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.

Challenging Environmental Impact Assessment Law for Failing to Consider Climate Change

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Challenging Environmental Impact Assessment Law for Failing to Consider Climate Change - complaint

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

Financial support to help individuals manage the effects of unexpected events, securing their livelihoods and increasing the resilience of people and businesses to the changing climate. It’s especially vital in developing regions where everyday risks, climate-related weather extremes, or crop failures can push people into poverty. Without insurance, people may have to resort to selling assets or cutting consumption to cope with losses.

The processes through which enterprises can identify, prevent, mitigate and account for how they address their actual and potential adverse impacts. Due diligence is the idea that reasonable precautions should be taken to avoid causing harm to people, the environment, or society. It also involves identifying and mitigating risks before they occur.

A ban is a legal action that prevents the sale or supply of a product or service, or that recalls a product from the market. Examples are bans on SF6, greenwashing, fossil fuel advertisement or single-use plastics.

Actions or measures to adapt freshwater systems to climate change.

Actions to adapt human health, healthcare systems and well-being to climate change.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Actions to reduce emissions in energy generation and supply.

Risks to the ecosystem health of the marine environment, including ocean warming, ocean acidification, and ocean deoxygenation, harming biodiversity, species health, ecosystem services, and coastal community livelihoods.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

People with different national or cultural traditions from the dominant population

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

woman and genders outside of the gender binary

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

Activities of businesses and institutions that provide financial services and products to individuals and organisations.

This sector involves the distribution, treatment, and conservation of water resources.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Challenging Environmental Impact Assessment Law for Failing to Consider Climate Change - complaint

Policy instrument

Risk

Impacted group

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience