DC Colombia
Mr. Esteban Antonio Lagos, a member of the Public Interest Litigation Group (GLIP) of the University of the North, filed a simple annulment action against the Ministry of Mines and Energy, for the issuance of Decree No. 3004 of December 26, 2013 and Resolution No. 90341 of March 27, 2014.
The petitioner challenged the constitutionality of the aforementioned regulations, arguing that they violate the right to a healthy environment and disregard the duty of planning in the management of natural resources; furthermore, that they contravene the precautionary principle and the principle of sustainable development, since they establish the technical requirements and procedures for the exploration and exploitation of hydrocarbons in unconventional reservoirs, thus giving rise to regulations governing hydraulic fracturing in Colombia.
The case was admitted by the Administrative Litigation Chamber of the Council of State, which also resolved to declare the provisional suspension of Decree 3004 of 2013 and Resolution 90341 of 2014. Regarding this decision, the defendant authorities filed an appeal, which was resolved by the same Council of State, which upheld the provisional suspension of the challenged administrative acts but authorized the implementation of Comprehensive Research Pilot Projects to obtain scientific, social, and environmental information to determine the risks associated with fracking in the country. Unfortunately, the defendant entities have disregarded the decisions made by the Council of State on at least two occasions. Indeed, with the issuance of Decree 328, which authorizes the Comprehensive Research Pilot Projects, and Resolution 40185 of 2020, which permits and regulates multistage hydraulic fracturing drilling and extraction with horizontal drilling in unconventional reservoirs, the Ministry of Mines and Energy intends to revive the challenged and suspended administrative acts. However, the evidence gathered in the aforementioned process demonstrates that multistage hydraulic fracturing with horizontal drilling in unconventional reservoirs generates uncertain, uncontrollable, and irreversible risks, regardless of the regulatory framework issued.
The Administrative Litigation Chamber based its decision to provisionally suspend Decree 3004 of 2013 and Resolution 90341 of 2014 on the principle of prevention enshrined in the United Nations Framework Convention on Climate Change, ratified by Law 164 of 1994. The resolution cited Article 3.3 of said Treaty, namely:
The Parties should take precautionary measures to anticipate, prevent, or minimize the causes of climate change and mitigate its adverse effects. Where there is a threat of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, bearing in mind that policies and measures to address climate change should be cost-effective in order to ensure global benefits at the lowest possible cost.
- Esteban Antonio Lagos González.
- Ministry of Mines and Energy.
The proposed regulations would pave the way for the regulation of hydraulic fracturing in Colombia. One of the most significant environmental impacts of fracking is the scarcity of water (both surface and groundwater) and air, essential elements for ensuring a healthy environment. Colombia lacks comprehensive knowledge of its groundwater and soil studies, which could lead to the contamination of these water sources.
The impacts of fracking on communities or individuals are diverse, for example, an increase in the incidence of congenital heart defects, abdominal pain, dizziness, nausea or vomiting, among others, so it is necessary to keep in mind the interrelation between human rights and the right to a healthy environment, since the development and exercise of the rights of each individual are exercised in a specific territory, which must have certain basic characteristics that guarantee life and health.
In the closing arguments of the process, the plaintiff recalled that the evidence submitted to the process and the expert report from the National University demonstrated that the problem of hydraulic fracturing is multifactorial and that, although technically the risks inherent in any drilling and exploitation of deposits, both conventional and unconventional, could be controlled, it cannot be proven that, even in these scenarios, given the magnitude, amount of resources demanded, specific risks of the exploitation of unconventional deposits and the institutional weakness, as well as the conditions of a megadiverse country, they are uncontrollable and can cause serious, irreversible and unforeseeable damage. The foregoing leads us to recall that in the evidentiary proceedings, it is noteworthy that aspects such as aquifer contamination, the irreversibility of pollution from NORM (National Mining Regulations), pollution from emissions—both clandestine and from on-site burning—of CH4 and other gases, wastewater management and treatment, GHG emissions such as methane, and the obligations of the Paris Agreement, demonstrate that the regulations, while technically improvable, are deficient in any respect in light of an ecological Constitution, within a reconfiguration of the legal system towards ecocentrism and intergenerational solidarity as a constitutional value, widely extended since 2016 by the Constitutional Court. This leads to the simple conclusion that this extractive activity, with characteristics and associated risks that go far beyond what is foreseen and which has been prohibited in numerous countries, cannot be carried out in Colombia. The formal institutional agreement, the ecological Constitution, the Paris Agreement, the Rio de Janeiro Convention, and the Ramsar Convention all mandate this.
Standards
- United Nations Framework Convention on Climate Change
- Advisory Opinion 23/17 on the Environment and Human Rights of the Inter-American Court of Human Rights
- Decree 3004 of 2013
- Resolution 90341 of 2014
Beginning
- Caution
- Sustainable development