Environmental Law 2019 Second Edition

Last Updated November 13, 2019

Colombia

Law and Practice

Authors



Brigard Urrutia is recognised as the leading law firm in Colombia and one of the most prestigious in the region. It has a local presence in several cities in Colombia, and is party to more than 400 alliances, providing a wide reach throughout the world. The firm´s environment and sustainable business team integrates the knowledge and experience of an unrivalled multidisciplinary team formed of seven professionals with extensive experience in the legal, technical and social aspects of projects, business and sustainable investments. It offers a comprehensive portfolio of services aimed at providing strategic advice to structure, operate, monitor and dismantle projects in a sustainable and sound manner, including risk management assessment, through unique diagnostic and evaluation methodologies that allows it to identify and evaluate the socio-environmental risks of projects and define measures for the mitigation, control and compensation of impacts.

The history of Colombian contemporary environmental law can be traced back to 1973, when the government enacted Law 23 of 1973, as a direct consequence of the agreements made by the country at the United Nations Conference on the Human Environment of 1972, and particularly, due to the principles introduced by the Stockholm Declaration. Law 23 of 1973, still valid and in full force, defined rules on environmental pollution, environmental tort liability of the State and individuals, and authorised the executive branch to enact the Colombian Natural Renewable Resources Code (Decree in Force of Law 2811 of 1974 – (the Code)), currently valid and in full force, which is considered a fundamental piece of legislation in the environmental legal area.

Apart from the rules set by Law 23 of 1973 and the Code, Colombia also approved a new political constitution in 1991, which has been named by the Constitutional Tribunal of Colombia as a “green constitution”, considering the enormous importance it gives to the protection of the environment. The Colombian Constitution of 1991 recognised the collective right of Colombian citizens to a healthy environment and introduced sustainable development criteria as constitutional mandates. Also, it provided important participation mechanisms for citizens, aimed at ensuring the protection of renewable natural resources and the environment, and defined legal mechanisms to enforce that protection These include, among others, constitutional actions (acción de tutela) and both group and class actions. Additionally, the Colombian Constitution of 1991 defined Colombia as a multicultural state in which several ethnicities coexist, and therefore, provided indigenous and Afro-descendant groups with special protection. The country introduced ILO Convention 169 on Indigenous and Tribal Peoples to Colombian regulation by means of Law 21 of 1991 and assumed obligations regarding the prior consultation of minority groups whenever a project or a legislative measure has a direct impact over their territories or interests.

From an institutional standpoint, Law 99 of 1993 is also considered as a milestone within Colombian environmental law, since it defined the environmental institutional framework of the country known as the National Environmental System – (SINA). Law 99 of 1993 also created the Environmental Licence, as the administrative authorisation required to conduct projects or activities which may have severe impacts on the environment or the landscape. Law 99 of 1993 also incorporated the environmental principles of the Rio Declaration of 1992 into the Colombian legal framework, which constitute the main governing principles of environmental law (preventative actions, precautionary measures, environmental liability, polluter pays principle, amongst others). Furthermore, Article 63 of Law 99 of 1993, introduced three additional legal principles for the application of Colombian environmental regulations by the competent local authorities, namely: “subsidiary rigor”, “regional harmony” and “regulation gradation or hierarchy”.

In Colombia there are several authorities and entities responsible for environmental policy and its enforcement at the national, regional and district level. They are distributed as follows:

National level

  • The Ministry of Environment and Sustainable Development (MADS) – MADS is considered the highest environmental authority in Colombia, it establishes public policies regarding the recovery, conservation, protection, management, use and exploitation of renewable natural resources.
  • The National Authority of Environmental Licences (ANLA) – ANLA is a subsidiary of MADS in charge of granting the environmental licences that apply to projects which are considered of national importance. ANLA is empowered to monitor and keep track of those projects, works, or activities subject to environmental licensing, to ensure that said projects are conducted in accordance with the environmental regulation currently in force. Also, ANLA has the power to impose preventive measures and/or sanctions on transgressors of environmental regulation and environmental licences.
  • The Special Administrative Unit of National Natural Parks of Colombia (UAESPNN) – UAESPNN is a special administrative unit, at the national level, with responsibility for the administration and management of the System of National Natural Parks and the co-ordination of the System of National Protected Areas. UAESPNN has the power to impose preventive measures and/or sanctions on environmental offenders for breaches of the environmental law within these protected areas.

Regional level

  • The Regional Autonomous Corporations (CARs) and Corporations for the Sustainable Development (CDS) – CARs and CDS are public environmental authorities at the regional level. These entities are considered the highest environmental authorities within the limits of their jurisdiction. Their competence is limited to areas of the same ecosystem or the same geopolitical, biogeographic or hydrogeographic units (ecosystem criterion). Said environmental authorities are responsible for the surveillance of all the environmental matters and natural resources within their jurisdiction and promoting sustainable development. The CARs/CDS also have the power to issue Environmental Licences for small and medium projects.
  • The Departments – as the political-administrative entity of the regional level, departments have residual competencies over the administration of the environment.

