Access to justice
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 2015, for example, the Supreme People’s Court of China said that social groups that work to fight polluters judicially would gain special status and have court fees reduced.
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 anInspection 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’.