LEGAL ACTION FOR THE CLIMATE GOAL: TOWARDS EQUITY, SURVIVAL AND THE RULE OF LAW
“PRESIDENT TRUMP MAY HAVE HIS ALTERNATIVE FACTS,
BUT ALTERNATIVE FACTS DO NOT WORK IN A COURTROOM”
Access to Justice
Pollution is "nature's red-light warning against the model of inefficient and blind development"
Dominic Liswaniso Lungowe & others v Vedanta Resources Plc and Konkola Copper Mines Plc (2016):case confirming the potential liability of a parent company for the actions of its subsidiaries, and jurisdiction of the High Court of England and Wales over complaints brought by villagers in Zambia.
Constituent Elements of a System of Equal Right of Access
1. A system of equal right of access is made up of a set of rights recognised by a country in favour of persons who are affected or likely to be affected in their personal and/or proprietary interests by transfrontier pollution originating in such country and whose personal and/or proprietary interests are situated outside such country (hereafter referred to as "persons affected by transfrontierpollution").
2. Without prejudice to corresponding interstate procedures, the rights accorded to "persons affected by transfrontier pollution" should be equivalent to those accorded to persons whose personal and/or proprietary interests within the territory of the country where the transfrontier pollution originates are or may be affected under similar conditions by a same pollution, as regards:
a) Information concerning projects, new activities and courses of conduct which may give rise to a significant risk of pollution;
b) Access to information which the competent authorities make available to persons concerned;
c) The participation in hearings and preliminary enquiries and the making of objections in respect of proposed decisions by the public authorities which could directly or indirectly lead to pollution;
d) Recourse to and standing in administrative and judicial procedures (including emergency procedures); in order to prevent pollution, or to have it abated and/or obtain compensation for the damage caused.
3. Concomitantly with the rights of "persons affected by transfrontier pollution", the countries concerned by such pollution should take certain measures to make possible the exercise of the rights so recognised, in particular as regards the information and participation of "persons affected by transfrontier pollution", in hearings and enquiries prior to the taking of decisions. Such measures, which might be taken by countries where the pollution originates, would however gain in effectiveness if they were put into effect in co-operation with countries which are or may be affected by transfrontier pollution.
Principle 10: Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.
Principle 13: States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.
Preamble: Concerned that effective judicial mechanisms should be accessible to the public, including organizations, so that its legitimate interests are protected and the law is enforced ...
Article 1 (Objective): In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.
Article 3 (General Provisions):
1. Each Party shall take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the information, public participation and access-to-justice provisions in this Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention.
2. Each Party shall endeavour to ensure that officials and authorities assist and provide guidance to the public in seeking access to information, in facilitating participation in decision-making and in seeking access to justice in environmental matters.
3. Each Party shall promote environmental education and environmental awareness among the public, especially on how to obtain access to information, to participate in decision-making and to obtain access to justice in environmental matters.
4. Each Party shall provide for appropriate recognition of and support to associations, organizations or groups promoting environmental protection and ensure that its national legal system is consistent with this obligation.
Article 9 (Access to Justice):
2.Each Party shall, within the framework of its national legislation, ensure that members of the public concerned
(a) Having a sufficient interest or, alternatively,
(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,
have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.
What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organization meeting the requirements referred to in
article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.
The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
3.In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
4.In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.
5.In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.
Christa and Salomon Raymond Fils
There are plenty of laws for tackling climate change. The difficulty can be finding the people and organisations to enforce them.
Everyone has an interest in a safe climate and a healthy environment, but 'everyone's responsibility' tends to 'no-one's responsibility' (i.e. 'the tragedy of the commons'). Where a common resource is shared, the majority will lack the motivation and resource to look after it, particularly where it is challenging to do so.
The issue has long been recognised as a problem for environmental protection, and principles have been adopted internationally aimed at encouraging citizens and NGOs to take legal action.
The Rio Declaration 1992, for example, states not only that:
States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage (Principle 13).
but also that:
Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided (Principle 10).
The Aarhus Convention Convention 1998 was agreed with the objective of promoting:
access to information, public participation in decision-making, and access to justice in environmental matters.
It requires Parties to adopt a broad approach to standing in environmental cases, stating that the test of 'sufficient interest' should be determined:
... consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention.
It also provides that NGOs, promoting environmental protection, and meeting national requirements, shall be deemed to have 'sufficient interest' and 'rights capable of being impaired'; and that relevant procedures should be:
fair, equitable, timely and not prohibitively expensive.
