This guide is intended to provide practical legal solutions to real life problems; in each case it is necessary to consider:
The best type of legal action, and then the approach that is taken, will depend on the exact circumstances of each case.
For example, if you want to stop plans for a new mine or factory farm because of the pollution it will cause, you will want to engage in the planning and environmental permitting law processes and be reliant on environmental and planning law.
If you are trying to address a systemic failure by the government to prevent freshwater pollution, you may want to consider a negligence or constitutional claim against the regulator for failure to implement policies and regulations, or a failure to protect human rights, the public interest, or the right to a healthy environment.
If you want to address a major pollution event, a criminal prosecution may be the strongest legal action. In many countries, civil and criminal actions are combined. You may also consider a claim against the polluter for the damage you have suffered.
It is frequently more effective and easier to bring a claim against a public body, but you can also bring a civil claim against a polluter directly, such as for negligence, nuisance, or breaches of regulations. You can apply for an injunction to stop the pollution or for compensation in the form of damages.
Planning Law and Permitting Regimes typically have a public consultation requirement; you can sign up for alerts from government permitting websites to be alerted when large projects are seeking a permit before they have been built. Industrial installations like factory farms, mines, oil drilling, or power plants will normally be published in local newspapers as well, as a legal requirement. As soon as you hear about a large project likely to cause significant pollution, you can begin the process of opposing it, or challenging aspects of the development. By beginning early with grassroots organising and submitting comprehensive objection letters, you can effectively stop pollution before it begins.
Preventative applications for declarations of breach of environmental law, and injunctions to suspend polluting activities pending environmental impact assessments and child impact assessments, are more immediately impactful than other types of legal cases that are brought after the pollution has started. They are also much cheaper and quicker ways of addressing issues before they start.
Large projects typically require both planning permission and an environmental permit. Find out who the decision maker is: is it the regional planning authority, or a minister or secretary of state? Write letters to that person or department expressing your dissatisfaction with the scheme and concerns about pollution.
The importance of the approach that is taken to legal action is often underestimated but is crucial for a successful outcome. Think outside the box— for example, you might find about an industry that is causing water pollution, but decide that the most effective legal strategy is to sue them for causing public health concerns due to drinking water contamination, rather than focusing on environmental impacts. Always remember that stopping water pollution using legal action may be possible using laws designed primarily for a different purpose.
Often using new and innovative approaches to protecting people and the environment will be the most successful as these methods can mobilise public support around an issue or approach a problem in a new way that courts will be sympathetic to. The rest of this guide will consider a number of these types of legal action and set out examples of when and how they have been used successfully.
Many industrial operations which cause water pollution also simultaneously cause pollution or contamination of the land and air. Therefore, when considering how to take action to stop a particular activity that is polluting water, the problem of water pollution should not be considered in isolation from the other issues caused by the same activity or company which may provide a basis for legal action. By challenging a source of water pollution from different angles, it may both demonstrate the severity of the issue to the relevant legal authority and give an applicant multiple chances of success.
Most countries have laws that protect specific species of wild animals or certain habitat areas. If certain species or habitats are threatened by the pollution, laws protecting those species or habitats can be utilised. As wild animals and habitats are frequently dependent on freshwater too, you can argue that the freshwater needs to be cleaned up or protected for the sake of the wild animals or habitats. This is an example of indirect legal protection.
For example, if you are trying to stop the pollution of a river, do not just look at laws regarding pollution but also laws that ensure the protection of other aspects of the environment that might be impacted by pollution.
If water that is affected by pollution is used for certain protected purposes, such as bathing or drinking or the body of water is protected for ceremonial or religious purposes, it may be possible to demand a remedy by demonstrating that the pollution is preventing people from using the water for its protected purpose.
The UN Committee on the Rights of the Child makes recommendations on any issue relating to children to which it believes the State parties should devote more attention. Recognising that the extent and magnitude of the triple planetary crisis, comprising the climate emergency, the collapse of biodiversity and pervasive pollution, is an urgent and systemic threat to children’s rights globally, General Comment 26 recommends a child rights-based approach, recognises children’s right to a healthy environment, and requires States to immediately ensure access to safe and sufficient water and sanitation and healthy aquatic ecosystems to prevent the spread of waterborne illnesses among children (GC 26, para 65(b)).
When contemplating or taking legal action it is important to consider what remedy or result you want or may be entitled to. Depending on the circumstances and the type of legal claim this might include criminal fines or penalties for polluters, orders to stop the pollution, orders to remove or reduce the pollution, and monetary compensation for damage. Remember, your approach to taking legal action may determine what sort of remedy or result might be on offer so always plan your action with this in mind.
Often, we think of an environmental lawsuit as a big claim in court against a huge company that has caused environmental damage. However the reality is more complex— much of the time a lack of political will, systemic failures to create strong policies, poorly designed regulations, and unenforced regulations, are as much to blame for pollution as the polluters. It is often more prudent to target a public authority than a polluter, simply because public authorities are more easily held accountable due to the presence of vast systems of public and environmental law. In many instances, only a public authority has the power to stop and clean up pollution.