On March 11, 2022, the Sixth Circuit Criminal Court ruled in favor of a tutela action filed by Senator Angélica Lozano a few days earlier. The Senator’s tutela action requested the suspension of the effects of Resolution 110 of January 28, 2022 of the Ministry of Environment and Sustainable Development, which establishes the activities, requirements and procedures for the subtraction of area from national and regional forest reserves for the development of activities considered of public utility and social interest, while two actions against Resolution 110 are being resolved on the merits, a popular action pending before the Administrative Court of Cundinamarca and another for nullity due to unconstitutionality before the Council of State (files 2022-00149 and 2022-00109).
The suspended Resolution is contrary to Law 2 of 1959, which designated seven Forest Reserve Zones: the Pacific, Central, Magdalena River, Sierra Nevada de Santa Marta, Serranía de los Motilones, Cocuy and Amazon. These forest areas deal with the development of the forestry economy, the protection of soils, waters and wildlife.
What worries the Senator and many others is the possibility that the Regional Autonomous and Sustainable Development Corporations may temporarily or definitively subtract forest reserve areas, with the purpose of allowing hydrocarbon exploration, a process that, as clearly stated in the Resolution, may imply several activities that would have a great impact on the surface and under the ground.
The tutela judge based his decision on Ruling T – 622 of 2016, of the Constitutional Court, which refers to illegal mining, where it is stated that the constitutional and international regulations contain some fundamental principles to advance the protection and guarantee of the environment, biodiversity and the ethnic communities associated with them. In the contemporary world, these principles are of mandatory application in view of the use, contamination and environmental damage generated.
One of the guiding principles of environmental law is that of prevention, which seeks to ensure that the actions of States are aimed at avoiding or minimizing environmental damage as an appreciable objective in itself, regardless of the repercussions that may be caused in the territories of other nations. It therefore requires regulatory, administrative or other actions and measures to be taken at an early stage, before the damage occurs or worsens.
The precautionary principle requires States to act to protect the environment according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
In Colombia, most of the Forest Reserve Zones are located in the headwaters or sources of Colombia’s main tributaries, and are the livelihood and economic means for the inhabitants of many regions. Hence the obligation to protect life, health, water, food security and a healthy environment. Both constitutional and administrative jurisprudence have embraced these principles as a crucial provision of environmental law. Its impact is such that it implies a change in the classic legal logic.
The tutelage judge considered the need for prevention and precaution, since although the threat is not ostensible, it does exist. Therefore, he ordered a temporary suspension of the application of Resolution 110 and the effects that may arise from it, provisionally, for a period of four months, until a serious and thorough study of the material impact that the effects of the same may have is issued, or until the Administrative Court of Cundinamarca or the Council of State issues an order to the contrary. The judge took into account evidence showing that any exploitation generates an impact, and that in the reserve’s location the impact is generally negative. In the meantime, we are awaiting the rulings to be issued by the Administrative Court of Cundinamarca and the Constitutional Court.
Once again it is the judges who must correct the government’s erratic and anti-human rights course. While President Duque was not able to ratify the Escazú Agreement despite the urgent call -due to the position taken by his own party-, he was able to issue Resolution 110 to put an end to the Forest Reserve Zones. The government’s policy is coherent, but against the right to the environment.