Urban/Municipal levels

  • The Urban Environmental Authorities (UEAs) – UEAs have the same powers as the CARs/CDMs, with the difference that they discharge them within urban municipalities, districts or metropolitan areas with a population of at least 1,000,000 inhabitants.
  • The Municipalities – as the political-administrative entity of the local level, municipalities have residual competencies over the administration of the environment.

Other entities

  • Delegated Attorney for Environmental and Agricultural Issues – a subsidiary of the Office of the General National Attorney, whose function is to prevent, control and intervene in conflicts or issues related to the protection and preservation of the environment, natural resources, and the rights and conflicts related to land extensions.
  • Delegated Comptroller for the Environment – a subsidiary of the Office of the General National Comptroller, responsible for directing and co-ordinating the surveillance of environmental management in charge of public servers.
  • Specialised Unit of Environmental Crimes of the Attorney General's Office – as part of the General National Prosecutor Office, this unit is responsible for investigating environmental contamination, invasion of environmentally protected areas, illicit exploration and exploitation of natural reservoirs, among other established crimes.
  • Scientific Authorities.
  • Colombian Police – said institution has power to exercise police powers in order to protect the environment, there is also a Special Corps of Environmental Police that serves as a support entity for environmental authorities.
  • Colombian Navy – said institution is empowered to impose preventive measures as to prevent environmental damage, decisions to do so must be communicated to the environmental authorities in order to proceed with and investigate subsequent sanctions.

The Colombian environmental authorities (MADS, UAESPNN, ANLA, CARs/CDS, UEAs), and the Specialised Unit of Environmental Crimes of the Attorney General's Office are vested with ample powers to initiate environmental investigations against alleged offenders, provided that they comply with the proceedings set by the applicable administrative and criminal law.

Administrative authorities are empowered with surveillance and control powers over individuals and/or companies, and regularly visit the facilities in which projects are conducted in order to monitor compliance with the conditions set forth in environmental permits and authorisations, as well as with the general rules of environmental law in force.

Law 1333 of 2009 (Environmental Administrative Sanctioning Act) establishes which authorities are competent to initiate administrative investigations and to impose preventive measures and/or sanctions on environmental offenders. The proceeding included in this law defines the investigative and access powers of the administrative authorities.

If the environmental incident or breach entails a criminal offence, the authority in charge of the investigation will be the Specialised Unit of Environmental Crimes of the Attorney General's Office, and the proceeding to initiate and conduct a criminal investigation will have to consider the rules that are established in the Colombian Criminal Procedure Code, Law 906 of 2004. Whenever the investigation might affect the rights of the prosecuted person, the investigating authority must seek judicial permission to proceed.

If an environmental incident or breach implies tort liability, the proceeding and investigation must follow civil law procedural rules. The procedure and the probative stage will be conducted by a judge of the civil branch of the judicial power.

In Colombia, any project, work and/or activity that involves the use of renewable natural resources, and/or that may affect the environment, will require the interested party to request and obtain, from the administrative environmental authorities, the corresponding environmental licences, concessions, permits and/or authorisations. These authorisations are issued based on two main criteria: the impact that the project will cause to the environment, and/or the landscape; and the amount of natural resources required by the work, activity or project.

Colombian regulation establishes two applicable regimes regarding environmental authorisations: the environmental licensing regime and the environmental permitting regime.

The environmental licensing regime is only applicable to those projects, works and/or activities which may imply a serious deterioration of the natural renewable resources, or that have the capacity to significantly affect the landscape (eg, mining exploitation, oil transportation and storage, projects on natural park areas, hydrocarbons exploration and exploitation, infrastructure projects). The environmental licence shall encompass all the necessary permits to undertake the project, work and/or activity and will establish specific conditions under which the beneficiary of the licence shall undertake the project, work and/or activity. 

The environmental permitting regime, which includes environmental plans and registries, establishes several types of authorisation. There is specific regulation that will apply depending on the natural resource, as follows:

Atmospheric Emissions

In accordance with atmospheric emissions regulation, emissions derived from fixed sources require relevant permits or authorisations pursuant to the maximum limit defined for each air pollutant. This permit must specify the authorised emission and its quantity and quality characteristics, and will generally have a term of five years.

Water

There are various kinds of permit that may be granted for any project or activity implying the use of water or its impact regulated by Decree 1076 of 2015. Among these are water concessions and wastewater discharge permits. Concessions grant the right to use water from rivers and wells, as well as to dispose of wastewater; their terms may be up to five years. Additionally, there are special permits related to the use of a riverbed; construction and functioning of hydraulic works for the defence and conservation of lands, riverbeds, riverbanks, streams or of any other body of water. Also, there is a permit for the exploration of wells and underground water, if the purpose is to explore the subsoil in search of water.

