1 Legal framework
1.1 Which legislative and regulatory provisions govern environment and climate regulation in your jurisdiction?
The main regulations in Colombia are as follows:
- the National Code of Renewable Natural Resources and Protection of the Environment (Decree 2811/1974);
- Law 99/1993, which provided for:
- the establishment of the Ministry of the Environment;
- the reorganisation of the public management and conservation of the environment and renewable natural resources; and
- the organisation of the National Environmental System;
- Law 1333/2009, under which the environmental sanctioning procedure was established, among other things; and
- the Regulatory Decree of the Environment and Sustainable Development Sector (1076/2015).
The main regulations with regard to climate change are as follows:
- Law 1715/2014, which regulates the integration of non-conventional renewable energies to the national energy system;
- Law 1844/2017, which approved and adopted the Paris Agreement; and
- Law 1931/2018, which established guidelines for the management of climate change.
1.2 Which bilateral and multilateral instruments on environment and climate regulation have effect in your jurisdiction?
Colombia has ratified the following international instruments on the protection of the environment and climate change:
- the Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted by Law 17/1981;
- the Vienna Convention on the Protection of the Ozone Layer, adopted by Law 30/1990;
- the Montreal Protocol on Substances that Deplete the Ozone Layer, adopted by Law 19/1992;
- the Convention on Biological Diversity, adopted by Law 162/1994;
- the United Nations Framework Convention on Climate Change, adopted by Law 164/1994;
- the United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, adopted by Law 461/1998;
- the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, adopted by Law 740/2002;
- the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, adopted by Law 1159/2007;
- the Stockholm Convention on Persistent Organic Pollutants, adopted by Law 1196/2008;
- the Paris Agreement (Framework Convention on Climate Change), adopted by Law 1844/2017;
- the Minamata Convention on Mercury, adopted by Law 1892/2018; and
- the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety, adopted by Law 1926/2018.
1.3 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have? To what extent do they cooperate? What are the mechanisms for cooperation?
The following bodies are in charge of enforcing the regulations on environmental protection and climate change:
- the Ministry of Environment and Sustainable Development;
- the National Authority for Environmental Licences;
- the regional autonomous corporations;
- the sustainable development corporations; and
- the environmental districts.
These bodies, within their legal and constitutional powers, can:
- grant permits and authorisations (eg, environmental licences and other permits);
- manage natural resources (the Ministry of Environment and Sustainable Development and the National Authority for Environmental Licences have general and national powers; while the regional autonomous corporations, sustainable development corporations and environmental district departments have powers in their own jurisdictions);
- impose requirements in order to guarantee environmental protection and compliance with permits and licences; and
- carry out investigations of an administrative nature against anyone that fails to comply with the environmental legal framework, including through breach of permits and environmental licences.
The rulings of the Constitutional Court, the Supreme Court of Justice and the Council of State have also established measures and parameters to enforce environmental regulation and to clarify social issues relating to the environment and the development of projects that have an impact on the environment and natural resources.
1.4 What is the regulators' general approach to environment and climate regulation/action?
The regulatory approach in Colombia is protective of the environment and natural resources. To this end, all standards that have been issued must be fully complied with by authorities, companies and individuals that undertake any activity that may affect or have an impact on the environment. This means that the obligations imposed on individuals and companies through permits or authorisations must be fully complied with, as well as any requirements imposed under the legal and constitutional powers of the environmental authorities.
The regulators have defined the activities which:
- are allowed;
- require an environmental permit or licence; or
- do not require a permit or licence, but must comply with general standards for the protection of the environment and natural resources.
This will depend on the type of activity and the type of impact on natural resources such as air, soil, fresh water, flora and fauna, natural habitats and scenic landscapes.
Before the Paris Agreement, rules applied in Colombia that sought to regulate matters relating to greenhouse gas emissions and the use of alternative sources of energy. As a result of the Paris Agreement, regulations have been issued that aim to ensure compliance with Colombia's international obligations. To this end, criteria and parameters have been set to adequately manage climate change (eg, tax benefits for those who conduct activities on the basis of renewable sources).
2 Environmental protection
2.1 What are the key features of the regulatory regimes that protect the following environmental assets in your jurisdiction? (a) Air; (b) Soil; (c) Fresh water; (d) Sea water; (e) Flora and fauna; and (f) Natural habitats and scenic landscapes.
In addition to what is stated in Decree 1076/2015, the main provisions relating to air are set out in Resolution 627/2006 and Resolution 909/2008, both issued by the Ministry of Environment. These rules establish all parameters and standards that must be taken into account regarding:
- noise emissions;
- environmental noise; and
- acceptable emission standards for atmospheric pollution by stationary sources.
There are no regulations on soil or land contamination in Colombia.
(c) Fresh water
Decree 154/1978 regulates the classification of waters, the domain over them and the ways in which water may be acquired. Decree 3930/2010 partially repealed Decree 1541/1978 in relation to issues such as:
- the management of water resources;
- the generic destination of surface, underground and marine waters;
- the quality criteria for the destination of water resources; and
These regulations are currently compiled in Decree 1076/2015.
(d) Sea water
Decree 1120/2013 (compiled in Decree 1076/2015) regulates the Coastal Environmental Units and the relevant joint commissions, and sets out the procedural rules and criteria required to regulate certain activities in seagrass areas. However, the coast, beaches and sea water are specifically governed by the General Maritime Directorate.
(e) Flora and fauna
Decree 1791/1996 establishes the forest use regime; while Decree 1608/1978, regulates wild fauna. Both are compiled in Decree 1076/2015.
