The facts
Approximately one quarter of the electricity in Chile is supplied by coal-fired power plants which issue large quantities of greenhouse gases (GHG), among other contaminants. AES Gener (recently renamed AES Andes), Chile’s coal giant, has an installed capacity that represents 54% (2,754 MW/hr) of the national total. After acquiring the Chilean power plants privatised in the ’80s, AES Gener, a transnational company with its head office in the United States, built 10 thermoelectric plants in various regions of Chile, whose atmospheric emissions contribute to air pollution, among other environmental impacts. Two of the regions where this company operates have been declared “saturated” because of air pollution levels exceeded legal limits. In August and September 2018, thermoelectric plants Ventanas II, Nueva Ventanas and Campiche belonging to AES Gener were involved in mass intoxication episodes that occurred in the towns of Quintero and Puchuncaví, in Central Chile.
In 2020, the Terram Foundation filed a claim before the Environmental Superintendence (SMA) alleging that, during these episodes, AES Gener’s plants (now AES Andes) exceeded the limit governing maximum gross power production authorized by their environmental licenses. In response, however, the environmental authority merely acknowledged receipt of the complaint and indicated that it would be subject to analysis, without ever communicating the results of the analysis. To our knowledge, authorities have not developed any environmental inspection activities, adopted any sanctions or, otherwise, dismissed the complaint, despite the fact that the legal time limit for handling the complaint was 60 days. The failure of the Chilean environmental authority to comply with its legal obligation in relation to the complaint is aggravated by the fact that in 2018 the Ministry of the Environment promoted a Prevention and Atmospheric Decontamination Plan in the districts of Concón, Quintero and Puchuncaví, aimed at preventing the dispersal of particles and other pollutants and at avoiding to exceed the sulphur dioxide emission thresholds, a toxic gaz emitted by AES Gener’s thermoelectric power plants. It should be noted that, according to official information, the company’s Nueva Ventanas plant has continued to operate above its maximum gross power production authorised levels during 48% of its operating hours in 2021. These failures by the environmental authority and AES Gener directly affect the constitutional rights of the population living in the Quintero-Puchuncavi area, including the right to life and physical and mental integrity, equality before the law and the right to live in a pollution-free environment, as recognised in the Constitution, as well as in international human rights treaties signed and ratified by Chile.
The action
In September 2021, our organisations lodged an action with the Valparaíso Appeal Court against the Superintendency of the Environment, for illegality and arbitrariness originating in the excessive administrative delay in dealing with the claim filed in 2020 relating to breach of the authorised maximum power level in the operation of the Nueva Ventanas and Campiche thermoelectric power plants, during the years 2017 to 2020. The action was also lodged against the company AES Gener and its subsidiary Empresa Eléctrica Ventanas, for continuous and repeated non-compliance with the authorised maximum power levels during the operation of the Nueva Ventanas thermoelectric power plant and, consequently, the breach of their human rights due diligence duty which seriously impacts the constitutional rights of the population living in the Quintero-Puchuncavi area, including the right to life and physical and psychological integrity, equality before the law, and the right to live in a pollution-free environment.
What we asked for
Our aim in lodging the aforementioned constitutional action was to require the Superintendence of the Environment to comply with its legal obligations by responding to the complaint filed by Terram in 2020, and by adopting the monitoring and, if needed, punitive measures that the law establishes to protect the right to a healthy environment and the right to life and to the physical and mental integrity of the inhabitants affected by the operation of the Nueva Ventanas Thermoelectric Plant, enshrined in the Constitution and the International Human Rights treaties signed and ratified by Chile. Additionally, the aim was to ensure that the company AES Gener (now AES Andes), owner of the aforementioned thermoelectric plant, complies with the obligations and operating conditions established in its environmental license with regard to the authorised maximum power levels, thus preventing pollution events such as those that occurred in 2018 from happening again.
Appeal to the Supreme Court
On 27 December 2021, the Court of Appeals of Valparaíso accepted the appeal on the SMA’s delay in responding to Terram’s complaint, but granted it an additional 90 working days to respond. On the issue of AES Andes and Empresa Eléctrica Ventanas exceeding their power output, the Court ruled that: "...these are substantive issues that are beyond the scope of this arbitration, [and therefore] will be dismissed".
Given the unsatisfactory nature of the Valparaiso Court’s decision, in January 2022 an appeal was lodged with the Supreme Court. The Supreme Court ruled on 22 July to reject the appeal, overturning the Valparaiso Court’s decision which had partially upheld the appeal.
The Supreme Court based its decision on the fact that in 2019 the SMA initiated a sanctioning procedure against AES Andes S.A., which is currently suspended, after the Compliance Programme presented by the companies involved was approved by the SMA. This sanctioning procedure was initiated by the latter in October 2019, after finding that there was an excess of electricity generation over the legally permitted gross power by the Nueva Ventanas power plant.
In December 2021, the SMA approved the Compliance Plan, under which AES Andes S.A. committed to adopt measures to comply with the maximum permitted electricity generation. In addition, it committed to reduce its emissions during the first half of 2022 by an amount equivalent to the excess emissions recorded between 2016 and 2018 and between April 2018 and December 2019.
As a consequence of this procedure already initiated by SMA, the Court considered that the appeal "lost its opportunity".
Despite the above, it is important to note that the Supreme Court recognises the negligence of the SMA in the processing of the complaint filed by Terram on the excess of permitted power. Consequently, it decided to send this information to the Comptroller General of the Republic so that disciplinary proceedings could be opened and the responsibilities derived from the omission could be pursued, given the passivity in the exercise of the SMA’s legal powers in this matter.
The results
In summary, although the appeal for protection did not succeed, the lawsuit contributed in part to the company’s commitment to reduce its polluting emissions due to the excess of its generation power and for the same reason. It also managed to draw the attention of the judiciary to the need for the environmental authority (SMA) to have the necessary diligence in the control of polluting companies such as AES Andes, formerly AES Gener.
The decision also had a subsequent political impact. On the one hand, the Nueva Ventanas plant of AES Andes being one of the almost 20 polluting industries in the Quintero-Puchuncaví Bay in the Valparaiso region, and after a new episode of pollution in recent months that once again affected the health of the population, the government of President Boric announced the closure in 2025 of the copper smelter of CODELCO, a public company, which operates in the same area. The Minister of the Environment, Maisa Rojas, subsequently announced before the National Congress theforthcoming closure of all polluting industries in the Bay.
In addition, AES Andes announced the early closure of its other thermoelectric plant operating in the area, Ventanas 1, as part of the country’s decarbonisation plan. Although this plant is the smallest of the four that make up the Ventanas thermoelectric complex it had already stopped generating electricity after almost 60 years of operation, in some ways it echoes the need to reduce its polluting emissions. This announcement is part of the total closure of thermoelectric companies planned for 2040.
For more information
Terram (2021). Decarbonisation: Much ado about nothing.
Diario Financiaro (2021). AES Gener change of name: Change goes beyond change of power station closure.
Environmental Justice Atlas (s/f) Ventanas Industrial Complex, Chile.