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Environment

People often feel hopeless and powerless to protect the environment, themselves, their families and their individual rights. However, through the creative use of the law, a number of notable successes, for the environment and people, have been recorded in many countries. 

Various stakeholders can use a variety of different strategies for different environmental problems. As a result, numerous types of legal action can be undertaken in the national courts of where the problem arises, where the effects of the problem are felt (in the case of transboundary harm), where the accused is incorporated, or on the international level. 

Deciding on the appropriate actions to solve a problem necessitates looking at the problem and its causes and choosing from the range of legal actions. These may be by challenging general legal acts (such as government licences/permits, plans, quotes etc), invoking human rights (such as the right to healthy environment, life, access to food and water, private life and housing etc.), or using other types of action to prevent or obtain redress for environmental damage. 

Actions can be judicial, namely in administrative, civil or criminal courts. Non-judicial remedies outside the courts are sometimes more advisable.

In the following subsections, the possible violations, remedies at hand, and viable types of action towards the state or private entities will be further elaborated.

Below  is a short introductory guide to the types of issues and arguments that are relevant to using the law to protect the Environment. This section of the website is still being developed. As time and resources permit we will add further sections dealing specifically with how to use the law in environmental cases, an overview of types sources of environmental law, special challenges in environmental cases, participating in environmental decision-making, non-judicial remedies, habitats  in need of protection such as land, water, air and biodiversity, threats from the industry sector, other practical hints and further help and resources.

 

 

1

Challenging government licences, permits, plans, quotes

Most activities which result in environmental damage (example are mining, logging and industrial processes) are subject to the national laws that regulate them. Most national legal systems provide for the review of decisions of public authorities. Therefore, the issue of licences, permits, plans or quotas by national environmental authorities can also be challenged.

Complaints can be brought either by the licence/permit holder, or, in many instances, any other applicant who is not satisfied with the decision the authority has made. Depending on the jurisdiction, it can be anyone that is or could be directly or indirectly affected by a project, a non-governmental organisation (NGO) or a civil society member concerned about an activity.

An environmental permit or licence allows you to carry on various activities which may have an impact on the environment and human health and usually states clear conditions to minimise the damage. A typical permit or licence holder could  be any industrial operator, such as a power plant, waste treatment plant, factory or any other carrier of an activity that might pollute the air, water or land. A typical applicant could be the land owner or person living in the area around that operator.

However, environmental decisions often interfere with the rights of many “stakeholders” i.e. anyone affected or concerned by such decisions and actions. These decisions also consider “public goods”,  which are resources for the common good. That may entitle any physical or legal person to challenge the issued licence, permit, plan, or quota, too.

Review mechanisms

In many jurisdictions, the first opportunity to challenge a decision is through public participation mechanisms at the time when the first decision is made publicly available and consulted upon.

However, once that decision is final, who do you complain to? 

Some states have specially designated “second instance commissions” that deal with appeals on or challenges to administrative acts such as the granting of a licence. These commissions are public bodies that are not courts. The commission could be part of the environmental authority, or intersectoral commission within the government. Usually professional public servants, other than those issuing the permit, are members of these commissions.

Other states do not have acting second instance bodies, but the complaints are directly placed at the administrative courts and less often at the civil courts. These courts hear complaints against public bodies, such as a state department or ministry, a municipal council, or a licensing or regulatory body.

Types of decisions that can be challenged: Act or Omission

A typical complaint challenges an action (such as issued permit or licence, decision etc.) or failure to act (such as omitted environmental impact assessment procedure-EIA, public consultation etc.).

Grounds of the complaint:

It is not possible to challenge a decision or action by a public body simply because you disagree with it. A legal basis is required. Typically, an applicant is required to show that a decision was unlawful, irrational or unreasonable.

 Common grounds of review of a decision include:

  • Unlawfulness: When a decision is unlawful it means that it acts contrary or in defiance of the laws.
  • Excess of powers or jurisdiction: This would typically mean that the public body that brought the contested decision is not authorised or has no official legal power to bring such decision. For example, because a higher body has the authority to do so or if a local authority acts beyond the territory for which it is responsible.
  • Unreasonableness or irrationality: Unreasonableness differs between different states and is more typical of common law countries. Though the concept’s application varies, it is generally envisaged as a form of judicial ‘safety net’ in the exercise of discretionary authority. For example, an unreasonable decision may be one that does not accord at all with the facts or law before it, or one that completely misstates a legal test. 

An irrational decision is the one that is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

 Council of Civil Service Unions v Minister for the Civil Service [1984] or GCHQ [1985]: [Ld Diplock].

  • Procedural deficiency: A procedural deficiency is grounds for a review when a decision is adopted without complying to the procedural requirements, i.e., standards which have to be observed in the administrative decision-making process, such as insufficiency or inaccuracy of information used to take the decision.

Admissibility

For a complaint or appeal to be admitted for a review there are usually two preconditions that need to be fulfilled. The first is that the decision is of a type amenable to review. The other is the eligibility, or sufficient interest or ‘standing’ to be allowed to bring the application. That means that a party needs to be able to demonstrate the sufficient connection to and harm from the decision or action challenged.

There are three grounds on which a party can prove its connection to the decision that needs to be reviewed. It could directly be subject to an adverse effect of that decision, it could not be directly harmed but the harm may affect others who are not able to challenge the decision, or, very often in environmental issues, automatic standing by act of law could be granted.

