Combeima River case of September 14, 2020

A public servant in charge of defending, promoting, and protecting human rights in the Tolima region filed a popular action (‘acción popular’) against the Ministry of Environment, the Mining Agency, two mining companies, and three individuals alleging the defendants violated the collective rights to a healthy environment and ecological balance, among others. The plaintiff argued that mining permits issued in the Combeima and Cocora rivers violated collective rights since these rivers have been designated areas of special environmental importance. The plaintiff invoked a potential damage to water quality and availability in relation to the constitutional right to a healthy environment (articles 79 and 80 of the Colombian Constitution). The court of first instance, the Administrative Tribunal, declared the Combeima, Cocora, and Coello rivers as subject of rights. However, in September 2020, during the appeal process, the Council of State (hereinafter ‘the Court’) reversed this declaration. The Court reasoned that the Atrato River case precedent was not applicable in this case since the cases differ in factual elements and legal arguments. Particularly, the Court underscored that, in this case, the mining activities have yet to be executed, whereas, in the Atrato River case, there was sufficient evidence of damage caused by mining activities. Nevertheless, the Court found that the mining titles in this case had the potential to cause environmental damage to the Combeima and Cocora rivers. The Court invoked climate change as a main driver of water scarcity. The Court reasoned that environmental and mining authorities must take climate change into consideration when issuing environmental permits, as climate change relates to their obligation to prevent disasters. Therefore, the Court ordered the protection of the right to a healthy environment and halted mining activities in the Combeima and Cocora rivers. The Court conditioned the possibility of resuming activities on finding an alternative method of exploration that does not affect the Combeima and Cocora rivers. In case an alternative is not found, mining titles would lose their effect. The environmental authority was ordered to conduct visits to evaluate how the activities were being developed.