The Environment and Climate Change Law Review: Colombia
Protecting the nation's environment and cultural wealth is an essential cornerstone of the Colombian legal framework. In particular, the Colombian Constitution of 1991 has been characterised as an 'ecological constitution', as it recognises Colombian citizens' collective right to a healthy environment. It also introduced sustainable development criteria as constitutional mandate. The main Colombian environmental regulations are:
- Natural Renewable Resources Code – Decree in force of Law 2811 of 1974;
- Law 99 of 1993, which defines the country's institutional framework, the National Environmental System; and
- Single Regulatory Decree for Environment and Sustainable Development sector, Decree 1076 of 2015.
Colombia is part of the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement. Regarding its international commitments, Colombia set for its national determined contribution (NDC) a 20 per cent reduction of greenhouse gas (GHG) emissions with respect to the projected business-as-usual scenario for 2030.
In 2016, Colombia adopted several instruments and strategies orientated to achieve its goals of mitigation and adaptation of climate change, such as:
- the Climate Change Policy;
- the Development Strategy;
- the National Plan for Disaster Risk Management;
- the National Strategy for Climate Financing; and
- the National Strategy to Reduce Emissions from Deforestation and Degradation of Forests (REDD+).
Furthermore, by means of Law 1931 of 2018, known as the Climate Change Law, the national government defined the national guidelines for climate management.
Colombia's National Development Plan of 2018–-2019, issued by means of Law 1955 of 2019, included a chapter named Agreement for Sustainability. This established provisions aimed at halting deforestation and mitigating climate change. Currently, the Colombian government is working on the 'Strategy for strengthening the business climate risk management for preserving competitiveness in the sectors of water, agriculture, urban development and finances'. More recently, the national government announced the launch of the Colombian Strategy for the Decarbonisation and Adaptation of its Economy, and is currently undergoing the process to update its NDC contributions.
Environmental law in Colombia began in 1973 with the enactment of Law 23, driven largely by the initiative of the Human Environment Conference at the United Nations and the Stockholm Declaration of 1972. Although this law dates back more than 40 years, it is one of the fundamental pillars of environmental regulation in Colombia. This law dictates rules regarding civil and administrative liability for environmental damages and rules on pollution, as well as enabling the government to regulate the National Code of Renewable Resources, which is in full force.
After the issuance of Law 23 of 1973 and the Renewable Resources Code, Colombia entered into a constitutional process that led to the creation of the current Colombian Constitution of 1991. The latter has been listed as one of the most progressive constitutions of the world, particularly for the special protection it gives to the environment, to the point that it has been called a 'green' constitution. It contemplates the right to a healthy environment and introduces the definition of sustainable development. It included not only the aforementioned innovative rights but also the most efficient mechanisms to ensure their effective compliance.
The creation of the Constitutional Court was mainly driven to guarantee the protection of the civil liberties, rights and duties of citizens and the state and the relationship between them, including environmentally related rights and obligations on behalf of the state and individuals.
Later, Law 99 of 1993 established the environmental institutional framework in Colombia, which was also called the National Environmental System. Among the most important and innovative regulatory aspects brought by Law 99 of 1993 was the obligatory nature of environmental licences, an administrative act before any activity that may affect the environment. Likewise, the principles of the Rio Declaration of 1992 were incorporated, and other principles such as the subsidiary rigour and pre-emption rules among authorities at national, regional and local levels were established.
Colombia has national, regional and local regulators; each one with different powers and scopes of action, listed in this section. Similarly to a federal government, national regulations pre-empt regional and local regulations. Thus, regional and local regulations cannot conflict with national regulations enacted by congress or the executive branch.
i National level
The Ministry of Environment and Sustainable Development (MADS) is the highest environmental authority in Colombia, and it establishes public policies regarding recovery, conservation, protection, management, use and exploitation of renewable natural resources.
The National Authority of Environmental Licences (ANLA) is a dependent agency of the MADS, which is in charge of granting the environmental licences related to projects considered to be of national importance. ANLA is empowered to monitor and keep track of those projects, works or activities subject to environmental licensing, to ensure that those projects are conducted under the environmental regulations currently in force. Also, ANLA is entitled to impose preventive measures and sanctions on transgressors of any environmental regulation related to environmental licences.
ii Regional level
The Regional Autonomous Corporations (CARs) and Corporations for the Sustainable Development (CDS) are considered the highest environmental authorities within the limits of their jurisdiction. Their powers are limited to areas of the same ecosystem or the same geopolitical, biogeographic or hydrogeographic units. The duty of overseeing and controlling environmental activities also lies in these agencies. The CARs/CDS have the power to issue environmental licences for several projects as long as they do not interfere with ANLA jurisdiction. Regional environmental authorities may not grant permits, concessions or authorisations in situations when it is the ANLA that would issue the environmental licence.