Challenging Government Policy

The inadequacy or insufficiency of government action or inaction can and has been challenged in certain jurisdictions. In Juliana v US (2015), the NGO ‘Our Children’s Trust’ launched proceedings against the US government for its harmful climate policy. The way that the plaintiffs directly challenged the policies, acts and omissions of the US government sets this lawsuit apart from previous environmental actions. The claim drew a direct causal link between the climate policy and environmental harm such as floods and species extinction. This was a legally disruptive case because it challenged the separation of powers doctrine, specifically that between the judiciary and the legislative branch. Keeping in mind that different jurisdictions adopt different models of decision-making, this case is important in rescaling legal aspects of multijurisdictional environmental problems.

In 2019, the Dutch Supreme Court upheld the decision from Urgenda Foundation v The Netherlands 2015, where Urgenda, a nonprofit organisation, had brought a tortious case on behalf of 886 Dutch Citizens challenging against insufficiency of government action to reduce carbon dioxide emissions contrary to EU/Paris Agreement targets. The landmark ruling has meant that the Dutch government must take more effective action on climate change. This was the first case in the world where citizens established that their government had a legal duty to prevent dangerous climate change on the basis of protected human rights. The international significance of this judgement is encapsulated in a news article written by the UN High Commissioner of Human Rights. This article states that by implication of this decision,“other governments have binding legal obligations, based on international human rights law, to undertake strong reductions in emissions of greenhouse gases.” 

These are just two cases that demonstrate that challenging a policy in one legal system can be significantly disruptive and has the potential to be globally influential.

Successful case examples:

In 2018, the Czech Republic Supreme Administrative Court dismissed the government’s Air Quality Plan for Brno. The court ruled that it failed to provide measures to reduce the illegal levels of air pollution in the city. 

Since the plan did not fulfil all the requirements foreseen by the law (especially the Air Quality Directive), such as time frame for implementation, proposed measures and their evaluation, the Ministry for Environment in the Czech Republic was obliged to prepare a new appropriate plan that would ensure significant reductions of air pollution. The case was brought by two of the city’s residents in 2016 and later on supported by public interest law organisations. 

This was the fourth air quality case against the Czech government won in a row in couple of months. Similar victories appeals were granted in Ostrava, Usti and Labem and Prague.

2

Challenging corporate (private) projects and financing

Many activities causing environmental damage are processes or projects carried on by corporations. There are a variety of ways a private person may challenge corporate projects. A person may use processes built into national legislation which govern the corporate project in question. Alternatively, corporate projects can be challenged through national laws regulating corporate behaviour or by campaigns focused on voluntary standards of corporate social responsibility (CSR) which a corporation has adopted and allegedly breached.

Challenging projects and financing through processes built into regulation

It is common for national regulation to have built in processes and avenues to lodge challenges and complaints of projects by corporations that could damage the environment. These challenge processes are often found in regulation governing projects which may have an environmental impact. For example, EU Directive 85/337 requires information to be gathered by a developer for an assessment of a project impact on the environment if it falls within the scope of the directive (Environmental Impact Assessment). Under the Directive, the public and environmental authorities must be informed and consulted on the decision to grant development consent. The public has the right to challenge the decision judicially.  Governments may publish these regulations on their online legislation database, such as EU-Lex.

Many countries require public consultation in Environmental Impact Assessments of development projects. These assessments are typically seen as incomplete if the public is not regarded. Less economically developed countries (LEDCs) such as Pakistan are featuring public consultation and public participation in the process before approving a corporation’s project through avenues such as public hearings, workshops, and interviews. Under Section 10 of the EU Regulation, a public hearing shall be held for comments on the projects of its EIA. South Africa has also had compulsory EIAs since 1997. The level of public engagement in these processes are wide ranging from requirements of public consultation to a mere process of lodging a complaint.  These vehicles of public participation are useful tools for challenging and voicing concerns over corporate projects.

Challenging projects and financing through national law regulating corporate behaviour

National company law may provide avenues and opportunities for corporate projects and finance to be challenged. Often directors and trustees of a company or corporation are obligated to have sufficient regard to certain stakeholders and the environment in their decision-making process. Shareholders can challenge directors and trustees if they decide that they have not met this duty sufficiently.

For example, ClientEarth (a non governmental organisation) reported three insurance firms for allegedly failing to disclose climate risks in their annual reports to the UK Financial Conduct Authority. ClientEarth have argued that climate change is a principal risk which affects these companies. Consequently, they have a legal obligation to report financially material climate risks in their annual reports in order to enable investors to make informed decisions.

Challenging projects and financing through CSR standards

Corporations frequently adopt voluntary standards of corporate social responsibility (CSR) which may require to limit their environmental impact to a minimum standard or require a level of due diligence when assessing environmental risk.  Breach of these standards often serves as a rallying point for campaigners and corporations may abandon projects if it poses significant reputational damage. Most corporations will list what industry standards they adopt on their corporate website and in their annual reports.

For example, the Equator Principles is a risk management framework which is voluntarily adopted by financial institutions. These principles are used to determine, manage, and assess the environmental and the social risk of projects allowing the identification of levels of adequate due diligence and minimum standards. The Financial Institutions which adopt these principles will not provide Project Finance or Project related Corporate loans where the client will, or is unable, to comply with the Equator Principles.

The Organisation for Economic Co-operation and Development has developed Guidelines for Multinational Enterprises,  which include taking due regard for the environment. Governments which have signed up to the OECD guidelines are required to establish a National Contact Point (NCPs). As part of their mandate these NCPs deal with grievances related to non-observation of the guidelines. Complaints can be submitted to the relevant NCP, which the NCP will try to resolve the case of ‘specific instance. Such as in July 2017, where a complaint was made against a Spanish multinational energy supplier in relation to maintenance work on a farm. The NCP facilitated a dialogue between the parties, which led to an agreement.     

