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Environment


Guide currently under development. Information below is at a draft stage and is in the process of being added to.


This module is about how you can use legal action to protect the environment.

The environment is everywhere. Our air. Our land. Our water. Animals. Plants. We depend on the environment for the enjoyment of our rights. When we protect the environment, we are also protecting our rights.

This guide gives you information about the tools you need to use the law to protect your environment. This may be by stopping the activities that damage the environment, by ensuring restoration of the environment or by obtaining compensation for you and your community.

1

Environmental Harm

Harm to the environment from human activity is occurring all over the world. It happens in every country, every sea and in our rivers, forests and ecosystems.

Common types of environmental harm include:

  • Deforestation: Cutting down the trees in our woods and forests
  • Water pollutionThe contamination of our rivers, seas and lakes
  • Air pollution: The contamination of our air quality
  • Land and soil pollution: The contamination of land and the soil under it
  • Loss of biodiversity: The loss and extinction of animals and plant life

These forms of environmental damage can have huge impacts on our right to a healthy environment. They also affect people’s food security, access to clean water, the preservation of indigenous cultures, and life itself.

Legal action can make a difference. Although sometimes the use of a court process seems impossibly hard to achieve, it can be and has been done successfully thousands of times each year and in almost every country in the world.

A famous example is the battle fought in courts in Nigeria, New York, London and elsewhere on behalf of the Ogoni people of Nigeria against Shell.

2

Key Steps For Taking Legal Action

Law is being used to protect the environment from all types of environmental harm.

If you are thinking about taking legal action to protect the environment, you will have to do some of the following things.


A. Gathering Evidence


Gather evidence that shows:

  • What environmental harm or damage has occurred
  • How the environmental damage was caused
  • Who is responsible for the environmental damage
  • For more information, see «How Can I Prove My Case?» on the Going to Court section

B. Find a Law that Applies


To take legal action, there must be a law that you can enforce. This law must:

  • Give you a «right of action» – this means the law gives you a right to take legal action to enforce the law
  • Be relevant to the environmental damage that has been caused – the law must relate to the issue that you want to challenge

C. Find a Court to Bring Legal Action


There must be a court, tribunal or complaints body where you can bring your case. This body must:

  • Have «jurisdiction» to hear the case – this means the court has the authority or power to sit over cases involving the environmental damage that has happened and the «defendant» you think is responsible (i.e. the business or government that has harmed the environment)
  • For more information, see «Where Can I Take Legal Action?» on the Going to Court section
3

Types of Environmental Claims

There are a number of different types of claims (or legal actions) you could bring to protect the environment. Which on is right for you depends on:

  1. Who the defendant is? Some types of claims can only be brought against government/public bodies. Others can only be brought against individuals.
  2. What law am I enforcing? Different types of claims can enforce different types of laws.
  3. What remedy you want? Some types of claims are better if you want compensation. Others are better if you want to change the law or force someone to do something.

A. Administrative & Public Law Challenges


Public or administrative challenges are claims brought against the government or public bodies. These are often brought through processes called «judicial review», «amparo proceedings» or «constitutional petitions».

These challenges can be used to:

  • Challenge licences or permits the government has given companies to commit environmentally harmful activity (e.g. mining)
  • Enforce human rights laws when environmental damage violates your rights
  • Enforce environmental regulations and laws that the government has to follow

Example: Challenging Airport Expansion in Ireland

Friends of the Irish Environment sued to prevent expansion of Dublin Airport. While ruling against the plaintiffs, the High Court judge nevertheless held that the Irish Constitution protected “A right to an environment that is consistent with the human dignity and well-being of citizens at large is an essential condition for the fulfillment of all human rights.”

If you are thinking about bringing an administrative or public law challenge, the checklist below can help!

Action4Justice - Public Law Checklist

B. Civil Law Claims


The most common type of claims are civil claims. A civil claim involves arguing the business, individual or public body violated your private rights.

  • For example, it broke a contract, it caused you injury or damaged your property.

If the activity that is causing environmental damage also violates your private rights, you may be able to sue the polluter or those associated with them.

The types of laws you can enforce with civil claims are:

  • Negligence: Where someone owes you a «duty of care», acts carelessly towards you by causing environmental damage
  • Nuisance: Where someone damages your land or enjoyment of your land by causing pollution from neighbouring land
  • Strict liability: Where someone engages in very dangerous activity, damages the environment and harms you in the process.

