Using the Law to Force Public Action

National Constitutions often contain provisions that place duties on governments and public bodies to protect the environment, including duties to prevent water pollution. They also may grant rights to clean drinking water, the right to a healthy environment, or even rights to nature. They may also recognise human rights and property rights. These provisions provide an opportunity for those affected by freshwater pollution to bring claims against their governments and public bodies for their failure to comply with their constitutional responsibilities and failure to protect citizen’s rights. See the sections on Public Law and The right to a healthy environment.

Example

1. The Ugandan case of Mbabazi and Others v. The Attorney General and National Environmental Management Authority makes use of the public trust doctrine (under Article 237 of the constitution) and the right to a healthy environment (Article 39 of the constitution) in seeking the court to compel the government to take action on climate change. The claimants brought the claim on behalf of four children. The claimants allege that the government, as a public trustee of the nation’s environment and natural resources, is required to preserve the environment from degradation for both present and future declarations, and to protect citizen’s right to a healthy environment. Given that climate change has led to extreme weather events that have caused deaths, homelessness, and civil unrest, the claimants argued that the government is in breach of its constitutional duty. The claimants are asking for the court to 1) make a declaration that the government is in breach of its constitutional duty, and 2) provide injunctive relief, by ordering the government to account accurately for greenhouse gas emissions nationwide and create a plan to mitigate those emissions. The case has been ongoing since 2012.  

1. In the Indian case of Subhash Kumar v. State of Bihar and others  (1991), a claim was brought against the State Pollution Control Board (SPCB) in India, alleging that the SPCB had failed to take appropriate measures to prevent pollution of the Bokaro River due to factories dumping waste in the river. The Supreme Court found that the right to life under Article 21 of the Indian Constitution includes the right to enjoy pollution free water, and a citizen has a right to constitutional remedies under Article 32. However, in this case the petition was unsuccessful as it was found effective steps had been taken to prevent pollution of the river. The Court did not discuss the threshold for “effective steps” as it also found the petition was not made in the public interest due to the petitioner’s private financial interests.

1. In the Indian case of M.C. Mehta v. Kamal Nath and Ors (2000), a claim was brought against the Minister of Forest and Environment for his involvement in leasing ecologically fragile riverbed land to a motel group to which he had financial ties. The Supreme Court held that the ‘public trust doctrine’ applies in India and therefore certain common properties like rivers and forests are held by the government in trusteeship for the general public. The doctrine has been noted to increase the effectiveness of India’s Environmental Impact Assessment Laws and makes it a duty of the state to protect ecological resources. In this instance, the motel group was required to pay compensation, build a boundary wall and restrict discharge into the river, and the Pollution Control Board was directed to inspect regularly.

Around the world there are several regional and international courts that have jurisdiction over more than one country, which may be used as a last resort where domestic legal challenges have failed. In some courts, NGOs and individuals have standing to bring a case directly against a state. In others, where NGOs do not have standing to bring a case against a state directly to the court, they may have the opportunity to bring a complaint to another regional or international public body known as a commission. Below is a selection of regional courts.

Europe

For example, in the EU NGOs generally cannot bring a case directly before the European Court of Justice (ECJ), however they can submit a complaint to the European Commission about infringements of EU Law. The Commission has the power to bring a case directly before the ECJ, as do member states.

At the European Court of Human Rights (ECtHR), which covers a wider number of countries than the EU, individuals can bring a human rights claim against a state, for example, in the ECtHR case of Verein KlimaSeniorinnen v Switzerland (2024), a group of seniors successfully brought a case against Switzerland for failing to take measures to address climate change and protect citizens from harms caused by climate change. 

Latin America

In Latin America, NGOs can bring a petition to the Inter-American Commission on Human Rights (IACHR), who can investigate. The Commission or the State in question has the competence to refer the case to the Inter-American Court of Human Rights (IACtHR). 

Africa

The African Commission functions similarly to the European Commission and the Inter-American Commission on Human Rights in that NGOs and individuals can file a complaint and the commission can investigate or refer the matter to the African Court on Human and People’s Rights. Individuals and certain NGOs can also access the court directly in claims against a few African countries, who have agreed to allow NGOs and citizens direct access to the African Court.

