Council of State leaves safe rules that allow ‘fracking’

This Thursday, July 7, 2022, the Council of State denied the claims of a lawsuit seeking the annulment of the regulations that make fracking viable in Colombia.

This was determined by the Third Section of the high court in a session in which it dismissed the charges and nullity claims filed against the Decree 3004 of 2013 and Resolution No. 90341 of 2014, issued by the National Government.

(See: ‘We have legal obligations with ‘fracking’ pilots: Ecopetrol).

Five councilors voted in favor of the draft ruling, while three of them saved their vote. With this Council decision The decree and resolution that were suspended since the end of 2018 remain firm by decision of the high court while the lawsuit was being resolved on the merits.

The decision is known at a time when the government of President-elect Gustavo Petro maintains a campaign position according to which it would not use this type of hydrocarbon exploitation in the country.

“There will be no ‘fracking’ in Colombia“Petro wrote on Thursday morning on his social networks before the decision was known.

(See: ‘We seek the closure of ‘fracking”: Muhamad, Minambiente de Petro).

In fact, Susana Muhamad, who will be the Minister of the Environment of the new Government, said, in her first statements after learning of her appointment, that in Colombia the door to ‘fracking’ is closed.

“We seek the closure of ‘fracking’. We believe that going to look for the last remnants of gas generates more harm than good, when we must accelerate a responsible energy transition, but that it is also a productive opportunity for the country. In addition, it does not go with the vocation of the territories where they want to do that ‘fracking’Muhammad said in an interview with BluRadio.

The standards were demands because, in the actor’s opinion, “authorize, endorse or allow the technique of ‘fracking’ in the country” and that “These mandates represent a risk to natural resources and human, animal and plant health, as they contain rules that are insufficient or unsuitable to avoid or mitigate these potentially harmful consequences.“.

In the plaintiff’s opinion, the Council of State recalled, this supposes the violation of articles 79 and 80 of the Political Constitution, as well as article 1 of Law 99 of 1993, which imposes the application of the precautionary principle in environmental matters.

In its decision, the Third Section clarified that the standards demanded correspond to a technical regulation and that its function as a judge of legality “It is limited to determining, based on the legal reasons of the claim, if it violates the rules of higher hierarchy indicated by the plaintiff.“.

(See: The step by step that will be followed in the country to carry out or not ‘fracking’).

And, in this sense, he considered that the precautionary principle does not have, as a general rule, a prohibitive and paralyzing character and that, on the contrary, it is a call to regulatory action, “so that it does not materialize in a prohibition to the authorities to establish the technical requirements that must be met by those who carry out certain commercial activities and that have a legally relevant environmental impact“.

Likewise, he indicated that it corresponds to the administrative authority that makes the decision on ‘fracking’ define the technical and operational means to achieve the purpose of the precautionary principle, which must be reasonable and based on adequate scientific research.

“To that extent, he specified, the judge should not invade the orbit of the regulatory action, but limit himself to verifying that in the normative production phase of the technical regulation, the competent body has carried out adequate investigations that reasonably justify the measures adopted.“said the court.

And he emphasized that the plaintiff had to prove “cwith absolute safety and certainty“that the decree and resolution demanded they did not comply with the legal requirements of the precautionary principle.

However, in the judgment of the magistrates “it did not prove that they are contrary, alien or unreasonable in the face of scientific knowledge or of the corresponding discipline. Nor did it prove that its rules are arbitrary, inadequate or unreasonable to mitigate the risks of the regulated activity.“.

The ruling states that although it proved the existence of technical opinions other than those adopted by the regulation that is the subject of the lawsuit, “did not prove with certainty the existence of a flaw or error made in it or that its rules are openly inappropriate or inadequate because they contradict a single technically or scientifically viable option“.

He added that regulations do not create, authorize, endorse or allow ‘fracking’ and that actually contain the update of the technical regulation that already existed for an activity that is not prohibited in the country.

(See: In July, Kale Fracking Pilot Plans to Drill.)

“The legality of this practice escapes the control of nullity and is also supported by the legal regime of the exploitation of non-renewable natural resources allowed by the Political Constitution, rules that were developed by the regulation, in particular, of non-renewable deposits. conventional, whose use is expressly encouraged by current law“says the ruling.

And it ends that those administrative acts do not lead to issuing the authorization of an oil practice or policy: Nor is the execution of a specific extractive technique encouraged, a matter whose study and definition is not located within the limits of the control competence that is regulated and the issuance of the technical regulation that adopts it.

The Fracking Free Colombia Alliance He ruled rejecting the ruling: “This decision is dangerous in the context of the climate crisis and openly inconsistent with the international commitments acquired by Colombia, and increases the risk that the implementation of fracking is generating for the environmental defenders of Magdalena Medio, a territory that has suffered more than of a century of oil exploitation and armed violence”.

TIME – JUSTICE