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2018 Colombia Domestic court

DeJusticia (Rodríguez Peña and others) v. Colombia

Summary:
On 5 April 2018, the Colombian Supreme Court of Justice ordered the protection of the Colombian Amazon from deforestation, ruling in favor of a group of 25 children and young people who had, with the support of advocacy organisation Dejusticia, contested the Colombian government’s failure to protect their rights to life, health and to a healthy environment with a tutela action. In its ruling, the Supreme Court also recognized the Amazon rainforest as a subject of rights.

Facts:
The applicants in this case were 25 children and young people, aged between 7 and 25 years. They submitted that, in their lifetimes, the average temperature in Colombia is expected to increase by between 1.6°C and 2.14°C. They invoked the Paris Agreement and domestic law no. 1753 of 2015, which, they argued, require the government to reduce deforestation and greenhouse gas emissions, including a reduction to net zero of the rate of deforestation in the Colombian Amazon by 2020. Citing ongoing deforestation and the failure to reduce deforestation, they detailed the projected effects of that deforestation for local ecosystems and the wider environment.

Admissibility:
The District Court that previously examined this case had found that a tutela action was not appropriate to this action because of the collective nature of the issue at hand. However, the Supreme Court found that a tutela can be filed where there is a connection between the violation of collective and individual rights if the person filing the tutela is directly affected, the violation of rights at stake is not hypothetical but clearly demonstrated, and the action sought is oriented towards restoring individual rights, and not collective ones.

Key findings:
The Supreme Court found that the fundamental rights to life, health, the minimum subsistence, freedom, and human dignity are connected to and dependent on the environment and healthy ecosystems. It held that the ongoing and increasing deterioration of the natural environment has severe impacts on current and future life and on fundamental rights. It also cited the decreasing ability to exercise the fundamental rights to water, clean air, and a healthy environment.

The Court noted that imminent dangers, such as rising temperatures, polar thawing, species extinction, and meteorological events and natural disasters had been clearly demonstrated. It considered that ecosystems are currently being exposed to existential threats that will lead to the exhaustion of natural resources, increasing difficulties for human subsistence and the pollution and change of the environment. It held that humanity is principally responsible for this scenario, because its hegemonic position on the planet has led to the adoption of an anthropocentric and self-centred model, with characteristic features that are detrimental to environmental stability (“la humanidad es la principal responsable de este escenario, su posición hegemónica planetaria llevo a la adoptación de un modelo antropocéntrico y egoísta, cuyos rasgos característicos son nocivos para la estabilidad ambiental“). These characteristics are i) excessive demographic growth; ii) an expedited approach to development guided by consumerism and existing political-economic systems; and iii) the excessive exploitation of natural resources.

The Court invoked the concept of social justice, and held that the protection of fundamental rights not only involves the individual, but also the “other.” This includes people in other nations as well as animal and plant species and future generations. In particular, it held that the environmental rights of future generations are based on the (i) ethical duty of intra-species solidarity and (ii) the intrinsic value of nature. Regarding the environmental rights of future generations, the Court discussed future violations by present-day omission, and the need to limit present generations’ freedom of action to ensure care and stewardship for natural resources and the future world.

Citing various international human rights and climate change instruments, the Court considered that the conservation of the Amazon is a national and global obligation, calling it the main environmental axis of the planet and the “lung of the world” (p. 30 of the judgment). It considered that the disputed policies lead to deforestation in the Amazon, causing short, medium, and long term imminent and serious damage to the applicants in the tutela action and to all inhabitants of Colombia, both present and future, because it leads to rampant carbon dioxide emissions and threatens native flora and fauna.

Invoking the principles of precaution, intergenerational equity, and solidarity, the Supreme Court concluded that there was no doubt that there is a risk of damage, given that the increase in GHG emissions resulting from deforestation in the Amazon rainforest would lead to estimated increases in Colombia’s temperature of up to 2.7 degrees Celsius by 2100.

The principle of solidarity meant that the Colombian State had a duty and shared responsibility to stop the causes of the greenhouse gas emissions caused by deforestation in the Amazon. This required the adoption of immediate mitigation measures to protect the right to a healthy environment.

Leaving a concrete response to the relevant authorities, the Supreme Court highlighted the urgent need to adopt mitigation and corrective measures to combat illegal agriculture and mining; establish an active state presence post-conflict; prevent and mitigate fires, deforestation, and the expansion of agriculture in the region; address the consequences of large constructing projects, property titling and mining concessions; address the expansion of large-scale farming; preserve this important ecosystem; redress the lack of scientific calculations concerning the release of tons of carbon through burning and the loss of biomass; and confront climate change related to the destruction of the Amazon.

Noting that the State had to date failed to take effective measures in this regard, the Court went on to declare that the Colombian Amazon was a subject of rights, and was per se entitled to protection, conservation, maintenance and restoration.

Remedies:
The Supreme Court held that the Colombian government had four months to present an action plan to reduce deforestation in the Amazon region.

Within five months, the Government was furthermore ordered to formulate an intergenerational pact for the life of the Colombian Amazon, with the active participation of the plaintiffs, affected communities, scientific organizations, environmental research groups, and interested population in general. This was to include measures aimed at reducing deforestation and greenhouse gas emissions.

It also ordered all municipalities in the Colombian Amazon, within the five months, to update and implement Land Management Plans, including action plans to reduce deforestation to zero where appropriate.

Within forty-eight hours, the Government was ordered to intensify deforestation mitigation measures.

Forum:
Supreme Court of Colombia

Date of decision:
5 April 2018

See also:
The original submission of DeJusticia (in Spanish) is available here.

The Supreme Court’s judgment (in Spanish) is available here.

Suggested citation:
Supreme Court of Colombia, DeJusticia (Rodríguez Peña and others) v. Colombia, Judgment of 5 April 2018, STC4360-2018, No. 11001-22-03-000-2018-00319-01, Luis Armando Tolosa Villabona (reporting judge).