Decision C-035/16 of February 8, 2016

Summary:

Colombia’s Constitutional Court struck down provisions of Law No. 1450 of 2011 and of Law No. 1753 of 2015 that threatened high-altitude ecosystems, called páramos. The court noted several important features of páramos, including their fragility, their lack of regulatory protection, their role in providing Colombia with as much as 70 percent of its drinking water, and the capacity of their soils and vegetation to capture carbon dioxide from the atmosphere. The court highlighted the last of these features in particular, calling páramos a “carbon capture system” and explaining that a páramos’ carbon capture capacity exceeds that of a comparably-sized tropical rainforest.

Law No. 1450 of 2011 established Colombia’s National Development Plan 2010–2014, and Law No. 1753 of 2015 established its 2014–2018 successor. Two provisions in the latter law are especially notable here. The first of these authorizes the Commission on Intersectoral Infrastructure and Strategic Projects to designate particular projects as being in the national strategic interest—a designation that exempts projects from aspects of local regulatory oversight. The second provision prohibits various activities—agriculture, mining, oil and gas exploration and refining—in páramos, but only if project owners received a lease and environmental permit for mining after February 9, 2010 or for oil and gas operations after June 16, 2011. Thus the law authorizes projects that received permits prior to those dates.

The Court declared both of these provisions (and others) unconstitutional for, among other things, endangering the public’s right to clean water, and relieving government agencies of their obligation to justify decisions certain to result in the degradation of environmentally sensitive and valuable areas.

At Issue: Constitutionality of statutory provisions grandfathering agricultural, mining, and oil and gas development activities in sensitive, high-altitude ecosystems