Direct Legal Action Against Freshwater Polluters

In many countries, including the US, China, and India, NGOs can sue companies directly for breaching environmental law, sometimes known as a Citizen Suit, or Public Interest Litigation. In this way, NGOs can take on the role of regulatory agencies to enforce environmental law. In India for example, where an NGO brings a constitutional claim against the government for failing to control environmental pollution, the judge can make orders directly to the private company responsible for the pollution to remedy the pollution and pay compensation. 

Examples

1. In China, NGOs successfully brought a case against a mine for breaching environmental law and damaging the environment.

1. In the Indian case of M.C. Mehta v. Union of India (UOI) and Ors. (1996), a public interest case was brought to stop river pollution from tanneries.

If an individual has been injured or made ill or their property damaged by a company’s negligence or due to breach of environmental regulations that impose liability on a polluter, it is possible to bring a claim for compensation known as damages. See the sections on Tort Law and Civil Claims Against Public Bodies for more on civil law claims and how the law works in these types of claims.

In order to obtain this compensation it will be necessary to prove that the claimant has suffered, and that the polluter has caused the damage. You will need to prove a number of things including, for example:

1. the source or cause of the pollution, in particular that the person against whom the action is brought has caused it or failed to prevent it;
2. in some cases that there has been fault or negligence, although in other cases there may be strict or no-fault liability for damage caused to the environment; and
3. loss or damage which has been caused by the pollution and which has been suffered by the person bringing the application.

Causation may be clear and easier to prove where there is physical damage caused by pollution. It may be more difficult to establish claims for damages resulting from indirect damage caused by polluting companies. Remember that you can request disclosure of evidence from the other side when you sue a company, and they may have the proof you need to show that they caused the pollution, or were at fault.  

Sometimes charities or citizens can bring actions on behalf of others even if the individual or organisation bringing the claim has not suffered any direct damage. However, depending on the rules on standing in the jurisdiction, someone bringing proceedings in this way will be required to show that they have sufficient connection to the case or a special connection to those who have suffered the damage before they are allowed to do so. Some countries have wider rules on standing, allowing any person or NGO to bring cases to protect the environment regardless of whether or not they are personally impacted or have a special interest in the case. 

Examples

1. In the People’s Procuratorate of Xuzhou City, Jiangsu Province vs. Xuzhou Hongshun Paper Co., Ltd, the respondent paper company was held liable for the restoration costs and loss of ecological services resulting from their release of untreated wastewater into a river. The company had been caught and fined twice previously for the same activity. The court of appeal then upheld the original judgement and established that Hongshun Paper Co’s fine was to be calculated according to the estimated cost of the original treatment of the pollution, but that Hongshun was liable for the damage caused by the loss of service functions caused by the water quality levels falling below acceptable irrigation standards. The fines paid by Hongshu did not offset or affect the company’s civil liability.

1. In July 2020, the Kenyan Environmental Court awarded the equivalent of USD 13 million in compensation for damage to the environment and health of a community blighted by deadly lead poisoning. The court in Mombasa awarded the compensation to residents of Owino Uhuru settlement for deaths and health impacts caused by lead poisoning from an adjacent smelter for recycling batteries. The ruling, delivered by a judge of the Land and Environment Court on 16 July 2020, declared that the community’s rights to a healthy environment, highest attainable standards of health, clean and safe water, and life had been contravened, and ordered the Kenyan government and two companies to pay compensation. The court also ordered the Government and companies to clean up the soil, water and waste, failing which a further USD 7 million would be awarded to the Centre for Justice, Governance and Environmental Action to coordinate the environmental clean-up.

1. In Nepal in 1995, a citizen and NGOs brought a pollution case against a marble factory to the Supreme Court. The dust, minerals, smoke and sand emissions of the factory had polluted the Godawari forest and surrounding areas causing environmental degradation and endangering the life and health of residents. The court found that a clean and healthy environment was included in the constitutional right to life, that individuals have a legitimate right to be free from a polluted environment and that non-governmental organisations and individuals had standing before the Supreme Court regarding environmental protection issues. Ultimately, the Court found that no violation of a specific legal duty had been evidenced. However, directives were issued by the Supreme Court in the respondent’s name for the government to enforce the Minerals Act 1985, enact relevant legislation for protection of the environment and to take action to protect the affected area.