Challenging projects and financing through criminal law

Illegal actions which cause harm to the environment are liable for prosecution. Corporate projects and financing may commit certain offences which are considered crimes and must be defended in a judicial proceeding. Typically regulators or agencies are empowered to bring these legal actions against these companies for undertakings such as illegal dumping or trade in hazardous waste.

In Nigeria, a small town called Koko located in the Warri North Local Government Area of Delta State was a prominent site for the dumping of toxic waste. Public outrage and media attention led to the Italian government and the responsible company to remove the waste from Nigeria. The seriousness of the ‘Koko incident’ contributed towards the development and signing of the Bamako Convention, which prohibits the import of any hazardous waste. Nigerian law empowers the National Environmental Standards and Regulations Enforcement Agency to regulate the environment, which includes working with other government departments to prosecute illegal dumping (including the import of toxic waste such as in the Koko Incident). 

3

Challenging projects and financing through tort law

See section 7 on «Action in national court (where damage occurred or elsewhere) based on tort/delict, nuisance or negligence» 

4

What can you achieve? Remedies

When you challenge a decision, there are various possible successful outcomes of your case (e.g. delaying the project, stopping the project, modifying the project). The two types of remedies depend on the type of challenged decision.

The first possible result is the quashing of the decision. That means that the public body’s decision would be overthrown, nullified or declared invalid. The decision is usually cancelled in this sense when there is an irregularity or defect in the procedures of the regulatory scheme. In such situations, the second instance authority would return the case before the public body for a second decision-making process.

The other outcome is linked with a positive order compelling specific action. Then, the administrative court or other second instance authority could find a substantive flaw in the decision and for instance stop an event from happening. Or it could issue an order requiring the government to perform remediation of a site. Compensation of damages or restitution could also be granted.

However, specific remedies can be also at hand for cases of environmental degradation or environmental rights which are not only limited to governmental decisions, but are connected to the legislative process, imminent threats, historic pollution, breach of obligations etc.

Annul Decisions

An annulment of a decision means that the challenged decision has been declared invalid.

This legal statement means that the decision is considered like it has never existed.

Return to re-decision

When the higher body receives a complaint and detects a procedural flaw in the issuing of the challenged decision, or that it has been based on wrong or incomplete case facts, it can return the case to a second decision-making process of the public body.

Usually such orders contain instructions of the detected irregularities and recommendations for the re-decision procedure.

Permit or Licence withdrawal

If a reviewing body finds that a permit or licence holder hasn’t complied with his obligations, is not respecting the permit/licence conditions, there is a change of circumstance or the permit/licence holder has presented information which is not true, the permit or licence can be withdrawn.

Different countries define specific conditions which operators must comply with, which could be envisaged by the laws, and also provided in detailed manner in the permit or licence itself. The permit or licence holder needs to fulfill these conditions continually. He also has to report to the authorities consistently. Any breach of these obligations is a ground for a permit or licence withdrawal. If any of the circumstances under which the permit or licence was issued is changed, that could also be a ground for a withdrawal. 

In case of a withdrawal, the permit/licence is no longer active or legally effective.

EIA or SEA procedure

Environmental decisions require the procedure of Environmental Impact Assessment (EIA) to be performed prior to the decision-making process, in the planning phase. That practically means that for a permit/licence to be issued, the EIA report must provide the public body with the guarantee that such action is justified environmentally. More and more countries are also requiring Strategic Environmental Assessment (SEA) reports for bigger projects, or several smaller projects covering a larger area.

When a second instance body receives a complaint and finds out that such requirement was not fulfilled, or that the quality of the performed EIA/SEA is in question, it can order for it to be conducted in accordance with the national laws.

Currently 45 states are party members to The Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) whose non-compliance mechanism could be triggered in case of non or under-performance of EIA (or SEA if the protocol is the party has signed and ratified it).

However, even if a state is not a party member to the Espoo Convention, the biggest international funding institutions (such as the World Bank, EBRD etc.) are obliged to follow the EIA procedure in all their funded projects. If any projects receiving their financial support does not fulfil this requirement, the funding has to be stopped until such condition is met.

That means that in any LEDC acting as a beneficiary of the international funding institutions, even if the national laws do not require EIA procedure for the implementation of the funded projects, any local NGO or the affected community, can open a case before the Espoo Secretariat and the Fund, and demand that EIA is performed dully.

Public Consultation

Most countries’ national laws include the process of public consultation within the environmental regulatory scheme as well as the legislative process. If a second-instance body declares a breach of this precondition, it can order the process of public consultation to be conducted or repeated.

The process of public consultation is compulsory under the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention). The Aarhus convention has 47 country members up to date. The Convention’s non-compliance procedure is considered one of the most successful review mechanisms in international law.

Many countries have also established Aarhus centers which provide legal guidance to communities in cases of breach of the right of public participation. If an LEDC does not have one, it can also address the Aarhus Secretariat directly for additional information about the triggering of the non compliance procedure.

Injunction

An injunction is a legal remedy in the form of a special court order requiring a party to do, cease doing, or refrain from doing a specific action. There are also preliminary and temporary injunctions. It is usually required that the threat is imminent and the facts of the case to make it very likely that the case would be successful. 

Injunctive relief is appropriate in environmental cases to prevent, to put a stop to an ongoing action or repeated conduct that violates a person’s rights or causes environmental degradation. It can also force a party to take certain action to prevent environmental harm.

Corrupt or deficient process exposure – Criminal liability

If the court or other second-instance reviewing body detects a possibility for abuse of power in the decision-making procedure, a criminal investigation may be initiated. Abuse of power as official misconduct, is the commission of an unlawful act, done in an official capacity, which affects the performance of official duties. It could also mean overstepping of the official authorities.

Any corrupt behavior by the officials or deficient process exposure results with criminal prosecution and liability.