Departments, as political-administrative entities at a regional level equivalent to US states, have residual competencies over the administration of the environment.
iii Urban and municipal levels
Urban environmental authorities (UEAs) are similar agencies and share the same powers as the CARs/CDMs, with the difference that the UEAs' jurisdiction is limited to within urban municipalities, districts or metropolitan areas with a population of at least 1,000,000.
Municipalities, as a political-administrative entity of the local level, have residual competencies over the administration of the environment.
iv Other entities
The Delegated Attorney for Environmental and Agricultural Issues is a dependent subsidiary of the Office of the General National Attorney Office, whose function is to prevent, control and intervene in conflicts or issues related to the protection and preservation of the environment, natural resources, and the rights and conflicts related to land extensions.
The Delegated Comptroller for the Environment is a dependent subsidiary of the Office of the Comptroller General, responsible for directing and coordinating the surveillance of environmental management in charge of public servers.
The Specialised Unit of Environmental Crimes of the Attorney General's Office is part of the General National Prosecutor Office and is responsible for investigating environmental contamination, the invasion of environmentally protected areas, and illicit exploration and exploitation of natural reservoirs, among other established crimes.
The police may exercise their powers to protect the environment. Furthermore, there is also a special corps of Environmental Police that serves as a support entity for environmental authorities.
The navy is empowered to impose measures to prevent environmental damage. Such decisions must be communicated to the environmental authorities to proceed with any investigation and subsequent sanctions.
The enactment of Law 1333 of 2009 (Environmental Administrative Sanctioning Act) established which authorities are vested with powers to initiate administrative investigations and to impose preventive measures and sanctions. The proceeding set up in this law defines the investigative powers of the administrative authorities. The Colombian environmental authorities (e.g., MADS, ANLA, CARs/CDS and UEAs) are empowered to lead and conduct administrative investigations.
Administrative authorities are empowered with oversight and control powers over individuals and companies. These powers may be executed by visiting the facilities in which projects are conducted to ensure compliance with the conditions outlined in environmental permits and licences, as well as with the general rules of the environmental laws in force.
In the case of an environmental incident or breach that implies tort liability, the proceeding and investigation must follow civil law procedural rules, and the trial will be conducted by a judge of the civil branch of the judicial power.
In turn, whenever an environmental criminal offence takes place, the Specialised Unit of Environmental Crimes of the General Attorney's Office of Colombia will conduct the proceeding and investigation under current criminal law and the procedural and material regulations in force.
i Key types of liability
Under the current national regulations, an environmental infringement takes place whenever a person or entity carries out actions or omissions that violate Colombian environmental regulations.
The scope of the environmental regulation includes national laws and regulations (general environmental obligations), as well as the terms applicable to licences, permits and authorisations issued by environmental authorities concerning specific projects or activities (specific environmental obligations).
Environmental violations may also happen whenever environmental damage occurs, and that damage can be attributed to a person or entity under tort, administrative or criminal liability rules. Under Colombian tort liability rules, an individual is liable for tort damages if all of the three following elements are proved: damage, negligent conduct and the link between the damage and the negligent or wilful activity. The same is applicable to administrative liability, according to Law 1333 of 2009.
When a single act or omission breaches multiple legal obligations, the individual or company may be held liable from the administrative, tort and criminal perspectives simultaneously.
Under Law 1333 of 2009, those who commit environmental violations may be subject to an administrative procedure conducted by the competent environmental authority to determine whether they are liable for the alleged infringement.
Under Colombian administrative procedural law, negligence and wilful misconduct of the individual or entity causing the environmental infringement are presumed. Based on this presumption, the alleged perpetrator of that infringement will be liable unless they overturn the presumption. This presumption does not apply for tort liability and criminal liability scenarios, when any responsibility by the violators has to be proven in court, so the presumption works the other way around: innocent until proven otherwise.
The administration is entitled to impose the following injunctions:
- written warnings;
- confiscation of all the products and elements used to commit the infringement; and
- suspension of works or activities when they may cause harm or damage to the environment, natural resources, landscape or human health; or when the project, works or activities were commenced without the necessary permit, authorisation or licence; or when the project, works or activities were executed in violation of permits, authorisations or licences.