East Africa

Unlike most other regional courts, standing rules at the East African Court of Justice (EACJ) are broad. NGOs and individuals have direct access before the EACJ and are not required to exhaust domestic remedies or to be directly connected to the issues, as long as they are a resident of one of the six member states of the East African Community. 

West Africa

The Community Court of Justice of the Economic Community of West African States (ECOWAS) accepts claims from individuals in human rights cases, as well as NGOs representing communities. 

Example

1. The organisations Natural Justice, the Centre for Strategic Litigation, the Centre for Food and Adequate Living Rights Limited, and the Africa Institute for Energy Governance brought a claim against the governments of Uganda and Tanzania and the Secretary General of the East African Community (EAC) at the East African Court of Justice. The Applicants argued that the construction of the East African Crude Oil Pipeline contravenes various treaties and law, including the treaty of the East African Community, the African Charter on Human and People’s Rights, and the Paris Climate accords. The Applicants also allege that the project proponents, including Total Energies and the states of Tanzania and Uganda did not conduct effective and meaningful public participation and consultation or human rights and climate impact assessments before commencing the project.

A civil claim in environmental cases is a legal action brought in a civil court usually by a private individual, group, or NGO, seeking a remedy for harm caused by environmental damage. The basis for the claim may be either a tort or a statute. 

Common tort claims in environmental cases include:

1. Failure to take reasonable care to prevent environmental harm, amounting to negligence

1. Strict liability for the escape of hazardous materials (Also known as Rylands v Fletcher in common law countries) 

1. Causing a nuisance. 

The doctrine of nuisance usually refers to disputes between neighbours, but if a business is causing water pollution that impacts an individual’s property and their right to enjoy their property, this may constitute a nuisance. 

There are different types of nuisance claims. Private nuisance is something that affects an individual, while public nuisance affects a large community. Private nuisance is a concept that protects the rights of land users or land owners. In common law jurisdictions, there are complexities to consider as to whether a statutory regime ousts common law jurisdiction in a nuisance claim, as discussed in the UK Supreme Court case of Manchester Ship Canal v United Utilities No 2 [2024] UKSC 22. Common law refers to judge-made case law precedent, and nuisance is a common law concept. However, there are also statutes (laws) that cover activities which are or may be a nuisance at common law. It can be difficult to navigate this complexity, but the statutory regime  may preclude a nuisance action. 

Many environmental statutes give individuals a right to sue for damages or injunctions (e.g. water pollution laws, hazardous waste laws), while some countries allow broad standing to NGOs to enforce environmental law. National laws often place duties on the public and on public bodies to protect the environment. These laws place duties of care on public bodies to ensure water supply and quality, and provide an opportunity for those affected by freshwater pollution to bring claims against local government and regulatory bodies as well as other organisations such as semi-private water companies. 

A claim against a national or local authority or agency is typically less costly than a claim against a polluter. To learn more about claims directly against polluters, see below: Direct Legal Action Against Freshwater Polluters.  A claim against a public body may be appropriate where:

1. Public bodies fail to protect residents from pollution;
2. Efforts to get public bodies to take regulatory enforcement action against polluters have failed.
3. A human rights claim is not viable because human rights are not sufficiently protected, or it will be difficult to show a high enough level of harm to the victim to prove a breach of human rights;
4. There is no opportunity to bring a judicial review of a decision;

At that point, it may be worth exploring a claim against the public body for breaching their duty of care to citizens, breaching regulations, or for negligence.

Access to Environmental Justice 

For example, in South Africa any person or NGO has legal standing to bring a case to enforce environmental laws in the public interest or in the interest of protecting the environment, under the National Environmental Management Act 1998 (NEMA), section 32. This is contrasted with the UK, which does not provide this level of access to environmental justice, but does allow for statutory nuisance claims to be brought by aggrieved persons under the Environmental Protection Act 1990, section 82. Smoke, fumes, dust, and smells can all amount to a nuisance. 

Example

1. In Thailand, a landfill site was causing odours, pollution, and water contamination, and the government ignored the complaints of residents for four years. Official bodies monitored the water and found that it was contaminated with both heavy metals and volatile organic compounds. With this evidence available, the residents filed a lawsuit against the government for negligence. The judge found that the government officials had neglected their duties concerning the pollution caused by the landfill, since there was a law giving the public bodies the power to revoke the permit, suspend the landfill operations and resolve the problems. Despite having this power, they had not taken action, so the judge found that the public body was negligent. The court ordered the authorities to take immediate action on the environmental damage.

