Challenging Environmental Impact Assessment law for failing to consider climate change

On July 24, 2023, a group of citizen members of two NGOs (Dejusticia and Ilex Acción Jurídica) filed a lawsuit against Article 57 of Law 99 of 1993. The article establishes the definition and criteria of environmental impact assessments (EIA) in Colombia, which includes biotic, abiotic, and socioeconomic elements. Plaintiffs argue that, as it stands, this norm does not abide by the constitutional and international human rights standards, given the lack of consideration of climate change and human rights. Plaintiffs assert that even though climate change-related standards only appeared after the law was issued, failing to update the interpretation of this legal provision results in unconstitutional restrictions and interpretation issues that prevent EIA from complying with international commitments that have been ratified by Colombia and are part of the constitutional bloc. The plaintiffs are not asking the Court to declare the unconstitutionality of the article since this would create a legal vacuum that could eventually derive in more significant violations of constitutional rights. Instead, the plaintiffs asked the Court to order that the provision should be interpreted as to include climate change and human rights protection as part of the criteria to be considered when conducting an EIA. In so doing, the legal provision is updated to comply with the currently admissible constitutional standard, while its interpretation is clarified, avoiding unconstitutional applications. The plaintiffs’ arguments were twofold: first, article 57 incurs in a lack of constitutional protection, violating articles 2, 79, 80, and 93.1 of the Colombian Constitution, as well as articles 1.1 and 2 of the American Convention on Human Rights, by failing to include impacts associated to climate change in the EIA criteria. Second, article 57 violates articles 7, 20, 74, 79, 80 and 334 of the Colombian Constitution, as well as articles 4.1, 5.1 and 13 of the American Convention on Human Rights by failing to include human rights violations in the EIA criteria. The plaintiffs claim that human rights and the environment are interconnected and that this should be reflected in the laws governing EIAs. On January 12, 2024, the Constitutional Court declared the admissibility of the lawsuit, but only regarding the first argument supported in the alleged violation of articles 79 and 80 of the Colombian Constitution. The arguments related to the violation of the legal provisions of the American Convention on Human Rights were dismissed. The Court also ordered several governmental authorities, including the Ministry of Environment and Sustainable Development, as well as NGOs such as Greenpeace Colombia, the Colombian Association of Oil and Gas, and others to provide written comments on the impacts of climate change in the interpretation of the right to a healthy environment and article 57 of Law 99 of 1993. On July 11, 2024, the Constitutional Court found that article 57 of Law 99 of 1993 was constitutional insofar as it is understood that EIAs must include climate change among the evaluation criteria. The Court ordered the Congress to issue the necessary regulations to ensure climate change is considered when conducting activities that require EIA. The Court also ordered the Ministry of Environment and Sustainable Development to modify and update EIA's terms of reference. In the Court's opinion, failing to include climate change in EIA processes would amount to a violation of the Colombian Constitution and a failure to guarantee the protection of the right to a healthy environment and sustainable development.