1. In July 2021 the Nigerian Supreme ruled in the case of Centre for Oil Pollution Watch (COPW) Vs the Nigerian National Petroleum Corporation (NNPC). An NGO, COPW brought their claim directly against the polluting NNPC in May 2005 over an oil spill in ACHA Community of Abia State of Nigeria. The oil spillage was allegedly caused by the defendant’s negligence in maintaining its pipeline, which in turn ruptured and polluted the surrounding streams and river of lneh/Aku and the local community’s major sources of fresh water. While the case has not yet been decided, the Supreme Court of Nigeria (SCN) held that COPW, as an NGO, did have standing to bring the claim as its action sought “the due performance of statutory functions or enforcement of statutory provisions or public laws, especially laws designed to protect human lives, public health and the environment”. In the course of its preliminary judgement, the Supreme Court made significant strides in ‘greening’ the Nigerian Constitution, confirming the existence and enforceability of environmental human rights in Nigeria, including that section 33 of the Constitution which guarantees the Right to Life, implicitly includes and constitutes a fundamental right to a clean and healthy environment for all. The Court further explicitly affirmed the domestic enforceability of the environmental right in Article 24 of the African Charter on Human and Peoples’ Rights as brought into national law by the African Charter Act, Cap. A9 LFN 2004

Class actions have increased over the last few decades particularly for environmental claims and public health issues. One of the main challenges to bringing a class action claim is to be able to prove who has caused the damage. If this can’t be established, then no award will be made. See the sections on Tort Law and Class Actions for further information on how class actions can operate.       

Examples

1. In Thailand, in the Klity Creek region, a claim was brought by a group of indigenous people against the operators of a local lead factory which was disposing of wastewater and chemicals into the Creek. This has led to water contamination and the claimants to suffer from lead poisoning. The Court held that the defendants (the local lead factory) were to pay affected indigenous people damages and that, as indigenous peoples, they had a constitutional right to demand the restoration of the Klity Creek. The Court further ordered the defendants to undertake restoration.

1. In 2020 a class action lawsuit was filed in the Johannesburg High Court against the South African subsidiary of the mining company Anglo American over its alleged failure to prevent widespread toxic lead pollution in the Zambian town of Kabwe. The case was brought by 13 representative claimants on behalf of a class of children, girls and women who have been or may become pregnant and who live in the Kabwe District of Zambia. The town hosted one of the world’s biggest lead mines for many decades and scientists reported “alarming” levels of lead in people’s blood. It is likely that more than 100,000 children and women of childbearing age in Kabwe are likely to have suffered lead poisoning as a result of pollution. Lawyers for the claimants have argued that Anglo American’s South African subsidiary is liable as it was responsible for the mine from 1925 to 1974 and that this was when the majority of the pollution was caused. Further, they argue that Anglo had “a duty of care to protect existing and future generations of residents of Kabwe”. The purpose of the class action is to secure compensation for victims of lead poisoning, including the cost of an effective medical monitoring system for blood lead levels among the community and cost of clean-up and remediation. In 2022, the court ruled that four international organisations, including the UN Special Rapporteur on Toxins and Human Rights and the UN body concerned with the rights of people with disabilities, could join the proceedings and provide submissions in order to help the court.

In 2014, five local residents of Lanzhou, China brought a case against the Lanzhou Water Company, claiming local water supplies and tap water were contaminated with Benzene, a cancer inducing drug. The levels of this chemical were 20 times above the national safety levels and had forced the city to turn off water supplies in one district and warn other residents not to drink the water. The five residents requested the court to order the respondent to pay for the costs of bottled water, health checks, pay compensation for duress caused, issue a public apology and publish water quality testing results. However, the court dismissed the case on the grounds that the litigants did not have standing to file pollution-related lawsuits as the law allowed «only agencies and organisations that are stipulated by the law» to file pollution-related lawsuits.

