SUBSTRATION OF FOREST RESERVE AREAS: COURT REVOKES RULING THAT ORDERED THE SUSPENSION OF RESOLUTION 110 OF 2022
The Superior Court of the Judicial District of Bogotá, in a ruling dated on the 3rd of May, revoked the Constitutional Protection (tutela) ruling dated March 11, 2022 that, in the first instance, had ordered the provisional suspension of Resolution 110 of 2022 of the Ministry of Environment and Sustainable Development (MADS), “whereby the activities, requirements and procedure for the subtraction of area of national and regional forest reserves for the development of activities considered of public utility and social interest are established and other provisions are enforced”.
The Court concluded that the Ruling must be revoked as the Constitutional Protection (tutela) action on which the ruling was based is inadmissible. The foregoing because, in the opinion of the Court, the first -instance judge ignored that Resolution 110, as a general act, “does not create, modify or suspend a personal right”, and that, therefore, it is not possible to challenge the legality thereof by way of the Constitutional Protection (tutela) action, evading the ordinary mechanisms.
Thus, in defining the challenge to the first – instance ruling, the Court decided that the action would not only fail to meet the requirement of subsidiarity for its appropriateness, according to which all ordinary court instances should have been exhausted, but that the matter on which the constitutional protection is required “has no constitutional significance, insofar as it attacks a general, impersonal and abstract act, without specifying a specific, tangible and determined irremediable damage.”
Hence, the Court points out, the legality of Resolution 110 may only be challenged by means of the ordinary judicial process, that is, through a lawsuit filed before the contentious-administrative jurisdiction. In fact, the Court warned in the Judgment, there are already several actions against this provision in that jurisdiction, before administrative courts, and even before the Council of State.
With this decision, the suspension of the effects of MADS Resolution 110 of 2022 is lifted, and, therefore, this Resolution is in full force once again. Therefore, the owners of projects that enjoy or do not enjoy the qualification of public utility and social interest and that are developed in forest reserve areas of Law 2 of 1959 must request and process the corresponding subtraction in compliance with the requirements and the procedure established in Resolution MADS 110 of 2022.
Finally, this judicial decision prevents the consolidation of the legal thesis by virtue of which constitutional judges order the suspension of the effects of administrative acts of a general nature by means of the Constitutional Protection action.
Should you require further information, please do not hesitate to contact us:
Álvaro José Rodríguez
alvaro.rodriguez@phrlegal.com
Mariana Sánchez
mariana.sanchez@phrlegal.com