1. In Carolina, South Africa, after a rainstorm flooded the town with acid mine drainage, high concentrations of acid, manganese, sulphates and further contaminants left the town without clean water for seven to eight months. After a series of protests by local people, the Federation for Environmental Sustainability, in collaboration with the local Silobela Residents’ Association and Human Rights Lawyers, filed an application in the Gauteng High Court, Pretoria, against the local municipality for failing to supply clean water to residents. A subsequent ruling provided that the local District Municipality was required to provide residents with clean water and that a satisfactory daily water supply was required to be provided within 72 hours. The local municipality was further tasked with preparing a detailed plan, explaining how it would provide local residents with clean water. While the time limit was reversed on appeal by the local municipality, the requirement to provide clean water remained.

1. In the case of Urgenda Foundation v. State of the Netherlands (2019), a Dutch environmental group, the Urgenda Foundation, and 900 Dutch citizens sued the Dutch government to require it to do more to prevent global climate change. The court in the Hague ordered the Dutch state to limit GHG emissions to 25% below 1990 levels by 2020, finding the government’s existing pledge to reduce emissions by 17% insufficient to meet the state’s fair contribution toward the UN goal of keeping global temperature increases within two degrees Celsius of pre-industrial conditions. The court concluded that the state has a duty to take climate change mitigation measures due to the “severity of the consequences of climate change and the great risk of climate change occurring.” In reaching this conclusion, the court cited (without directly applying) Article 21 of the Dutch Constitution; EU emissions reduction targets; principles under the European Convention on Human Rights; the “no harm” principle of international law; the doctrine of hazardous negligence; the principle of fairness, the precautionary principle, and the sustainability principle embodied in the UN Framework Convention on Climate Change; and the principle of a high protection level, the precautionary principle, and the prevention principle embodied in the European climate policy. The court did not specify how the government should meet the reduction mandate, but offered several suggestions, including emissions trading or tax measures. This is the first decision by any court in the world ordering states to limit greenhouse gas emissions for reasons other than statutory mandates. The Dutch government submitted 29 grounds of appeal. Urgenda submitted a cross-appeal, contesting the court’s decision that Urgenda cannot directly invoke Articles 2 & 8 of the European Convention on Human Rights (ECHR) in these proceedings. On Oct 9, 2018, the Hague Court of Appeal upheld the District Court’s ruling, concluding that by failing to reduce greenhouse gas emissions by at least 25% by end-2020, the Dutch government is acting unlawfully in contravention of its duty of care under Articles 2 and 8 of the ECHR. The court recognised Urgenda’s claim under Article 2 of the ECHR, which protects a right to life, and Article 8 of the ECHR, which protects the right to private life, family life, home, and correspondence. The court determined that the Dutch government has an obligation under the ECHR to protect these rights from the real threat of climate change. The court rejected the government’s argument that the lower court decision constitutes “an order to create legislation” or violation of trias politica and the role of courts under the Dutch constitution. In response to these appeals, the court affirmed its obligation to apply provisions with direct effect of treaties to which the Netherlands is party, including Articles 2 and 8 of the ECHR. Further, the court found nothing in Article 193 of the Treaty on the Functioning of the European Union that prohibits a member state from taking more ambitious climate action than the E.U. as a whole, nor that adaptation measures can compensate for the government’s duty of care to mitigate greenhouse gas emissions, nor that the global nature of the problem excuses the Dutch government from action. The Dutch government appealed the decision, and the Netherlands’ Supreme Court heard the appeal on May 24, 2019. On September 13 the Advocate and Procurator General, independent judicial officers, issued a formal opinion recommending that the Supreme Court uphold the decision. On December 20, 2019, the Supreme Court of the Netherlands upheld the decision under Articles 2 and 8 of the ECHR.

Climate change of course impacts water resources, and this case demonstrates the use of a legal challenge as a preventative tactic by holding the government accountable for negligence in failing to protect citizens from anthropogenic climate change. 

