Licensed infrastructure projects, including projects conducted by the extractive, logging and agricultural industries, may threaten or destroy forest lands. These projects also threaten Indigenous and forest communities.
Resource: For examples of case studies from Colombia, Peru, Guatemala and Panama, see the Rights and Resources Initiative’s Report on the Impact of the Extractive Industry on the Collective Land and Forest Rights of People and Communities
RAISG has compiled a series of maps & data-based publications that may be useful for evidencing the impact of infrastructure-driven threats to the Amazon.
Resources include mapping of infrastructure projects and investment plans in the Amazon region, including deforestation.
For more information on environmental threats from infrastructure projects taken by the development and industrial sector, see the A4J Environment Module.
Unauthorized deforestation is the logging or clearing of land without licensing. Generally, a company requires a licence (or permit) to conduct logging activities or clear forests to extract minerals and other resources. Deforestation can be challenged if a company does not have a licence and is clearing forest land or illegally logging.
Where a licence has been granted, it sometimes gives individuals and the community an opportunity to challenge the terms of a licence. This is especially if the company is acting outside the remit of their licence, or if the correct procedures for grant of a licence have not been followed, and the activity concerned is causing damage through deforestation or forest degradation.
Where government authorisation is required before deforestation or certain types of forest use can occur, forest use can be challenged when the activities are:
Unauthorised deforestation can be challenged through litigation to defend forests. These claims can be split into 2 types of challenges:
When you have outlined the facts of your case, look at the areas of law below and see which most closely relates to your situation. Then check the national law in your country.
Your legal analysis must be supported by the evidence you have gathered. You may wish to seek legal advice. A lawyer with expertise in the relevant area should be able to provide advice on the options available to you and advise on your chances of success.
There are a number of laws on which you could have a “cause of action” for a substantive or procedural infrastructure challenge. These laws are based on:
In many countries, there are general public law principles that can make an action or omission of a public body unlawful in respect to its national laws for the protection of forests. If your government violates these principles, you may be able to bring a claim.
Even if there is not a specific law which requires the government to adopt a specific procedure, decisions of governments in many countries can be challenged where the procedure leading to the decision is unfair. For example, where the decision was biased, or the process was not transparent.
South African National Parks (SANParks) entered into an agreement with MTO Forestry for the clearing of invasive forests in Table Mountain National Park. The contract was a lease under the National Forests Act 1998. SANParks made a decision to accelerate the felling process at the request of MTO. The Court ruled these actions amounted to the exercise of public authority and administrative action.
There was no public participation process. Court held that the public had a legitimate expectation to be consulted under these circumstances and therefore the decision to accelerate the clear-felling process was procedurally unfair.
Irrationality is a principle in which a decision of a public body can be challenged if it is so unreasonable that no reasonable decision-maker could have made the decision.
This is a very high threshold to reach. It could be argued that the licensing of a project was irrational because it failed to account for the severe impacts of deforestation or forest degradation on a local community.
Case Example: Patil v. Ministry of Environment and Forests
The Ministry of Environment and Forests granted environmental clearance for a project to build a thermal power plant near a village. The Court considered the application of the doctrine of unreasonableness and whether relevant considerations had been followed. It held that there was an improper declaration in respect of the nature and category of the land acquired for the environmental clearance project.
Where a law gives a public body power to make a decision, but the public body takes irrelevant considerations into account or fails to take relevant considerations into account when making the decision.
A South African Cabinet minister approved the development of a coal mine in the Mabola Protected Environment, which is a high-yielding water catchment area that is designed as a protected area under the Protected Areas Act. The claimants sought judicial review of this decision on a number of grounds including the failure to take relevant considerations prescribed by the National Environmental Management Act 107 of 1998 into account and by taking irrelevant considerations into account.
The High Court’s decision to set aside the ministerial approval was upheld in the Constitutional Court, which refused to hear the mining company’s’ appeal in 2019.