(f) Natural habitats and scenic landscapes
Decree 2372/2010 (compiled in Decree 1076/2015) created a national system of environmentally protected areas, and established environmental protection categories in which certain projects or activities may be restricted or even banned altogether. Some of the conservation values upon which national and regional environmentally protection areas may be based relate to the protection of natural habitats and scenic landscapes.
2.2 What are the key features of the regulatory regime that protects against environmental nuisances (eg, noise, odour and light pollution) in your jurisdiction?
Noise: Resolution 627/2006 of the Ministry of the Environment sets out the national standards for noise emissions and environmental noise. This regulation establishes the maximum allowed decibel emissions by time bands (day and night) in the following categories:
- tranquillity and silence;
- quiet or moderate noise;
- restricted intermediate noise; or
- suburban or rural tranquillity or moderate noise.
To this end, parameters, definitions and mathematical formulae are set in order to establish whether noise emissions are within the maximum allowed.
Odour: Through Resolution 1541/2013, modified by Resolutions 672/2014 and 1490/2014, the Ministry of Environment and Sustainable Development set out:
- the permissible levels of air quality and emissions; and
- the procedure for evaluating activities that generate offensive odours.
To that this end, the resolution established:
- permissible levels of air quality or emissions of offensive odours;
- measures for the evaluation of the levels of air quality or emissions of offensive odours;
- procedures for determining the concentration of offensive odours;
- a plan to reduce the impact of offensive odours; and
- a contingency plan for offensive odour emissions.
Light pollution: There are no specific regulations in Colombia on light pollution.
2.3 What are the consequences of breach of these regulatory regimes?
If the environmental legal framework is breached, the environmental authorities can initiate administrative investigations to determine whether there is environmental liability. In the event of liability, the environmental authority may impose any of the following sanctions, according to Law 1333/2009:
- daily fines of up to 5,000 times the current legal monthly minimum wage (approximately $1,269,955).
- temporary or permanent closure of the establishment, building or service;
- revocation or expiration of an environmental licence, authorisation, concession, permit or registration;
- demolition of work at the expense of the offender;
- definitive confiscation of specimens, exotic wild species, products or by-products, elements, means or implements used to commit the offence;
- restitution of specimens of species of wild fauna and flora; and/or
- community work according to conditions established by the environmental authority.
In addition to these administrative sanctions, other legal action may be initiated against the offender imposing civil and/or criminal liability for damage caused to the environment or natural resources.
3 Climate change/action
3.1 What are the key features of the regulatory regime governing greenhouse gas emissions in your jurisdiction?
Since 2014, the Ministry of Environment and Sustainable Development has developed the Climate Change National Policy, which aims to incorporate climate change management into public and private decision-making processes.
The following are the foundational guidelines for the Climate Change National Policy:
- low carbon and climate resilient development in both the city and the countryside;
- low carbon and climate resilient development in the energy industry;
- low carbon and climate resilient infrastructure development; and
- ecosystem management and conservation.
Accordingly, the Climate Change National Policy sets forth action plans to achieve these foundational guidelines. Ratification of the Paris Agreement promises to further boost the implementation of domestic low carbon domestic policies and regulations. Additionally, a climate change adaptation plan has been developed with the aim of reducing Colombia's vulnerability and improving efficiency in response to climate threats and impacts.
Through Document 3700/2011, the National Council for Economic and Social Policy defined the institutional strategy for the articulation of policies and actions on climate change in Colombia. To this end, it is necessary to facilitate and promote the formulation and implementation of policies, plans, programmes, incentives, projects and methodologies in relation to climate change, to ensure the inclusion of climatic variables as determinants for the design and planning of projects and industrial matters in Colombia.
3.2 What emissions trading regimes are operational in your jurisdiction and what are their key features?
Colombia is committed to implementing Clean Development Mechanism (CDM) projects aimed at encouraging investment in and transfer of environmentally safe technologies that reduce greenhouse gas (GHG) emissions. In order to implement the CDM in Colombia, Resolution 2734/2010 of the Ministry of Environment, Housing and Territorial Development (today, the Ministry of Environment and Sustainable Development) established requirements for CDM projects, which help Annex I countries to reduce their emissions. Thus, Resolution 2734/2010 refers to the approval of national projects that apply to the CDM.
Under its commitment to the Kyoto Protocol, Colombia has issued carbon reduction certificates in relation to CDM projects undertaken under the Kyoto Protocol.
3.3 How prominently does renewable energy feature in the energy mix in your jurisdiction? What regulations and other measures have been put in place to promote the use of renewable energy?
According to a Mining and Energy Planning Unit document on the integration of renewable energy in Colombia, the country's energy production portfolio in recent years has comprised (average percentages):
- coal – 46%;
- oil – 38%;
- natural gas – 9%;
- hydro – 4%; and
- others – 3%.
According to the Mining and Energy Planning Unit document, the country's energy demand portfolio in recent years has comprised (average percentages):
- coal – 10%;
- oil – 43%;
- natural gas – 25%;
- hydro – 13%; and
- others – 9%.
Law 1715/2014 aims to promote increased non-conventional energy production and use. In particular, it offers income tax reduction benefits for non-conventional energy projects. Resolution 1283/2016 sets out the specific procedure for obtaining environmental benefit certificates for investments in non-conventional energy projects; while Decree 829/2020 establishes tax benefits for those that develop non-conventional energy projects.
