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Will “fracking” continue to be suspended in Colombia? After four years of the process and two since the measure that today prevents the use of the technique for commercial purposes in the territory was taken, the Council of State ended the evidentiary stage and the multiple parties presented their closing arguments.
Fracking in Colombia was suspended in November 2018 by court order of the Council of State, after considering that there is no scientific certainty that its use does not cause environmental damage and human health, following what is called in law the precautionary principle , which obliges to intervene in favor of the environment when in doubt about the effects that an activity may produce. Two years after the debate, the high court is ready to decide on the merits in this case, as it has closed the evidentiary stage and has already received the closing arguments from the parties involved. The question today is the same: was the uncertainty overcome?
The answer is not easy to resolve in a debate whose technical elements have divided experts from different specialties and which passes through national politics. In fact, the office of magistrate Ramiro Pazos, of the Council of State, to whom this case corresponded by distribution, has on his desk today voluminous allegations with the positions of the Government, universities, work groups and congressmen, among others. As well as Esteban Lagos, the lawyer who started this debate in 2016 by demanding Decree 3004 of December 26, 2013 and Resolution 90341 of March 27, 2014, in which the criteria for the exploration and exploitation of hydrocarbons were set. in unconventional reservoirs with horizontal hydraulic stimulation.
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The fracking It consists of injecting water mixed with chemicals into the subsoil to make hydrocarbons flow from compact stones that are found kilometers deep. And it is this procedure that generates multiple doubts. The Attorney General’s Office said, for example, that the scientific evidence on the irreversible damage that it causes both to human health and to groundwater and surface waters —and the ecosystems that depend on them— is “abundant,” so using it is not going to hand in hand with sustainable development. That potential damage, insists the Public Ministry, forces us to continue applying the precautionary principle taking into account, in addition, that the country does not have a baseline of environmental, geological, geochemical information or monitoring capacity.
Luis Enrique Orduz, spokesman for the Podión Corporation, who supported the lawsuit, joins this position, citing two reports that the National University presented at the request of the office as a technical report. Both point out that there are associated risks, but the majority say that there is no way to mitigate them and the second that it is possible. Orduz states that there is evidence of groundwater contamination by gas and fluid leaks, as well as that there are dangerous chemicals in the water, which can become a public health risk if it passes into surface water. In his opinion, the regulations are insufficient to control this risk.
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These chemicals include methanol, benzene, toluene, xylene and ethyl benzene, which are air pollutants and carcinogens to humans. Orduz highlights the testimony in the case of the chemical engineer Jorge Sánchez, in the sense that there is no way to monitor the “toxicological chemical risk” and states that one of the resolutions demanded makes only one mention of the fracture fluid. “The generic formulation of ‘chemical additives’ is unsatisfactory in relation to the necessary level of disaggregated information that, as noted, includes the number, chemical nature (the formula and structural properties) and the concentration of each of the components that make up the additive systems, among other aspects ”.
In his document, he also states that there are risks that cannot be mitigated that are associated with wastes called “NORM”, which are substances that are composed of or present radioactive materials and that apparently would be found in the return fluids. The Legal Clinic for the Environment and Public Health of the University of Los Andes also asked to close the door to fracking, by ensuring that the judicial process itself shows that there is scientific uncertainty and that only some of the damage exposed, both to human health like the environment, they would be mitigable and others would be simply irreversible.
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“The precautionary principle in environmental matters must be applied and the use of the hydraulic fracturing technique in Colombia must not be enabled with regard to the state duty to preserve, guarantee and respect the human health of its inhabitants. The above because there is a risk, that risk is of serious and irreversible damage and there is no scientific certainty about the total and real effects of this technique on human health. In addition to the fact that Colombia does not have a strong institutional framework that allows it to face the effects derived from hydraulic fracturing, mitigate the dangers and, in the event that the risks materialize, repair and compensate them ”, says the document.
This position was joined by Congressmen Jorge Eduardo Londoño, Antonio Sanguino and Angélica Lozano, among others, while the Government asked to give free rein to the fracking. The Mines Ministry said, for example, that the questions should be limited to horizontal drilling for the exploration and exploitation of oil and gas in shales and not in sands, tight carbonates and gas associated with coal seams. And he considered that the Council of State has exceeded what is a nullity debate, as there is evidence related to Colombia’s commitments on the Paris Agreement or analysis of public policy.
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The Government assures that in this case the precautionary principle has been applied improperly because, supposedly, the requirements to appeal to it do not apply. Instead, it proposes that the principle of prevention be used and, in that sense, states that the risks associated with it are clear and identified. fracking, as well as its consequences. He says this, citing witnesses who testified in the case and the aforementioned report from the National University. And the official position is that these risks can be avoided: “In Colombia there are mechanisms through which the competent authority can make decisions before the damage or risk occurs, in order to reduce the repercussions of these on the environment or avoiding them ”.
“The application of the precautionary principle has no legal, technical or scientific basis that allows to conclude that there is a danger of imminent damage due to contamination of water sources and other environmental impacts, a consideration that, in any case, must be evaluated in each one of the cases on the part of the environmental authority, in the instance of environmental licensing ”, added the Ministry that requests that the demanded norms be analyzed jointly. In turn, the National Hydrocarbons Agency (ANH) questioned that the National University had presented a report divided into two documents with conclusions, which in its opinion makes the test illegal. And he claims that technical errors were made there.
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The Agency points out that the demanded standards were issued in compliance with the protocols and studies necessary to cover the gaps that existed at that time, identifying risks and setting mitigation measures; He insists that the management of aquifers is foreseen, among others, and supported the thesis that the pronouncement of the Council of State should be limited and cannot be extended to question the power that the Government has to regulate. If “this is allowed, it would open the way for the judges to co-administer with the national government, constituting a clear and evident violation of the principle of separation of powers.”
Ecopetrol, for its part, says that, even if there are gaps in the rules, this does not lead to canceling them, since the regulation must be in constant adaptation in accordance with scientific advances. In addition, it indicates that these administrative acts do not violate the precautionary principle and do anticipate the technical requirements and effective procedures to monitor risks, such as, for example, monitoring seismic activity. “The regulations that these contain prevent or at least restrict the uncertainty of possible damages and consequences derived from the exploration and exploitation of YNC. Although it is true that, given the technological advance and the development of science, these regulations are subject to revision and updating, the advanced cannot be discarded or erased at a stroke ”. The final decision in this intricate debate will come in months to come.
(Read also: Fracking: State Council opens the door to pilot tests)
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