Where there is a national law that authorises a public body to take actions to stop deforestation or protect a forested area, but the public body uses the powers under the law for an improper purpose.
Where there is a law that authorises a public body to take action to protect forest land or conserve forest biodiversity, but the action taken is based on an interpretation of the law that is incorrect
One of the questions that formed the basis of the claimant’s request for judicial review of the decision was whether there was proper interpretation of the relevant statutory provisions that set out Ministers duties and obligations under the National Environmental Management Act 107 of 1998.
Where there is a law in your country which sets limits on deforestation or places on a government body’s powers in relation to forestry management and infrastructure projects, but the body acts outside the limits of the law.
Case Example: Jet Sri-Ngeon v. Minister of Industry
The court ruled that the mining permit site was a reserved forest that was not yet lawfully permitted for other uses. This was an essential requirement for the mining permit review process under national legislation. By issuing the Letter of Permission to enter the reserved forest and Permission Order for Forest Clearing for the purposes of the coal mine, the Minister of Industry violated procedural requirements by acting outside its legal authority.
If there is national legislation which requires the government to take action to protect a forested area or prevent forest degradation and the government fails to do this, this can be challenged.
Case Example: Sheikh Asim Farooq v. Federation of Pakistan
The Court held that the government failed to implement existing laws and policies and was responsible for the deforestation crisis. It noted that “had above-mentioned laws and policies properly been implemented by the Respondents Departments in letter and spirit with proper mechanism and procedure, the forest of Pakistan could have been saved for [sic] further depletion and deforestation”.
Where there is a law in your country which sets limits or conditions on the government’s powers when it comes to licensing/approving projects that will cause deforestation, the licensing/approval of a project could be challenged where it acts outside of those limits. These laws are often found in environmental legislation, planning laws and regulations, regulations pertaining to specific industries, general constitutional requirements for government licences or land use laws.
An environmental impact assessment (EIA) is a process that evaluates the range of likely environmental impacts of a proposed project. An environmental and social impact assessment (ESIA) is similar but also accounts for the social impacts in addition to the environmental impacts.
Where planning, industry or environmental legislation requires the government to conduct an EIA or ESIA before licensing infrastructure/energy projects, a licence could be challenged if:
Key Example: Sudiep Shrivastava v. Union of India
The claimants challenged a government decision to approve a proposal to clear a forest for a coal mine. The claim was brought on the basis that the EIA was inadequate, and the government ignored a recommendation from the Forest Advisory Committee (FAC) to preserve the forest for ecological reasons. The area had also been designated as a protected area.
The Tribunal quashed the government’s decision on the grounds that it rejected the FAC’s advice with no scientific basis for that decision.
The findings of an EIA can also be used to show that your government did not take into account relevant considerations of a project (e.g. the impact of a project on surrounding forest ecosystems).
Check your country’s specific EIA/ESIA legal requirements for the appropriate the appropriate procedural steps and minimum content requirements.
Key Resource: ELAW Global EIA Laws
ELAW has compiled a database covering more than 50 key aspects of EIA laws from around the world. There are separate databases for EIA Procedure and EIA Content, as well as a Complete EIA Law Comparison database.
For more information about environmental decision making and EIAs, see the A4J Environment Module.
In some countries, there is a legal doctrine called public trust, which requires the government to take measures to protect the shared natural resources of that country. The shared natural resources are for the common public benefit. The Government holds these resources on trust and are obligated to manage them properly.
The case covered questions of conservation, preservation and protections of forests and forest ecosystems. In particular, it addressed the question of what measures are required to compensate for loss of forest land and ecology when forest land is used for non-forest purposes. The Forest (Conservation) Act 1980 specified that State governments and authorities must first consult with the Central Government prior to designated forest land for non-forest purposes. The issue was whether the user agency of the forest land should make a payment to compensate for the loss of forest-related benefits in diverting forest land for non-forest purposes.