On 12 December 2020, at the Climate Ambition Summit, Colombian President Iván Duque Márquez announced concrete actions to mitigate and address climate change. To that extent, the president stated that by 2030, Colombia aims to reduce its GHG emissions of 51% compared to 2010 (reference year). To meet this objective, different multi-sectoral initiatives have been proposed (eg, energy transition, electric mobility and reforestation).
3.4 What regulations and other measures have been put in place to promote greater energy efficiency in your jurisdiction?
Colombia is implementing diverse projects in relation to clean renewable energy sources, including hydroelectricity, wind and solar power, and biofuels.
The main legislation governing renewable energy in Colombia is Law 143/1994, which aims to promote the rational and efficient use of energy, and encourage energy saving, efficiency and conservation. Law 697/2001 further promotes the use of alternative energy sources and other non-conventional types of energy in order to achieve a greater energy supply.
Law 1715/2014 aims to promote the development and use of renewable energy sources through their integration into the Colombian power market. This sets out mechanisms to promote economic development, reduce GHG emissions and ensure domestic energy security. The law sets out an action plan for Colombia to comply with its international commitments regarding the use of renewable energy, efficient energy management and GHG emissions reductions, as established in Law 1665/2013, which adopts the recommendations of the International Renewable Energy Agency.
3.5 What other initiatives have been rolled out in your jurisdiction to combat climate change and its effects? How are those effects typically manifesting in your jurisdiction at the present time?
In Colombia, wind energy is regulated by Law 1715/2014, which empowers:
- the Ministry of Mines and Energy to establish the technical requirements for facilities that use wind as an energy source; and
- the Ministry of Environment and Sustainable Development to set out the environmental standards for wind development projects.
In Colombia, solar energy is regulated by Law 1715/2014, which empowers the Ministry of Mines and Energy to establish the conditions for solar energy participation and technical requirements for facilities that use solar energy.
Decree 1076/2015 includes specific provisions on the development of these types of projects.
According to Decree 1076/2015, the construction and operation of facilities that produce energy from water are subject to environmental licensing. Likewise, Law 1715/2014 sets out precise conditions on the technical requirements for operation.
Law 1715/2014 further establishes precise conditions for the use of biofuels, taking into account forest management plans. However according to Decree 1076/2015, the exploration and use of alternative sources of energy are subject to environmental licensing. According to Decree 1076/2015, when the installed capacity exceeds 100 megawatts (MW), an environmental licence from the National Authority for Environmental Licences is necessary. If the installed capacity is between 10 MW and 99 MW, the environmental licence will be issued by the regional autonomous corporations.
3.6 What impact is Covid-19 likely to have on climate action in your jurisdiction?
Most of the recent regulations introduced in Colombia, mainly during 2020, aimed to mitigate the adverse impact of the Covid-19 pandemic on health and economic issues. Environmental regulations were also issued in order to provide tax benefits for those that carry out projects relating to the generation, transport or distribution of energy from non-conventional energy sources (Decree 829/2020).
It is expected that by 2021, as vaccination programmes progress and life returns to some kind of normality, efforts will continue to create new opportunities for climate change mitigation (eg, public auctions for energy production). The energy transition in Colombia is expected to continue moving forward, in parallel with the development of the mine and oil and gas industry, as energy supply cannot be affected. It is expected that this will create new investment opportunities in relation to the transport and commercialisation of energy from non-conventional renewable sources. In the medium and long term, these projects will promote the integration of renewable energy production into the energy mix and thus slowly move towards a reduction in the participation of the extractive industries in the energy supply chain.
In the first quarter of 2021, a new renewable energy auction is expected to be launched in Colombia. As indicated by President Iván Duque Márquez, this process is aimed at unregulated customers that are above 5,000 MW throughout the national territory.
4 Environmental permits and approvals
4.1 What environmental permits and approvals are required in your jurisdiction, and when are these typically required?
Two different type of environmental permits and approvals are issued in Colombia:
- environmental licences; and
- permits and authorisations that are required for activities that are not subject to environmental licensing.
To this end, Decree 1076/2015 sets out the activities that are subject to environmental licensing (eg, hydrocarbons and mining). In this scenario, it is necessary to determine which environmental authority is competent to issue the licence (ie, the National Environmental Licence Authority or the regional autonomous corporations and/or environmental district departments). This authorisation includes all necessary environmental permits, approvals and obligations that are required in order to proceed with the relevant activities.
On the other hand, activities that do not require an environmental licence, but that involve the use and exploitation of natural resources, are subject to use and exploitation permits to be issued by the competent regional or local authority.
The permits and authorisations that are typically requested in Colombia are:
- environmental licences;
- authorisations for the construction of works that occupy the channel of a stream or water reservoir;
- groundwater concession permits;
- surface water concession permits;
- atmospheric emissions permits;
- groundwater prospecting and exploration permits;
- wastewater discharge permits;
- permits or authorisations for the forest harvesting of isolated trees, and for persistent or unique classes of natural forests; and
- permits for the collection of specimens of wild species of biological diversity for non-commercial scientific research purposes.
4.2 What is the process for obtaining environmental permits and approvals? If a permit or approval is refused, can the decision be appealed?
Each environmental permit and approval is obtained through a specific process. This is because for each natural resource that is intended to be used, different availability and evaluation criteria must be taken into account by the environmental authority when deciding whether to grant the permit.
Notwithstanding the foregoing, the general procedure is that the interested party typically files a request, accompanied by corporate and technical information to support it, along with all other information that is required by the authority. Once the application has been evaluated, the permission is granted or denied by resolution. If it is denied, the applicant may file an appeal for reconsideration, in which it can present arguments explaining why, in its view, the permission should have been granted.
