#ClavesLembeye2024 | Legislative Projects: Smart Permitting System and Enviromental Assessment 2.0

Smart Permitting System Bill, presented this month by the Government, seeks to simplify the administrative process required to obtain permits for the development of an investment project. The reform involves authorizations processed by 37 types of services, associated to 16 ministries.

Enviromental Assessment 2.0 project updates the General Environmental Bases Law and also seeks to improve existing environmental management instruments.

DRAFT FRAMEWORK LAW ON SECTORIAL AUTHORIZATIONS

The purpose of this bill is to create a framework regulation that simplifies the instruments and processes for granting permits and authorizations for the implementation and development of investment projects, in order to remove certain bureaucratic obstacles that hinder them and make effective the principles of necessity and proportionality with respect to the administrative requirements for the undertaking of productive activities.

This reform includes various provisions, among which we can mainly highlight measures such as:

(i) In certain cases, administrative permits or authorizations may be replaced by alternative techniques, such as notification or sworn statements from those involved;

(ii) A unified platform will be implemented to process sector-specific permits. This platform will provide project owners with permanent access to the processing details of their respective procedures.

iii) Regulates the hiring of private consultants by the authority to expedite the technical evaluation of permit applications. It also regulates the acceptance of private certifiers by the state. Interested parties may submit their reports to certify compliance with certain requirements before the sectoral agency in charge of granting a permit.

(iv) The authorities have limited power to require background information from permit applicants.

(v) It establishes a more efficient system for the operation of administrative silence due to the expiration of maximum terms, ensuring that permit-granting procedures adhere to legal terms. This is just one of the many improvements made.

In our opinion, certain proposals from the project should be given careful consideration during the parliamentary debate. These include the creation of a new public service, the Servicio para la Regulación y Evaluación Sectorial, as well as the Comité de Subsecretarios y Subsecretarias.. The creation of new organizational bodies is unlikely to alleviate the bureaucratic challenges faced by investment projects, especially if their responsibilities lack authority over sectoral agencies. This could inadvertently create coordination difficulties between different agencies.

Likewise, we believe that public services should embrace a cultural change that prioritizes efficient authorization processes. To achieve this, we suggest incorporating incentives for efficient permit processing, formal accountability measures, and effective procedures for enforcing administrative responsibility for deficient permit processing and missed deadlines.

PROJECT TO STRENGTHEN ENVIRONMENTAL INSTITUTIONS AND IMPROVE THEIR EFFICIENCY.

This bill, known as Environmental Assessment 2.0, aims to simplify, expedite, and provide greater certainty to the evaluation and qualification procedures subject to Sistema de Evaluación de Impacto Ambiental (SEIA).

It modernizes this system and prioritizes technical and scientific characteristics over political discretionality in its development. The other project contents do not primarily aim to facilitate the execution of investment projects. Instead, they address substantive environmental issues.

For the first set of actions, consider this:

(i) To enhance the technical-scientific nature of environmental evaluation and qualification of productive projects, it is recommended to grant greater powers to Servicio de Evaluación Ambiental (SEA) and eliminate instances of political deliberation, such as the Committee of Ministers and the Environmental Evaluation Commissions. This will ensure that the final decision to approve or reject a project is based primarily on the technical expertise of the SEA.

(ii) To prevent or reduce conflicts among citizens, two mechanisms can be implemented to provide greater certainty to the communities or individuals affected by the projects: First, the project owner can voluntarily collect concerns and suggestions prior to the project’s entry into the SEIA. This will allow for the inclusion of these concerns and suggestions in the EIS or EIA. Second, citizen participation can be expanded and facilitated during the SEIA processing to avoid potential conflicts that may arise and lead to judicialization. Failure to include citizen participation can significantly delay deadlines and result in the need to backtrack.

(iii) A mechanism of affidavits is established for cases where modifications to an RCA do not consist of substantial changes, in order to avoid submitting them to the SEIA. Currently, certainty on this aspect is obtained through a declaration of relevance that is requested to the SEA. By using an affidavit, the SEA would be relieved of a considerable administrative burden, and the interested party would save considerable processing and waiting time.

As constructive feedback for the project, we suggest distinguishing the analysis of mechanisms for expediting the SEIA processing from those that address substantive environmental changes. The latter may be more debatable or controversial in nature.

For instance, one such change could be the inclusion of projects that were previously exempt from SEIA requirements, such as power generation plants with a capacity of less than 3MW. Or, in terms of environmental damage, a change that could significantly affect the statute of limitations for actions arising from such damage, potentially resulting in situations of non-expiration.

We believe that the measures related to early citizen participation in the SEIA are positive adjustments, as long as they reduce the number of legal disputes. Therefore, the project should include rules that effectively restrict judicialization and contestability in general, while also limiting the time for interested citizens to assert their rights or claims.