The Court noted that under the doctrine of public trust, the natural resources are not under the ownership of any State or individual, but the public of large. Any compensatory payments are for the protection of the environment and not for property rights. Therefore, all payments made under the Compensatory Afforestation Fund Management and Planning Authority must be used for ecosystem regeneration.
The success of a public trust claim is often dependent on the incorporation of the public trust doctrine into the state’s constitution. Check your country’s constitution to see if this doctrine has been incorporated into the constitution.
If a government is required by legislation to take (i) environmental or forest-specific impacts into account when licensing a project or (ii) have regard for conserving the environment and biodiversity; a licence could be challenged if the government has failed to do this.
Example: English Biodiversity Duty
Public authorities in England have a biodiversity duty that they must meet in carrying out all their activities. This duty is contained in the Natural Environment and Rural Communities Act 2006.
Public authorities are widely defined. These bodies must be able to prove that they have followed their duty to have regard for conserving biodiversity and that they have identified ways they can integrate biodiversity when they take a number of decisions including: management of the planning system, management of woodlands and nature reserves and when they develop infrastructure.
Where legislation requires the government to consult with and give the public and any relevant stakeholders an opportunity to participate in the decision-making process, a licence or permit could be challenged if it fails to do this.
Case Example: Reserva Los Cedros v. Ecuador
In June 2020, the Constitutional Court of Ecuador agreed to take on an infrastructural challenge brought by Los Cedros Reserve against the government on the grounds that its concessions for mining exploration and exploitation projects violate the Rights of Nature enshrined in the Ecuadorian constitution. The claimants argued that the projects violated the legal status of the Los Cedros Protected Area, collective rights of Indigenous Peoples and the procedural rights of communities to prior consultation before potential environmental damage.
See Sub-Page 5 of this Guide for more information about these claims.
Human rights also have a procedural dimension. Where the government is taking actions that may interfere with your human rights, it must abide by certain procedural safeguards.
The Inter-American Court of Human Rights outlined that States have the following procedural obligations before they undertake activities which could cause significant environmental damage that impacts human rights:
Duty to require and pass environmental impact studies; and
Provide opportunities for public participation in the first stages of decisions
The licensing of an infrastructure project on forest land could be challenged on human rights or constitutional grounds where these requirements are not complied with. This obligation remains ever if there is no specific law in your country that requires the government to conduct an Environmental Impact Assessment.
The West Bengal Government was planning to fell hundreds of heritage trees to build Road Over Bridges. Noting the importance of preventing climate change and protecting the constitutional right to a healthy environment, the Supreme Court Bench held that “sustainable development must remain at the heart of any development policy implemented by the state”. The Bench set up a committee to develop scientific and policy guidelines that will guide decision-making in relation to the felling of trees for developmental projects.
In order to bring a claim, you must have “standing” (the legal right to bring a claim).
See Sub-Page 4 of this Guide for more information on standing.
The case should be brought against:
For further information, see “Who Can I Bring Legal Action Against” in the A4J Going to Court Guide.
In public law actions, it is the claimant (e.g. you) who has the “burden of proof”. This means the person bringing a civil claim needs to bring evidence to prove their case.
One of the first things you need to do to bring a successful claim is gather evidence that will be accepted in court. You must have a set of facts that describes what happened and evidence that supports your “version of events” (i.e. what you are saying happened). This is called “factual evidence” and will be used to support your claim.
You will generally need to ensure you have specific evidence of:
The details of the project could be found in the body of the licensing decision or in records of political decision-making. Some of this information will be publicly available and others may be made available after a freedom of information request. For more information see the A4J Access to Information Module.
For substantive challenges you will also need to show the impacts of the project’s deforestation or forest degradation on you (e.g. your land, property, health or finances).
If you want to make a procedural challenge, you will also need evidence of what happened at key stages of the decision-making process which led to the licensing of the infrastructure project.
