The Sabin Center published a new report today recommending actions that federal agencies could take to ensure safe and responsible permitting and regulation of ocean carbon dioxide removal (CDR) research in U.S. waters. The Intergovernmental Panel on Climate Change has concluded that CDR will be needed, alongside deep emissions cuts, to achieve global climate goals. […]
Colombia accounts for 0.4% of the global greenhouse gas emissions (“GHG”). The agricultural, land use and forestry sectors are the largest sources of GHG emissions in Colombia, representing 59.1% of the national total. By 2030, Colombia aims to reduce its emissions by 51% in all sectors and achieve carbon neutrality by 2050. So far, the country has adopted several laws to strengthen the legal framework towards achieving these goals. Likewise, the country has started to implement programs to mitigate GHG emissions and to promote REDD+ projects, all intending to achieve climate-related goals.
Over the last six months, Colombian courts have dealt with two separate lawsuits that seek to force the Colombian government to comply with its legal obligations regarding climate action (Office of the Inspector General, and others v Ministry of Environment and Sustainable Development (‘MADS’) and Citizens and NGOs v Ministry of Environmental and Sustainable Development and Ministry of Mines and Energy.). These suits were brought forward through a unique legal mechanism called ‘Acción de Cumplimiento’ (roughly translated as compliance action). The two lawsuits challenge the country’s failure to implement specific climate-related obligations set forth in Colombia’s legal framework, as discussed below. In this blog post, we will briefly explain (i) the background of climate change laws in Colombia, (ii) the nature and reach of the ‘Acción de Cumplimiento,’ and (iii) the two judgments and their implications for climate action in Colombia.
Colombia’s Legal Climate Framework
Colombia’s climate change laws are extensive and align with its open commitment to fight climate change and its devastating effects. Among the main legal statutes are:
- Law 164 of 1994 on the UNFCCC.
- Law 629 of 2000 on the Kyoto Protocol.
- Law 1523 of 2012 on risk management.
- Law 1715 of 2014 on non-conventional renewable energy sources.
- Decree 298 of 2016 on the National Climate Change System.
- Law 1844 of 2017 on the Paris Agreement.
- Law 1931 of 2018 on climate change action.
- Resolution 40807 of 2018 of the Ministry of Mines and Energy on the Climate Change Management Plan for the Energy Sector.
- Law 2169 of 2021 on carbon neutrality and climate resilience.
These laws, decrees, and resolutions (together the “framework”) fulfill some of Colombia’s international commitments regarding climate change and provide rules to design, implement and evaluate climate action in Colombia. The framework binds Colombia to international agreements, including the UNFCCC (Law 164 of 1994), the Kyoto Protocol (Law 629 of 2000) and the Paris Agreement (Law 1844 of 2017). It also provides guidelines on how to manage risky activities and specifically treats climate change as a natural and human-made risk (Law 1523 of 2012). The framework also established the National Climate Change System (SISCLIMA) to coordinate, formulate, monitor, and evaluate all programs, norms, strategies, plans, programs, projects, actions, and measures related to climate change mitigation and adaptation within the country (Decree 298 of 2016). SISCLIMA is made up of public and private entities, as well as nonprofit organizations working towards climate change mitigation goals.
These laws established obligations of creating rules for the management of climate change in the decisions of public and private actors and design minimum targets and measures to achieve carbon neutrality, climate resilience, and low carbon development in the country to be fulfilled by the Ministry of Environment and Sustainable Development and the Ministry of Mines and Energy within a specific timeframe, which depends on the specific obligation. For example, Law 1931 of 2018 establishes clear rules that govern public and private entities’ actions regarding climate change, as well as the cooperation between national, regional and local authorities in implementing climate change adaptation measures and GHG emissions’ mitigation action. For example, the law ordered the Colombian government to issue specific rules on the specific definition of short-, medium- and long-term as it relates to the Nationally Determined Contributions (NDC) (art. 15). Similarly, Law 2169 of 2021 established clear minimum goals and measures to reach carbon neutrality and climate resilience. For instance, article 16 states that the Ministry of Environment and Sustainable Development (MADS in Spanish) should implement, within 12 months, the necessary actions to ensure that environmental management plans include specific considerations related to climate change adaptation and mitigation, especially with regard to GHG emissions. Unfortunately, as the lawsuits suggest, the Colombian government has yet to comply with these obligations, which has prompted legal mechanisms to force compliance, including the ‘Acción de Cumplimiento.’
