By Jose Felix Pinto-Bazurco
On January 29, 2018, a group of 25 children and young adults sued the Colombian government, demanding the protection of their constitutional rights to health, food, water, and a healthy environment. The plaintiffs argue that climate change endangers these rights and that the government defendants violated plaintiffs’ rights through their acts of omission and breach of their duty to protect the Colombian Amazon. According to the plaintiffs, the resulting rate of deforestation in the Amazon has increased emissions of the greenhouse gases that cause climate change.
The plaintiffs brought a constitutional claim called a “tutela,” discussed in further detail below. They asked the court to grant relief by ordering a series of measures aimed at reducing deforestation, mitigating greenhouse gas emissions, and increasing adaptation to climate change. Specifically, the plaintiffs requested the court order the following measures:
- A Government Action Plan to Reduce Deforestation: Within the next six months, governmental authorities must present an action plan to reduce the rate of deforestation in the Amazon to zero by the year 2020. Preparation of the plan must ensure opportunities for the plaintiffs’ participation.
- An Intergenerational Agreement: Governmental authorities must develop, in conjunction with the plaintiffs, an “intergenerational agreement” on the measures that will be adopted to reduce deforestation, mitigate greenhouse gas emissions, and enhance adaptation to climate change in each one of the country’s vulnerable cities and municipalities.
- Updates to Municipal Land Management Plans: The municipalities of the Colombian Amazon must update their land management plans within a period of six months. Updated plans should include actions to reduce deforestation, enhance adaptation, and mitigate greenhouse gases.
- A Moratorium on the Drivers of Deforestation: The government must issue a moratorium for the main drivers of deforestation, which plaintiffs identify to be land grabbing, illicit crops, and illegal resource extraction, until the above-mentioned action plan is issued.
- Investigation into Illicit Drivers of Deforestation: The Attorney General’s Office must investigate the illicit activities that generate deforestation in the Colombian Amazon.
- National Parks Budget Review: The Special Administrative Unit for Natural Parks must review the budget for parks to verify that it has sufficient resources to police its parks.
Lower Court Denies Petition on Procedural Grounds
The lower court denied the petition on procedural grounds. The court said that the tutela was not the right mechanism to deliver the measures requested by the petition because a tutela is a special mechanism that is only admissible when there are no other resources or means of judicial remedy available. The court suggested that the most appropriate measure for the petition would be an “acción popular,” another remedy provided in the Colombian constitution to protect collective rights, such as the right to a healthy environment.
To understand the court’s decision, it is worth considering the high number of claims filed in Colombia through the tutela as well as the fact that a judge must issue a ruling within only 10 days of receiving a tutela petition. Such time constraints may prevent a judge from carefully reviewing the grounds of a complex lawsuit, especially if judges do not have specialized expertise in an issue like climate change. This may be one reason why the judges chose to deny the claim on procedural grounds rather than ruling on the merits.
Plaintiffs File Appeal to Advance Their Claim for a Right to a Healthy Environment
Plaintiffs appealed the ruling on February 16, primarily challenging the determination that a tutela was an inappropriate mechanism for the petition. The plaintiffs argue that the tutela is the correct mechanism because the rights of the 25 plaintiffs are directly affected and thus deserving of this constitutional protection. They argue that an acción popular is less appropriate for this case because that action is intended to protect collective rights, instead of the tutela, which is intended to protect individual rights. Additionally, plaintiffs’ appeal is further supported by an amicus brief from the climate scientist James Hansen.
Now, the superior judge must review the challenge and issue a ruling within twenty days after receiving the appeal. The case will then be sent to the Constitutional Court of Colombia for their optional review. If the lower court decision is confirmed by the superior court and all internal remedies are considered exhausted, then the plaintiffs may pursue their action before international courts. The Inter-American Court of Human Rights recently issued an advisory opinion that could serve favorably to the interests of the plaintiffs, since it recognizes the right to a healthy environment as a right that can be protected under the Inter-American Convention on Human Rights. If the plaintiffs pursue action before the Inter-American Court of Human Rights, it could, at a minimum, bring their case greater visibility. In the most optimistic scenario, it could lead to an international court order requiring a State to take measures to advance climate change protection.
Analysis of Underlying Claim that the Colombian Government Violated Plaintiffs’ Right to a Healthy Environment
Despite its procedural complications, the plaintiffs’ innovative claim to protect their constitutional right to a healthy environment marks an important contribution to the growing number of lawsuits around the world that are demanding government action on climate change. In the Colombian case, the plaintiffs relied on several studies and legal instruments to demonstrate how the government has failed to meet its obligations to protect citizens’ constitutional rights to a healthy environment. Specifically, plaintiffs discussed a 2015 law that establishes a goal of reducing deforestation by 2018, the Colombian pledge made under the Paris Agreement to reduce greenhouse gas emissions by the year 2030, and a declaration to reduce deforestation made by Colombia in the context of signing a cooperation agreement with Germany and Norway.
Plaintiffs will face several hurdles as the case moves forward. First, it is unclear whether the above legal instruments are enforceable through a court. Second, it will be difficult to prove that the government is responsible for the increased rate of deforestation and violation of plaintiffs’ rights. Even if plaintiffs successfully demonstrate that there is a link between deforestation and the violation of the plaintiff´s constitutional rights, the judge may still find that there is insufficient evidence to prove that the government’s omissions caused the violations of plaintiffs’ rights. However, should the claim be admitted, the set of measures requested by the plaintiffs could advance crucial solutions to address the problem of deforestation in Colombia.
This post was originally published on the Sabin Center’s Climate Law Blog.
Jose Felix Pinto-Bazurco joined the Sabin Center for Climate Change Law in January 2018 as a David Sive Visiting Scholar. His research focuses on the legal impacts of implementing the Paris Agreement in Latin American countries. He specializes in international environmental law and has experience in public administration, the private sector, and research. He has followed the international climate change process as a delegate, a researcher, and a member of the UNFCCC Secretariat.