If the authority denies the appeal, the interested party must initiate a new procedure to obtain the requisite permit.
4.3 What is the duration of environmental permits and approvals?
The duration of the environmental permits and authorisations that are typically issued in Colombia will vary as follows:
- An environmental licence is granted for the duration of the project;
- Authorisation for the construction of works that occupy the channel of a stream or water reservoir is granted indefinitely;
- A groundwater concession permit is issued for a term to be decided by the environmental authority according to the availability of the resource;
- A surface water concession permit is issued for a term to be decided by the environmental authority;
- An atmospheric emissions permit is issued for a term of up to five years;
- A groundwater prospecting and exploration permit is issued for a term of up to one year;
- A wastewater discharge permit is issued for a term of up to 10 years; and
- A permit or authorisation for the forest harvesting of isolated trees or for a persistent or unique class of natural forests will be issued for a term to be decided by the environmental authority according to the availability of the resource.
A renewal request may be filed before the competent authority before the original term expires.
4.4 What, if any, requirements and restrictions apply to the transfer of environmental permits and approvals?
The transfer (assignment) of environmental permits in Colombia is permitted, provided that the following requirements are met:
- An assignment agreement must be signed between the assignor and the assignee, in which the obligations and conditions to carry out the assignment of the permit are established.
- A formal request must be submitted to obtain authorisation for assignment of the permit from the environmental authority. The assignment contract must be attached to this request.
- The environmental authority will authorise or deny the assignment through an administrative act. If the assignment is authorised, the assignee will assume all obligations of the permit.
Until the administrative act approving the assignment has been issued, the original holder remains liable for any breach of the permit's terms and obligations. Thus, any breach that occurs before the transfer will be the responsibility of the original permit holder.
4.5 What ongoing rights and obligations apply to the holder of an environmental permit or approval?
The rights and obligations under environmental permits, licences and authorisations will depend on each specific case, as the terms and conditions will depend on the information provided by the applicant and required during the process. Thus, permits will reflect the particular and individual circumstances of each applicant. To this end, the holder must comply with all regulations set out in the permit and in the environmental legal framework that applies to each permit and activity.
Thus, it is not possible to point out the ongoing rights and obligations that apply to the holder of an environmental permit or approval.
4.6 What are the consequences of breach of an environmental approval or permit?
If a permit or environmental approval is breached, the environmental authorities (the National Authority for Environmental Licences, which has general and national powers, and the regional autonomous corporations, sustainable development corporations and environmental district departments) are empowered to initiate administrative investigations to determine liability. In the event of liability, the environmental authority may issue a reasoned decision imposing any of the following sanctions, according to Law 1333/2009:
- daily fines of up to 5,000 times the current legal monthly minimum wage (approximately $1,269,955);
- temporary or permanent closure of the establishment, building or service;
- revocation or expiration of the environmental licence, authorisation, concession, permit or registration;
- demolition of work at the expense of the offender;
- definitive confiscation of specimens, exotic wild species, products or by-products, elements, means or implements used to commit the offence;
- restitution of specimens of species of wild fauna and flora; and/or
- community work according to conditions established by the environmental authority.
In addition to these administrative sanctions, other legal actions may be initiated against the offender to impose civil or criminal liability for damage caused to the environment or natural resources.
5 Waste management
5.1 How is ‘waste' defined and regulated in your jurisdiction? Does the regime vary depending on the type of waste involved?
In Colombia, there are three categories of waste – ordinary, special and hazardous – each of which is regulated by its own dedicated regime.
Ordinary: According to Decree 1077/2015, this is defined as all solid waste with non-dangerous characteristics that, due to its nature, composition, size, volume and weight, is collected, handled, treated or normally disposed of by public waste service providers.
Special: According to Decree 1077/2015, this is defined as all solid waste that, due to its nature, composition, size, volume and weight, transportation needs, storage conditions and compaction requirements, cannot be collected, handled, treated or normally disposed of by public waste service providers.
Hazardous: According to Decree 1076/2015, this is defined as waste that, due to its corrosive, reactive, explosive, toxic, flammable, infectious or radioactive characteristics, could cause risk or damage to human health and the environment. Containers, packages and packaging that have been in contact with such waste are also considered hazardous waste.
5.2 What key rights and obligations apply to waste operators in your jurisdiction? What are the consequences of breach?
Different obligations apply to each type of waste (see question 5.1).
Ordinary: Ordinary waste is collected, transported and disposed of by the public waste service providers of each municipality. Liability arising from public waste service activities, including the use of waste (where applicable), will lie with the operator from the moment that the waste is collected.
Special: Special waste can be disposed of directly by the producer at sites specially designated for this purpose; or the producer can request a collection service from the public waste service provider, which will charge an additional fee, as these operators do not ordinarily collect special waste. In the former scenario, the generator is responsible for the waste until it is taken to the designated point for its collection. In the latter, the public waste service provider will be legally responsible from the moment that the waste is collected until its final disposal.
Hazardous: In this case a joint and several liability regime applies between the generator, the transporter and the final operator in charge of waste disposal. Additionally, each of these agents has specific obligations that it must comply with in order to ensure the correct final disposal of this type of waste.
In the event of breach, administrative, criminal or civil liability may apply, depending on the specific case.
5.3 Are any producer responsibility regimes applicable in your jurisdiction?
Different obligations apply to each type of waste (see question 5.1).
Ordinary: The producer must store ordinary waste and place it at a location where it can be collected by the public waste service provider. It must comply with all conditions specified by the public waste service provider in relation to specific times, containers, colours and places for the collection and transport of waste for final disposal.
