STC4360-2018 de la Corte Suprema de Justicia, Sala de Casacion Civil, M.P. Luis Armando Tolosa Villabona, April 05, 2018:
Appeal of the February 12, 2018, decision from the Sala Civil Especializada en Restitución de Tierras of the Tribunal Superior del Distrito Judicial de Bogotá, regarding the acción de tutela brought by Andrea Lozano Barragán and others against the President of Colombia and others. The petitioners asserted the increased deforestation in the Amazon threatens their rights to life, health and a healthy environment. The lower court’s decision had determined that the acción de tutela was not an appropriate legal action for collective rights claims, but the Supreme Court decided that the acción de tutela may be appropriate when the violation of collective rights results in the violation of individual rights. The Supreme Court explained:
[E]nvironmental protection intrinsically entails the safeguard of supralegal individual guarantees, [and] in this way, acquires by ‘connectedness’ the quality of fundamental, making the plea for protection proper in a superior way, despite the applicability of the acción popular …
[T]he fundamental rights to life, health, the vital minimum, liberty and human dignity are substantially connected and determined by the environment and the ecosystem. Without a healthy environment the subjects of rights and sentient beings in general will not be able to survive, much less protect those rights, for our children nor for future generations. Nor will we be able to guarantee the existence of the family, the society or the State itself.
Consideración 2 (unofficial translation). The Supreme Court also determined that age is no restriction for exercising the acción de tutela, and children have standing to exercise this special type of legal action to bring claims without the intervention of their parents or legal representatives. Consideración 3.
The Supreme Court articulated an expansive understanding of the scope of protection of environmental rights that includes future generations and non-human subjects:
[T]he sphere of protection of fundamental legal precepts is each person, but also the “other”. The “fellow person” is otherness; its essence, the other persons that inhabit the planet, encompassing also the other animal and plant species.
But, additionally, it includes those subjects not yet born, who deserve to enjoy the same environmental conditions lived by us.
Consideración 5.2 (unofficial translation). The Court cited the judgment T-622 of 2016 of the Constitutional Court recognizing the rights of nature. Consideración 12.
The Court explained that the environmental rights of future generations are based upon (1) the ethical duty of solidarity of the species, and (2) the intrinsic value of nature. Consideración 5.3. The Court also explained that international law (both hard and soft) serves as guiding criteria for national law to resolve citizen complaints about the destruction of our habitat, in pursuit of the protection of the fundamental rights of persons, of present and future generations. Consideración 6.
The Court concluded: “The conservation of the Amazon is a national and global obligation, dealing with the main environmental axis existing on the planet, by which reason it has been catalogued as ‘the lung of the world’”. Consideración 10 (unofficial translation). The Court determined that reducing the deforestation in the Colombian Amazon was among the responsibilities Colombia acquired by ratifying the 2015 Paris Agreement. Ibídem.
The Court contrasted the facts of deforestation and its consequential emission of GHGs with the environmental law principles of precaution, intergenerational equity and solidarity to arrive at the following conclusions: (1) deforestation could cause irreversible damage; (2) estimated temperature increases demonstrate an obvious transgression of intergenerational equity, unless present generations reduce the rate of deforestation to zero; and (3) the principle of solidarity, for this specific case, “is determined by the duty and co-responsibility of the Colombian State to stop the causes that provoke the emission of GHGs caused by the abrupt deforestation of the Amazon, being imperative to adopt immediate mitigation measures, protecting the right to environmental wellbeing, of the plaintiffs as well as other persons that inhabit and share the Amazonian territory, not only national, but also foreign, along with all inhabitants of Earth, including ecosystems and living beings.” Consideración 11.3 (unofficial translation).
Besides violating Colombia’s Constitution and international environmental law, the Court emphasized the reality of deforestation of the Amazon “constitutes a grave ignorance of the obligations acquired by the State in the Paris [Agreement] of 2015”. Consideración 11.3[b] (unofficial translation). The Court found several omissions by Colombian authorities, which led it to hold those authorities responsible for the deforestation in the Amazon and to order those authorities to develop an action plan and an “intergenerational pact for the life of the Colombian Amazon” to stop the deforestation and the emissions of GHGs, within four and five months respectively. Consideración 14 (unofficial translation). The Court ordered the municipalities in the Colombian Amazon to update and implement within five months land use planning documents that shall contain an action plan to reduce deforestation to zero. The Court ordered all the defendant authorities to increase deforestation mitigation measures within forty-eight hours as much as they have authority while the other orders are being complied with. Ibídem.