Country
Colombia
Sources
InforMEA
Tagging
Civil, Constitutional, Wetlands, Permits, Contract, Damages
Abstract

 

The plaintiffs sued the Colombian government over the constitutionality of two national laws. Law 1450 of 2011, which approves the National Development Plan 2010-2014, and Law 1753 of 2015, which approves the National Development Plan 2014-2018, were argued to have provisions that put páramos, high-altitude and vulnerable wetlands, at risk. The Court noted important features of páramos, including their fragility and their slow recuperation capacity compared with other ecosystems. The Court also referred to the interdependence between páramos and other ecosystems. Páramos source rivers that supply water to more than 70% of Colombians and provide important environmental services, such as regulating hydrological cycles and sequestering carbon for climate change mitigation. The Court recognized these services as fundamental to society because they help ensure rights to water and a healthy environment, and mitigate and adapt to climate change. While provisions in the two laws prohibit agriculture, mining, and oil exploration in páramos, the prohibition only applied to permits issued after specific dates, allowing persons with permits issued prior to these dates to continue these activities. Other provisions enable the national government to declare certain projects as being of national strategic interest, exempting activities from certain local regulations. The Court found these provisions to threaten citizens’ fundamental rights to water and a healthy environment, and found some of the provisions unconstitutional.

 

Environmental Legal Questions:

  • Were the temporal scopes of provisions prohibiting agriculture, mining, and oil exploration constitutional? Under the disputed provisions, activities with mining licenses issued prior to 9 February 2010 and hydrocarbon activities, including oil and gas exploitation, with licenses issued prior to 16 June 2011 could continue; but they required control, monitoring, and review, and the licenses could not be renewed. The Court, however, found these provisions to threaten fundamental rights, stating that the government has a duty to avoid activities that harm non-renewable natural resources and human health. When activities produce damage or when there is merit to apply the precautionary principle, protection of the environment prevails over individual economic rights acquired through licenses or concession contracts. The provisions were declared unconstitutional.
  • Were provisions about governmental delineations of páramos constitutional? The required procedures for the government to delineate páramos include a condition that the Ministry of Environment and Sustainable Development must agree with such decisions. If the Ministry does not agree, then the government must explicitly base their decisions on protective scientific standards. The Court found these provisions to be constitutional conditionally.
  • Were provisions on the designation of strategic mining reserves constitutional? The Court found that the provisions develop a public policy in the mining field that refer to the planification and delimitation of areas for management and control of such activity. Designating strategic mining reserve areas does not exclusively commit areas to be used for mining. Thus, it cannot be presumed that the provisions themselves increase the intensity of the mining activity, or that they affect the magnitude, frequency, or severity of the mining activity’s impacts on the environment.