Some environmental laws also create a «cause of action» for civil proceedings which allows people or groups that are affected by environmental damage to enforce the laws.

If you are thinking about taking a civil claim, the checklist below can help!

Civil Claims Checklist

C. Civil Claims in Foreign Courts


You can also bring civil claims against businesses in the national courts of other countries.

  • For example, it may be possible for a farmer complaining about environmental damage in Kenya committed by a British company to take legal action in the courts of the UK against the company.

This could be useful where the courts in your country are corrupt, ineffective, or the company’s assets are based abroad.

Example: Lungowe v Vedanta (UK)
Zambian farmers are suing UK parent company Vedanta Resources plc and its Zambian subsidiary Konkola Copper Mines Plc (KCM) in the UK courts.

The claimants argue that Vedanta had a sufficient level of control or supervision over mining operations in Zambia to owe them a direct duty of care, which Vedanta then breached by failing to prevent toxic mining waste from entering local water sources and harming local communities and their environment.

In April 2019, the UK Supreme Court ruled the UK courts have jurisdiction to hear the claims against Vedanta and KCM for negligence in tort and breach of a statutory duty, even though the harm occurred in Zambia.

The court held that the claim against KCM has a real prospect of success and that it’s arguable that Vedanta assumed responsibility for relevant aspects of KCM’s operations and so may owe the claimants a duty of care. The court noted that Vedanta not only had environmental standards relating to subsidiary activities but also oversaw implementation through training and monitoring.

 

Example: Dooh v. Royal Dutch Shell plc (The Netherlands)
With the help of a Dutch NGO and law firm, a group of Nigerian farmers whose livelihoods had been destroyed by oil pollution in the Niger Delta brought a legal case in The Netherlands against Royal Dutch Shell and its Nigerian subsidiaries.

The Court of Appeal has accepted jurisdiction because Shell is itself arguably liable for the alleged negligence of the Nigerian subsidiary as it may have been actively involved in the subsidiary’s operations.

Actions can also be brought not against the people directly responsible for the environmental damage but that have supported or financed them

Example: Honduran Farmers Suing the World Bank

The IFC has been sued in the US for its role in financing a Honduras businessman who is alleged to have used widespread violence against local farmers who claim the land now used for palm oil plantations.

If you are thinking about bringing a civil claim in a foreign court, the checklist below can help!

Action4Justice - Foreign Courts Checklist

D. Criminal Investigations


If a business, individual or public body has damaged the environment, they may have committed a crime (i.e. broken criminal law). In these cases, it may be possible to bring a criminal case against the individuals who are responsible in the business or organisation.

Some environmental laws make it a «crime» to commit certain types of environmental harm.

Usually, you have to report a crime to the police or a prosecutor who will decide whether to start a criminal investigation.

If you are thinking about starting a criminal investigation, the checklist below could help!

Action4Justice - Criminal Case Checklist

E. Freedom of Information Requests


Although not always involving court action you may have a right to make a freedom of information request. If successful, this could require a company or public body to release information related to the environmental and social impact of the project.

Example: Using US Foreign Legal Assistance Laws

In the U.S., EarthRights was able to use the Foreign Legal Assistance law, 28 U.S.C. 1782, to get environmental information relevant to the impacts of gas flaring in Nigeria from Chevron. This helped communities take legal action in Nigeria.

A lot of environmental laws give people a right to have access to information regarding projects or activities that may cause environmental harm

Argentina’s Constitution

The second paragraph of Argentina Constitution Article 41 says:

«The authorities shall provide for the protection of this right, the rational use of natural resources, the preservation of the natural and cultural heritage and of the biological diversity, and shall also provide for environmental information and education.»

In some countries, companies have to publish information regarding their environment impact. This can be useful information if you are going to take a case.

Example: Extractive Industries Info in Ghana

Ghana’s Environmental Protection Agency, publishes annual performance ratings for extractive industries.

4

Sources of law

The following could be key areas of law that you can enforce to protect the environment. REMEMBER that the area of law you want to enforce will influence what type of claim you can bring and what remedy you can get if you win.

Check if:

  • Your country has any of the following types of laws;
  • These laws relate to the environmental problem that is affecting you; and
  • You have the right to go to court to enforce the law

A. Laws and Regulations Controlling Pollution


There are specific rules and regulations that prohibit pollution and environment damage.

  • Most states have laws which regulate pollution generally and also laws which apply to specific industries such as mining or power stations. If these are being broken, the court may order this to stop or impose a fine or prison sentence on the person breaking them.

