Sentence T-614/19 (Cerrejón)

Sentencia T-614 de 2019, Sala Novena de Revisión de la Corte Constitucional, 16 December 2019, available in Spanish at https://www.corteconstitucional.gov.co/relatoria/2019/T-614-19.htm

Two indigenous women (one on behalf of herself and in representation of her infant child) from the Wayúu Indigenous Reserve “Provincial” sued the Carbones de Cerrejón mining company (“Cerrejón”) and several government authorities because the effects of coal mining operations were threatening their rights.  Lower courts denied their lawsuit, but the Constitutional Court revoked the lower court decisions and granted protection of their fundamental rights to health and a healthy environment (and those of other members of the “Provincial” Reserve). 

The Constitutional Court ordered Cerrejón to control its emissions of particulate matter such that, within one month, they don’t surpass 25 µg/m3 -daily average- and 10 µg/m3 -monthly average- of fine particulates (PM 2.5), nor 50 µg/m3 -daily average- and 20 µg/m3 -monthly average- of coarse particulates (PM 10), until the company, the community and the Ministry of Environment and Sustainable Development “agree upon an air quality standard for the Provincial Indigenous Reserve that accounts for the particularities of the open-pit coal mining operations and the effective protection of the fundamental rights of the plaintiff community.”  Resolution 3.

The Court ordered Cerrejón to implement the following “urgent transitory measures” within one month: (1) cleaning of coal dust on houses in the Reserve, water wells used by the members of the Reserve and surrounding vegetation; (2) reduction of noise within the Reserve such that it doesn’t surpass 65 decibels during the day nor 55 decibels during the night; (3) elimination of water pollution caused by runoff from the mine and other areas used by the company; and, (4) increased measures to prevent and respond to fires within five kilometers of the Reserve.

The Court ordered the government authorities to create, within one month, a Technical Commission that has the following objectives: (1) determine the risk factors of mining that affect the community; and, (2) identify alternatives to prevent, mitigate and correct “in a definitive way” such risks in the short, medium and long term.  The Commission shall create spaces for dialogue with the community and request the advice of several specified academic entities.   The Ombudsperson Office (“Defensoría del Pueblo”) shall be in charge of the Commission and define a schedule and a detailed strategy to fulfill the purposes of the Commission within one year, at which time it shall deliver its conclusions to the community, the company, and the Ministry of the Interior’s Prior Consultation Agency so they can determine “the definitive measures to be implemented in accordance with the prior consultation and/or free prior and informed consent processes”.  Resolution Five.

The Court ordered the government authorities to implement, within four months, an independent system to measure air quality (including PM2.5 and periodic chemical compositions) in the Provincial Indigenous Reserve and the quality of water sources that supply it.  This system shall guarantee a constant monitoring of the results, which shall be publicly accessible (preferably by means of a platform in real time). The system shall emit alarm signals to the community and the company when the permissible pollution levels are surpassed so the company can urgently take appropriate corrective measures.  An impartial and specialized technical team shall supervise the system.  

The Court ordered government authorities to carry out a strict and effective control of the mining operations “in a way that their environmental controls efforts aren’t focused solely on verifying compliance with threshold concentration values and/or measures established in the administrative instruments governing the company’s operations. To the contrary, they shall examine in depth and based upon different evidentiary elements, whether environmental and health impacts continue to be generated in the surrounding communities, in which case they shall exercise their control and disciplinary powers appropriately[.]”  Resolution Seven.  In the case of noncompliance, the authorities shall be able to suspend mining operations within five kilometers of the community.  The community members shall have mechanisms to make complaints, participate in the control of operations, and maintain continuous and good faith dialogue with involved entities.

The Court ordered the Ministry of Environment and Sustainable Development to regulate, within three months, the admissible levels of vibrations caused by blasting, especially in residential areas. 

The Court ordered the Ministry of Health and Social Protection to create, within two months, a health brigade in order to: (1) evaluate the health of the members of the Provincial Indigenous Reserve; (2) develop an epidemiological profile of the community; and, (3) inform the Technical Commission and relevant health services providers of its results.  The Ministry of Health and Social Protection shall design, within two months, a protocol for attending and registering illnesses potentially related to mining activities to be used by relevant health services providers.  The data obtained from this protocol shall also be delivered to the Technical Commission. 

The Court ordered government authorities to guarantee the members of Provincial access to a minimum of potable water sufficient to cover their personal and domestic needs.

The Court ordered Cerrejón to translate this sentence to English in order to share it with the headquarters of its owners Anglo American, BHP Billiton and Glencore “so they can evaluate the need to adopt additional measures[.]”  Resolution Fourteen.