5. South America: A. Colombia

5. South America: A. Colombia This document references key aspects of selected regulation and case law issued in Colombia during the years 2015 and 2016. The analysis and selection of environmental case law and regulation, as will be further discussed, includes milestone judicial rulings and acts issued on territorial entities’ participation in environmental affairs/authorization of extractive activities, prior consultation rules and procedures, the protection of páramo areas as strategic ecosystems, the promotion of renewable energies, and climate protection. (1) International Agreements Colombia subscribed to the Paris Agreement, which was adopted at the twenty-first Conference of Parties to the United Nations Framework Convention on Climate Change held in Paris in December 2015. According to Colombia’s commitments derived from the Paris Agreement, the country must meet an unconditional reduction target of 20 percent of its projected greenhouse gas emissions by 2030. Colombia’s participation in the Paris Agreement demonstrates the country’s intention of further ratification. Even though, as of today, there is no domestic regulation in place that sets up local rules leading to the accomplishment of Colombia’s reduction target, the Ministry of Environment and Sustainable Development has announced the adoption of the following regulations, according to which the country aims to meet such reductions: (1) delimitation of thirty-six new páramo areas; (2) increasing environmentally protected areas by 2.5 million hectares; (3) the promotion of renewables; and (4) additional cooperation among national and regional authorities in the adoption of environmentally related decisions. (2) Domestic Regulation (A) Decree 2143 of 2015 Decree 2143 of 2015 was issued under the general framework of Law 1715 of 2014 (non-conventional energy law). It determines general guidelines according to which incentives to the promotion of non-conventional/renewable energy sources must be set in place. Decree 2143 of 2015, under the aim of promoting non-conventional sources of energy, establishes tax incentives such as income tax reductions, value-added tax exemptions, and accelerated depreciation regimes. (B) Decree 1076 of 2015 Decree 1076 of 2015 unifies environmental regulation in a single statute. Nevertheless, it does not include new regulation. (C) Decree 298 of 2016 Decree 298 of 2016 establishes the National Climate Change System as the group of public and private entities, politics, regulation, procedures, resources, strategies, instruments, mechanisms, and information concerning climate change policy implementation in the country. (3) Rulings Issued by Colombian Constitutional Court (A) Colombian Constitutional Court Ruling T-764/2015 The importance of Ruling T-764/2015 relies on the understanding and interpretation it includes regarding the notion of a project’s direct influenced area and its application vis-à-vis prior consultation procedures. According to the aforementioned ruling, a project’s direct influenced area is essentially flexible. Therefore, ethnic communities’ prior consultation on fundamental rights cannot be limited by the fact that a certain territory was not originally identified by the Ministry of Interior as an ethnic territory. In other words, the effective impact that a project may potentially entail on an ethnic community is adopted as the benchmark according to which prior consultation rights must be protected. Accordingly, an administrative identification of ethnic territories addressed during environmental licensing procedures does not limit a further widening of originally identified lands, correspondingly implying the potential contingency of future claims of communities that were not originally identified and who might allege the need for additional consultation procedures to develop an economic project. (B) Colombian Constitutional Court Ruling T-660/2015 As in Ruling T-764/2015, Ruling T-660/2015 states that a project’s direct influenced area is essentially flexible, meaning that an administrative identification of ethnic communities during an environmental licensing procedure does not limit future protection of further recognized groups from the direct impact of their specific territories. In addition, it is worth highlighting that even though Ruling T-660/2015 does not grant protection to prior consultation fundamental rights—due to the fact that minimum requirements for such protection were not duly met—it demands the participation of local communities in the development of an economic project. In other words, Ruling T-660/2015 clearly determines that local communities’ participation rights are not circumscribed to prior consultation procedures. In this particular case, the Colombian Constitutional Court states that participation rights exceed the scope of prior consultation processes, ordering an involvement of local communities in the determination of general guidelines according to which daily activities of a project must be developed (for example, the establishment of buffer zones, natural barriers, and compensation). (C) Colombian Constitutional Court Ruling C-035/2016 In the first place, according to Ruling C-035/2016, environmental licensing procedures for projects of national strategic interest will no longer be under the exclusive competence of the National Environmental Licensing Authority (ANLA). Therefore, based on this ruling, mining projects that, according to Law 1753 of 2015, fell under the ANLA’s competence—exclusively due to their national interest character (not according to production volumes)—must be dispatched back to the regional competent authority. This fact implies an increase in the time it will take to move through the environmental licensing procedure, given the better technical understanding the ANLA is capable of providing on these matters. On the other hand, according to Ruling C-035/2016, delimitation of páramo areas no longer seems to be a pre-condition to legally determine the existence of such ecosystems, correspondingly excluding mining activities. In others words, the Colombian Constitutional Court specifically states that páramo areas are subject to special protection per se due to their ecological importance, meaning that delimitation procedures cannot be understood as a constitutive requisite of the legal protection of such ecosystems. Therefore, considering the content of Ruling C-035/2016, it is today uncertain how páramo delimitations issued before such a ruling could still be enforceable. Therefore, based on Ruling C-035/2016, the legal validity of Resolution 2090 of 2014 (Páramo de Santurban’s delimitation) can be questioned on the basis of the court’s reasoning, according to which the constitutional protection of páramo areas cannot be limited according to its declaration procedures and must be in accordance with Alexander von Humboldt’s cartographic delimitation. In addition, the execution of the exploration and exploitation of minerals will no longer be valid if a mining concession contract and the corresponding environmental license or an equivalent environmental management instrument has been issued by 9 February 2010. Thus, Ruling C-035/2016 proscribes under any circumstances the development of mining activities in páramo areas, even when concession contracts and the corresponding environmental authorizations were issued before 9 February 2010. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Yearbook of International Environmental Law Oxford University Press