These varying from country to country but nearly all countries have laws and regulations limiting pollution

Example:  The Zambia Environment Protection and Pollution Control Act 1990


B. Laws and Regulations About Licenses and Permits for Environmentally Harmful Activity


In areas like mining, oil drilling and logging, companies are usually only allowed to do the activity if they have a license or a permit that has been granted by the government.

Example: South Africa’s National Environmental Management Act

There are laws that set criteria for when the government can grant a license or a permit:

  • If the government grants a license without these criteria being satisfied, an administrative or public law challenge could be brought against the government.

When granted, the licenses and permits usually create conditions which the company has to follow when it is doing the permitted activity.

  • If the company breaks these conditions, there can be punishments and fines, or the license could be revoked.

C. Laws Relating to Particular Industries


There may be laws that set particular rules for certain industries to follow. These generally relate to the most environmentally harmful extractive industries.

Example: Brazil’s Occupational Health and Safety in Mining Regulations


D. Torts or Delicts


These are national law that govern when a person causing damage to someone else is committing a legal wrong.

For example:

  • Claims in Negligence where a polluter fails to tale reasonable care to avoid damage or injury to another person
  • Claims in nuisance where use of a land (for example for manufacturing or mining) result in adverse effect on the land of someone else

E. Laws Protecting Special Ecosystems


Sometimes there are laws that protect special ecosystems. These are natural areas that are considered very important to a country’s culture, identity, well-being and history.

Rules may exist to protect:

  • A special rainforest in your country like the Amazon
  • A river or delta system that is a habitat for wildlife
  • Wetlands
  • Mountain ranges
  • Areas of outstanding natural beauty
  • Coral reefs

Example: Protecting National Integrated Protected Areas in the Philippines

In the Philippines proposed oil extraction which would have affected the National Integrated Protected Areas System was stopped after successful legal action was taken.


F. Human Rights and Constitutional Laws


In most countries, there are laws that protect human rights. These are often found in countries’ constitutions but can also be found in human rights laws.

The enjoyment of our human rights depends on the protection of our environment. Often damage to the environment involves or causes breach of human rights, and using the law to protect  those rights is a way of protecting the environment.

In many countries, human rights and constitutional laws protect the «right to a healthy environment«.

Example: Article 42 of the Kenya Constitution

“Every person has the right to a clean and healthy environment…….., which includes the right–(a) to have the environment protected for the benefit of present and future generations”

 

Example: Argentina Constitution Article 41

All inhabitants are entitled to the right to a healthy and balanced environment fit for human development in order that productive activities shall meet present needs without endangering those of future generations; and shall have the duty to preserve it. As a first priority, environmental damage shall bring about the obligation to repair it according to law.

 

Example: The 1995 Constitution of Uganda

The Uganda Constitution contains rights to a clean and healthy environment. How this may be used is discussed in this article

 

Example: Article 24 of the Constitution of South Africa

Everyone has the right—(a) to an environment that is not harmful to their health or wellbeing; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

These provisions do not men that all environmental damage or harm will be prevented but it may mean that some government policies or acts infringe citizens’ rights

Example: Protecting Wetlands in Panama

In 2018 there was a proposal for pipeline and oil terminal in the Bay of Panama. This threatened important wetlands recognized in 2003 by the Ramsar Convention.

Panama’s Supreme Court ruled that the project violated «rights to a healthy environment.»

Other rights that are often violated by environmental harm and that can be enforced to protect the environment include:

  • The right to life
  • The right to property
  • The right to health
  • The right to food and water
  • The right to private and family life

Check if your constitution or national laws protect any of these rights.


F. Laws Protecting Indigenous and Tribal Peoples


In countries where there are indigenous or tribal peoples, international and national laws exist that give special protections for their rights.

These rights include:

  • The right to property over ancestral lands
  • The right to free, prior and informed consent before activities take place on indigenous and tribal peoples’ lands
  • The right to cultural life – the preservation and protection of cultural sites and practices
  • The right to life which includes access to water and food

Indigenous and tribal peoples often have a special relationship with the natural environment. They often depend on their local environment for their food security, access to clean water, preservation of culture and community.

  • Because of this special connection, activities that cause environmental damage on indigenous and tribal peoples land can have very negative impacts on their livelihoods.
  • When indigenous and tribal peoples are affected by these activities and have not given their «free, prior and informed consent», there is a strong case that their rights have been violated.