The administration is entitled to impose the following penalties:
- daily fines of up to 5,000 times the legal monthly wage (4,389 million Colombian pesos);
- temporary or definitive ceasing of the activity causing environmental damage;
- cancellation of environmental licences, permits or authorisations granted;
- demolition of civil works (the breaching or non-complying party bears the demolition expenses); and
- community work.
Criminal investigations are conducted by the Specialised Unit of Environmental Crimes of the Attorney General's Office. This office is competent to initiate criminal investigations against alleged offenders exclusively when their actions may have criminal consequences.
According to the Colombian Penal Code, when an individual or a company causes severe damage to the environment or natural resources, or affects human health, a criminal proceeding may be initiated to determine the level of responsibility of the alleged infringer. If found guilty, the perpetrator will be subject to penalties such as a term of imprisonment of between two and six years and fines ranging from 100 to 25,000 times the legal monthly wage (determined by the executive (the office of the president and its direct dependencies)each year).
Under Colombian criminal law, only individuals are subject to criminal liability. Thus, officers and directors of a company that causes severe damage to natural resources or the environment or affects human health may be subject to criminal liability. Individuals who directly participate in any events leading to environmental damage may be held liable from a criminal law perspective.
The environmental criminal offences, according to Colombian criminal statutes, are as follows:
- the illegal use of natural renewable resources;
- trespassing of frontiers to exploit natural resources;
- the illegal management of hazardous micro-organisms;
- damage to the environment;
- contamination or pollution;
- contamination associated with the exploitation of oil or minerals;
- illegal experimentation involving animals or plants;
- illegal hunting and fishing;
- the invasion of an area of special ecological importance; and
- the illegal exploitation of minerals and construction materials.
Under the provisions contained within Law 23 of 1973 and the Colombian Civil Code, a person or company may be held liable for contractual damages or non-contractual damages. Non-contractual liability makes strict reference to damages or injuries committed against a person or property.
Environmental responsibility is a tort. According to Article 2341 of the Colombian Civil Code, a person who commits an injury or damage that causes harm to another person is obliged to pay for the damage it caused. Based on this rule, Colombian courts have outlined the elements of tort liability as follows:
- conduct: an act or omission attributable to the perpetrator;
- fault: negligent, fraudulent or wilful misconduct by the perpetrator, which would not have been performed by the average person if that person had been placed in the same situation;
- damage: material or personal loss or injury; and
- a nexus between the negligent conduct and the damage: a direct nexus between a cause (conduct) and an effect (damage). In other words, the damage would not have occurred if the conduct had not been performed.
Likewise, and regarding environmental damage, Article 16 of Law 23 of 1973 provides that:
The State shall be responsible for damages caused to man or natural resources due to actions generating pollution or detriment to the environment. Individuals shall be liable for the same reasons and damage or inadequate use of the State's natural resources.
ii Key defences
According to Law 99 of 1993, environmental damage is the alteration or damage affecting the normal performance of an ecosystem or its renewability capacity, resources and components, permanently and with no possible remedy. As such, an environmental incident or damage can trigger administrative, tort and criminal liabilities, depending on its type, extent and magnitude.
From an administrative procedural law standpoint, the environmental liability for damages must comply with certain elements of the civil liability regime as follows: damage, a triggering event and a causal nexus between both. In Colombia, the mere intent or gross negligence of the alleged infringer is presumed, so in that order, the burden of proof is inverted, thus making it harder for the violator to prove his or her innocence. Consequently, it is the alleged violator who must demonstrate one of the following as a defence:
- acts of God or force majeure;
- the act of a third party, sabotage or terrorist acts;
- the death of the alleged infringer;
- the non-existence of the alleged infraction;
- lack of attribution to the alleged infringer; or
- that the activity is legal or authorised.
Reporting and disclosure
i Environmental disclosure and information
Where an environmental incident or contingency occurs in a project, work or activity, whether it requires an environmental licence or not, it must be reported to the competent environmental authority within 24 hours of its occurrence either by its owner or by those alleged to be responsible.
The authorities have created a form to report environmental incidents or contingencies. This form must be submitted to the environmental authority through the Online Environmental Proceedings Platform (VITAL). Seven days after submission of this document, any actions, activities and steps that have been taken to mitigate or resolve the situation must be notified to the Environment Authority through the same portal.
