Colombia

Colombia has experienced climate change litigation challenging the government for authorising a specific project that leads to increased emissions or ineffective adaptation. Based on the case law so far, the following grounds could be used in future litigation:

• Procedural obligations: before granting an environmental license, the Constitutional Court established the requirement to acquire prior consultation from indigenous and tribal communities from a specific area the project will impact. Failure to oblige can provide a procedural ground to base a claim. (Environmental Licenses case)
• Popular action: can be brought to seek protection of collective rights of a specific community, including the collective right to safety and prevention of (technically) foreseeable disasters (Disasters Prevention case)(Art. 88 of the Constitution). The success of this case not only ensured that risk management plans were formulated, but also executed by governmental departments.
• Precautionary principle: was applied as a rule of direct and autonomous application regarding the decisions of public authorities, when considering theRio Declaration on Environment and Development and Colombian Law 99 of 1993 (environmental damage) (Art.1 num.6). In this case, mining contracts were suspended due to the foreseeable irreparable damage to the ecosystems and natural resources the mining activities would have caused to the zone (Ibague case).
• Preventative principle: in its decision, the State Council considered the Sendai Framework for Disaster Risk Reduction 2015-2030, alongside other international frameworks, to highlight the need for prevention and risk reduction for inhabitants of territories with foreseeable flooding, by public authorities. Highlighting the vulnerability and urgency of the situation, the court ruled for necessary measures to be taken to mitigate the risk exposed to the habitants of the Oro river (Oro River floods).
• Collective rights: breach of collective rights, such as security and disaster prevention, as the territory and contained communities were exposed to risk factors of flooding and affected caused by environmental changes. (Marlinda and Villagloria communities’ case).

Remedies include court orders directed to the public authority to: formulate action plans and comply with obligations (Disasters Prevention case); take action to mitigate physical risks(i.e. floods) (Oro River floods); relocate communities (risk management) (Marlinda and Villagloria communities’ case); or suspend/invalidate actions foreseen to cause irreparable damage (when using the precautionary/preventative principle) (Ibague case).

Additionally, Colombia’s legal system includes mechanisms that allow a claim to be brought before the court when challenging an action that interferes with an individual(s) protection of rights and/or the application of national laws and local regulations relating to the environment, in which case the remedies can be:

• Nullity of the administrative act
• Nullity of the administrative act and restoration of the right
• Direct Repair Action

These mechanisms could be utilised when the authorisation of a specific project leads to increased emissions or ineffective adaptation, if the project violates the individual(s) rights or violates national laws/local regulations.