Whilst Colombia has not experienced litigation challenging private actors for alleged operations that lead to more climate change, claims have been brought against private actors for their acts or omissions that demonstrate a breach of obligations in the following cases:

  • Rediba case: using the tutela mechanism (Article 86 of the Constitution), the claimants challenged different public entities, and a company which provided public services (Rediba S.A) for a violation of fundamental rights such as life in dignified conditions, health, water, and a healthy environment, caused by an unsanitary landfill. The court ruled in favour of the plaintiffs and highlighted the mistakes by the environmental authority: for failing to consider the negative impact of Rediba S.A’s actions; and the failure of the operator of the landfill, in addition to the deficiencies of their license, to comply with the conditions established in it.
  • Dow Química de Colombia case: recognised the company Dow Química de Colombia S.A. responsible for the spill of a chemical compound stored in the Mamonal area, at Cartagena. This resulted in the environmental pollution of water and air, the disappearance of flora and faunae, and inevitable rise in greenhouse gases. The court then employed the polluters-pay principle.

Remedial action includes a court order to carry out a review of granted environmental licenses, and determine whether it is necessary to modify or resolve, totally or partially, the administrative act (Rediba case); employ polluters-pay principle and collect damages (Dow Química de Colombia case).

Furthermore, the following grounds could also base a claim:

  • non-compliance with national or international climate change obligations,
  • violation of environmental rights, fundamental rights, or human rights, such as right to life, health, and a healthy environment (Art. 79 of the Constitution).

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.

Colombia has experienced climate change litigation challenging a national climate law/policy in the following instances:

  • Amazon case: plaintiffs were successful in demonstrating an omission and breach of duty by public authorities in protecting the Colombian Amazon, since the measures taken were not ambitious enough to tackle deforestation, which largely impacts climate change. As the Constitutional court recognised the Colombian Amazon as an entity subject to rights, the Plaintiffs exercised the tutela action, a mechanism used to protect fundamental rights to life, health and a healthy environment from violations by public authority.
  • Páramo case: the Constitutional court recognised for the first time the important of a páramo or moor ecosystem against mining activities, for their ecological importance and difficulty in recovering from extractive activities. The constitutional decision was based on legal and scientific arguments in protecting a healthy environment and water resources, and the important role páramos play in mitigating the effects of climate change.
  • Risk Management Policy case: the court recognised that fundamental rights to life and decent housing can be disrupted, as an immediate and direct consequence of the disturbance of collective rights. These fundamental rights were affected by environmental changes and a lack of local authorities’ response and proper risk management as obligated by the National Disaster Risk Management Law 1523 of 2012. Violation of this national law provided the grounds to base a claim challenging the state.

Remedies may entail court orders to public authorities to formulate and execute more ambitious action plans (Amazon case), and court orders to increase protective mechanisms to prevent damage to ecologically important areas, to prevent climate change acceleration (Páramo case).

Additionally, climate change litigation in Colombia can be brought by individuals challenging a national climate law/policy, on the following grounds:

  • National Law: an individual can issue claims against their government for allegedly not complying with its international climate change obligations by claiming the application of a law or an administrative act (Article 87 of the Constitution) through the action of compliance included by Law 393 of 1997. Therefore, any act or omission of the government could be challenged if there is sufficient evidence to demonstrate the violation of climate change obligations. Plaintiffs would have to provide sufficient evidence to demonstrate the violation of climate change obligations for the court to hear the case.
  • Human Rights: an individual could ground a claim based on a violation of the right to life, health and a healthy environment (Art. 79 of the Constitution) caused by ineffective climate policies/laws.
  • Popular Action: can be used for the protection of collective rights and interests (Art. 88 of the Constitution).
  • Tutela Action: can be used as a mechanism for the immediate protection of fundamental constitutional rights (Art. 86 of the Constitution), when in threat of being violated by ineffective climate action (Amazon case).

An interesting case to note regarding environmental law is the Atrato River case, which along with the Amazon Case, witnessed the Supreme Court recognise the Atrato River as an entity subject to rights and related to protection. Since the governmental, national, and local entities omitted to provide public responses to the needs of the territory and its habitants, the fundamental rights of the communities from the river basin were violated.

To remediate, the court recognised the biocultural rights of communities to manage and exercise autonomously the protection over their own territories and the natural resources that are part of their habitat.