The ‘Acción de Cumplimiento’
The ‘Acción de Cumplimiento’ is a unique legal mechanism enshrined in Article 87 of the Colombian Constitution and further developed by Law 393 of 1997. This mechanism is intended solely to force compliance with a specific obligation or duty established by a law or administrative act, as stated by the Constitutional Court (see judgment C-157 of 1998). Anyone can file this type of lawsuit challenging both public and private parties if there is a clear obligation or duty in a law or administrative act.
The ‘Acción de Cumplimiento’ follows a fast-tracked procedure and has priority over most other types of action. Lawsuits brought via the Acción de Cumplimiento’ must first be approved and once that is done, suits must be decided within 20 days. Before filing the suit, the plaintiff must request the non-compliant authority to fulfill its obligations. The plaintiff may take the matter before the courts if the authority still does not act. However, the suit is subsidiary, which means that it would not be heard if the plaintiff had other legal mechanisms to pursue the protection of their rights.
During the judicial process, the defendant can present evidence that it complied with the legal obligation(s) identified by the plaintiff. The judge will then assess whether the evidence demonstrates sufficient compliance or whether the defendant has failed to fulfill its obligations. In the latter case, the judge will declare the defendant non-compliant and issue a specific order to ensure the defendant meets its obligations. Defendants can appeal this decision. If the decision is upheld on appeal, defendants must comply or face a declaration of contempt, which can carry fines or even jail time.
The Climate Compliance Cases: A Step Forward
So far, two ‘Acciones de Cumplimiento’ have been filed in Colombia seeking to compel the government to comply with specific provisions of the climate change framework (Law 1931 of 2018 and Law 2169 of 2021. The lack of compliance by both ministries prompted citizens to file the two ‘Acciones de Cumplimiento.’
The first case: Office of the Inspector General, and others v Ministry of Environment and Sustainable Development (‘MADS’)
Office of the Inspector General, and others v Ministry of Environment and Sustainable Development (‘MADS’) was filed by The Office of the Inspector General and the Delegate of the Office of the Inspector General Delegate for Environmental and Agrarian Affairs, which are part of the Public Ministry and have the purpose of protecting human rights, ensuring their effectiveness, and defending society’s collective interests especially the environment, in 2022 and aimed to ensure compliance with articles 15, 19, 26 and 29 of Law 1931 of 2018. In February 2023, the Tribunal of Cundinamarca decided the case. In April 2023, the Council of State, the highest court on administrative law matters, affirmed the decision. The Tribunal compelled the MADS to:
- Regulate the definition for short-, mid-, and long-term in the context of Nationally Determined Contributions (NDC’s goals) (Art. 15 Subsection 3);
- Provide instructions and guidelines for subnational entities and authorities to incorporate climate change in their planning policies (Art. 19 Subsections 2 and 3);
- Regulate the management and operation of the National Information System on Climate Change, which provides consistent and transparent data and information overtime for decision-making related to climate change management, and establish the rules and procedures for other systems (such as the National Forest Inventory or the Monitoring System of Forests and Carbon) with the same purpose (Art. 26’s paragraph) and;
- Establish the quantity of allowances: the actors are obligated to acquire the allowances and the requirements for their acquisition through an annual auction, similar to an Emission Trading Scheme (‘ETS’) (Art. 29 Subsections 3 and 4).
The Court ordered the MADS to fulfill its obligations by October 20, 2023, and provide monthly progress reports prior to that.