If all of the actions needed to solve the contingency have been carried out, a final report with details shall be prepared and filed within the next 30 days before the Environment Authority. A plan may be developed by the Environment Authority to ensure the recovery and restoration of an area that was affected by the incident for those allegedly responsible for the incident or the emergency. The proposal must be submitted through VITAL if requested by the Environment Authority.
ii Public environmental information
All data on the environment is public and environmental agencies have a duty to enable full access to whoever wishes to verify it. The information can be accessed via public offices or websites of the authorities. The public also has the right to file requests for information regarding the environment and to engage in any environmental case without any legal restriction, particularly regarding environmental procedures to grant environmental authorisations.
iii Corporate disclosure requirement
In their annual reports in Colombia, corporations have no environmental disclosure obligations. As a result, companies' reports are published on a voluntary basis.
However, the environmental authorities can ask individuals and companies to provide environmental information and do so often by requiring them to address the person or company directly. Where the environmental authorities request these criteria, it is necessary to respond.
To reduce power imbalances and to protect whistleblowers, complaints mechanisms should include different channels, such as provisions to file anonymous complaints and protection of whistleblowers' confidentiality.
i Air quality
The Ministry of the Environment and Sustainable Development adopted Resolution 2254 of 2017, in response to the proposed guidelines for air quality made by the WHO in 2017, which established that by 2030 it will have an average of 30 µg/m3 of pm10 for one year and 15µg/m3 of pm 2.5 as a standard of air quality objective III of the WHO Air Quality Directives. As of 1 July 2018, concentrations of PM10 and PM2.5 for a 24-hour period were 75µg/m3 and 37µg/m3.
Concerning national policies, the guidelines on air pollution prevention and control policy 62, adopted in 2005, have been developed following CONPES Document 3344.
ii Water quality
For any project or operation that implies the use of or the impact of water controlled in Decree 1076 of 2015, different types of permit can be issued. These include water concessions and permits to discharge wastewater, among others. Concessions grant the right to use water, whereas discharge permits grant the right to dispose of water from rivers and spring wells for up to five years. In addition, the building and operation of hydraulic works for protecting and conserving lands or riverbeds, riverbanks, streams and other water bodies are subject to special permits for the use of a riverbed.
The Colombian legal system contains several regulatory provisions that lay down obligations, liabilities, responsibilities and, in general, a range of conditions for these forms of substances to be used, treated and disposed of. These administrative laws are distributed in terms of different specialties and hierarchies. Rules on this subject can thus be included in the Colombian Constitution of 1991, and the rules, regulations and other administrative acts issued by administrative authorities, which deal with chemical substances in their sphere of competence, regardless of their speciality.
Nevertheless, the main purpose of Colombian legislation is to protect rights that can be legally violated by improper handling of chemical substances, thus increasing the risk factors associated with their use, handling and disposal. Among the most important regulations at the national level are the Constitution, Law 23 of 1973, Decree 2811 of 1974, Law 9 of 1979, Law 99 of 1993, Law 100 of 1993, Law 101 of 1993 and Law 170 of 1994.
iv Solid and hazardous waste
The laws on residues or waste and hazardous waste management and final disposal of residues or waste in Colombia were defined by Law 430 of 1998, Decree 1079 of 2015, Decree 1076 of 2015 (Articles 126.96.36.199.1 to 188.8.131.52.3.6), Resolution 1362 of 2007 and Resolution 372 of 2009. It is also important to mention that the Basel Convention relating to hazardous wastes was adopted by Colombia and is governed by these laws, decrees and resolutions.
The development of the comprehensive management of residues or wastes and hazardous wastes is contained within Decree 1076 of 2015 (Articles 184.108.40.206.1 to 220.127.116.11.3.6), aimed at preventing waste and hazardous wastes and at controlling the management and protection of the environment and human health.
Following the above, all generators of residues, waste and hazardous waste shall, according to Resolution 1362 of 2007 and Decree 1076 of 2015 (Articles 18.104.22.168 to 22.214.171.124.3.6), be required to register in the Environmental Authority Generators Registry.
Water regulations also introduced the Management Plan for the Devolution of Used Products (Reverse Logistics Plans), consisting of a management tool that includes a set of rules, acts, procedures and ways of promoting the disposing and recycling of residues and forms part of this essential enforcement process.
Said plans are governed by Resolutions 371 of 2009 (expired drugs), Resolutions 372 of 2009 (lead-acid batteries), 2010 (Resolutions 1512 and 2010) and 2011 (computers), among others. Congress issued Law 1672 of 2013, requiring a collection system for all electronic and electric waste.
v Contaminated land
The liability approach for soil and groundwater pollution is carried out from an administrative, civil and criminal perspective. Even though Colombia has these regulations, there is no liability regime for contaminated land. Consequently, general provisions on the management of environmental damage are consistently applied by the environmental authorities to request remediation on behalf of environmental offenders, and to punish said conduct under current procedural administrative, tort and criminal liability, as applicable.
