Gathering Evidence of Freshwater Pollution

Your evidence will have to meet particular standards to be accepted by the court and may be required to prove:

1. the nature of the pollution,
2. the extent of the pollution, 
3. the cause of the pollution, 
4. the impact of the pollution on those making the claim. This may include damage to their land, property, health or finances, and/or the ecological impact of the pollution on the freshwater itself and the environment it supports and comprises a part of. 

For general information on evidence, see the section on “How Can I Prove My Case” in the A4J Going to Court Guide.

The pollution of a freshwater source may be obvious even to the most untrained eye. However, without properly collected and presented evidence it is likely to be impossible to prove in a court that the pollution exists. Whilst it can be costly, it may be necessary to engage outside experts and scientists in this stage of any legal action. Even if your community does not have the financial means to engage an expert to gather water samples, you can still gather water samples as this will be better than having no evidence at all. In some cases, the information you require may already be held by the government, if a water agency carries out regular quality testing, for example. 

A lot of evidence may also be available online. One option is to use Bellingcat’s Digital Toolkit, a guide for Open Source Verification and Investigation Tools and Methods. You can also hire a Bellingcat-trained investigator to find the evidence for you. You can post on Bellingcat’s Discord platform to find an investigator. 

The Environmental Law Alliance Worldwide has published a “Guide to Collecting Environmental Samples”, to provide information and guidance to individuals and communities who want or need to scientifically collect their own water samples. For a comprehensive overview see Module 2, “Water Sampling for Communities”. The summary below provides practical guidance on what factors must be considered when collecting appropriate samples:

1. Samples must be taken before and after pollution events.
2. The necessary equipment for collection, handling, storage and transport of the samples must be identified and obtained.
3. The appropriate sampling procedure for both the water source and the type of pollution must be selected and carried out. This should include, where appropriate, a written and/or video record of the sampling process as proof of how, when and where it was carried out.
4. Accurate and systematic labelling of the samples that have been collected must be ensured.
5. A system of record keeping must be prepared and implemented that can prove what was collected, when it was collected and then who was responsible for it at all times up until it is handed to the court as evidence.
6. Samples must be handled, stored and transported in a way that ensures the samples are not contaminated or changed in any way.
7. A laboratory that can carry out the necessary analysis and provide scientific and reliable results must be identified and used for the testing and analysis of the samples.

Obtaining information

Remember, successful legal action tackling pollution may depend on obtaining relevant information from the state or from the polluters themselves. These bodies may be very reluctant to disclose such information. Once legal action has begun it may also be possible to have a court force a defendant (and/or a claimant) to present otherwise private and confidential information to the public, in a process known as disclosure.

Methods to obtain information could include requests made under freedom of information (FOI) laws, reporting under environmental information regulations (EIR) or the scrutiny of company reports that are public. Information obtained from public bodies through freedom of information requests can often serve as evidence to support a legal challenge. While public bodies may not hold all the information you need about how and why a freshwater body has become so polluted, the information they hold may still be useful because it will be readily accepted as evidence by a judge. 

Submitting freedom of information requests is also an important campaigning tactic. You may discover information that you can send to the press revealing regulatory failures or pollution, which you can then use to press for stronger environmental protection and enforcement.

There is often a specific wording that you need to use when sending an information request, so be sure to cite your country’s laws on freedom of environmental information when submitting the request. Information requests can be made to environmental or water agencies, local governments, or water companies where fulfilling a public function. Some agencies also hold a lot of information on their website publicly. 

Examples of information you may wish to request: 

1. Water quality monitoring data (for example within a specific region over a 3-year period.)
2. Statistics on how many rivers are polluted, or what types of pollution are present and the levels of pollution. 
3. Information on permit compliance (for example how many permit breaches have nearby industries committed)
4. Reports on the implementation of environmental policies.
5. Information on populations of protected species. 
6. What enforcement actions have been taken by regulatory agencies.
7. How many times untreated sewage has been dumped into the water.

If the authorities refuse to provide information, it is possible to appeal this decision with legal action (judicial review). See Action4Justice’s guide on “access to information” for more information rights.