The second case: Citizens and NGOs v Ministry of Environmental and Sustainable Development and Ministry of Mines and Energy
Citizens and NGOs v Ministry of Environmental and Sustainable Development and Ministry of Mines and Energy was filed in 2023. A group of six citizens and three NGOs (Colectivo de Abogados José Alvear Restrepo, Censat Agua Viva and Polen Transiciones Justas) challenged the compliance of articles 2, 7, 17, 18, and 31 of Law 1931 of 2018 and articles 6, 13, and 16 of Law 2169 of 2021. The Tribunal of Cundinamarca decided the case in July 2023. AIDA appealed the decision to the Council State, which is yet to rule in the case.
The Tribunal of Cundinamarca found that MADS and the Ministry of Mines and Energy failed to fulfill their obligations under Law 1931 of 2018. The Tribunal ordered the MADS to:
- Structure, implement, and monitor the Integral Plans for the Sectoral Management of Climate Change (PIGCCS), instruments through which each Ministry in Colombia must identify, evaluate and guide the incorporation of GHG mitigation and climate change adaptation measures in the policies and regulations of the respective sector, following the guidelines created by the Intersectoral Commission of Climate Change (Art. 7, Subsections 2 and 3);
- Structure, implement, monitor, evaluate, and articulate the PIGCCS with the other land planning and development instruments (Art. 17);
- Regulate the conditions and requirements for the verification, certification, and registry of emissions, the reduction and removal of GHG, and provide the procedure for monitoring and controlling the obligations of the regulated actors (Art. 31).
Additionally, the Tribunal found a lack of compliance with the obligations under Law 2169 of 2021 and ordered MADS to:
- Implement the necessary actions so that the instruments for environmental management and control for projects, constructions, or activities incorporate adaptation and mitigation measures to climate change (Art. 6, subsection 17);
- Consolidate actions to achieve mitigation goals in Colombia’s Sectorial Planification instruments, understood as the tools that allow the land management, environmental preservation and the materialization of development planning at a national, regional and local scale (Art. 13);
- Identify the methodologies for calculating direct and indirect emissions to be included in the Mandatory Report of GHG Emissions (ROE in Spanish) and the methods, instruments, processes, and timelines for reporting (Art. 16).
Finally, the Tribunal ordered the Ministry of Mines and Energy to generate and collect the information needed to update the GHG inventories or any other report required by the UNFCCC under Law 1931 of 2018. It provided MADS with six months to take the above actions. However, the six-month period has yet to start, as the appeal of the Tribunal’s decision is still pending.
The enforcement of Climate Laws through la Acción de Cumplimiento
These types of ‘Acción de Incumplimiento’ lawsuits play an important role in helping to accelerate the achievement of Colombia’s climate goals. Despite a strong climate change legal framework, the lack of implementation of statutes and case law is a prevalent and persistent issue in Colombia. For example, the court order in the Future Generations case, regarded as Colombia’s highest-profile climate litigation case, has yet to be fulfilled five years after the decision.
The ‘Acción de Incumplimiento’ lawsuits are an effort to put pressure on the Colombian government and to hold it accountable for the climate commitments the country has made. A court order recognizing the government’s failure to comply with its climate obligations is a huge step forward. In hearing these cases, the courts assess the actual level of compliance of the Colombian government with its domestic and international climate commitments. Moreover, the courts may recognize (as happened in both cases analyzed in this blog post) the government’s failure to comply with these obligations, which indicates the actual state of Colombia’s climate action. Finally, the courts may issue specific orders on how and when to fulfill the outstanding obligations, providing more context to help the implementation of climate commitments. Hence, by providing a clear timeframe and context for ensuring compliance, the ‘Acción de Cumplimiento’ may drive other sectors of society (i.e., civil society, NGOs, and media outlets) to pressure the government to live up to their climate commitments.
As a result of the orders issued, the Colombian government is now expected to put into action the different instruments created by Law 1931 of 2018 and Law 2169 of 2021 by mid-2024 and to take the necessary measures to achieve the reduction of 51% of emissions by 2030 and carbon neutrality by 2050.