Many countries have also recognized crimes against the environment in their Criminal codes, so proceedings under those provisions could also be an avenue.

Launch of government investigation

If the reviewing body declares violation of the regulatory scheme procedures or the environmental legislation is challenged, the Government can also launch further investigations to detect the deficiencies and/or responsibility.

Declaration

If a decision is challenged because of interference with a person’s rights, the court can make a declaration of such rights.

A declaration is a judgment of the court that presents a binding ruling of the rights or other legal relations of the parties. For example, in environmental law cases, very often a person’s land or property rights could be questioned. With such declaration in a specific case, these rights in any further decision-making processes are unequivocal, i.e. cannot be objected.

Remediation/Clean up

When environmental degradation or a health threat is detected, the reviewing body can sometimes order a remediation or restitution of the site. It could mean the removal of pollution or contaminants from environmental media such as soil, groundwater, sediment, or surface water.

The clean-up of the site could be ordered to the permit/licence holder or a public body.

Under the polluter-pays principle, which is the underlying principle in all international agreements and has also been adopted by some national legal systems, the costs for the restitution of any environmental damage should be the burden of the one causing it.

Yet, very often the reviewing body’s competence is limited to only a review of the decision/permit. So, that is why usually these actions are ordered in a tort or civil/criminal proceeding.

Compensation

When the reviewing body has recognized that the complaining party or the environment has suffered damages or injuries, a compensation of the damages can be ordered.

Very often reviewing bodies do not have these competences, so compensation is ordered in civil claims.

When a complaining party suffered damages, usually monetary damages are paid off. However, when environmental damage has been done of a greater significance, compensation can also be a provision of positive environmental measures to correct, balance or otherwise make up for the loss of environmental resources. That could mean, for example, recreating the same kind of natural asset that was affected.

In the Sterlites Industries case (2013), the National Green Court of India found that one of the largest copper smelter plants was operating without a valid renewal of its environmental permit. When assessing the company’s liability to pay damages (that is, for damage caused to the environment during the 15 years it operated without a valid environmental permit), it reviewed the company’s annual report, and determined that 10% of the profit before depreciation, interest and taxes had to be paid as compensation, which amounted to INR1 billion.

Other orders of the court

Depending on each jurisdiction, the respective courts or other second-instance bodies may have other remedies or court orders at hand.

Courts also order the awards of litigation costs and fees.

5

Alleging breach of national laws (e.g. controlling a polluting activity, deficiency in procedure, failure to enforce the law) – civil, administrative and/or criminal

Which laws can be breached: Applicable law

The relevant national laws that are applicable in environmental matters are first and foremost the environmental and energy laws (Laws on environment, waste, water, nature protection, air quality, industrial emissions, noise etc, as well as laws on energy, coal and oil production, electricity supply, power plants, mining, transport, mineral resources, etc.). However, environmental cases are often related to housing, land and property laws.

Lately, a new trend in the litigation is to use a rights-based approach when solving environmental cases. In this sense, many constitutions recognize the right to environment (Section 8), but also other rights, such as right to health, right to privacy, right to property, right to food etc, can be invoked. For instance, air pollution affects human health, so it could also be addressed by invoking the right to health. Right to privacy and property, for example, are connected with the free choice of home or property use, so when a project is causing illegal levels of noise in some area, those rights could also be affected.

When flaws in the administrative procedures are detected, such as regulatory scheme irregularities, or lack of public consultation, the governmental procedural laws could be applicable.

In cases of abuse of power by officials, corrupt behaviour, overstepping or abuse of authorities, the Criminal code is applicable. Many Criminal codes nowadays also recognize crimes against the environment. 

Which body can you bring your case before: Types of courts

 Depending on the facts of your case and law being breached, as well as what you wish to achieve, different bodies could be competent to hear your case.

  • Second-instance commissions: Many countries have second-instance commissions as review bodies for the administrative procedures. Usually the first place where you should bring your case before, when you wish to object a licence/permit that was issued, are these bodies. These bodies also decide on complaints on other administrative acts adopted by the environmental or municipal authorities, such as programmes, plans, quotas, orders and other decisions.
  • Civil courts: In cases where your land, housing or property rights are violated, your case should be brought in front of the civil court. 
  • Administrative court: If a country does not have a second-instance commission, or if you are not satisfied by its decision, you can file a complaint before the administrative court. The administrative court hears cases which challenge all types of administrative, governmental or municipal decisions.

In Ecuador, for example, Indigenous communities won a lawsuit challenging 52 gold mining concessions in Amazonian rainforest in front of the Provincial Court in 2018. The Ecuador’s Mining Act and the Constitution recognize the need for Free, Prior and Informed Consent from stakeholder communities for mining operations, but it is still mostly a theoretical concept ignored by Ecuadorian agencies. In the present case of Sinangoe, it was when machines started tearing up the riverbed of the Aguarico looking for gold that the community learned about new concessions and operations. The regional judge accepted the evidence provided by the Kofan community about the lack of consultation and charged the government. As a result, the judge suspended all mining activity in more than 52 concessions in the headwaters of the Aguarico River.

  • Police/Public Prosecution – Criminal court: When you suspect that your case is concerning abuse of powers by officials as corrupt behaviour or other way of overstepping duty or any official misconduct, a criminal investigation should be started. The police or public prosecution is the competent authority to bring your case to. In cases of direct crimes against the environment and public health, the same authorities are the responsible ones for the investigation and prosecution.

These cases end before the Criminal court and could result with a conviction and compensation of damages.

  • Ombudsman: The Ombudsman is an independent officer of the Parliament with responsibility to investigate the actions of public authorities including Government departments and local governments. The work of the Ombudsman inevitably includes environmental issues.  It may be in respect of local services, such as refuse collection, in planning where issues such public housing or land use are often raised, in cases like the development of wind farms, etc.