Noise

The performance of any activity requires compliance with the maximum noise levels established in Decree 1076 of 2015 and Resolution 627 of 2006, among other regulations. Nevertheless, regulations have stated special occasions that may allow a person or company to exceed these maximum levels. Even though there is not a specific permit regarding the production of noise, companies must develop a prevention and decontamination plan for noise.

Offensive Odours

Resolution 1541 of 2013 and Resolution 2087 of 2014 establish the limits applicable to the emission of substances or a mixture of substances which cause offensive odours. This regulation mainly considers hydrogen, sulphide and ammonia. Even though there is not a specific permit regarding the production of offensive odours, companies must create and comply with a management plan for a reduction of the impact created by offensive odours.

Hazardous and Special Waste

According to environmental regulation all generators of residue or waste and/or hazardous waste are obliged to register with the generators' registry of the competent environmental authority, according to Resolution 1362 of 2007 and Decree 1076 of 2015 (Articles 2.2.6.1.1.1 to 2.2.6.2.3.6). There is not a permit required to produce this waste but the registration is mandatory.

Forestry

In order to extract forest products in Colombia the interested party must obtain a permit or authorisation from the competent environmental authority, which will also be necessary for logging and related industries.

Outdoor Advertisement

Essentially, outdoor advertisement is subject to prior registration before the office of the competent local authority, and a fee must be paid by the applicant for purposes of undertaking that outdoor advertisement.

The procedure to obtain an environmental permit varies depending on the type of the administrative authorisation (licence or permit). Generally speaking, the procedure for granting an environmental authorisation entails drafting and submitting technical studies whose complexity, number and detail will depend on the type of licence or permit; an evaluation procedure conducted by the environmental authority; a phase to request additional information from the company or individual; and a final decision adopted through an administrative act issued by the authority. It should be noted that Colombian regulation provides participation tools that enable national citizens and communities to participate in the proceedings through which the environmental permits are granted. Therefore, it is very important to bear in mind the necessity of socialising the projects, works and/or activities with those communities, particularly those that are located nearby, thoroughly informing them about the characteristics of the project and its environmental impact.

If the project, work and/or activity is located within or near minority communities, it will be mandatory to conduct a “prior consultation process”, which may also impact the procedure to obtain the applicable environmental permits.

The applicant, as well as third parties, has the right to request an administrative or judicial review of the final decision that grants or denies an environmental licence or permit. 

Under Colombian law, an environmental infringement takes place whenever a person or entity undertakes actions or omissions that breach Colombian environmental regulations.

The scope of environmental regulation includes national laws and regulations (general environmental obligations), as well as the terms applicable to licences, permits and authorisations issued by environmental authorities with respect to specific projects or activities (specific environmental obligations).

Environmental infringements may also take place whenever environmental damage occurs and that damage may be attributed to a person or entity pursuant to tort, administrative or criminal liability rules. Under Colombian tort liability rules, a person is liable for tort damages if three elements are proved, namely: the damage itself, negligent conduct and the nexus between the damage and the negligent or wilful conduct.

If a single act or omission breaches multiple legal obligations, the relevant individual or company may be held liable from the administrative, tort and criminal perspectives simultaneously. For instance, when environmental damages occur, the infringer may be liable under administrative law for causing damage to the environment, which in turn is also considered a criminal offence. If the same fact also damages the private property of a third party, he or she will be entitled to pursue damages according to tort law.

Types of Environmental Liability

Administrative liability

Those who commit environmental infringements may be subject to an administrative procedure conducted by an environmental authority to determine whether they are liable for the alleged infringement. If the alleged perpetrator is found to be liable, the environmental authority has the power to impose sanctions established in Law 1333 of 2009.

Under Colombian environmental administrative procedural law, the negligence and wilful misconduct of the individual or entity causing the environmental infringement is presumed. Based on this presumption, the perpetrator of an environmental administrative infringement will be liable unless they rebut the presumption. This presumption does not apply for tort liability and criminal liability scenarios.

The administration is entitled to impose the following injunctions and/or penalties:

  • preventive measures (injunctions) such as:
    1. written warnings;
    2. confiscation of all the products and elements used to commit the infringement; and
    3. suspension of works or activities when they may cause harm or damage to the environment, natural resources, landscape or human health; or when the project, works or activities were commenced without the necessary permit, authorisation or licence; or when the project, works or activities were executed in violation of permits, authorisations or licences;
  • penalties such as:
    1. daily fines of up to 5,000 times the legal monthly wage (COP3.90621 billion, approximately USD1.395 million) ;
    2. temporary or definitive closing of the activity causing environmental damage;
    3. cancellation of environmental licences, permits or authorisations granted;
    4. demolition of civil works (the breaching or non-complying party bears the demolition expenses); and
    5. community work.

Criminal liability

According to Colombian Criminal Code, if an individual or a company causes severe damage to natural resources or affects human health or the environment, a criminal procedure may be initiated to determine the liability of the alleged infringer. If liable, the perpetrator will be subject to penalties such as imprisonment for two to six years, and fines ranging from 100 to 25,000 times the legal monthly wage.

