Some reflections on the regulation of environmental licenses in Colombia regarding the solar and wind energy licensing laws

Analysis column

Gustavo Adolfo Guerrero Ruiz

Director | Public and Legal Affairs for Regulated Sectors | Sustainability

The development of two regulatory proposals, submitted for public consideration, has been received with great enthusiasm and excitement among specialists in the implementation of energy projects. These proposals ultimately incorporate recommendations made by stakeholders such as the Attorney General's Office, which, in its December 2024 report "Colombia and the Energy Transition: Reflections and Recommendations on a Transition Tailored to Our Country," raised the need for innovation in the environmental impact assessment of the renewable energy sector. This innovation echoes the spirit that, at the time, drove the transportation infrastructure sector with a then-novel mechanism: the Environmental Guide Adaptation Plan (PAGA), developed by Decree 769 of 2014, which established a list of infrastructure improvement activities that did not require an environmental license.

The PAGA example has a special value beyond the simplification of environmental procedures: it is about the recognition of the need to establish differential instruments for the evaluation of environmental impacts, subject to special rules that reflect the particularities of the sector subject to the respective command and control instrument, and the diversity of cycles and forms of conception, contracting and execution of the projects for which the obtaining of an environmental license is currently required.

The proposal for a differentiated environmental licensing regime for wind and solar renewable energy projects deserves to be interpreted beyond simply reducing processing times. It is necessary to examine whether the proposed procedures and rules for obtaining these new licensing modalities address the specific characteristics of both types of projects, and therefore, whether the regulatory approach truly responds to the bottlenecks and needs of the renewable energy sector.

A first approach to addressing the regulatory problems of environmental procedures in the renewable energy sector was Decree 852 of 2024, whose fundamental hypothesis was that the problem of the lack of timely response to the sector's environmental procedures lay in the inefficiency of the regional environmental authorities, and the proven effectiveness of the National Environmental Licensing Authority (ANLA), which led to an adjustment in competition, under which environmental licenses for non-conventional energy projects with an installed capacity between 50Mw and 100Mw ceased to be the responsibility of the Regional Autonomous Corporations and became the responsibility of the ANLA.

This Decree was, moreover, a missed opportunity to define what is meant by virtually polluting non-conventional energies, since it reiterated that for the purposes of the need to obtain a license, all energy from non-conventional sources is considered as virtually polluting.

The issue of competencies also seems to demand a thorough, rather than a quick, look, since it does not seem to make sense at present to keep the responsibility for processing and resolving environmental license applications dispersed between a National Environmental Licensing Authority (ANLA) that is increasingly specialized and rigorous in the evaluation and monitoring of this command and control instrument, and the Regional Autonomous Corporations, whose expertise seems more focused on the so-called "minor permits," namely, permits, concessions and environmental authorizations for activities of use and exploitation of natural resources that do not require obtaining an environmental license.

The disparity of criteria between regional environmental authorities appears to be a cause that motivates the worrying congestion in the procedures associated with the renewable energy sector, which seems to distort in practice, at least partially, the hypothesis that underlies a reduced environmental licensing regime in terms and deadlines as the fundamental solution to the bottleneck of environmental procedures in the energy sector in general.

Indeed, as the Attorney General's Office recently warned, of the environmental procedures required for the energy sector, environmental licenses represent only 14% of the universe of ongoing administrative actions, while forestry permits represent 46% of the total administrative actions underway before the environmental authorities for the sector. This indicates that the reduction in terms for the environmental licensing of wind and solar projects will have a residual effect compared to the real bottlenecks in the environmental procedures for renewable energies.

The foregoing leads us to a necessary analysis beyond the enthusiasm for the reduction of stages, requirements or terms, to delve into the true value of the two proposed regulatory drafts for environmental licenses for solar and wind energy projects respectively: the recognition of the need to rethink the environmental licensing regime from a perspective differentiated by sector or type of project, since a regulatory treatment that recognizes the particularities of each type of project and its model and life cycle will allow for more effective evaluation, monitoring and proper management of the environmental impacts of each project or sector.

The infrastructure sector, perhaps the most challenging in terms of the necessary coordination between its various project management models (concessions, PPPs, public works) and environmental licensing, has yet to find definitive answers despite progress. Instruments such as the aforementioned PAGA (Environmental Impact Assessment) or the CONPES (National Council for Economic and Social Policy) documents on State Contractual Risk Policy for Infrastructure Projects with Private Participation, which increasingly incorporate environmental and climate change-related risks, still fail to address the environmental challenges inherent in these types of projects. The most recent approach to a solution for rail corridor infrastructure for trains powered by clean energy sources was deregulation, rather than a differentiated approach to these types of projects.

Another interesting approach to a regulatory process of the environmental license from a differential perspective is that which has to do with the temporary environmental license within the framework of the Single Plan for Legalization and Formalization, provided for in Law 2250 of 2022 and developed by Resolution 1830 of 2024, which, however, suffers from an excessive ritualism that prevents clearly distinguishing this as a temporary licensing regime that encourages the formalization processes and responds to the capacities of informal miners.

The specialization and differential approach of the environmental licensing regime appears to be a regulatory trend that should be generally adopted: for each sector or type of project, a judicious and rigorous characterization exercise must be undertaken to identify the moments, actors and types of contractual relationships from which a differentiated regime is built that takes into account the particularities of each sector or project.

The environmental license cannot be the only environmental assessment instrument for development projects; it is necessary to innovate, specialize instruments, and review whether the knowledge for the evaluation and monitoring of command and control instruments for sectoral activities that go beyond the so-called "minor permits" should be concentrated in a single competent authority, the ANLA.

Finally, it is necessary to reaffirm the legal and prior nature of the requirement to obtain an environmental license for any project, work, or activity; its mandatory nature cannot be determined by the discretion of any official in office. Likewise, it is essential to remember that no project can be required to obtain more than one environmental license. These principles, along with the prior nature of the license, are fundamental to the environmental impact assessment system established in 1993, a system that survives with adjustments and, as we have indicated, demands a thorough review.

Let solar and wind power be a pretext for it.