Mejillones Tourist Service Association and others with the Environmental Evaluation Service (SEA) of Antofagasta

On September 9, 2021, the Mejillones Tourist Services Association and other local community organizations brought a constitutional action before the Court of Appeals of Antofagasta challenging the rejection by the Environmental Assessment Service of Antofagasta to include climate change variables into the exceptional revision of the Environmental Assessment Resolution No 290/2007 of September 7, 2007, of the thermoelectric power plant Angamos of AES Gener company. The plaintiffs claimed that the lack of consideration of climate change violated their constitutional rights to life, equality before the law, the right to live in an environment free of pollution, and property rights. On August 31, 2021, the Court of Appeals of Antofagasta rejected the plaintiff's claim on procedural grounds (Case Nº 6930-2021). The Court found that the matter in question was beyond its competence, as it involved the exercise of powers belonging to the executive branch. It added that the controversy is a matter under the jurisdiction of the Environmental Court. The plaintiffs subsequently appealed the decision. On April 19, 2022, the Chilean Supreme Court (Case No. 71.628-2021) overruled the decision of the Court of Appeals and upheld the plaintiff's appeal. The ruling orders the Antofagasta Environmental Assessment Service (EAS) to include environmental variations caused by climate change in the extraordinary review process of the Environmental Authorization for the project. The Supreme Court understood that the article 25 quinquies of Law No 19.300 allows this review, including variables that were not considered when granting the original resolution of environmental qualification. The judgment expressly mentions Chile's obligations under the United Nations Framework Convention on Climate Change, considering that this mechanism is applicable to regulate situations that were not previously foreseen, such as the climate change variable. Therefore, the SEA must initiate an analysis of the atmosphere component, considering the elements that have changed in the terrestrial environment caused by climate change.