Under Colombian Criminal Law, only individuals are subject to criminal liability. Thus, officers and directors of a company (particularly its legal representative) that causes severe damage to natural resources or affected human health or the environment will be the ones subject to criminal liability. Also, individuals who directly participate in the events leading to the environmental damage will also be held liable from a criminal law perspective.

The environmental criminal offences according to Colombian criminal statues are:

  • illegal use of natural renewable resources;
  • trespassing of frontiers to exploit natural resources;
  • illegal management of hazardous micro-organisms;
  • damage to the environment;
  • contamination/pollution crime;
  • contamination associated with the exploitation of oil or minerals;
  • illegal experimenting with animals or plants;
  • illegal hunting and fishing;
  • invasion of an area of special ecological importance; and
  • illegal exploitation of minerals and construction materials.

Tort Liability

Pursuant to Law 23 of 1973 and the Colombian Civil Code, an individual or a company may be liable for contractual damages or tort damages. Unlike tort damages, parties need to have entered into an agreement to claim contractual damages based on breach of that agreement by the other party. Tort liability refers to damage or injury committed upon a person or property.

Environmental liability is a tort. Pursuant to Section 2341 of the Colombian Civil Code, a person who commits an injury or fault causing damage to another person must pay damages. Based on this Section, Colombian courts have outlined the elements of tort liability as follows:

  • Conduct – an act or omission attributable to the perpetrator.
  • Fault – negligent, fraudulent or wilful misconduct by the perpetrator which would not have been performed by a regular person should that person have been placed in the same situation.
  • Damage – material or personal loss or injury.
  • A nexus between the negligent conduct and the damage – a direct link between a cause (conduct) and an effect (damage). In other words, the damage would not have occurred if the conduct had not been performed. In addition, regarding environmental damage, Article 16 of Law 23 of 1973 provides that "the State shall be responsible for damages caused to man or to natural resources due to actions that generate pollution or detriment to the environment. Individuals shall be liable for the same reasons and for damage or inadequate use of the State’s natural resources."

Other Legal Actions and Remedies on Environmental Matters

In addition to the foregoing, individuals are entitled to file other actions against an environmental infringer. The most common ones are the following:

Constitutional Actions

Colombian constitutional actions such as the acción de tutela may be used by citizens to protect environmentally related causes, when linked to the protection of fundamental rights such as life and wellbeing.

Class Actions (APS)

Any perpetrator of an environmental infringement may be subject to an APS. An APS may be initiated by the government or by any third party in order to protect collective rights and collective interests such as environmental rights (eg, the right to a healthy environment, equitable use of natural resources or natural resources preservation). An APS may be brought to:

  • prevent contingent damage;
  • stop threats of damage; or
  • stop infringements of collective rights and collective interests.

Pursuant to Colombian law, an APS does not have a statute of limitation.

Acciones de Grupo (ADG)

Any perpetrator of an environmental infringement may be subject to an ADG. An ADG may be filed by a group of people affected by the same cause of damage (eg, contamination of a river affecting the crops of different peasants). An ADG may be brought to recover damages to natural resources, the environment, the landscape or human health.

Non-compliance with the environmental regulations, environmental damage or non-conformity with the conditions set by environmental permits and licences will trigger liabilities discussed in 5 Environmental Incidents and Damage, 6 Corporate Liability, 7 Personal Liability, 8 Lender Liability and 9 Civil Liability.

The general provisions on environmental and administrative law indicate that the environmental infringer shall be held liable for the environmental damages or offences caused by an incident. Although there are no specific rules addressing historic environmental incidents or damage, it is possible that a judge would consider imposing remediation obligations on a current or purchasing operator or landowner related to historic damages to property, if that judge understood that the owners were obliged to protect their property due to the so called “environmental dimension of private property”.

Law 99 of 1993 defines environmental damage as an effect on the normal performance of an ecosystem or its renewability capacity, permanently and with no possible remedy. As such, an environmental incident or damage can trigger administrative, tort and criminal liabilities, depending on its type, extent and magnitude.

From an administrative procedural law standpoint, the environmental liability for damages must comply with the following elements of the civil liability regime: damage, a triggering event and a causal link between them both. In Colombia, the intent or gross negligence of the alleged infringer is presumed, and the burden of proof is “inverted”. Consequently, is it the alleged infringer who must demonstrate, as a defence, one of the following:

  • acts of God or force majeure;
  • act of a third party, sabotage or terrorist acts;
  • death of the alleged infringer;
  • non-existence of the alleged infraction;
  • lack of attribution to the alleged infringer; or
  • that the activity is legal or authorised.