In some jurisdictions pollution of freshwater is a crime and therefore victims of pollution may bring criminal complaints against polluters (see the relevant entry in “What kinds of Law can be used to challenge Freshwater Pollution?”). As citizens cannot usually arrest or charge criminals themselves, in order to bring a criminal complaint the victims of pollution must alert and work with local police, public prosecutors and/or the public ombudsman to ensure the polluters are tried in court. As criminal convictions are in many cases more serious than civil penalties such as damages, successfully bringing a criminal case may require more evidence and take longer than a civil claim. Criminal cases also rely on the actions of the police and prosecutors, and so those who have suffered from the pollution may lose the ability to guide and/or influence how the case proceeds. 

In some cases, as set out above, it is possible for private citizens to bring criminal proceedings by way of private prosecution. However, it is often easiest to deal with water pollution by persuading regulators or prosecutors to take action on behalf of the state rather than by trying to bring a criminal action as an individual or community group. 

Example

1. In this case criminal proceedings were brought against a businessman who was responsible for the contamination of water, soil and the environment more generally through his illegal pollution of rivers with hazardous waste. In this case the defendant, Jorge Elías Mocarbel, was convicted of polluting the El Salto stream of Aldea Brasilera. He was sentenced to 3 years’ imprisonment, required to undertake a course on the protection of the environment and to carry out environmental community service for two years after his release. Mr Morcarbel’s conviction relied on the cooperation of legal prosecutors and experts from the Federal Police and the Environmental Agency.

There has been an emerging trend to apply to courts to sue the company that owns and controls the local company instead. This controlling, or parent, company may well be based in a different country and/or jurisdiction to the polluting company, which is known as the subsidiary company. When a local company that has caused damage has limited funds, it is unlikely to be worth pursuing a claim against it if it is not able to pay any compensation awarded. It may also be difficult or impossible to obtain justice in the courts where the harm occurred. Legal actions against a parent company are most advantageous to those who have suffered harm in situations where that parent company has substantial assets and operates in a jurisdiction where it is possible for a parent company to be held liable for the operations of its subsidiary company (which is not often the case). This route is likely to be challenging because in many jurisdictions a parent company is not liable for the activities of its subsidiary. In order to succeed a claimant will need to prove that the parent exercised supervision and control over the subsidiary’s activity that has caused the damage. 

Examples

1. In the international English law case of the Shell Lawsuit (Okapi v Shell) Members of the Bille and Ogale communities in the Niger delta, which have a combined population of about 50,000, are suing Shell and a Nigerian-based subsidiary of the company, the Shell Petroleum Development Company of Nigeria. The two communities began the legal action in 2015, claiming they had suffered systemic and ongoing oil pollution for years due to the companies’ operations in the African country, including the pollution of drinking water, and their waterways which they relied on for their lives and livelihoods. They are seeking compensation and asking for the companies to clean up damage caused by the spills. In order to bring the claim, the UK courts first needed to rule on whether or not the Nigerian communities could even bring the claim in the UK courts. 

The claimants appealed all the way to the Supreme Court, which finally ruled in 2021 that, yes, the Nigerian communities could bring the claim in the UK. The claimants are bringing the claim in the UK as they feared they would not get justice in Nigeria. The Supreme Court’s decision reaffirmed that a British parent company may in certain circumstances owe a duty of care, for purposes of liability in a suit for negligence, toward persons affected by the operations of its foreign subsidiary.  The company continues to deny liability, blaming oil thieves who drill holes for causing the damage. In 2025, the UK High court confirmed  that Shell could be sued for damage from pipeline spills caused by third parties, such as vandals, in efforts to steal oil, a process known as bunkering. The case will proceed to full trial in 2027.

The companies are defending the claims, saying that the majority of spills are caused by the criminal acts of third parties or illegal oil refining, for which they are not liable.

1. In February 2023, more than 11,000 people from Nigeria’s south-eastern oil-producing region of the Niger Delta filed claims against Shell in London, demanding that the fossil fuel giant clean up damage from decades of oil spills and pay compensation to affected residents. It followed individual claims from 2,335 people in Bille, a fishing community also in the Niger Delta, which were similarly submitted to the jurisdiction of the London High Court in 2015.

