly assessed, but where the optimal situation would be for them to be operated by different owners. The same could happen with mining projects jointly assessed with the desalination plants responsible for their water supply, and/or with industrial complexes and their liquid waste treatment plants.

I hope that this initiative will make it through the legislative discussion, and that the way and the cases in which an RCA can be divided will be suitably regulated, achieving a balance between adequate environmental protection and flexibility for the optimal development of projects.

21 de agosto de 2018
Sebastián Abogabir
Partner at Guerrero Olivos

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