A new Chilean bill would punish environmental crimes and promote environmental stewardship
Chile Administrative Law Alert
On January 22, an environmental protection bill came before the Chilean Congress that would set stiffer penalties for environmental crimes and grant the Chilean environmental authority more oversight and prosecution powers.
The main proposals under the bill are as follows:
1. Promote environmental stewardship by:
Criminalizing those culpable and willful acts that cause a significant loss, impairment, detriment or deterioration to the environment, penalizing them with prison sentences of between 61 days and 5 years and fines of up to 1,000 monthly tax units (UTM) (US $72,000). These penalties are separate from and additional to those sanctions and administrative fines that the acts themselves could warrant.
Potentially penalizing companies for environmental crimes under Law 20,393, which governs criminal liability of legal entities. Under that law, companies may be held liable for certain crimes committed directly and immediately in their interest or for their benefit, by their owners, comptrollers, managers, key executives, representatives or any other party carrying out administrative and supervisory duties, as well as by individuals reporting to or directly supervised by any of the above, provided that the crime was committed because the legal entity failed to fulfill its duties of supervision and direction. Such legal entities could be temporarily barred from signing government contracts, forfeit tax relief or be fined between 400 and 40,000 UTM.
Requiring companies to take preventive measures, specifying the activities or processes in which the risk of environmental crimes arises or increases in their crime prevention models, which include, among other elements, appointing an independent prevention officer and implementing and certifying a crime prevention system.
2. Endow the Chilean environmental authority with a broader and exclusive role in supervising and penalizing infringement of environmental laws, through:
New supervisory functions, such as:
The power to compile the necessary evidence to enforce reparations in the event of environmental damage;
The power to request court authorization to enter public or private land, record and seize objects and documents and intercept messages.
Criminalizing the following: (i) providing false or incomplete information to evidence compliance with environmental obligations; (ii) obstructing the supervisory efforts of environmental authority personnel.
The exclusive power to initiate criminal suits for environmental crimes, once a final judgment by the corresponding Environmental Court has determined that environmental damage has been caused.
3. Establish stiffer minimum administrative fines to be levied by the environmental authority for infringements of Law 20,417:
Very serious infringements: Revocation of the Environmental Qualification Resolution (RCA), closure or fine of between 5,001 and 10,000 annual tax units (UTA) (US $4,500,000 – US,$8,500,000)
Serious infringements: Revocation of the RCA or fine of between 1,001 and 5,000 UTA (US $850,000 – US $4,500,000)
Minor infringements: Written reprimand or fine of between 1 and 1,000 UTA (US $850 – US $850,000)