Special: Generators of special solid waste are responsible for ensuring its responsible disposal. To this end, they may bring the waste to specific locations in each municipality or contract with third parties for such purposes. Thus, according to environmental civil regulations, the generator and the disposal parties will have joint and several liability until the waste has been finally disposed of.
Hazardous: Specific obligations apply to producers of hazardous waste due to the toxicity and dangerous characteristics of this type of waste. To this end, the producer must:
- develop a comprehensive management plan for hazardous waste;
- identify its dangerous characteristics;
- package and label the waste correctly;
- comply with the rules that apply to the transport of dangerous substances;
- register as a generator of hazardous waste;
- appropriately train the personnel in charge of the management and handling of hazardous waste;
- prepare a contingency plan;
- maintain storage certifications; and
- contract storage and final disposal services from certified companies.
6 Hazardous substances
6.1 What are the key features of the regulatory regime governing hazardous activities and substances in your jurisdiction?
‘Hazardous substances' are defined as those that exhibit corrosive, reactive, explosive, toxic, flammable, infectious or radioactive characteristics. A specific regime applies to those that generate, manage or handle hazardous substances, due to the dangers that these types of waste present to the health of people and the environment. Decree 1076/2015 thus aims to prevent the generation of hazardous waste and to regulate its management, in order to protect human health and the environment regarding the contamination of soil or other natural resources, such as water.
In accordance with this legal framework, the generator, importer or manufacturer (which are equal to a generator), transporter, storekeeper and receiver of hazardous waste are jointly and severally liable until the waste is disposed of definitively and adequately.
If the specific rules on hazardous waste are breached, an investigation may be initiated in order to determine liability and who should be liable before the environmental authorities.
6.2 What key rights and obligations apply to operators of hazardous sites in your jurisdiction?
The operators of hazardous waste must fulfil the following obligations, in order to provide storage, use, treatment and/or final disposal services:
- Obtain all necessary environmental licences, permits and authorisations;
- Comply with all applicable regulations on transport, occupational health and industrial safety;
- Provide for the safe and environmentally appropriate management of residues or waste during all management stages, in accordance with the applicable regulations;
- Issue a certification to the generator indicating that the hazardous waste or waste management activity for which it has been contracted has concluded, in accordance with the agreement between the parties;
- Ensure that all personnel are adequately trained in handling waste and hazardous waste;
- Indicate in its advertising materials and its company presentation materials the types of activities and types of waste and hazardous waste that it is authorised to handle;
- Have an updated contingency plan to deal with all accidents or eventualities that may arise, and ensure that personnel are prepared for its implementation; and
- Take all preventive and control measures prior to the cessation, closure or dismantling of its activities, in order to prevent any contamination that may represent a risk to health and the environment.
6.3 What reporting requirements apply to environmental accidents in your jurisdiction?
Under the rules that regulate dangerous substances, generators and transporters of hazardous waste, and parties responsible for the storage and disposal of hazardous waste, must have a contingency plan in place. In all cases, Decree 1076/2015 expressly provides that they must keep this contingency plan updated, to ensure that they can attend to any accidents or eventualities that may arise, and ensure that personnel are prepared for its implementation. The plan may be structured based on what is established in Decree 321/1999.
The applicable regulations do not specify a timeframe within which an accident associated with hazardous substances or waste must be reported to the competent authorities. However, in the case of activities that are subject to the environmental licensing regime, accidents must be reported within 24 hours of the person in charge learning of the situation. It could be said that this term can be applied by analogy to accidents involving hazardous substances or wastes.
To this end, in addition to notifying the competent authorities, the relevant party must carry out all measures included in its contingency plan to deal with the accident and thus mitigate the impact of the situation.
All measures adopted and notifications made to the authorities must be documented, in order to demonstrate that the necessary diligence was applied at the time of attending to the accident.
6.4 What is the process for investigating environmental accidents in your jurisdiction?
The procedure for investigating accidents involving hazardous substances or waste is set out in Law 1333/2009. This regulation specifies all necessary stages that must be observed from the moment the procedure begins until a final decision is issued to punish or exonerate the party under investigation. The general procedure (which applies to different environmental matters, such as breach of an environmental licence or environmental permit) is as follows:
- A preliminary investigation begins from the moment the facts became known by the environmental authority.
- The environmental authority will launch an administrative investigation if it considers that there are merits to do so.
- The authority will specify the charges against the party under investigation, setting out the arguments based on which it considers that party should be sanctioned.
- Within the term granted by the authority, the party under investigation must present the arguments and evidence based on which it considers it should be exonerated of liability.
- Before making a decision, all necessary tests that have been requested by the party under investigation or decreed ex officio by the environmental authority must be completed.
- Finally, the authority must decide on whether there is environmental liability and if so, what sanctions should apply (the most common being the imposition of fines). The party under investigation may file an appeal for reconsideration, which, once resolved, terminates the environmental sanctioning process.
6.5 What are the potential consequences of breach of the regulatory regime governing hazardous activities and substances – both for operators themselves and for directors, managers and employees?
The main consequence of non-compliance with this regime is the initiation of administrative investigations to assess the environmental impact of the breach relating to the generation, transport, storage or final disposal of residues or hazardous wastes.
The investigation is conducted against the permit or licence holder. If the holder is a company, employees or managers will not be involved individually. Thus, if it is determined that liability was due to the acts or omissions of an employee or manager, the company can initiate a process against him or her for damages caused to the company itself.
In the specific case of managers and administrators, the Commercial Code allows companies to initiate action against them where their fault or fraud has caused harm to the company, shareholders or third parties.
