Challenging criteria and technical requirements to perform fracking in Colombia

Summary:

On August 23, 2016, a Colombian citizen filed a lawsuit to challenge the validity of Decree 3004 of 2013 and Resolution No. 90341 of 2014 issued by the national government and the Ministry of Mines and Energy. These norms establish the criteria and requirements to perform fracking in Colombia. The petitioner argued that the challenged norms allowed fracking in Colombia, despite the significant number of scientific studies that substantiate fracking’s adverse and irreversible effects on human health and environmental stability.

On July 7, 2022, the Council of State decided against the plaintiffs’ claims. The court found that there was no violation of the Constitution or Law 99 of 1993 and declared the challenged norms valid. The court considered that fracking was already authorized by other existing and valid norms and that the challenged acts were merely contributing to its regulation. The court reasoned that all fracking-related norms should be interpreted holistically and comprehensively, preventing the court from declaring, as argued by the plaintiff, that the challenge acts were insufficient or inadequate. The court decided that the challenged acts complemented the criteria and requirement to perform fracking. The court restricted the legal analysis to the possible contradiction of superior norms that could undermine the validity of the acts. However, the court concluded that this contradiction was not proved during trial.

The court explicitly invoked the United Nations Framework Convention on Climate Change, among other norms, and stated that the precautionary principle is crucial for the protection of the climate system in benefit of future and present generations. Moreover, the decision mentions that according to the expert witnesses and reports, fracking, and fossil fuel exploitation in general prevent Colombia from reducing greenhouse gas (GHG) emissions and contributing to the fight against climate change. Nevertheless, the court considered the challenged acts did not violate this principle. According to the court, the precautionary principle does not mean “zero risk scenarios”, rather controlled scenarios to reach environmental and economic development goals. In the court’s opinion, the challenged acts are part of a broader set of norms that regulate fracking in Colombia in a way that does not contradict any superior norm.

At Issue: Whether the challenged norms contradict superior norms and cause an irreparable threat or harm to the environment by authorizing fracking in Colombia without sufficient regulation.