5. South America: A. Colombia

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Oxford University Press
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© The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
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0965-1721
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2045-0052
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Abstract

This document references key aspects of selected regulation and case law issued in Colombia during the years 2015 and 2016. The analysis and selection of environmental case law and regulation, as will be further discussed, includes milestone judicial rulings and acts issued on territorial entities’ participation in environmental affairs/authorization of extractive activities, prior consultation rules and procedures, the protection of páramo areas as strategic ecosystems, the promotion of renewable energies, and climate protection. (1) International Agreements Colombia subscribed to the Paris Agreement, which was adopted at the twenty-first Conference of Parties to the United Nations Framework Convention on Climate Change held in Paris in December 2015. According to Colombia’s commitments derived from the Paris Agreement, the country must meet an unconditional reduction target of 20 percent of its projected greenhouse gas emissions by 2030. Colombia’s participation in the Paris Agreement demonstrates the country’s intention of further ratification. Even though, as of today, there is no domestic regulation in place that sets up local rules leading to the accomplishment of Colombia’s reduction target, the Ministry of Environment and Sustainable Development has announced the adoption of the following regulations, according to which the country aims to meet such reductions: (1) delimitation of thirty-six new páramo areas; (2) increasing environmentally protected areas by 2.5 million hectares; (3) the promotion of renewables; and (4) additional cooperation among national and regional authorities in the adoption of environmentally related decisions. (2) Domestic Regulation (A) Decree 2143 of 2015 Decree 2143 of 2015 was issued under the general framework of Law 1715 of 2014 (non-conventional energy law). It determines general guidelines according to which incentives to the promotion of non-conventional/renewable energy sources must be set in place. Decree 2143 of 2015, under the aim of promoting non-conventional sources of energy, establishes tax incentives such as income tax reductions, value-added tax exemptions, and accelerated depreciation regimes. (B) Decree 1076 of 2015 Decree 1076 of 2015 unifies environmental regulation in a single statute. Nevertheless, it does not include new regulation. (C) Decree 298 of 2016 Decree 298 of 2016 establishes the National Climate Change System as the group of public and private entities, politics, regulation, procedures, resources, strategies, instruments, mechanisms, and information concerning climate change policy implementation in the country. (3) Rulings Issued by Colombian Constitutional Court (A) Colombian Constitutional Court Ruling T-764/2015 The importance of Ruling T-764/2015 relies on the understanding and interpretation it includes regarding the notion of a project’s direct influenced area and its application vis-à-vis prior consultation procedures. According to the aforementioned ruling, a project’s direct influenced area is essentially flexible. Therefore, ethnic communities’ prior consultation on fundamental rights cannot be limited by the fact that a certain territory was not originally identified by the Ministry of Interior as an ethnic territory. In other words, the effective impact that a project may potentially entail on an ethnic community is adopted as the benchmark according to which prior consultation rights must be protected. Accordingly, an administrative identification of ethnic territories addressed during environmental licensing procedures does not limit a further widening of originally identified lands, correspondingly implying the potential contingency of future claims of communities that were not originally identified and who might allege the need for additional consultation procedures to develop an economic project. (B) Colombian Constitutional Court Ruling T-660/2015 As in Ruling T-764/2015, Ruling T-660/2015 states that a project’s direct influenced area is essentially flexible, meaning that an administrative identification of ethnic communities during an environmental licensing procedure does not limit future protection of further recognized groups from the direct impact of their specific territories. In addition, it is worth highlighting that even though Ruling T-660/2015 does not grant protection to prior consultation fundamental rights—due to the fact that minimum requirements for such protection were not duly met—it demands the participation of local communities in the development of an economic project. In other words, Ruling T-660/2015 clearly determines that local communities’ participation rights are not circumscribed to prior consultation procedures. In this particular case, the Colombian Constitutional Court states that participation rights exceed the scope of prior consultation processes, ordering an involvement of local communities in the determination of general guidelines according to which daily activities of a project must be developed (for example, the establishment of buffer zones, natural barriers, and compensation). (C) Colombian Constitutional Court Ruling C-035/2016 In the first place, according to Ruling C-035/2016, environmental licensing procedures for projects of national strategic interest will no longer be under the exclusive competence of the National Environmental Licensing Authority (ANLA). Therefore, based on this ruling, mining projects that, according to Law 1753 of 2015, fell under the ANLA’s competence—exclusively due to their national interest character (not according to production volumes)—must be dispatched back to the regional competent authority. This fact implies an increase in the time it will take to move through the environmental licensing procedure, given the better technical understanding the ANLA is capable of providing on these matters. On the other hand, according to Ruling C-035/2016, delimitation of páramo areas no longer seems to be a pre-condition to legally determine the existence of such ecosystems, correspondingly excluding mining activities. In others words, the Colombian Constitutional Court specifically states that páramo areas are subject to special protection per se due to their ecological importance, meaning that delimitation procedures cannot be understood as a constitutive requisite of the legal protection of such ecosystems. Therefore, considering the content of Ruling C-035/2016, it is today uncertain how páramo delimitations issued before such a ruling could still be enforceable. Therefore, based on Ruling C-035/2016, the legal validity of Resolution 2090 of 2014 (Páramo de Santurban’s delimitation) can be questioned on the basis of the court’s reasoning, according to which the constitutional protection of páramo areas cannot be limited according to its declaration procedures and must be in accordance with Alexander von Humboldt’s cartographic delimitation. In addition, the execution of the exploration and exploitation of minerals will no longer be valid if a mining concession contract and the corresponding environmental license or an equivalent environmental management instrument has been issued by 9 February 2010. Thus, Ruling C-035/2016 proscribes under any circumstances the development of mining activities in páramo areas, even when concession contracts and the corresponding environmental authorizations were issued before 9 February 2010. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

Journal

Yearbook of International Environmental LawOxford University Press

Published: Dec 28, 2017

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