Citizens and NGOs v. Ministry of Environment and Sustainable Development and Ministry of Mines and Energy

On May 9, 2023, a group of six citizens and three NGOs (Colectivo de Abogados José Alvear Restrepo, Censat Agua Viva and Polen Transiciones Justas) filed a lawsuit before the Adminsitrative Tribunal of Cundinamarca (the Tribunal) seeking the declaration of non- compliance by the Ministry of Environment and Sustainable Development and the Ministry of Mines and Energy of their obligations under Law 1931 of 2018 (art. 2 num. 7 and 8; art. 7 num. 1, 2, 3 and 5; art. 17, art. 18 and art. 31) and Law 2169 of 2021 (art. 6 num. 17; art. 13; art. 16). On one hand, the 2018 climate action law, as it is also known, establishes guidelines for climate action in Colombia. The statute’s main goals are to put forth climate change adaptation measures, mitigate greenhouse gas (GHG) emissions, reduce the population’s and ecosystem’s vulnerabilities and promote a just transition towards decarbonization. On the other, Law 2169 of 2021 establishes a baseline of minimum goals and measures of carbon neutrality and climate resilience with the aim of promoting a development low in carbon emissions. Plaintiffs argue that both ministries have failed to promote the inclusion of climate and environmental-related impacts in management, development, planning and monitoring instruments of coal exploitation, extraction, transportation and burning, particularly large-scale mining projects. Similarly, ministries have failed to adopt the necessary measures to prevent risks generated by coal exploitation and to monitor the implementation of action programs, particularly those related to climate change action. Plaintiffs assert that there is a general lack of standards and compliance indexes that would allow to evaluate the efficacy of the measures taken by the government. They claim that the government has failed to gather crucial information regarding the increase of climate vulnerability and the quantification of emissions derived from the coal supply chain. On July 6, 2023, the Tribunal decided to partially accept the plaintiffs’ claims. The Tribunal found that article 2 of Law 1931 of 2018 was outside the lawsuit’s scope, given that this article includes guiding principles and does not establish a concrete obligation or mandate susceptible of compliance. Moreover, the Tribunal found sufficient evidence that the Ministry of Mining and Energy had indeed complied with its obligations under articles 7 (num. 1 and 3) of Law 1931 of 2018, related to the creation of guidelines to ensure compliance of greenhouse gas (GHG) emissions reduction goals, as well as monitoring, within its functions, the development programs related to climate action. Finally, the Tribunal confirmed that the Ministry of Environment and Sustainable Development had complied with article 7 (num. 5), that concerns with updating the inventory of GHG and informing its progress. However, the Tribunal declared the non-compliance by the Ministry of Environment and Sustainable Development of article 7 (num. 2 and 3), article 17 and article 31 of Law 1931 of 2018, as well as article 6 (num. 17), article 13 and article 16 of Law 2169 of 2021. As per the Ministry of Mining and Energy, the Tribunal declared the non-compliance of article 7 (num. 5). These articles refer to mechanisms and studies that were meant to be implemented since the issuance of the laws and have yet to be formulated, adopted and implemented, particularly those concerned with coal exploitation and supply chain. In particular, the Tribunal ordered the: (i) identification of climate impacts within the Environmental Impact Assessments of mining projects; (ii) information gathering to update GHG inventory by the Ministry of Mining and Energy; (iii) implementation and monitoring of climate action plans; (iv) creation of more specific control and monitoring processes to verify GHG emissions and its reductions; (v) inclusion in climate action plans of specific goals and measures to mitigate climate change; and (vi) mandatory report of GHG by public and private parties. The tribunal imposed a six-month deadline and ordered the defendants to submit monthly reports of the actions taken to comply. Lastly, arguments against article 18 were dismissed due to res judicata, according to the precedent set in Office of the Inspector General and Others v. Ministry of Environment and Sustainable Development and Others. On July 13, 2023, both the plaintiffs and the defendants filed appeals. The case will now be heard by the Council of State.