'Blowing in the Wind?': Environmental Liability of Corporations for Atmospheric Damage in Chile

Chilean Law 19,300/1994—the General Law of the Environment—provides a statutory mechanism for holding polluting corporations liable for the damage that they cause to the environment. It works as an adjudicative and adversarial framework for finding liability and ordering remediation measures to redress environmental damage. In the last decade, citizens living and working in highly polluted areas have sued corporations owning power plants and mining establishments for causing atmospheric damage, being ordered to remediate it through emissions reductions. The literature on environmental liability in Chile has not provided yet a legal analysis on the justification, functioning, and critical problems of this model when it is used to tackle atmospheric damage. This dissertation aims to fill that gap. The thesis encompasses a positive and a negative claim. The positive claim posits that the ‘Chilean model’ of environmental liability is novel as it detaches from tort liability established in the Chilean Civil Code—the traditional legal route for recovering damages in Chile. The model would rather constitute a mixed liability regime sharing features of both tort liability and environmental policy. Then, the negative claim contends that the model may not achieve its policy goals as it faces four structural problems. First, the ‘adversarial system problem’ argues that the model relies on legal proceedings that are lengthy, delaying decisions on environmental liability and postponing remediation of atmospheric damage. Second, the ‘standing problem’ holds that the model features a rigid standing rule, limiting the capacity of potential plaintiffs to claim remediation before environmental courts. Third, the ‘causation problem’ holds that the model lacks sufficient resources and incentives for tackling informational and conceptual gaps in determining contributory causation of atmospheric damage by big polluters. Finally, the ‘remedy problem’ asserts that the remedial structure of the model does not lead to a mechanism for remediating atmospheric damage caused by multiple sources of industrial air pollution promptly. By exploring the legal history of environmental liability in Chile and undertaking some legal comparisons on the subject, this thesis aim to illuminate the frontiers and futures of environmental liability in Chile.

Name dc:type.qualificationname

Doctor of Philosophy (PhD)

Level dc:type.qualificationlevel

Doctoral

Grantor dc:publisher.institution

University of Cambridge

Year dc:date.issued

2024

Author dc:creator

• Leal Vasquez, Brigitte Nayisol

Advisor dc:contributor.advisor

• Morgan, Jonathan

• Environmental Law
• Environmental Liability
• Private Law

Licence

• https://apollo8-f-pro.lib.cam.ac.uk/bitstreams/a1c00eb1-cfb8-4c3c-b8e1-b7ed8cb2bea4/download
• https://www.rioxx.net/licenses/all-rights-reserved/

Language dc:language

eng

DOI dc:identifier.doi

https://doi.org/10.17863/CAM.109882

OAI identifier oai:identifier

oai:www.repository.cam.ac.uk:1810/370463