For a list of 47 European State Parties to the Aarhus Convention, see here. The Aarhus Convention Compliance Committee receives complaints direct from members of the public.
Further to the Convention, countries may introduce costs protection for citizens or organisations bringing judicial reviews in the public interest.
More generally issues of funding may be addressed by NGOs and others pooling their resources to support strategic legal action, and by use of crowd funding platforms.
Given the limited resources available to enforcement agencies, many countries recognise the role that individuals and NGOs can play in upholding the law and actively encourage 'citizen suits'.
In Brazil, the Constitution grants any citizen the right to bring a legal action to nullify an act that causes harm to the environment. Such action will not incur judicial costs unless it has been brought in bad faith. A case invoking this provision may be filed as an Ação Popular under Lei no 4.717/65.4.
In Mexico there is provision to award an honorarium to a public interest organisation initiating an 'acción difusa' of up to 10-20% of the total damages award to the plaintiffs. The goal of such an action is to restore things to the way they were before the injury occurred. When it is not possible to achieve restoration, the court may require a payment be deposited in a fund. If the judge determines the case addresses a social interest, the fund may be used to pay the costs associated with bringing the case, as well as paying an honorarium.
Kenya's Climate Change Act 2016, section 23, enables a person to bring an action to the Environmental and Land Court on the basis that:
person has acted in a manner that has or is likely to adversely affect efforts towards mitigation and adaptation to the effects of climate change.
The applicant does not have to demonstrate that a person has incurred loss or suffered injury (s.23(3)).
Where citizens are unable to obtain justice in their own jurisdiction, they may be able to commence an action in the jurisdiction where a relevant company (or its parent company) is based.
On 27 May 2016, the High Court of England and Wales held that the English courts were the appropriate forum for 1,826 Zambian citizens (the Claimants) to sue Vedanta Resources Plc (Vedanta), one of the world’s largest mining companies, and its Zambian-domiciled subsidiary (KCM and, together with Vedanta, the Defendants) – underlining the growing trend for parent companies to be held to account in their home jurisdiction for the harmful acts of their overseas subsidiaries.
Vedanta, domiciled in the UK, argued that it did not owe a duty of care towards the Claimants, who alleged that they had suffered harm resulting from the Zambian operations of KCM, Vedanta’s Zambian-domiciled subsidiary.
The High Court noted that previous cases had established that a claim in negligence in the English courts against a parent company arising out of the operations of its subsidiary might give rise to liability. The Court noted a Zambian court’s conclusion in a previous case that KCM “was shielded from criminal prosecution by political connections and financial influence.” Consequently, the High Court concluded that even if it had not been obliged to find England to be the appropriate forum, the inability of the Claimants to access justice in Zambia would have led the High Court to exercising its discretion to reach the same conclusion.
OECD recommendations and a range of treaty obligations concerning transboundary pollution (such as the 1974 Nordic Environmental Protection Convention) support the rights of those affected by environmentally harmful activities in one contracting state to bring a claim before the court in another.
Under some regional human rights treaties (such as the European Convention on Human Rights) individuals and NGOs may bring a complaint direct to an international court.
In some jurisdictions, cases enforcing fundamental rights may be expedited or subject to rules that reduce procedural hurdles (e.g. concerning standing) that might arise in other causes of action. For example, the Supreme Court of Pakistan has said that it is:
well-settled that in human rights cases/public interest litigation, the procedural trappings and restrictions, precondition of being an aggrieved person and other similar technical objections cannot bar the jurisdiction of the Court.
The Court went further to say that in cases alleging a violation of a fundamental right, the Supreme Court:
has vast power . . . to investigate into questions of fact . . . independently by recording evidence, appointing commission or any other reasonable and legal manner to ascertain the correct position.
[General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewara, Jhelum v. Director, Industries and Mineral Development, Punjab, Lahore, 1994 SCMR 2061 (12 July 1994), at para. 5]
A number of multilateral banks and institutions offer mechanisms for public / NGO complaints relating to environmental damage. The World Bank, for example, has an Inspection Panel to receive and review requests from a party that claimed to be affected by a World Bank project, including claims in respect of environmental harm. Inter-American Development Bank, Asian Development Bank, African Development Bank and others have followed suit. NAFTA provides citizen access to an independent fact-finding mechanism, a Commission on Environmental Cooperation, which may receive and consider submissions from any NGO or person asserting that a party is ‘failing to effectively enforce its environmental law’.