The most significant Colombian environmental liability case is the decision of The Environmental Licensing Authority (ANLA) against Coal Company Drummond Ltda. This company spilled 500 tons of coal into the sea in the port of Ciénaga (Santa Marta, Magdalena) in January 2013. ANLA imposed a suspension of the company’s activities as a precautionary measure. Later, through Resolution 1309 of 2013, ANLA imposed a fine of USD3.5 million on the company, the highest fine imposed in Colombia for environmental damage.

Corporations can be held liable for environmental damage or breaches of environmental law from an administrative and a civil law standpoint. However, there is no criminal liability for corporations in Colombia and, therefore, whenever criminal environmental offences are verified, the criminal authorities will only prosecute individuals who took part in the actions leading to those offences.

Neither shareholders nor parent companies are held liable under administrative Colombian environmental law. Criminal law investigations involve examining the conduct of individuals within organisations who participated in the chain of events leading to environmental damage or breach, particularly those who have sufficient power to influence the company's decisions, including parent company officials and directors, when applicable.

Under current administrative and civil law rules, directors and officers cannot be personally liable for environmental damage or breaches of environmental law committed by the company.

However, directors and officers can and will be held personally liable from a criminal law perspective, whenever dealing with environmental breaches or damage committed by the company, leading to criminal offences.

As per the applicable law, directors and other officers may insure themselves against civil liabilities. However, in Colombia is not possible to insure against criminal liabilities. Nevertheless, it is possible to insure against any civil liabilities that might arise from unintentional criminal conduct.

Under Colombian regulation it is not possible to consider lenders liable for environmental damage or for non-compliance with environmental obligations on the project, work and/or activity they finance.

There are no precedents or case law in Colombia regarding environmental liabilities imposed on financial institutions as a result of damages caused by their borrowers.

It should be noted that there are no specific regulations in Colombia imposing environmental liabilities on lenders, nor specific regimes applicable to Colombian financial institutions regarding environmental matters. However, environmental liabilities imposed on a given borrower may entail reputational issues for its lenders and, under certain scenarios, may also entail legal risks.

Currently, there are no legal initiatives aimed at creating a legal environmental liability framework applicable to financial institutions in connection with environmental damage caused by their borrowers’ activities and operations.

Although financial institutions/lenders are not held liable in Colombia, they are increasingly interested in verifying that the financed project, work and/or activity is compliant with the applicable environmental regulations in order to assure the financing feasibility. Thus, in Colombia, financial due diligence involve detailed environmental reviews to diminish financial and reputational risks with regard to environmental damages and/or breaches of the environmental law.

Since lenders cannot be held liable for environmental damage or the non-compliances of a project they finance, the only risk financial institutions or lenders might be exposed to is the default risk that might be caused if an environmental authority decides to order the suspension, or cancel the environmental authorisation, of the creditor's project.

As a consequence, and due to a renewed interest in the environmental and social impact of projects financed by lenders, in Colombia lenders will usually conduct environmental and social due diligence, and will usually require projects to comply with some sort of environmental and social standard applicable within the financial sector, such as the Equator Principles.

Civil claims for compensation, or other remedies, might be brought before the civil courts of justice in case of damage caused to natural resources or degradation of the environment. In order to bring civil claims before civil courts, it is mandatory to prove the damage, the triggering event, the causal link, and the defendant's responsibility for the damage to the claimant. Individuals may be held responsible for any damage caused to the natural renewable resources of the nation, or to the property of any other individuals.

In Colombia the theory of exemplary or punitive damages does not apply. The Supreme Court of Justice has repeatedly established, in its decisions, that punitive damages exceed the concept of integral reparation, upon which reparation in Colombia is based.

Both class and group actions may be used for environmental related claims. It should be noted that: (i) class actions are brought to protect collective interests, which include the right to a healthy environment, as recognised by the Colombian Constitution; and (ii) group actions are brought before courts to guarantee the protection of the individual rights and interests of specific groups of people (at least 20).

One of the most important decisions in Colombia regarding civil liability is the decision of the Urban Secretariat of the Environment of the Capital District of Bogotá, DC (SDA) against Petrobras, due to a fuel leak from a gas station in a residential complex in August 2010.

In 2014 the SDA imposed a fine on Petrobras equivalent to USD1.3 million for pollution and environmental damage. In turn, in 2015, the ninth Judge of the Civil Circuit Courthouse of Bogotá declared Petrobras guilty of environmental damage and ordered the company to pay USD2.1 million to the residents affected by the environmental damage.

Binding contractual agreements may transfer or apportion liability for incidental damage or breaches of law. Colombia's general regime of contractual law includes limitations for liability clauses. It is not permissible for an agreement to waive liability for future intended misconduct and gross negligence. Such agreements would affect the configuration of the contract.

Contracts, and the transfer or apportioning of liability, will govern the relation between the parties but are not opposable to the environmental authorities or third parties. 

Law 491 of 1999 created ecological insurance as a tort liability insurance mechanism aimed at covering risks arising from environmental damages (catastrophic events). Nevertheless, Law 491 of 199 has not been regulated to date and, therefore, it is not enforced as mandatory.