Key stages in the licensing process and questions often include:
- Details of the project:
- What is the project?
- Where will it take place?
- How and when was the project licensed?
- Which public authority was responsible for licensing the project?
- When will the project begin?
- How long will the project last for?
- The initiation of the process;
- How was the decision-making process initiated?
- What public body was responsible for overseeing the process?
- Why was the project initiated?
- Social and environmental impact assessments that were made before the licensing decision was made:
- Where impact assessments made?
- At what stage in the decision-making process where the assessments made?
- What information was included in the assessments?
- What were the results of the assessments?
- How did this affect the licensing decision?
- Expert evidence and consultations that were made before the licensing decision was made:
- Was expert evidence considered? Where consultations made?
- At what stage in the decision-making process did the consultations take place?
- Who was consulted?
- What were the outcomes of the consultations?
- How did this affect the decision?
- Public participation in the decision-making process:
- Did the public have an opportunity to participate in the process?
- At what stage in the decision-making process where the public given opportunities to participate?
- In what way were the public able to participate?
- Was were the views of those who participated?
- How did this affect the outcome of the decision?
- Policy papers, memos or press releases that were made by the government during the decision-making process;
- Political debates regarding the licensing decision; and
- Final reasons for the licensing decision.
For further information on evidence, including the scope of evidence you will need to provide, see the section on “Evidence and Information” in Sub-Page 11 of this Guide.
For general information on evidence, see the section on “How Can I Prove My Case” in the A4J Going to Court Guide.
These claims are usually taken in national administrative or constitutional courts.
The procedure that you must follow will depend on whether you live in a “common law country” or “civil law country”. The law in your country will outline a judicial review, constitutional petition or amparo process, so that you can bring a claim to the courts and the court may review the situation and provide a remedy.
Focus Point: Limitation Periods
A limitation period imposes a time limit within which a claimant may bring a case. The limitation period depends on the precise cause of action and will dictate the amount of time you have to file your case in court. If you do not file your case within the relevant limitation period, you may be prevented from bringing the claim.
Research the law in your country to determine the relevant limitation period for your claim. You will also need to identify when the time starts running for the limitation period. Time may start running from one of the following:
- The date the harm occurred (e.g. when a forest fire occurred);
- The date you learned about the harm; or
- The date the government made the specific policy decision or took an action that you are challenging.
In some cases, it may be possible to apply for the limitation period to be extended.
For more information, see “What Procedural Steps do I need to take” in relation to Administrative, Constitutional and Human Rights Cases in the A4J Going to Court Guide.
If you bring a successful claim against the government under a substantive or procedural challenge, you may be entitled to one or more of the below “remedies”. The outcome of a successful case will depend on your cause of action and specific claim:
Case Example: Sheikh Asim Farooq v. Federation of Pakistan
Ruling in favour of the claimants, the judge ordered the Pakistani government to uphold its environmental laws and climate change policies, including its obligations to protect the forest. The judge also ordered the government to publish annual reports on progress of reforestation, punish those who illegally cut down trees and take disciplinary action against public officials who fail to carry out their duties.
It is important to remember that the affected individuals and communities should lead on deciding which remedies are appropriate, as opposed to NGOs or lawyers. Consider the community impacts of each possible remedy.
For more information, see our general page, “What Remedies Are Available?” in the A4J Going to Court Guide.
Winning in court is only the start of the process. Many successful court judgements are either not enforceable or are not enforced in practice.
You may be able to go back to court and ask for the judgement to be defined and enforced. See the general page on “How Can I Enforce a Court Order” in the A4J Going to Court Guide.
In addition to all the factors above, there are further practical issues you need to consider.
One set of issues relates to the resources you will need by way of general support for you, and the case, legal and expert advisers, finance, logistics (such as transport), translation and printing.
Another set of issues is on the safety and security of you, witnesses and your information.
For general guidance on these points, see the relevant headings in Sub-Page 11 “Going to Court” of this Guide.