1. In 2021, more than 2,500 Zambian villagers were to receive an undisclosed settlement from UK-based mining giant Vedanta Resources over their pollution claims. The claimants lived by the Nchanga Copper mine, owned by Konkola Copper Mines (KCM), a Vedanta subsidiary. In 2015, they alleged that toxic discharge from Nchanga had poisoned water sources and destroyed farmland. In its judgement, the UK Supreme Court had said the firm owed villagers a duty of care and that there was a risk they would not be able to achieve justice in the Zambian courts.

Soft law refers to agreements and principles that are not legally binding, but which could be called ‘quasi-legal’. The UN, the Bern Convention, and the OECD are all examples of bodies that offer a ‘soft-law’ complaints mechanism. 

The advantages of pursuing a soft law remedy are that it:

1. Costs very little to submit a claim or complaint and avoids litigation costs.
2. Can generate publicity which supports your campaign for the issue you are trying to solve.
3. Can lead to mediation between the parties and a remedy. 

The main disadvantage is that:

1. It is not legally enforceable.

The Organisation for Economic Co-operation and Development (OECD), an intergovernmental organisation founded to promote global trade and investment, has guidelines for Multinational Enterprises (MNEs) on Responsible Business Conduct, and also has a complaints mechanism. You can initiate a complaint against a business for causing water pollution by submitting a complaint to a National Contact Point (NCP). Each country that is a member of the OECD (the world’s richest countries) has a NCP. Whether or not the pollution you are campaigning against is happening in an OECD country, you can bring the complaint to the NCP of an OECD country, as long as the business you are complaining about has a presence in that OECD country, or is registered there. 

Since being updated in 2023, the OECD guidelines require supply chain due diligence to prevent environmental harm and human rights violations, which means that companies are responsible for preventing damage throughout their supply chain. 

In practice however, NCPs are often not as strong willed as a claimant would hope, and the watchdog OECD Watch along with 130 NGOs have called on the OECD to strengthen NCPs, promote the use of binding law, to ensure better implementation and effectiveness of the guidelines.

Nevertheless, the OECD complaints mechanism is low cost, as there are no fees, other than paying a lawyer to help draft and navigate the complaint. This is contrasted with a legal claim where there is a risk of adverse costs if you lose (needing to pay the other side’s legal fees). As a low cost complaints mechanism it can help individuals in non-OECD countries to hold companies registered in OECD countries accountable for the harm they have caused. The OECD complaints mechanism is best used in combination with a campaign. 

However, since the NCP offers mediation, if there are parallel legal proceedings these may be put on hold. Additionally, some NCPs maintain that NGOs cannot continue to campaign against the defendant company while a complaint is ongoing. For this reason, it is important to research the NCP before bringing a complaint. Some companies may be registered in multiple countries, allowing a complainant to choose a country with a stronger NCP that is more likely to enforce the guidelines in line with how they should be enforced, (according to Civil Society Organisations and the OECD Watch), and allow campaigning to continue. 

Example

1. A basin holding wastewater, a by-product of crude oil production, collapsed at the Badila oilfield in southern Chad, flooding the Nya Pende river with millions of litres of toxic wastewater, which was followed by an oil pipe leak. The spill left at least 50 residents with burns, skin lesions, and diarrhoea, brought children to hospital, and caused the death of livestock. The company responsible was a subsidiary of Glencore, Badila, and the oil field operator took no steps to remediate the harm. A UK corporate watchdog, Rights and Accountability in Development (RAID), brought an OECD claim in the UK against Glencore for the harm caused to residents in Chad, 2 years after the spill, as residents had still received no remedy. The claim was brought in England because Glencore UK is registered there, and the NCPs are only in OECD countries. The UK NCP found that Glencore had breached some of its obligations under the OECD guidelines, but did not hold it responsible for remedying the human rights impact of the toxic oil spill. The NCP will revisit the case in November 2025. 

This case shows the lack of political will on the part of some NCP’s to enforce the OECD guideline to their full extent, as the NCP failed to hold Glencore accountable for the requirement to remedy the harm, citing the fact that the company that caused the spill was a subsidiary and had an arm’s length business relationship. It also shows that OECD claims can take years. 

You can learn more about the complaints process and how to file an OECD claim on the OECD Watch website.