The Zambian Ombudsman, for example, is dealing with complaints about the implications of mining development. In those cases people are usually being moved from their homes to make way for mines and water sources are being polluted.  

  • Environmental Courts and Tribunals: Some countries have established specialized environmental courts and tribunals where you can bring your case directly.

India has an environmental court called the National Green Tribunal. It was established in 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources.

  • Constitutional/Supreme courts: In many countries the role of environmental courts is performed by the constitutional or the supreme courts. They can act on the assessment of the violation of specific rights, or act as a third-instance body. 

The Constitutional Court of South Africa, for example, has been very active in cases related to environmental matters in the past.

6

Reliance on law protecting Indigenous Peoples´ Rights and Natural Habitats

Worldwide, plants and animals are disappearing at an alarming rate, and the natural systems that all species depend on are at serious risk. Most States are entitled to exercise its powers to enact legislation or create policies to protect species and the habitat in which they are found. We all have a right to demand the protection of habitats and species as they are part of our natural heritage, and they have an ecological, educational, recreational, and scientific value. Sometimes the habitats and species are not properly protected as States may carry out activities which endanger species and their habitats or give permission for private companies to carry out such activities. 

There are several ways to protect species and habitats which we will present below.

Conservation lists 

Such conservation measures are usually found in the form of lists of threatened or endangered species which require special protection. Such species can be protected in different ways depending on the threat they face.

One example of this is the Indian National Wildlife Act,  where, for example Plants are divided in different categories such as:

  • Specific Plants which cannot be picked or uprooted.
  • Permits for using plants for special purposes.

Another way conservation can be approached is by establishing natural protected areas, where certain activities are controlled or prohibited.

One example of this is Virunga National Park in the Democratic Republic of Congo (DRC), where the DRC laws and regulations prohibit environmentally harmful activities such as oil exploration and exploitation. 

Public participation 

Although it may seem that the determination of protected species and habitats relies solely on the government, some legislation provides citizens a right to be consulted, informed or the right to challenge initiatives related to the listing of species. The US Endangered Species Act allows citizens to challenge such decisions. 

Another mechanism to protect species and habitats is by participating in the evaluation of the environmental impact assessments of projects. Many legislations contemplate a period of legal participation, where citizens are able to challenge the assessment of the environmental impacts that a certain project may cause.

An example of how the public can participate in projects which may pose a harm to habitats and species is the Boshkov Most Hydro Power Plant Project in Macedonia. Eighty percent of the plant that was going to be built was going to be located in the territory of the Mavrovo National Park, one of the oldest and most valuable protected areas in the country and home of the Balkan lynx. After several years of civil society organizations warning and international compliance complaints regarding the negative effects the dam could provoke on the fragile ecosystem and unique wildlife, the European Bank for Reconstruction and Development (EBRD) cancelled the funding for the project.

Indigenous Peoples’ rights  

A significant mechanism to protect habitats and species is to ensure the territorial rights of Indigenous People as it has been proven that they conserve 80% of the planet’s biodiversity according to the International Union for Conservation of Nature.  Land rights, land use and resource management remain critical issues for indigenous peoples around the world, since they are constantly under threat. One reason can be the fact that Indigenous Peoples usually operate under a collective property land regime, which is not recognised by many States, and does not follow the logic of individual property rights.

The Inter-American System of Human Rights has had major developments in this arena. The Inter-American Convention on Human Rights recognizes collective forms of property that Indigenous communities maintain, different from the civil law form of property and has confirmed that the property rights of indigenous and tribal peoples over their territories are legally equivalent to non-indigenous private property rights, therefore the legal systems should be non-discriminatory. 

The International Labour Organisation has been engaged with indigenous and tribal peoples’ issues. It is responsible for the Indigenous and Tribal Peoples Convention, 1989 (No. 169),  the only international treaty open for ratification that deals exclusively with the rights of these peoples. To this day 20 countries have ratified the Convention. Once a country ratifies this Convention it is obliged to obey and implement its precepts through its domestic laws. The Convention establishes the right of indigenous and tribal peoples to retain a territorial bond in terms of managing their habitat and their social, economic, political and cultural institutions. This is exercised through the right of self-determination, which entails determining their own priorities for the process of development and play an active part in the management of their protected areas. 

Another legal international legal instrument that shines light on the obligations States have towards Indigenous Peoples is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Such Instrument was adopted by the United Nations on September 13th, 2007 by a majority of 144 states in favour, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions. Although the Declaration is not legally-binding, the UNDRIP can have an instrumental role in protecting the rights of indigenous peoples. 

An important example where a case was solved using this International Instruments as guidance is the case known Saramaka People v. Suriname,  where the Inter-American Court explained that judicial remedies that are only available to individuals who claim violation of their individual rights to private property are not adequate or effective to repair alleged violations of the communal property rights of members of indigenous and tribal peoples. Therefore it is necessary that Indigenous and tribal peoples, as collective entities, may use said resources as communities, to affirm the right to communal property. The Court invoked article 32(2) of the UNDRIP establishing the requisite of the free, prior and informed consent of indigenous peoples, to reinforce the argument that indigenous peoples should be consulted prior to any State action that potentially affects their rights. 

By defending Indigenous Peoples lands, we are defending all of the rich habitat and species biodiversity that they safeguard. 

7

Action in national court (where damage occurred or elsewhere) based on tort/delict, nuisance or negligence

Tort/delict law has increasingly been used to give rise to civil liability for environmental harm. Simply put, this area of law creates civil liability for doing damage. This allows compensation for the damage done by one private person(s) to another private person(s) resulting from their wrongful action. The exact form which these claims take depends on the framework of the jurisdiction in which they are being litigated, however it generally takes the form of nuisance or negligence claims. Typically, private citizens allege that the environmental damage caused by the practices of private companies or industry have caused injury or damage to their property or their person. These actions can apply to cases where damage has occurred outside of the country of litigation.