7 Contaminated land
7.1 What are the key features of the regulatory regime governing contaminated land in your jurisdiction?
Soil is not specifically regulated under Colombian law. However, under broader principles rather than specific standards, environmental authorities may impose obligations on a party in relation to soil contamination where there is evidence of contamination. This may result in fines or sanctions if the environmental authority determines that the party under investigation is responsible for the contamination as a result of a previous environmental sanctioning process. From an administrative perspective, the environmental authorities usually include a requirement that cleaning obligations be carried out prior to the cessation of operations, under the terms of applicable environmental licences or permits.
The principal regulation on contamination standards and hazardous waste is Decree 1076/2015.
7.2 Who bears the liability for the clean-up of contaminated land? Can such liability be excluded or subcontracted/delegated?
The owner, possessor or occupier may be held liable for contamination from soil or groundwater releases, due to its failure to implement mitigation actions to minimise environmental risks derived from prior known soil or water contamination.
To this end, national, regional or local authorities may compel a private party to clean up contaminated property, based on their power to evaluate and control all projects and activities that generate or may generate risk or environmental loss.
Liability for the clean-up of contaminated land can be excluded or subcontracted/delegated. However, the holder or occupier is the responsible party before the environmental authorities. Thus, if the clean-up is inadequate and a sanctions process is commenced against the owner, the owner cannot blame a subcontractor in an attempt to avoid liability; although it if is subject to sanctions, it can sue the sub-contractor for damages.
7.3 How is liability determined in cases where multiple parties have contributed to the contamination?
Consider the example of a river that has been contaminated by discharges from several companies. In this scenario, it is difficult to establish the extent of each company's liability: while the river is contaminated, it is not possible to determine precisely which companies have polluted to a greater or lesser extent.
In this scenario, according to environmental civil regulation, the potential polluters will have joint and several liability.
7.4 Can individuals bring proceedings against polluters, landowners and/or occupiers where they have been affected by contamination? If so, which court/tribunal is competent to deal with such proceedings?
Yes. Pollution cases in Colombia can be brought before civil judges where the pollution has caused damage and compensation is sought accordingly. Likewise, a criminal complaint can be initiated for the crime of environmental pollution, which is punishable by between 55 and 112 months' imprisonment and a fine of between 140 and 50,000 times the legal minimum wage.
Finally, from an administrative point of view, it is possible to request that the environmental authorities conduct an investigation with a view to imposing sanctions. All three processes can be advanced simultaneously.
8 Reporting, auditing and disclosure
8.1 Are any public registers of environmental information maintained in your jurisdiction? If so, what are they, who can access them and how? What possibilities exist for third parties to access environmental information and what is the process for doing so?
There are two public registers of environmental information:
- the Integral Website of Environmental Procedures (VITAL); and
- the Unique Register of Environmental Responsibility (RUIA).
VITAL (http://vital.minambiente.gov.co/SILPA/TestSilpa/security/login.aspx) is a website which allows users, among other things, to:
- submit a request for the commencement of environmental procedures by completing the standardised forms;
- track the status of these procedure;
- file replacement resources;
- send additional information and;
- consult the requirements.
RUIA (www.anla.gov.co/ciudadania/sistemas-de-informacion/ruia-registro-unico-de-infractores-ambientales) is a website through which the environmental authorities record information relating to fines and sanctions imposed as a result of environmental sanctioning processes. It is regulated by Resolution 415/2010 of the Ministry of the Environment and Sustainable Development.
All of this information is public and can be consulted by all citizens.
8.2 What environmental reporting requirements apply to companies in your jurisdiction?
An environmental compliance report must be submitted regularly to the environmental authorities by the holders of permits or licences, at a frequency to be specified in the relevant permit or licence.
In these reports, information on the holder's compliance with the obligations and requirements set out in the licence or permit must be recorded, together with technical information that proves the fulfilment of these obligations.
Failure to submit these reports may result in the initiation of an investigation for environmental administrative liability due to breach of a legal duty.
8.3 Are companies in your jurisdiction subject to environmental audit requirements?
If companies and/or individuals are not subject to environmental licensing, no environmental audit requirement applies.
However, as outlined in question 8.2, companies that are subject to environmental licensing must submit an environmental compliance report, which verifies compliance with their obligations. This must be submitted regularly to the environmental authorities by the holders of permits or licences, at a frequency to be specified in the relevant permit or licence.
8.4 When and how must environmental issues be disclosed (eg, in the event of the potential sale of land or a merger or acquisition)?
According to Colombian civil law, the seller must disclose the existence of any hidden harms at the time of sale. These include anything that would prevent the thing being sold from fulfilling its natural purpose, either at all or perfectly, such that the buyer would not buy the thing or would buy it only for a lower price.
The following standards apply in relation to such disclosure:
- The seller must disclose hidden harms that the buyer could have ignored without this resulting in serious negligence; and
- The seller must disclose hidden harms that the buyer could not have easily identified due to its professional nature.
Based on these standards, the seller is required by law to disclose the results of investigations whenever harms identified as a result of such investigations correspond to the legal definition of a ‘hidden harm'. These environmental liabilities must be disclosed in order to mitigate the seller's liability.
9.1 What environmental and climate taxes are applicable in your jurisdiction?
There are two climate and environmental taxes in Colombia: the carbon tax and the tax on the consumption of plastic bags.
