Environment and Climate Regulation Comparative Guide

• Published date: 15 November 2021
• Subject Matter: Environment, Energy and Natural Resources, Energy Law, Environmental Law, Renewables, Climate Change, Waste Management
• Law Firm: Holland & Knight LLP Colombia
• Author: Mr José Zapata and Rafael Toledo Plata

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.

(a) Air

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.

(b) Soil

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
• discharges.

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...