For example, in Lungowe v Vedanta, the UK Supreme Court upheld the Court of Appeal’s judgment that Vedanta Resources plc could be held liable in the UK despite the harm having occurred in Zambia and by its Zambian subsidiary. Here, the claimants alleged that the Vedanta breached its duty of care to ensure that their operations would not harm the surrounding local communities and the environment. The Court found that Vedanta assumed a duty of care over the claimants due to the actions of its subsidiary. 

Tort cases have been more successful when the damage has occurred in the country of litigation. Cases where the damage has occurred overseas (called foreign direct liability cases) have seen limited success. However, it is a growing avenue to assert private rights in light of environmental damage and it is an exciting space to watch.

Typical elements of a tort/delict claim 

In order for a tort/delict claim to be raised, it will need to fulfil certain criteria which differ from jurisdiction to jurisdiction. However, there are some common elements to these claims which are highlighted below. 

Duty of care

The claimant will have to demonstrate that the defendant owed them a duty of care. This broadly means that the defendant has a relationship with the claimant which is sufficiently close, the claimant could reasonably foresee the harm, and it is fair, just, and reasonable to impose the duty. Typical examples of people who owe a duty of care include medical professionals and employers.

Breach of Duty 

The claimant will have to demonstrate the defendant breached the duty of care. The test to determine if this duty has been breached differs in each jurisdiction. The UK legal system asks whether the actions of the defendant are ‘reasonable’. 

Causation 

The claimant will have to demonstrate that the harm/injury suffered was caused by the defendant. The action of the defendant can be an act which was conducted with negligence or intention to cause harm, or can even be an omission. This is where the defendant has failed to act where they have a duty to do so.  

Harm/Injury

The claimant will have to demonstrate that they have suffered some form of injury, damage, or loss. This may manifest as personal injury, property damage, or financial loss.

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Action based on rights (constitutional/human rights) to a healthy environment or other relevant rights (to life, health, food, water)

An increase of damaging effects of environmental pollution which impacts quality of human life has led to the recognition of the right to a healthy environment as a human right. The right to a healthy environment entails the right to interact with the elements of the natural environment necessary to support human life such as clean air, water, soil, and healthy ecosystems with the capacity to provide ecosystem services. When the right to a healthy environment is not ensured, and citizens are exposed to environmental degradation, other human rights, such as the right to life, right to family and private life, health, water, etc., are also compromised.  

Established rights based claims

What is possible

Established human rights are contained in both domestic and international instruments; protecting rights such as the right to life, culture, healthy standard of living and food (in the Universal Declaration of Human Rights, Article 3, Article 22 and Article 25 respectively). These fundamental rights are given special status by international treaties, such as the International Covenant on Civil and Political Rights 1966. This establishes them as normally more important than the enjoyment of other rights. Established rights gain an immunity which means that they can only be overridden by other rights under prescribed conditions in exceptional circumstances. 

Established rights impose a positive obligation on a nation-state to ensure conditions so that these rights can be realised. The enforcement mechanism is based on the principles of self-monitoring and regulation. The United Nations Charter cannot directly enforce the rights it espouses so it relies solely on declaring the importance of protecting these rights to garner international support. The Human Rights Council can then undertake periodic reviews of member states’ human rights obligations and comment critically on them. While these methods are not extremely proactive, they can inform domestic law and practice.

Regional Human Rights Documents exist to regulate recognition and enforcement, such as the African Charter on Human and People’s Rights 1981. The African Commission accepts individual reports if the claimant has exhausted domestic remedies and brought the complaint a reasonable time thereafter. The Commission may take complaints to the Courts – see figure below for an overview.

The African Court on Human and Peoples’ Rights 1998 has jurisdiction in twenty-six states to consider claims of violations of human rights. Claims can be brought by NGOs and individuals but only if the state recognises the jurisdiction to receive direct individual complaints. When the Court finds a violation of a human or peoples’ right, it orders measures such as orders of compensation, reparation and sometimes adoption of provisional measures (1998 Protocol Art 24). 

What has worked

Right to life 

The right to life is another avenue to ensure the right to a healthy environment. The protection of the environment is linked to the right to life.  It can incorporate other rights, such as the right to food and water.

For example in the Indian Supreme Court case, the People’s Union for Civil Liberties v Union of India & Ors, it was held that the right to life under Article 21 of the Indian constitution includes the right to food. And in the case of Sawhoyama Indigineous Community v Paraguay, the Inter-American Court held the lack of access to safe drinking water and sanitation as a violation of the right to life.

The right to life is violated when people no longer have  access to natural resources that ensure their survival. Most recently it has been recognized that the right to life can be infringed when the contamination of the environment results in the loss of life.

In the case of Portillo Cáceres v. Paraguay the UN Human Rights Committee held that Paraguay had failed to protect individuals from environmental degradation in contravention of their right to life. The case concerned the poisoning of two families as a result of the use of pesticides by industrial farms. One family member died, others fell ill, crops were damaged and farm animals died. 

Right to food

The right to food is a recognized human right. States have adopted the right to food in their constitutions and laws. It is a protected right in 101 countries. The right can be expressed explicitly, as in Kenya.

Article 43 of Kenya’s constitution: ‘right to be free from hunger and have adequate food of acceptable quality’.

Or the right can be implied as seen in Ethiopia.

