10 September 2001

Environmental Justice & The Courts: The Best Way, The Only Way Or The Need For Some Other Way

Surridge & Beecheno


Surridge & Beecheno
Pakistan Corporate/Commercial Law
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1. The devastating effects of environmental pollution/global warming can be judged from the various Press Releases of United Nations Environmental Program during the recent past. Last June a UNEP Press Release stated "New reports reveal widespread decline in world's ecosystem". In December last a Press Release stated, "one-sixth of the world population is affected by desertification". This reminds of another comment by a notable scientist, "Three-fourths of the earth’s surface is under water and the remainder is under constant fire". In January last a Press Release stated, "New evidence confirms rapid global warming", say scientists". In February last a Press Release states, "Impact of climate change to cost the world US$ three hundred billion a year".

2. The magnitude of ecological degradation is likely to cause sharp changes in global weather patterns with consequential costly plague of disasters, including drought, coastal floods, widespread disruption of agriculture, increase in tropical diseases, and is of universal concern. Realization of such degradation has induced a spirited battle for environmental protection throughout the world. The 1997 Kyoto Protocol, requiring the signatory countries to reduce their green house gas emission to 5% below its 1990 level by the year 2008 to 2012 is an example. Today we are once again in Japan discussing environmental protection.

Countries, particularly in the developing world face a common threat to their environment, with unbridled industrial development leading to severe deforestation, intensive wetland development, decimated marine life, and a resultant increase in air, water and noise pollution.

3. Faced with this situation, the developing/under-developed countries are legislating to contain the decline in the ecosystem, the increase of desertification and to improve environmental protection. While some countries have made necessary provisions in their Constitutions, others are legislating specific laws on environmental protection. Some of these are, Sri Lanka's National Environmental Authority Act, 1980, the Indian Environment Protection Act, 1986, the UAE's 1999 Federal Law for the Protection and Development of Environment, the Nepalese Environment Conservation Act, 1997, the Bangladesh Environment Conservation Act, 1995, and the Pakistan Environmental Protection Act, 1997.

4. Legislation to contain degradation of environmental pollution, is insufficient unless the mechanism to implement it is established. Fortunately, courts in the developing/under-developed countries, being aware of their responsibility, have risen to the occasion. The one legal hurdle before the courts has been locus standi or standing of an individual to combat the growing menace of environmental degradation. The courts have boldly dealt with it by granting the citizens locus standi or standing to initiate public interest litigation in complaints of environmentally destructive practices on the part of government and/or public/private organizations. The courts, while extending its jurisdiction to the citizens, have translated the Constitutional right to life to include the rights of citizens to a healthy environment.

5. Besides, in some countries the courts have even gone to the extent of exercising suo moto jurisdiction commonly known as Epistolary Jurisdiction, whereby the superior courts have, on letters written to it, or on newspaper reports, exercised jurisdiction. This is an area which is also commonly known as Judicial Activism. The Indian Supreme Court on Judicial Activism stated, "Procedure being merely a hand-maiden of justice, it should not stand in the way of access to justice to the weaker sections. This court will not insist on a regular petition and even a letter addressed by a public spirited individual or a social action group acting pro bono publico would suffice to ignite the jurisdiction of this court".

6. In exercising this jurisdiction, the courts have not only entertained petitions/letters and newspaper articles relating to environmental protection, but have gone to the extent of issuing directions/orders, instructing and monitoring environmental impact assessment(s).

Some important cases are:

a) Lawyers in Argentina obtained court injunction restraining the government from considering bids to construct cable cars near a national park water fall until it prepared an environmental impact assessment, resulting in the appointment of a commission of scientists by the government, whose evaluation report stopped further development in the park.

b) The Bangladesh High Court issued comprehensive directions to the authorities for testing of food items imported into the country to safeguard the health and life of citizens in the case of imported skimmed milk powder failing radiation tests.

c) A Columbian court ruling in favour of the community ordered the government to prepare a comprehensive plan for removal and safe disposal of the obsolete pesticide stocks, requiring the offending polluter to pay costs not only of safely relocating and disposing the pesticides but also for payment of the medical expenses of all the affected workers.

d) A Costa Rican court restrained a property-developer from building a tourist facility, directing the developer to remove the illegal construction from the site, to restore the natural ecosystem, to pay costs for development of a plan to protect the adjoining wildlife refuge and costs for needed improvements to the Regional Office of the Ministry of Environment and Energy.

In yet another case a Costa Rican court appointed a team of experts to quantify the ecological damage including the cost of bio diversity and decline in ecosystem quality, the area had suffered as a result of clearance of 700 hectares of forests forcing the company to reach a settlement whereby the company agreed to pay US$ 1,500 for each hectare of river bank the company deforested, plus the costs of experts. The court also directed that a local NGO working to protect the watershed would administer the funds.

e) The Indian Supreme Court in a case appointed a committee to compile an environmental impact assessment to investigate into the question of disturbance of the ecology and pollution by the quarrying and mining operations in the area directing the authorities that while renewing mining lease the requirements of Forests Conservation Act must be satisfied despite a renewal clause in the lease.

f) In Pakistan the Lahore High Court instructed the Lahore Development Authority to remove an asphalt plant from its present site because of serious health hazard posed to the residents of the area.

In yet another important case of electricity transmission lines the Pakistan Supreme Court appointed a commission to examine the adverse effects of electromagnetic field on human health and to complete a comprehensive environmental impact assessment of the project directing the establishment of an authority manned by notable scientists whose opinion/permission be obtained before any new grid station was allowed to be constructed, and to obtain public opinion before the construction of any grid station through advertisement in news media.

g) A Sri Lankan court, based on a Reuters News Agency report that a U.S. and Japanese Consortium plans to mine a Phosphate Deposit, put this project on hold pending comprehensive scientific study and assessment of the project's environmental impact.

h) A Court in Ukraine ordered public participation during the environmental impact assessment of a project concerning a port facility involving loading and unloading of fertilizers, which caused release of fertilizer chemicals to a river jeopardizing its fragile ecosystem.

7. The Brundtland Report presented by the World Commission on Environment and Development in 1987, defined "Sustainable Development" to mean "Development that meets the needs of the present, without compromising the ability of the future generations to meet their own needs". Whilst most of the countries have responded positively and boldly in dealing with the environmental issues, there is serious cause for concern as the G-8 countries have not yet ratified the Kyoto Protocol and recently the American President has abandoned the Protocol. America with 4% of the world's population, is responsible for 30% of global greenhouse gases. It should not be allowed to easily walk away from that responsibility for the insignificant economic interests of its coal, oil and gas producers, as against the catastrophic effects of severe drought and floods in many countries and the likely rising sea level by 88CM/35 inches which will result in vanishing of several low lying coastal areas and islands from the earth's surface. (Time Magazine 9th April).

Since increase in global warming will undoubtedly effect the economic activity/growth around the world, the multinational companies, in particular, and generally the commercial enterprises are to take a serious note of this in the larger interest of continued economic activity and growth, and participate in the various United Nation Environmental Programs for containing global warming.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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