Colombia lacks a general statute specifically addressing contaminated lands and sites. Furthermore, there is currently no legal definition of environmental liability (pasivo ambiental). Nonetheless, general provisions of Colombian environmental law currently in force require the authorities to investigate any event related to environmental contamination and to impose fines and penalties, as well as to require the remediation of the impacted natural resources. Remediation must be carried out by the environmental infringer to the complete satisfaction of the environmental authority, which usually adopts international parameters related to maximum allowed levels of pollutants within soil.

As per Article 4 of Law 23 of 1973, pollution is defined as "[...] the alteration of the environment by substances or forms of energy put there by human activity or nature, in quantities, concentrations or levels capable of interfering with the welfare and health of the people, of affecting the flora and fauna, of degrading the quality of the environment or of affecting the resources of the Nation or of individuals." This definition was accepted and copied in its entirety by Decree Law 2811 of 1974, which in its Article 8, Letter a) expressly referred to the phenomenon of pollution as one of the aspects capable of negatively altering the elements that constitute the environment.

Based on the above, an environmental liability can be understood as an event causing detrimental damage to a renewable natural resource, that was carried out outside the limits of the law and without any remedy (ie, without the impact on natural resources having been remediated), which in turn, has the potential to adversely affect the environment (pure environmental damage) or third parties' assets (consequential environmental damage) in a given period of time (environmental damage or continued environmental damage).

Due to their characteristics, the events that involve environmental pollution usually affect soil resources and water resources, particularly surface and/or underground water bodies. Pollution might also affect other natural resources such as the atmosphere and forestry resources. Referring specifically to the legal regime for the protection of the soil, the Code establishes a general duty of soil and water protection, with shared responsibilities between the State and individuals.

Since a healthy environment constitutes a legal right protected by the Colombian Constitution, and based on the legal general provisions currently in force, environmental pollution events trigger the legal duties to:

  • remediate the impacted natural resource, assuming the burdens imposed by the environmental administrative authorities;
  • compensate for non-repairable damage caused to the environment, the assets of third parties and the health of individuals; and
  • assume the eventual criminal consequences arising from the crime of pollution and/or damage of natural resources.

Based on current definitions from Article 2.2.6.1.1.3 of Decree 1076 of 2015 (the Environmental Regulatory Statute of Colombia), remediation is understood as a "set of measures to which contaminated sites are subjected to reduce or eliminate contaminants to a safe level for health and the environment, or to prevent their dispersion in the environment, without modifying them.”

In a similar sense, and with respect to the remediation obligations from hazardous waste, Decree 1076 of 2015 established in Article 2.2.6.1.3.9. the "responsibility for contamination and remediation of sites. Those persons who are responsible for the contamination of a site due to improper handling or management of hazardous wastes or wastes shall, inter alia, be obliged to diagnose, remediate and repair the damage caused to health and the environment, in accordance with legal provisions in force."

Consequently, note that any pollution event creates grounds to require that the environmental offender:

  • diagnose the actual environmental impact generated by the pollution event; and
  • conduct remediation efforts –ie, actions aimed at reducing and/or eliminating contaminants to an acceptable level, and/or preventing their dispersion in the environment (confinement).

The remediation obligation also finds its legal grounds in Articles 31 and 40 Paragraph 1 of Law 1333 of 2009, which established the obligation to adopt the "compensatory measures" that the environmental authority deems pertinent, and that will have to be assumed by any environmental offender related to remediating polluted sites.

In words of the Constitutional Court, remediation actions constitute “a set of actions ordered by the competent environmental authority, aimed at achieving the recovery, rehabilitation or restoration of the ecological systems that have been degraded, damaged or destroyed as a result of an environmental infraction, and which is incumbent upon the offender to be brought forward, once his liability has been established. In this sense, compensatory measures are directly focused on the protection of nature, when they seek the return of natural resources or the environment to the situation prior to the environmental impact; or, failing that, to ensure that such goods or their environment are substantially improved or recovered.”

In this sense, it is necessary to indicate that the obligation of remediating a polluted site referred to in Law 1333 of 2009 constitutes the materialisation of the principle of "compensation in natura", that is, undertaking the necessary activities aimed at recovering the quality of the impacted natural resource, to the extent possible.

Colombia is a party to the United Framework Convention of Climate Change and recently signed and adopted the Paris Agreement. In 2011 the National Board of Economic and Social Policies issued the CONPES 3700, whereby the Institutional Strategy for the Articulation of Climate Change was adopted.

Decree 298 of 2016 created the National System of Climate Change (SISCLIMA), with the aim to promote the co-ordination, articulation, development, and monitoring of climate change adaptation and mitigation policies implemented by public and private entities and non-profit organisations. The SISCLIMA is managed by the Trans-sectoral Commission for Climate Change (CICC).

Law 1931 of 2018 established national guidelines for climate management. It included two main principles, namely: “joint responsibility” and “self-management”. According to these principles, all private and public entities have the obligation to contribute to the management of climate change through their own actions. 