Article 43 of the Federal Democratic Republic of Ethiopia constitution: the  ‘right to improve their standard of living and sustainable development…’

The right is also found under the right to life, as seen in the Indian Supreme Court  case, the People’s Union for Civil Liberties v Union of India & Ors, where it was confirmed that the right to life under Article 21 of the Indian constitution includes the right to food. 

The right to food is commonly violated where people suffer from malnutrition or food insecurity.  

The right to food is justiciable in courts.  It is sometimes argued that because economic, social, and cultural rights require progressive realization that they are difficult cases to win.  However progressive realization does not mean governments don’t have to do anything. It requires specific steps to be taken. 

The right to food overlaps with the right to a healthy environment. There is a need to have sufficient fish stocks, and a healthy ecosystem to have access to food. However, peoples’ right to food can be met without guaranteeing a right to a healthy environment. For example, the use of pesticides that damage the environment can ensure the availability of food.   

Right to water

Under International human rights law states are required to ensure everyone’s  access to a sufficient amount of safe drinking water.  It also includes enough water  to cover health and basic needs. Access to water needs to be affordable, and in some cases free of charge if households are unable to pay. 

The right to water is commonly violated when states fail to provide safe drinking water to people. In the case that a water source is polluted by human activity such as use of farm pesticides, or discharge from mines.

The right to water overlaps with peoples’ right to a healthy environment. Access to sufficient and clean water requires healthy ecosystems. As such the right to water is a possible avenue to pursue the protection of the environment. For example unlawful pollution of water is prohibited under the right to water.

In the South African case of Federation for Sustainable Environment and Others v Minister of Water Affairs and Others, the court required the government to temporarily supply potable water following the contamination of the water supply by a mine. The court ordered the respondents to engage actively with the community to ensure safe drinking water to be restored.

Challenges

The main challenges to applying rights based claims are characterisation of harm, the varied approaches to enforcement and intervention, and the progressive realization of rights.

The multifaceted nature of environmental harm often means that it is hard to characterise in the context of the international rights-based legal regime: no single applicable area of international law will necessarily capture the broad impact that environmental issues pose to local communities. As such, advocates seeking to address environmental harm may be faced with the complex issue of deciding the most applicable route of action. 

If advocates decide to apply for the transgression of environmental treaties, they may potentially be restrained by their environmentally-deleterious focus – and the concurrent lack of focus on the prevention of injury to people. The Montreal Protocol, for instance, creates a structure for limiting ozone depleting emissions, rather than for minimizing the injuries that might result from the pollution.

In contrast, international human rights law focuses entirely upon human impacts, with little concern for the environmental dimension of the problem. Most human rights litigation brought to address environmental harm therefore involves an application of general rights, such as rights to life and health, to environmental harm. Moreover, only states – and not individuals – have standing to bring claims before the International Court of Justice. The existing international and regional human rights tribunals do, however, accept petitions from private parties, but have limited enforcement mechanisms.

If environmental damage constitutes a human rights violation, grounds exist for a claim under international law, even when the harm occurs solely within a state’s territorial jurisdiction. The international human rights regime thus provides a mechanism for limiting state sovereignty when environmental harm impacts human beings

Contrastingly, the current state of international environmental law constrains international intervention when behaviour lacks transboundary or global commons impacts. Although the international community certainly would prefer that states follow good internal environmental practices, international environmental law provides no basis for external intervention when the harm is purely domestic.

Beyond the characterisation and enforcement of rights-based regimes, an advocate may finally struggle with the necessary “progressive realisation” of rights if they decide a rights-based claim. 

The concept of “progressive realization” describes a central aspect of States’ obligations in connection with economic, social and cultural rights under international human rights treaties. At its core is the obligation to take appropriate measures towards the full realization of economic, social and cultural rights to the maximum of their available resources.

The reference to “resource availability” reflects a recognition that the realization of these rights can be hampered by a lack of resources and can be achieved only over a period of time.

For example, there are challenges with ensuring the realization to the right to food, such as:

  1. Under the International Covenant on Economic, Social and Cultural Rights (ICESCR) the state is legally bound to ensure the progressive realization of the right.  
  2. The right to food is often expressed in vague terms. 
  3. States will have to balance available resources’

A lack of resources cannot justify inaction or indefinite postponement of measures to implement these rights. States must demonstrate that they are making every effort to improve the enjoyment of economic, social and cultural rights, even when resources are scarce.

Implementation difficulties of asserting constitutional rights to a healthy environment 

Currently, more than 110 countries now recognise their citizens’ rights to a healthy environment. This protection can be found in different forms. 

South African Constitution states in Section 24 that:

Everyone has the right:

  • To an environment that is not harmful to their health or well-being; and
  • To have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that:
    • prevent pollution and ecological degradation;
    • promote conservation; and
    • secure ecologically sustainable development and use of natural resoruces while promoting justifiable economic and social development.

The Indian Constitution states in its article 21 that:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

The Indian judiciary has considered that this article encompasses the right to a healthy environment since it is fundamental to life.

Under this interpretation, the Indian Supreme Court has solved several cases. One of these cases is Subhash Kumar v. State of Bihar, a case dealing with the discharge of industrial pollution into a river. Here the Court declared that ‘right to life guaranteed by article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life’. This case also indicated that the municipalities were obliged to take positive measures to improve the environment and abate and prevent pollution. 

This shows us that the right to a healthy environment can be expressly recognised or encompassed in other rights. 

Although national laws and Constitutions may recognise a right to a healthy environment, ensuring this right may be difficult. Some of these difficulties entail:

  • Proving a direct damage derived from the harmful activity to acquire standing.
  • Lack of information and technical expertise to prove the damage.
  • Find a responsible entity amongst many participants (i.e. shared water resources).

However, such obstacles do not mean a right to a healthy environment cannot be safeguarded. In many countries, constitutional courts have actively enforced the constitutional right to a healthy environment.  

