CONSTITUTIONALIZING THE PUBLIC TRUST DOCTRINE IN CHILE.

• Author: Blumm, Michael C.

1. INTRODUCTION 650 II. BACKGROUND 653 III. CHILE AND THE ENVIRONMENT 656 A. Inadequacy of Institutional Change 656 B. The Inadequacy of Current Constitutional Language 658 IV. HISTORY AND ELEMENTS OF THE PUBLIC TRUST DOCTRINE 661 A. Origins of the Public Trust Doctrine 661 B Elements of the Public Trust Doctrine 663 V. EXAMPLES OF THE PUBLIC TRUST DOCTRINE FROM U.S. LAW 665 A. The Non-Ali enation Principle 666 B. The Obligation of the Trustee 667 C. The Distinction Between a Trustee and a Proprietor 668 D. The Principle of Heightened Judicial Scrutiny 669 VI. THE POTENTIAL EFFECT OF A CONSTITUTIONAL PUBLIC TRUST DOCTRINE IN CHILE 671 A. The Rule of No Compensation 671 B. National Goods for Public Use and the Social Function of Property 672 VII. ENFORCING THE PUBLIC TRUST DOCTRINE IN CHILE 674 VIII. CONCLUSION 676 APPENDIX 678 I. INTRODUCTION

   The Chilean people have expressed widespread concern that current government, operating under the dictatorship constitution of 1980, has failed to protect the environment. (1) In a 2019 survey, eighty percent of Chileans stated that the environment was in a bad or very bad state.' (2) It was therefore no surprise that environmental protection was an important issue in the constitutional reform process which recently took place. In a plebiscite held in October 2020, seventy-eight percent endorsed a new constitution. (3) Support was even greater in areas of the country with a high concentration of polluting industries, where eighty-nine percent of voters supported constitutional reform. (4)

   Although the 1980 Chilean Constitution nominally "promote[s] the preservation of nature," it has proven ineffective, as the government often prioritizes private property rights over the protection of natural resources. (5) The current constitution inhibits environmental protection not only due to its overprotection of private property, it also imposes limits on regulatory authority. (6) For example, the government both grants and vigorously protects private rights in water use, rather than protecting water as a public resource. (7)

   The recent constitutional reform effort gave Chile an opportunity to require that the government provide greater environmental protection. One means of doing so, as recommended by the Chile California Conservation Exchange (CCCX), would be to incorporate the public trust doctrine into the constitutional text. (8) Adopting constitutional trust principles would have imposed a duty on the government to protect natural resources both for the present public and future generations, a duty absent in the 1980 constitutional framework. (9) A constitutional public trust doctrine would obligate both the Chilean legislature and other branches of government to take action to protect the environment, and would also have given courts a standard by which to judge the government's performance of that duty. (10) Constitutionalizing the public trust doctrine would have elevated public rights and provided the increased environmental protection Chileans have been seeking. (11)

   The public trust, an ancient doctrine dating back at least to the Roman Empire, was imported into Spanish civil law through Las Siete Partidas, a 13th Century Castilian treatise on Spanish law that contained language from the 6th Century Justinian Institutes, endorsing what we now call the public trust doctrine. (12) The doctrine has a long history in the Anglo-American common law, where it has become "one of the most important and far-reaching doctrines of American property law." (13) The doctrine maintains that natural resources are held in trust by the sovereign for the benefit of the people, including future generations. (14)

   Chile is not the only South American country to seek increased environmental protection through recent constitutional reform. In 2008, the Ecuadorian electorate overwhelmingly affirmed a new constitution, establishing a right of people to "benefit from the environment and the natural wealth ... to enjoy the good way of living." (15) In 2018, the Colombian Supreme Court, without using the term public trust, concluded that the Colombian government had a sovereign duty to protect the Amazon forest for future generations. (16) Both Colombia and Ecuador recognize constitutional rights of nature, rights possessed by an ecosystem--declaring that "[n]ature has the right to be restored." (17) Rights of nature reflect an indigenous tradition of seeing all ecosystems as connected, and humans as a part of the ecosystem they inhabit. (18) The movement to constitutionally protect environmental rights in Colombia and Ecuador provides some context for the movement in Chile. (19)