According to Article 221 of Law 1819/2016, the carbon tax is imposed on the carbon content of all fossil fuels, including all oil derivatives and all types of fossil gas that are used for energy purposes, provided that these are used for combustion. The carbon tax is calculated on the sale within the national territory, withdrawal, import for own consumption or import for sale of fossil fuels, and is levied at a single stage with respect to the generating fact that arises first.
The national tax on the consumption of plastic bags is levied on commercial establishments that provide plastic bags to the purchasers of the products they sell. The tax rate for bag for 2021 is COP 51.
9.2 Are any exemptions or incentives available?
According to Decree 926/2017, taxpayers can obtain an exemption from the carbon tax by providing evidence of programmes, projects, actions or activities developed at a national, regional or local level whose purpose is to reduce emissions, avoid emissions or remove and capture greenhouse gases (GHGs). The taxpayer must certify that it is carbon neutral by presenting to the producer or importer responsible for levying the national carbon tax a request for an exemption, indicating the amount of neutralised fuel in cubic metres or gallons and its equivalent in tons of carbon dioxide.
In relation to income tax, the legal framework also provides for a discount of 25% of investments aimed at the control, conservation and improvement of the environment. With regard to environmental benefits, an exemption from value added tax (VAT) also applies to the acquisition of assets aimed at the control of the environment, and the import of certain assets used for recycling.
With regard to non-conventional energy sources (NCES), the following benefits apply:
- for direct investments, an additional deduction of 50%;
- accelerated depreciation for investments in NCES;
- an exemption from VAT on the acquisition of assets relating to NCES projects; and
- a waiver of custom duties.
Decree 829/2020 establishes tax benefits for the development of renewable energy projects under Law 1715/2014.
The new Law on Tourism also provides for a reduced income tax rate of 9% for projects aimed at promoting ecotourism.
9.3 What strategies might parties consider to mitigate their environmental and climate tax liabilities?
To qualify as initiatives aimed at the reduction of GHGs, a programme, project, action or activity must meet the following characteristics:
- It must relate to a greenhouse gas mitigation initiative developed in the national territory.
- The GHG mitigation initiative must be formulated and implemented through certification programmes or carbon standards, conducted via a public registry platform for the reduction and elimination of GHG emissions.
- In must involve the implementation of either a Clean Development Mechanism methodology or a methodology developed through certification programmes or carbon standards which:
- have been the subject of public consultation and verified by an independent third-party body accredited in accordance with Chapter 1 of Decree 926/201; or
- have been issued by the United Nations Framework Convention on Climate Change, recognised by the national government through the National Standardisation Organisation or meet the requirements for registration of initiatives established by the REDD+ register.
- It must not relate to activities that have been mandated by an environmental authority to offset the impact of work or activity that is subject to an environmental authorisation.
- It must be recorded within the certification programme or carbon standard of origin and registered in the National Register of Greenhouse Gas Emissions Reductions, established by Article 175 of Law 1753/2015, upon becoming operational.
- It must be certified by the relevant certification programme or carbon standard.
10.1 What types of environmental insurance arrangements are put in place in your jurisdiction? Is there any mandatory environmental insurance in your jurisdiction? How sophisticated is the environmental insurance market? What, if anything, is excluded from insurance cover?
Ecological insurance was established through Law 491/1999. This type of insurance covers quantifiable economic damages suffered by a specific person as a consequence of damage to the environment and natural resources:
- in the case of non-contractual civil liability insurance, where such damages were caused by an event attributable to the insured, as long as it did not result from a merely optional act and was not caused with intent or gross negligence; or
- in the case of real insurance, as a consequence of an accidental, sudden and unforeseen event or action of a third party, or due to natural causes.
This insurance is mandatory for all activities that may cause damage to the environment and that require an environmental licence, in accordance with the law and regulations.
In practice, however, insurers are reluctant to grant this kind of cover. This suggests that the environmental insurance market in Colombia is not sufficiently sophisticated; a comprehensive overhaul of the applicable legal framework, and more precise specification of the terms and conditions of the cover, are thus required. In the meantime, insurers remain reluctant to grant this insurance.
The regulatory framework specifies no exceptions to the requirement to obtain ecological insurance.
10.2 What are the ‘green finance' arrangements in your jurisdiction? To whom do they apply? What, if any, obligations do they impose? Who is responsible for monitoring, enforcing and reviewing such arrangements in your jurisdiction?
In 2017, the Banking Association and Financial Entities of Colombia (Asobancaria) developed the Green Protocol in conjunction with the national government and the Ministry of Environment and Sustainable Development. This protocol sets forth the following key strategies:
- Generate guidelines and instruments to promote the financing, through credit and/or investment facilities, of projects and programmes that promote the sustainable use of renewable natural resources, the protection of the environment and enhanced competitiveness of the country's productive industries, thus helping to improve the quality of life of the Colombian population;
- Promote the sustainable consumption of natural resources and the consumption of renewable energy sources, or goods and services derived therefrom, in internal processes; and
- When conducting credit and investment risk analysis, consider the impacts and costs of environmental and social issues that result from the activities and projects to be financed, with the goal of ensuring compliance with the environmental regulations.
The protocol establishes national and international compliance standards for each of these strategies. The most important are as follows:
- Global Reporting Initiative;
- Dow Jones Sustainability Indexes;
- UNEP Inquiry: Design of a Sustainable Financial System;
- CDP: Driving Sustainable Economies;
- Green Financial Products and Services – UNEP-FI;
- Climate Bonds Initiative;
- Carbon Disclosure Project; and
- Equator Principles.
The protocol measures apply to financial entities that are members of Asobancaria. With regard to compliance monitoring, the Green Protocol Committee was also established to carry out recommendations, make decisions and report on the results of its initiatives.