One successful example of judiciary protection of this right is the case Dejusticia v. Colombia 2018. In this case a group of 25 young plaintiffs claimed that the government’s failure to stop the destruction of the Amazon jeopardized their futures and violated their constitutional rights to a healthy environment, life, food and water. Colombia’s Supreme Court ordered the government to come up with concrete action plans within four months to combat deforestation in the Amazon. 

It is also possible to bring claims regarding the right to a healthy environment to regional or international courts, once national mechanisms have been exhausted and no favourable verdict is found. These may include the Inter American Court of Human Rights or the African Commission on Human and People’s Rights.

In the case of SERAP v. Nigeria, the Plaintiff, the Socio-Economic Rights and accountability Project (SERAP), brought a claim to the African Commission on Human and People’s Rights, once all of Nigeria’s judicial resources were exhausted. The Plaintiff claimed that Niger Delta had suffered for decades from oil spills. This led to several human rights violations, including the right to a clean and healthy environment. The Court declared that Nigeria had a responsibility to set up the requisite legal and regulatory framework, and hold accountable those who caused such environmental degradation as well as ensuring that adequate and timely reparation was provided for those affected by the oil spills. 

Other effects of recognising a right to a healthy environment 

There are many potential benefits that derive from recognising the right to a healthy environment:

  • Recognition of constitutional environmental rights can lead to the enactment of stronger environmental laws and provide a safety net to protect against gaps in statutory environmental laws.
  • It can raise the profile and importance of environmental protection as compared to competing interests such as economic development.
  • Environmental rights may lead to better environmental performance from the State and private companies. 
  • It can lead to an increase of public participation in decisions that entail a danger for the environment, as well as stronger demands for accountability to the government and private enterprises. 
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Non-judicial remedies

See Sub-page 4 on «Participating in environmental decision-making»

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Obtaining information

Legal disputes are resolved by applying legal rules to the particular facts of the case, without these facts a case cannot be built, let alone succeed. Certain information may be instrumental to building a successful case and is always required in order to determine the legal question of the case and how the law should be applied. Not only is the access of information important to build private cases, but it is also central to public participation in decision making and holding governments to account.

The importance of information to building a successful case therefore requires methods to obtain it. In order to facilitate obtaining information, many domestic legal systems provide rights which entitle individuals to information from the government, regulatory agencies, or other bodies. These rights are not only enshrined in many domestic legal systems, but in International Environmental Law. For example, Principle 10 of the Rio Declaration is based on the right to have access to environmental information in a timely and effective manner. 

In order to make this principle effectible, the Latin American and Caribbean Countries have signed the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, at Escazú, Costa Rica. From a rights-based approach, the Agreement recognizes core democratic principles such as access to environmental information. 

The exercise of the right of access to environmental information includes: 

(a) requesting and receiving information from competent authorities without mentioning any special interest or explaining the reasons for the request; 

(b) being informed promptly whether the requested information is in possession or not of the competent authority receiving the request; and 

(c) being informed of the right to challenge and appeal when information is not delivered, and of the requirements for exercising this right.

The Agreement also obliges signatory countries to guarantee that environmental information systems are duly organized, accessible to all persons and made progressively available through information technology and georeferenced media.

So far 16 countries have signed the Escazú Agreement, but none of them have ratified it.  At least 11 countries must sign and ratify it by 27 September 2020 for it to come into force.

Claimants should understand the methods available to them which will grant them access to information which will allow them to identify if they have a case and subsequently build that case.  

Freedom of Information 

Domestic legal systems can afford political rights to private persons which entitle them to access to information held by the State, including environmental information. In Brazil, there is a right under Article 5, items XIV and XXXIII of the Federal Constitution which guarantees the right to information. Environmental data and information come under this scope. Any person has access to this information through a written request. The environment agency must provide a response to these requests from 30 days of the date of the request.  

These political rights can also be implemented as features of environmental regulations. For example, EU citizens have a right afforded to them under the Aarhus Convention to have access to information held by a public authority regardless of whether the person has a stated interest. EU environmental regulation has accommodated this right by providing mechanism which provide a person access to information. In implementation of this right, EU chemicals regulation (REACH) provides private citizens with a right to ask for details about any chemical product. 

A common way in which domestic legal systems implement access to information rights is to enact legislation allowing for freedom of information requests. The legal system will enable for requests to be made to public sector bodies which (depending on the strength of the legal framework) may require that public body to provide the requested information it is holding. Many countries have enacted such legal frameworks of varying strengths and have been rated by the Access Info Europe and The Centre for Law and Democracy at https://www.rti-rating.org/.   

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Summary

  1. Different stakeholders should choose their actions in line with their interests and preferred outcome. When national laws are vague or not being well developed, international legal instruments and non judicial mechanisms that expose lack of corporate social responsibility could bring better results
  2. Rights based approach is a very powerful tool for environmental protection in the countries that recognise such rights. However, those court proceedings are usually lengthy and sometimes inadequate when there is a threat of irreversible environmental damage.
  3. Administrative law has proved to play a key role in challenging environmental decisions.
  4. The right to access to environmental information and public participation in decision making processes is already well-established in most legal systems and it is among the best control mechanisms for environmental protection and prevention of environmental degradation.
  5. The civil society’s triggering of the unique non-compliance procedures of international environmental regimes have brought more success in many LEDCs, in comparison to traditional judicial proceedings.
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Contributors

Public Interest Environmental Law UK (PIEL UK) 

PIEL UK is a student led organisation that hosts an annual conference that focusses on environmental justice. The PIEL UK team also organises and hosts the ‘Just Environmental Law’ Podcast. The PIEL UK website can be found here.

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