CSOs vs. Government of Colombia for environmental licenses without climate consideration (Art. 57 of Law 99 of 1993)

Human rights organizations and a group of experts filed a lawsuit of unconstitutionality before the Constitutional Court of the Republic of Colombia, on July 24, 2023, warning that article 57 of Law 99 was unconstitutional due to a deficit of constitutional protection by not including: (i) the obligation of prevention and environmental management by not including the effects of climate change and (ii) the obligation to guarantee protection against the effects on human rights.

In the lawsuit, they requested the updating of the regulation, given that the climate crisis was not considered as a determining factor when assessing how serious the environmental damage of a project, work or activity (POA) could be, that is, it did not mention the obligation to examine the climate variable in the Environmental Impact Studies in the environmental licensing process, so it was possible to say that it did not comply with constitutional standards.

They argued that the content of the rule was restrictive, so it was not possible to broaden its scope or to remedy this deficiency through regulation.  

They also criticized the Colombian State for its inaction in the fight against climate change and its multiple effects on people, their territories, and nature. In this regard, they stated that Article 57 of Law 99 of 1993 “presents a deficit in constitutional protection that disregards Articles 79 and 80 of the Constitution”: guaranteeing the right to enjoy a healthy environment, protecting the diversity and integrity of the environment, and planning the management and use of natural resources to ensure sustainable development.

The Court's acceptance of this type of action (the first of its kind in Latin America and the Caribbean) proposes a rethinking of environmental impact assessments so that the activities, projects, and works associated with the countries' development model conform to climate change mitigation and adaptation standards, giving states greater and better tools to transform their production towards true sustainable development.

After almost a year of proceedings, the Constitutional Court decided on the lawsuit and in July 2024, through ruling C-280 of 2024, declared that "environmental impact studies must include an assessment of the impacts on climate change."

Implementation

In ruling C-280 of 2024, the Constitutional Court issued two very important orders. The first is an order to the Ministry of Environment and Sustainable Development to update the terms of reference for preparing environmental impact studies, as well as the methodology and criteria for evaluating projects requiring environmental permits, so that climate change is mandatory and directly included in these studies. The second order is a call to the Congress of the Republic to enact regulations that include the variables, measures, and tools that the State must use for these studies.

The High Court acknowledges that climate change “is having an increasingly decisive impact on natural processes and is affecting territories, communities, and people in distinct ways, with Colombia being one of the most affected countries.” Among the most disproportionately affected communities are Black/Afro-descendant and Indigenous communities.

The assessment of climate change impacts is required for environmental license applications or renewals submitted from August 1, 2025, onwards, according to the ruling. However, in January 2025, the Constitutional Court extended the deadline for compliance to January 2027 following a request from the Ministry of Environment and Sustainable Development.

The exacerbation of extreme weather events, such as hurricanes, wildfires, droughts, and floods, and the worsening of climate displacement, some epidemics, and famines, are, according to the Intergovernmental Panel on Climate Change (IPCC), a reflection of how the climate is changing and directly affecting life. Projections from the United Nations Development Programme (UNDP) indicate that by 2070 the average temperature in Colombia could increase between two and four degrees Celsius, reducing rainfall levels by up to 30%. This situation requires states to adopt the necessary measures to curb activities that contribute to the generation of greenhouse gases (mitigation), but also those that allow them to avoid or reduce the magnitude of the impacts on people's lives (adaptation).

Therefore, it is urgent that the country identify how projects, works, or activities (POAs) subject to environmental licensing impact greenhouse gas emissions, climate change, and consequently, Colombia's mitigation commitments to the world. It is also necessary to analyze how these POAs, especially those that may last for decades or generate large-scale impacts, pose risks associated with climate change in the territories where they are planned, and how they contribute to the risk of exacerbating poverty and human rights violations, particularly affecting vulnerable communities and present and future generations.

• Center for Studies on Law, Justice and Society (Dejusticia)
• Ilex Corporation Legal Action
• Independent researchers

• Government of the State of Colombia (Ministry of Environment and Sustainable Development)
• Congress of the Republic

Three decades after Law 99 of 1993 was enacted, which, among other milestones, opened the doors to environmental licensing in Colombia, the climate crisis was not   considered as a determining factor when assessing the environmental damage of a project, work or activity.

For years, Article 57 of this law has regulated environmental impact assessments (EIAs), an indispensable tool for determining the environmental impacts of a project and designing plans to prevent, mitigate, correct, and compensate for those impacts. To this end, EIAs included in their analysis three elements of the areas where a license was requested: biotic (living) elements, abiotic (non-living components that affect living organisms), and socioeconomic elements. However, in times of global climate emergency, these elements are insufficient, as climate risks are increasingly complex and their variables require a specialized and specific evaluation that includes aspects such as the impact on local economies, food security, and the risks of catastrophic climate events, among others.

Climate change (CC) is not only an existential challenge for humanity; it is also a monumental injustice. If the temperature exceeds 1.5°C above pre-industrial levels, catastrophes will occur that will be devastating for hundreds of millions of people, as documented in the reports of the Intergovernmental Panel on Climate Change (IPCC), which compiles the best scientific evidence on the subject. And the temperature has already risen by 1.2°C, which is why some are proposing to speak of a climate emergency or crisis instead of CC.

Beginning

• Prevention principle.
• Precautionary principle.
• Principle of environmental planning.
• Principle of sustainable development.

International laws

• Convention on climate change
• Kyoto Protocol
• Paris Agreement
• American Convention on Human Rights
• Protocol of San Salvador
• Advisory Opinion 23/2017

National laws

• Political Constitution of Colombia (articles 79, 80 and 93 due to legislative omission)
• Article 57 of Law 99 of 1993 for ignorance of articles 2, 7, 20, 74, 79, 80 and 334 of the Political Constitution of Colombia.