Colombia's regulatory framework includes several provisions related to the mitigation of and adaptation to climate change. In 2011, the National Board of Economic and Social Policies issued the CONPES 3700, establishing the 'Intuitional strategy for articulating policies and actions related to Climate Change'.
In September 2015, Colombia submitted its NDC, which sets out its commitments in favour of mitigating and adapting to climate change, as part of the Paris Agreement at COP 21. The Paris Agreement was ratified by Colombia on 16 June 2017.
By means of Decree 298 of 2016, the National Climate Change System (SISCLIMA) was created, as well as an inter-institutional coordination scenario of decision-making on mitigation and adaptation. The SISCLIMA is managed by the Trans-sectoral Commission for Climate Change. As part of the SISCLIMA, the government issued the 'Colombian strategy for a development carbon low'. This strategy aims to:
- identify and estimate action to prevent the rise of GHGs with the growth of some economic sectors;
- develop mitigation action plans for productive sectors; and
- promote monitoring and report systems.
Furthermore, in 2016, the Congress introduced a carbon tax in Law 1819 of 2016. This tax was created to incentivise the compliance of the NDCs. This tax includes COPs of US$15,000/tonne of CO2, US$5 in natural gas, liquefied petroleum gas, coal, kerosene and jet fuel, diesel oil (ACPM), and fuel oil used for the production of electricity. The tax will increase each year by one point and inflation up to 1 UVT/tonne. The tax does not apply to gasoline and diesel oil (ACPM) of the departments of Guainía, Vaupés and Amazonas. Instead, companies required to pay this tax may be exonerated if they show complete 'carbon neutrality' concerning the purchase and cancellation of offset credits equal to their emissions.
Law 1931 of 2018 enacted national guidelines for climate management and established the Colombian Emission Trading Scheme (ETS). This regulation determines that the MADS shall regulate permits and goals that must be accomplished by certain industries to comply with the National Policy for Climate Change, the Sustainable Development Goals and the Paris Agreement. The MADS shall also regulate the scale, industries, regulations and entities explicitly covered by the ETS.
The reduction in GHG emissions in the economy could be supported by both the ETS and the carbon tax. The difference between a carbon tax and an ETS is that an ETS restricts the number of permitted emissions but allows the market to fix a price of one tonne CO2 equivalent. The carbon tax is the opposite: the tax sets emissions prices, and the market will react with the appropriate quantities of GHG emissions, given the price of the carbon tax. Policymakers also often use hybrid policies that can combine both the quantity and price control of emissions.
REDD+ projects have seen a significant increase in Colombia in the last few years. In 2015, the MADS launched the project Visión Amazonía, an REDD+ project that covers most of the Colombia's Amazon rainforest. The project is funded by Germany, Norway and the United Kingdom, as part of the US$5 billion REDD+ programme announced at COP 21. Between 2018 and 2019, Visión Amazonía invested US$12.2 million in REDD+ initiatives.
The REDD+ projects in Colombia contribute to the goal of reducing deforestation to zero and generating new income for local communities. Furthermore, the projects aim to strengthen environmental governance, territorial planning, livelihood plans, food autonomy and empowerment of women, especially for indigenous communities that inhabit the area.
Outlook and conclusions
The Colombian environmental regulatory framework includes several provisions aimed at protecting the environment and the equilibrium of ecosystems. Furthermore, since 2011 governmental policies have included climate change mitigation and adaptation as a priority. Colombian advances towards sustainable development are considered innovative and advanced from a regional perspective.
Market-based mechanisms, green taxes and REDD+ projects have involved multiple economic sectors in the fight against climate change. These efforts contribute to achieving Colombia's international commitments related to mitigating climate change, especially the 20 per cent reduction of its GHGs with respect to the projected business-as-usual scenario for 2030. This context positions Colombia as a growing market for climate-change-related investments.
Nevertheless, several challenges still need to be addressed from an environmental policy standpoint, mainly concerning the implementation of the ample set of regulations and projects. It is also important for more projects of mitigation and adaptation to climate change to involve local communities and generate alternative incomes.
1 Guillermo Tejeiro Gutiérrez, Juana Valentina Micán, Camila Harmelly Bermúdez and Andrés Lafaurie Bornacelli are associates and Liliana Marcela Rubiano is a specialist in the environment and sustainable business practice team at Brigard Urrutia.