On November 9, 2023, the Plenary of the Constitutional Court (hereinafter the “Court”) issued its judgment in case 51-23-IN, regarding the public action of unconstitutionality of Executive Decree number 754 of May 31, 2023, through which reforms were made regarding environmental consultation in the Regulations to the Organic Code of the Environment (hereinafter the “Decree”).

The Court ruled that the Decree was unconstitutional because the environmental consultation should be regulated in a law. However, it provided that the Decree may be applied until the National Assembly issues the law on the matter, for which it granted a period of 1 year from the time the Ombudsman’s Office presents the impulse of the current project or the new project.

The Court ruled that the Decree “shall not be applied to indigenous communes, communities, peoples and nationalities. Environmental registrations and licenses must be conditional on compliance with environmental consultation or compliance with free, prior and informed consultation, as appropriate.”

In addition, it decided to revoke the provisional suspension of the Decree. When the Decree was issued several environmental consultation processes were initiated as part of the process of granting environmental permits for projects of various kinds, including mining projects for the exploitation phase. These environmental consultation processes were halted in accordance with the Court’s order and awaited its resolution on the substance and form of the unconstitutionality of the Decree. Now, the environmental consultation processes may continue under the Decree, which must be “applied subject to the guidelines and standards summarized in paragraphs 196 to 205.”

The Court also ordered the Ombudsman’s Office to “promote the bills on environmental consultation that are currently filed […] or, failing that, prepare a bill to regulate environmental consultation, with the participation of civil society. It also provides that this entity must “observe that the norms include and respect the standards developed by this Court in the matter.”

Regarding prior consultation, the Court ordered a law on the matter be approved within 1 year of its inauguration. 

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