The law also created the National Board for Climate Change as a permanent consultation organ that oversees the co-operation between public and private entities, social organisations, academia, international organisations and the Colombian Congress regarding Climate Change Management.

This law also established the National Programme of Greenhouse Gas Emissions Tradable Quotas (PNCTE), as an economic instrument to promotes the internalisation of climate change costs. The Emissions Tradable Quotas are tradable rights that authorise their holders to make emissions for one ton of CO₂ or another greenhouse gas. This mechanism is still awaiting implementation.

Additionally, in recent years Colombia has made several developments to guarantee sustainable development and mitigate climate change. The National Board of Economic and Social Policies issued the Green Growth Economy policy, through CONPES 3981, as a mechanism to strengthen environmental regulation axes such as: bioeconomics; forest economy; renewable energies; earth productivity and soil management; waste management; science, technology and innovation (CTI by its acronym in Spanish); productivity and competitiveness.

The national determined contributions (NDC) established by Colombia in the framework of the Paris Agreement aim at reducing its greenhouse gas emissions by 20% with respect to projected business-as-usual scenarios by 2030. This percentage might be increased to 30%, if international co-operation is provided to the country.

Law 968 of 2019 prohibited the exploitation, commercialisation, distribution, import and export of asbestos as a raw material and all the products that may contain it, aimed at protecting the right to life, health and a safe environment. As of 1 January 2021, all the activities related to the production of asbestos will be prohibited and will be penalised with fines between 100 and 5,000 time the monthly legal minimum wage, notwithstanding the criminal and disciplinary actions that might be applicable.

There is no regulation that establishes an applicable regime to already-installed asbestos. However, the national government has a term of five years to create: (i) a public policy for the replacement of the installed asbestos; and (ii) the “Plan for Labour Adaptation and Redirection of Production”, which guarantees the right to work and the right to health of the workers involved in asbestos production.

The most significant case on asbestos liability is Mendieta et Al v Eternit Colombiana SA This case was reviewed by the Supreme Court of Justice, which issued Decision SL2845-2019 on 24 July 2019 confirming remedies to the claimants for USD71,000.

Colombia has a broad regulatory framework on waste management and the final disposal of waste, which is compiled within Decree 1076 of 2015 (Environmental Regulatory Statute). Waste is regulated depending on its physical and chemical characteristics (ordinary waste, hazardous waste, special waste, e-waste), and must be correctly disposed of, according to specific technical conditions set by the environmental regulations currently in force. Regulations on waste also include conditions under which waste can be reused as a by-product.

The environmental authorities have ample powers to control and surveil both waste generators and waste handlers, including waste transport and final disposition. The chain of activities related to waste management, handling and final disposal is heavily controlled by the national, regional and urban environmental authorities, and the national government has consistently issued regulatory mandates to deal with waste in a more efficient way.

Regarding the handling of ordinary waste, it is important to mention that, on 14 June 2019, Colombia adopted the National Circular Economy Strategy, the first policy of this kind in Latin America. This strategy pursues the transformation of Colombian production and consumption chains through the efficient use of water and energy. The main mechanism of the National Circular Economy Strategy is to incentivise producers, suppliers and consumers to engage in business models that include adequate waste management and efficient use of resources.

In a similar sense, Colombia issued regulations on reverse logistics applicable to, among other things, used tires, used medicines, computers and batteries. Please refer to 14.3 Requirements to Design, Take-back, Recover, Recycle or Dispose of Goods.

According to waste regulations in force, producers of hazardous waste will be jointly liable for the waste they have generated, until it is effectively disposed of by a third party. This principle is called the “extended liability of the waste generator”. If waste has been adequately disposed of by an authorised third party, the producer/generator of waste or its consignor will not retain liability for waste, unless final disposition has been conducted against the law or in an inadequate manner.

Colombia has advanced in the implementation of reverse logistics systems applicable to some types of waste, and these are currently regulated by the following resolutions: Resolution 371 of 2009 (expired medicines), Resolution 372 of 2009 (lead-acid batteries), Resolution 693 of 2007 (Pesticides), Resolution 1512 of 2010 (computers), among others.

Please note that the government issued Law 1672 of 2013 by which all waste products related to electronic and electric equipment must be part a take-back system. The government is in the process of regulating Law 1672 of 2013.

If a producer of these kinds of goods either produces or imports products subject to reverse logistics obligations, it shall draft and file a reverse logistics plan before the environmental authorities. This plan shall contain strategies to ensure that the product is either correctly disposed of, or effectively recycled and re-introduced within the production chain. Take-back plans in Colombia can either be drafted by individual companies or by groups of companies and shall be approved and controlled by the ANLA.

If an environmental incident or contingency takes place in a project, work or activity, whether it requires an environmental licence or not, it must be self-reported by its owner, or those alleged to be responsible, to the competent environmental authority within 24 hours after its occurrence.

