Environmental Civil Liability in the Mercosur Region South America

In this chapter, from a theoretical approach, we deal in this first section with environmental responsibility, environmental damage in the Argentine Republic, civil liability derived from ecological damage, the causality assumption, the role of the judge in the environmental process, and the sanctions to environmental damage. Under the subheading Environmental Protection, we develop the precautionary principle as an instrument of environmental policy and management, the Role of the Judge in environmental protection and its powers to issue precautionary measures, and the Responsibility of the State and its obligation to take appropriate measures for environmental protection. On the other hand, we analyze under this same title the prevention and cessation of the damage, and the preventive claim of the damage with the cardinal rule of the principle of prevention. With a comprehensive vision, we raise the issue of environmental insurance, we analyze from the empirical point of view, the three regulations that give rise to it, and we mention in the jurisprudence of three leading cases. Finally, we conclude with environmental damage and insurance activity, with reference to Joint Resolution 2/2019 of the National Insurance Superintendence that expresses the basic guidelines for the contractual conditions of insurance policies.

In the second section of chap. 6, from a theoretical approach, we analyze the Environmental Constitutional Guardianship as protection of the environment; the Environmental Impact Assessment Law that provides for the protection of the environment, the prevention of environmental impact, and the recomposition of the damaged environment. On the other hand, under subheading Environmental Damage, we interpret Article 3 of Law No. 17,283 followed by the statement of objective/subjective responsibility. Under the subheading Procedural Legal System, we analyze the particularities of the system. Regarding Urgent Consideration Law No. 19,889 and the environment, it is worth mentioning that the rule gives rise to the creation of the Ministry of the Environment. To conclude, in relation to the project of the Norm on Environmental Responsibility being studied in the Parliament, the future regulation of said provision will determine the terms, limits, and conditions of environmental insurance.

In the third section of chap. 6, we discuss the topics related to environmental responsibility in Chilean legislation. Under the subheading Concepts, we develop the precepts of Law No. 19,300 on General Bases of the Environment and the general regulations on civil liability derived from environmental damage. On the other hand, we analyze the role of the state represented by the government entities responsible for authorizing and supervising activities that produce environmental impacts or contamination and the procedural legal system in case of environmental infractions. Finally, and applying a global approach to what is discussed in this section, we consider it relevant to mention the environmental liability policy marketed by the Chubb de Chile insurer.