Judicial Review is a type of public law/civil claim in which you can ask a judge to review a decision, policy, action, or inaction of a public body. To bring a case, you will need to identify what the grounds of your challenge are. The grounds you can use for a judicial review are to argue that the public body’s decision was:

1. Illegal (ultra vires)
2. Irrational or, in some countries, unreasonable
3. Procedurally unfair (incorrect procedures followed when the decision was taken)
4. Disproportionate to the situation (especially relevant in human rights claims where a balance between governance and human rights often requires considering whether the impacts of a decision will be proportionate.)

The primary outcome of an environmental judicial review is for a judge to order that a decision by an authority is overturned or ‘quashed.’ In planning cases for example, the primary reason to bring a judicial review is to ask the judge to overturn the approval. The public authority will then have the opportunity to retake the decision but will likely need to consider more information. In judicial review, judges do not award compensation for harm, and the focus is on assessing the legality and reasonableness of public bodies, rather than on harm suffered by citizens. Judicial review tends to be less expensive than a civil claim. In many jurisdictions, in order to preserve access to environmental justice, costs are capped for environmental public law claims. Judicial review isn’t always possible however; in the UK, if Parliament passes an act, it is not possible to judicially review the decision, because Parliament has supremecy. This is contrasted with the Supreme Court in the US, which has the power to overturn laws passed by congress.

Example

1. In England, an NGO brought a case against the Secretary of State for the Environment, arguing that the country’s 10 River Basin Management Plans were unlawful because they did not create a plan that would adequately clean up rivers, which was required by the Water Framework Directive. The Court of Appeal ruled that all 10 River Basin Management plans in England are unlawful, upholding the Government’s 2027 deadline to clean up all rivers under the Water Framework Directive (SoS Environment v Pickering Fishery [2025] EWCA Civ 378). This case shows how judicial review can be used to hold ministerial bodies accountable for their commitments. 

Judicial Review of Planning Decisions

One way of stopping freshwater pollution is to stop the source before it begins, or to pressure the public authorities to put stringent measures in place before a development is built (although, lack of enforcement may mean that if companies are not held accountable, they will not bother to follow the promises they made about preventing pollution). Where polluting industries such as coal mining, oil drilling, or factory farming apply for planning permission and a permit you can challenge the approval decision via judicial review. The grounds of a challenge may be related to failings or gaps in the Environmental Impact Assessment, or the public consultation process. In jurisdictions with the right to a healthy environment, you can also challenge a planning decision to approve a harmful development on the grounds that it would breach your right to a healthy environment.

Example

1. In two English cases, R. (Squire) v Shropshire Council [2019] and R (Caffyn) v Shropshire Council [2025], individuals brought judicial reviews against a local council’s decision to approve a factory farm for the failure to assess the impacts of manure when spread on 3rd party land or brought offsite. The impacts can include odours, dust, but also freshwater pollution (Squire). These cases not only stopped an individual factory farm, but helped develop case law so that it is easier to stop factory farms in future by requiring them to provide more comprehensive and thorough environmental impact assessments. The implications of the Caffyn judgement are that local planning authorities must:
   1. Assess the cumulative impacts of having multiple intensive agricultural developments in one river catchment before granting permission for another.
   2. Consider how livestock production units dispose of the waste from treatment facilities downstream, including from anaerobic digestion plants.

1. In the Kenyan case of Save Lamu v. National Environmental Management Authority and Amu Power Co. Ltd. (2019), a successful judicial review was brought to challenge the decision to approve a coal mine. The court found proper and meaningful public participation, a requirement in any major planning decision, was lacking. Applying the precautionary principle, the court also found that  there had not been a sufficient assessment of the impacts on climate change.

1. In the South African case of EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others, the NGO Earthlife successfully argued that an approval for a coal mine was unlawful because the climate impacts had not been adequately assessed by the environmental impact assessment. In its judgement, the court relied on the right to a healthy environment and environmental impact assessment regulations, as well as international environmental law including the Paris Agreement and the precautionary principle as listed under Article 3(3) of the UN Framework Convention. 

This case demonstrates that, when challenging industries known to cause water pollution, such as coal mining, it can sometimes be more strategic to focus on climate impacts. Although not all jurisdictions implement international law directly, the case also shows that it can be useful to reference international legal commitments to strengthen your claim.