   This Article explores the benefits of constitutionalizing a Chilean public trust doctrine. Part II provides background information about recent civil unrest in Chile, the process of drafting a new Chilean constitution, the constitutional language suggested by the CCCX, and the results of the recent referendum. Part III describes the shortcomings of the current environmental protection in the Chilean constitution, beginning with a description of the precipitating environmental events, explaining why the existing constitutional language inadequately protects the environment. Part IV briefly explains the roots of the public trust doctrine, starting with its ancient Roman roots and its incorporation into Las Siete Partidas, and describes its basic elements. Part V supplies examples of the public trust doctrine in U.S. law. Part VI explores the potential effect of a constitutional public trust doctrine in Chile. Two likely effects are: (1) the imposition of an enforceable duty on the government to take affirmative action to protect the environment; and (2) a requirement that the government provide environmental protection while accommodating private property rights. Part VII compares the enforcement mechanisms of Chile and the United States, including Chilean environmental courts which could have played an important role in early enforcement of the public trust doctrine. The Article concludes by arguing for inclusion of the language drafted by the constitutional convention in future iterations of the Chilean constitution. This language would prompt legislative and executive action to protect the environment and provide Chilean courts a standard to review legislative and executive efforts.

2. BACKGROUND

   Not long ago, Chile was considered one of the most stable democracies in Latin America. (20) In late 2019, however, Chile experienced violent civil unrest not seen since the restoration of democracy in 1990. (21) In November 2019, Chile's political parties reached an agreement to restore stability, promising constitutional reform legislation. (22) The ensuing legislation established a three-stage process. (23)

   The first step was a plebiscite, held on October 25, 2020. in which seventy-eight percent of Chilean voters supported a constitutional convention to draft a new constitution. (24) Support was even greater in the so-called environmental "sacrifice zones," that is, areas of the country with a high concentration of polluting industries. (25) Approval of the convention in these zones was eighty-nine percent, eleven percentage points higher than the general vote. (26)

   Step two occurred in May 2021, when Chileans elected delegates to the convention. (27) The process required gender parity and the inclusion of Indigenous people. (28) Also in May 2021, scholars from Chile and the United States, organized by the CCCX, produced a report examining the public trust doctrine and evaluating its potential role in the new Chilean constitution. (29) The report concluded that the public trust doctrine would provide an important legal tool for environmental protection in Chile, and suggested that the constitutional text should:

   (1) establish a duty on the part of the State and its subordinate agencies to protect nature (including the integrity of terrestrial, marine, and freshwater ecosystems) for the health and benefit of the public including future generations and (2) provide that when it is in the public interest to allow the private appropriation of natural resources the State has a duty to assure that such private use does not substantially diminish public rights and is in the public interest. (30) The report emphasized that the duty created by the constitutional public trust doctrine must be enforceable by citizens. (31)

   These recommendations were favorably received by the convention, which drafted a proposed constitution that announced "[n]atural common goods" as "elements or components of nature over which the State has a special duty of custody in order to secure the rights of the nature and interest of present and future generations." (32) When the government permits private appropriation of natural common goods, "the duty of custody of the State implies the power to regulate their use and enjoyment." (33) The draft language would have also established a right of the public to enforce the trust. (34)

   Step three was a second plebiscite held on September 4, 2022. (35) For reasons unrelated to the public trust doctrine, (36) Chilean voters soundly rejected the proposed constitution by a margin of sixty-two to thirty-eight percent. (37) Thus, the military junta's 1980 constitution will remain in place. Despite the result of the plebiscite, some polling indicates as many as seventy-four percent of Chilean voters support a new redrafting process, (38) and President Gabriel Boric has also voiced his support. (39) Any subsequent draft a new constitution will likely result in a more politically centrist document. (40) However, there is reason to hope that the strong environmental protections established in the proposed constitution--including the public trust doctrine--can be carried into a future constitutional drafting process. (41)

3. CHILE AND THE ENVIRONMENT

   Demand for better environmental protection has been growing in...