Examples

A Nepalese site of cultural importance was protected from mining which infringed right to clean environment –

In the Ogiek case in Kenya, the actions of the Kenyan government were held to have infringed the rights of the Indigenous Ogiek people living in forested areas of Kenya  (including rights  to property/land to practise their religion). The African Court on Human and Peoples’ Rights ruled that the expulsion from their traditional lands was unlawful


H. International Environmental Law


There are a lot of international treaties and conventions that are designed to protect the environment. These conventions can be international or regional. These often relate to specific ecosystems.

Example: The Ramsar Convention on Wetlands

This provides the framework for national action and international cooperation for the conservation and wise use of wetlands and their resources

 

Example: Convention on International Trade in Endangered Species of Wild Fauna and Flora CITES

This regulates trade in certain endangered species

While these conventions usually can’t be enforced directly in national courts, they can help courts interpret and apply other national laws.

There are also principles of international law that can be used to support your arguments when you are taking legal action. Some of the key examples are below.

Example: The No-Harm Principle

This is a widely recognised principle of international law whereby a country is required to prevent, reduce and control the risk of environmental harm to other countries.

 

Example: The Precautionary Principle

Principle 15 of the 1992 Rio Declaration states:

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation


I. Industry Codes of Practice


These are not sources of law but may be used in legal cases to support your argument that a law has been broken.

If a business has clearly breached its own code of practice, this can be used to show that it has acted unreasonably or wrongfully.

Example the Round Table on Sustainable Palm Oil

Example: FSC (Forest Stewardship Council) Certification


J. Company Statements and Reports


Companies often make claims about how environmentally responsible they are on their websites. The reality is often very different!

These are not sources of law but can be used in legal actions.

Example: Greenpeace’s “Dirty Bankers” report

Greenpeace challenged HSBC for violating its own declared lending policies. Within a month of its publication, HSBC revised its policies.

Six months later it asked the Roundtable on Sustainable Palm Oil to investigate one of the companies it had previously funded.


L. Soft Law Human Rights Principles


The following are not sources of law but can be used to support your case. Some of the following could be used if you’re taking legal action:

Example: Guiding Principles on Business and Human Rights

Example: Oslo Principles on Global Climate Change

5

Practical Tips on Taking Legal Action

  • Identify and overcome all the practical obstacles involved in taking a case to court – including getting legal advice, following the court procedure, getting necessary funds, dealing with political problems such as corruption or opposition to what you are doing, and avoiding or minimising risk to the safety of you or others that it is safe to act (details are on the Going to Court section here)

Before bringing any court case, there are many practical problems and issues to consider. A list of things to consider, and guidance on them is in the “Going to Court” section. However some very important general points

  • It not enough, to bring a case, that you believe or know that laws are being broken and wrongful and harmful activity is taken place. You need to be confident that this can be proved to a court or to officials or other organisations who may take action on your behalf.
  • Many of the state or corporate parties who cause pollution and environmental damage are powerful and want to protect what may be profitable activities. They often claim that the activities are clean and well regulated even if they are not.
  • Evidence is important in most legal cases, but particularly so in environmental ones. This is because success often depends on proof of contamination or pollution. Sometimes this can only be done by trained scientists. However you can gather important evidence by photographs, videos and notes and … collecting reliable signed statements from witnesses to environmentally harmful practices. However, always make sure that witnesses are aware their statements might be used in court where they will become publicly available.
  • You should be careful and balanced (do not exaggerate things) and  methodical in recording problems and any evidence of when they occur. This may include
    • Keeping a record or diary of when people are ill (if pollution is causing health issues) together with doctor’s or hospital notes
    • Taking photographs or videos on phones of contaminated land or water, or dust or other visible problems
6

The Scope of this Guide

There are many different types of environmental damage caused by many different types of activity. There are different laws and regulations for different situations.

Our Environmental Guide has sections designed to help you take legal action to challenge environmental damage in the key environmental issues.

  • You should look at the sections most relevant to your problems. Often problems combine or overlap.
  • For example, a mine might cause pollution of water from chemicals, and of air from dust or processing, and damage a forest where the mine is.

Wherever you live, it takes careful planning and much determination to bring an environmental case. It is not always possible or feasible and bringing a court case almost always needs expert confidential advice and assistance.

Use this guide to help you decide whether legal action is the right tool for you to protect the environment, what action you should take, and how you should do it.

 

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