As is well known, the world in recent centuries has been the stage of major armed conflicts, such as the First and Second World Wars, the Cold War, among other armed disputes that left nothing but destruction in their wake, wars that surely would not have been possible without the phenomenon of industrialization that strengthened weapons and in turn generated excessive exploitation of resources and devastation of the environment.
Despite the great ravages that these hostilities left as a consequence on the environment, it was only until the Brundtland Commission in 1990 that the international community began to worry about the environment. This commission conceptualized the landmark term that marked the history of environmental protection: sustainable development, understood as the idea of preserving our world so that we can live and develop, preserving it for future generations. Countries begin to generate ecological awareness, and environmental protection becomes part of the constitutions of countries.
In the Colombian case, the 1991 Constitution materializes this ecological awareness by incorporating it into its internal legal system, in order to preserve and safeguard sustainable development.
Later, in 1993, Law 99 came into effect in our legal system, which defines that: "Environmental damage is understood as that which affects the normal functioning of ecosystems or the renewability of their resources and components." In addition, it refers to Retributive and Compensatory Fees in environmental matters. To set the fee, some factors are indicated to be taken into account, such as the "depreciation value of the affected resource," the "social and environmental costs of the damage, and the costs of recovering the affected resource," and the "economic evaluation of the social and environmental damages caused."
Therefore, and as is well known, following Juan Carlos Henao, professor at the Faculty of Law of the Universidad Externado de Colombia, for liability to exist with respect to a person, including the State, three elements must be present: the damage, the imputation of the damage, and the basis of the duty to repair.
Understanding damage as the diminution of the victim's assets, imputation of damage as the legal attribution of damage caused by one or more harmful acts, attributed or applicable to one or more persons who, therefore, must in principle repair it, and lastly, but not least, the basis of the duty to repair, that is, that the potential liable party can compensate for what was caused. For this last element, we find justification in Article 90 of the Political Constitution of Colombia, which states: "The State shall be patrimonially liable for the anti-juridical damages that are imputable to it, caused by the action or omission of public authorities. In the event that the State is ordered to make patrimonial reparation for one of such damages, which was a consequence of the fraudulent or seriously culpable conduct of one of its agents, the former must seek recourse against the latter."
Following the line of environmental reparation in State matters, the doctrine has classified the various fields in which State liability may be compromised: (i) State liability for directly polluting, (ii) State liability for allowing pollution, (iii) State liability for transboundary damage, (iv) State liability for illegally exercising environmental functions, and (v) State liability for restriction of property rights.
After having clarified the elements that make up State liability and its classification, it is pertinent to know which is the appropriate procedural means when faced with an action harmful to the environment. Our procedural system has the following means: the tutela action (writ for the protection of fundamental rights), direct reparation in the contentious administrative jurisdiction, group actions, popular actions, and compliance actions.
Undoubtedly, liability in environmental matters is a problem that has only begun to generate awareness in recent years, which is why actions aimed at its protection are recent. An example of this is our Colombian legal system, which only until 1991 granted it constitutional protection. There are many gaps in this area because environmental damage is very difficult to calculate, and due to the importance of certain natural resources that require immediate action, since over time the consequences can be irreparable.