11.1 In which forums are environmental and climate change disputes heard in your jurisdiction?
In Colombia, there are three different forums in which environmental and climate change disputes may be heard:
- Civil judges have legal and constitutional competence to hear all disputes relating to effects on the environment and climate change (however, there is no case law relating to non-compliance with international norms and treaties that regulate climate change and are applicable in Colombia);
- Administrative judges handle procedures in which the validity of environmental permits or authorisations is considered. Likewise, they will know of the cases in which the acts that have denied an environmental permit or authorisation are demanded; and
- All judges, regardless of their specialism, can hear constitutional actions in which it is argued that the environment, participation in environmental matters, due process or prior consultation (where applicable), among other fundamental rights relating to the environment, would be affected.
11.2 What issues do such disputes involve?
Such disputes involve issues such as:
- the right to a healthy environment;
- environmental participation;
- public prior consultation (applicable to certain communities, such as Afro-American and indigenous communities);
- due process at the time of granting an environmental authorisation; and
- supervening environmental restrictions (eg, a declaration of moors and wetlands that could affect the development of commercial activities).
These proceedings – especially those relating to prior consultation and delimitation of moors and wetlands – have a significant impact, as the decisions generally establish rules that will affect the future development of projects, works or activities that were previously authorised in Colombia.
11.3 What defences and indemnities are available, both for corporates and for individuals?
There are no indemnities available for corporations or individuals for matters relating to the environment. On the contrary, the legal framework encourages people to participate in environmental processes as third parties. This situation is regulated in Article 72 of Law 99/1993, which requires that public administrative environmental hearings be held prior to the grant of an environmental licence required for a specific project, work or activity that may have an impact on the environment or on natural resources. Communities that may be affected by the relevant project, work or activity and that understand the potential environmental impacts may participate in these hearings and present their concerns.
Additionally, the Colombian legal framework provides for the initiation of a class action to seek the protection of collective rights relating to the environment. Where the protection is not promoted by a group, this will take the form of a constitutional action. There is also another type of class action (compensatory action), through which a group of individuals can seek economic compensation for environmental damage that has resulted from a specific project, work or activity.
This all reflects the connection between the environmental participation right and the different instances in which individuals can not only discuss permits and licences that have been granted (environmental public hearing), but also seek to protect their rights where these are allegedly being undermined by environmental impact or damage beyond that which they have been asked to bear.
11.4 How are environmental disputes resolved?
Constitutional actions must be resolved in accordance with Decree 2591/1991 in the first instance, within 10 days of filing of the action. This decision must specify:
- the identity of the applicant;
- the identity of the subject which is responsible for the threat or violation;
- the determination of the protected right; and
- the order and the precise definition of the conduct to be carried out in order to enforce the guardianship.
Once a ruling has been issued, it may be appealed and must be resolved within 20 days of receipt of the file by the second instance judge.
Once a second instance decision has been issued, no additional appeal is possible. However, the file (at both first and second instance) must be sent to the Constitutional Court so that it can be selected for review through a random process. If it is selected, the court, through its review chambers, may revoke the decision and grant or deny the protection of fundamental rights. This process can take from 30 days to four years.
Class actions seeking to protect the collective right to enjoy a healthy environment are generally resolved within two to five years.
Administrative processes relating to the grant or refusal of an environmental licence or permit are heard at two instances, within a timeframe that ranges from three to eight years.
11.5 Have there been any recent cases of note?
As a consequence of International Labour Organization Convention 169 (approved and adopted by Law 21/1991), different rulings have been issued in Colombia on prior consultation with communities when legislative or administrative measures might affect them. To this end, the Constitutional Court, through rulings of constitutional action and constitutionality, has established the rules and procedures to be followed when a regulation is to be issued or a specific project, work or activity is to commence in an area in which a community to which ILO Convention 169 applies is based.
Regarding administrative matters, in recent years the legality of Decree 3004/2013 and Resolution 90341/2014 (setting out technical standards that enable the development of exploration and production activities in unconventional hydrocarbon basins) was discussed before the Council of State. As a result of these processes, a declaration of nullity has been sought.
Regarding declarations of moors and wetlands, the Constitutional Court, through Ruling C-035 of 2016, has prohibited mining activities and hydrocarbon exploration in these types of ecosystems, considering them deserving of special environmental protection. This decision has caused considerable legal uncertainty, as some companies hold legally awarded concessions.
12 Trends and predictions
12.1 How would you describe the current environment and climate change landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
The prevailing trends in the environment and climate change landscape in Colombia are as follows:
- Recent pronouncements of President Iván Duque Márquez and Colombia's commitments under the Paris Agreement suggest that more stringent requirements will be introduced in order to guarantee the protection of the environment.
- It is expected that environmental authorities and courts will step up the measures through which compliance with the environmental regulatory framework is verified.
- An increase in claims brought by interested and affected parties is also anticipated, in particular given that participation in environmental matters is especially protected in Colombia. The expected increase in requirements and standards may lead to claims for their fulfilment, in order to protect the environment and related rights.
13 Tips and traps
13.1 What are your top tips for smooth environmental and climate change compliance in your jurisdiction and what potential sticking points would you highlight?
- Understand the case law and its consequences, as these precedents increasingly define the manner in which companies should operate sustainably;
- Remain diligent with regard to prior public consultation and seek to understand community and social concerns;
- Understand the variability of and advances in law which limit legal certainty;
- Understand international principles that may impact on regulatory approaches; and
- Prepare for an increase in environmental claims, given the significant constitutional and international recognition of these rights.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.