JULY 2009 | LEGAL REPORT #5
NEW ENVIRONMENTAL SANCTIONATORY REGIME

Law No. 1333 of 2009, which amends Decree 1594 of 1984 and introduces the environmental sanctionatory regime, entered into force on July 21 of the present year.

Law No. 1333 introduces significant changes, mainly on the following subjects: (i) definition of environmental infringements, (ii) environmental liability regime, (iii) increase in environmental sanctions, and (iv) extension of the lapsing term for exercising the environmental sanctionatory action.

In this sense, the Law establishes that any action or omission which constitutes a breach to an environmental provision in force, including administrative decisions issued by competent authorities and, in general, any damage to the environment, will be construed as an environmental infringement.

Thus, environmental infringements will not have to be expressly detailed in the law for an offender to result liable, which entails that conducts involving an offender’s gross negligence or willful misconduct that may result in an environmental damage will be sufficient to give rise to said offender’s liability.

Regarding liability, it is worth mentioning that one of the main effects that will derive from this Law is the assumption of gross negligence or willful misconduct regarding anyone committing an environmental infringement and, in this manner, it will be the offender who will have to prove the opposite in order to be released from the imposition of an environmental sanction.

In this manner, the introduction of this objective liability regime implies that the burden of proof will be transferred to the offenders, they becoming subject to the obligation of proving that they acted with prudence and diligence in the performance of their activities whenever an environmental damage could have been caused.

On the other hand, the new Law considerably increases the sanctions for environmental infringements. In this connection, it must be pointed out that maximum daily penalties increased from 300 minimum monthly legal wages (approximately USD71,000) to 5000 minimum monthly legal wages (approximately USD1,184,000).

Likewise, the Law extends the lapsing term for exercising the environmental sanctionatory action from 3 to 20 years after the performance of the infringing action or omission.

Opinions regarding this Law are divided. Although some consider that the Law has a positive impact since it establishes clear rules for foreign and national investors, and prevents damages to the environment, others consider that the liability regime provided therein is excessive and unconstitutional, as it violates due-process rights and affect sustainable development in Colombia.

Notwithstanding the above, it is clear that with this Law Colombia is following the current global tendency on objective environmental liability. In this connection it must be noted that countries such as Costa Rica, Chile, Mexico, Argentina, Dominican Republic and the United States, as well as the European Union, provide this type of liability in their rules.

In any case, for this Law to meet its purpose in Colombia and not become an obstacle to foreign investment or affect the country’s competitiveness, it must come along with clear, efficient and transparent environmental procedures, which represents a challenge for local and national authorities in Colombia.