There is a form to report the environmental incidents or contingencies. This form must be submitted to the environmental authority through the Online Environmental Proceedings Platform (Ventanilla Integral de Trámites Ambientales en Línea – VITAL). Seven days after having submitted the report, the party responsible for the environmental incident or contingency must inform the environmental authority, through the same platform, of all actions, activities and measures that have been conducted in order to mitigate or remediate the situation.

When all the actions that are required to be executed in order to solve the contingency have been performed, a final report containing the details must be prepared and filed before the environmental authority within the next 30 days. The environmental authority may require that those alleged to be responsible for the incident or contingency develop a plan to achieve the recovery and restoration of the area that was impacted by the incident. When this plan is requested by the environmental authority, it must be filed through the Online Environmental Proceedings Platform.

All environmental information is public and must be updated by the environmental authorities. The information may be accessed through the authorities’ public offices or websites. The general public is also entitled to file requests to obtain the applicable environmental information and is entitled to be part of any environmental proceeding, particularly those related to permits and authorisations, without any legal restriction.

Companies do not have any environmental disclosure obligations within their annual reports in Colombia. As a consequence, the reports that corporations file before the environmental authorities are filed on a voluntary basis.

Nonetheless, please note that the environmental authorities are entitled to request environmental information from individuals and companies and often do so through requirements directly addressing the individual or company. Whenever requirements of this nature are sent by the environmental authorities, it is mandatory to answer them in due form.

Environmental due diligence is typically conducted on M&A, finance and property transactions.

Environmental due diligence performed by a purchaser of shares or assets must include a technical and legal review of at least the following matters and related documents:

  • applicable environmental licences, permits and/or authorisations with the corresponding modifications and assignments;
  • evidence of compliance with the obligations derived from said environmental licences, permits and/or authorisations;
  • existence of environmental protected areas or strategic ecosystems;
  • presence of ethnically differentiated communities;
  • relevant environmental claims of the communities that are located near the project, work or activity that is subject to the transaction;
  • existence of environmental sanction proceedings;
  • communications, administrative acts and monitoring reports issued by the empowered environmental authorities in respect of the project, work or activity that is subject to the transaction;
  • existence of environmental contingencies, which are understood as events generated as a consequence of an emergency situation, which are potentially able to negatively impact human health, and or the integrity of renewable natural resources and the environment; and
  • existence of any contamination of soil and/or superficial or subterranean aquifers, among others on the property owned/used for project, work or activity that is subject to the transaction.

It is not a requirement provided by the applicable environmental law that, in a transaction of assets or shares, during a legal due diligence process, the seller disclosures any environmental information to the purchaser. However, the environmental information is often disclosed for the purposes of due diligence, the warranties and the disclosure schedules given by sellers pursuant to the terms of the transaction agreement. Please note that this information is normally disclosed in order to analyse and determine the eventual transfer of environmental liabilities from the seller to the purchaser depending on the terms of each transaction and, consequently, influences the deal process and the terms of the transaction to include the pertinent representations and warranties.

Colombia was one of the first countries in Latin America to introduce a policy of green taxes. In 2017 was introduced a tax on carbon emissions, establishing a rate of USD5 per ton of carbon dioxide. It was also introduced a tax for the use of plastic bags.

Furthermore, there are environmental tax benefits, such as the income tax reduction of 25% of the total sum of investments applicable to equipment aimed at controlling, preserving and improving the environmental conditions of the activity.

Environmental regulations have established certain retributive and compensatory rates for the direct or indirect use of any natural resource, such as water, air and/or soil, when the purpose of its use is disposing any waste. In that sense, the holder of the environmental permit, concession and/or authorisation to make use of the air or soil for the purpose of disposing waste has to pay the corresponding established fees that are meant to compensate the damages caused to the environment and natural resources.

Brigard Urrutia

Calle 70 Bis No. 4 - 41
Bogotá
Colombia
NIT: 800.134.536-3

+57 1 3462011

info@bu.com.co www.bu.com.co
Author Business Card

Law and Practice

Authors



Brigard Urrutia is recognised as the leading law firm in Colombia and one of the most prestigious in the region. It has a local presence in several cities in Colombia, and is party to more than 400 alliances, providing a wide reach throughout the world. The firm´s environment and sustainable business team integrates the knowledge and experience of an unrivalled multidisciplinary team formed of seven professionals with extensive experience in the legal, technical and social aspects of projects, business and sustainable investments. It offers a comprehensive portfolio of services aimed at providing strategic advice to structure, operate, monitor and dismantle projects in a sustainable and sound manner, including risk management assessment, through unique diagnostic and evaluation methodologies that allows it to identify and evaluate the socio-environmental risks of projects and define measures for the mitigation, control and compensation of impacts.

Compare law and practice by selecting locations and topic(s)

{{searchBoxHeader}}

Select Topic(s)

loading ...
{{topic.title}}

Please select at least one chapter and one topic to use the compare functionality.