1.2 E NVIRONMENTAL L ITIGATION
1.2.2.3 Environmental Justice
As discussed, the general objective of litigation (and the courts), from a state perspective, is dispute resolution through the authoritative application of state law. This principle is general enough to apply to any particular area of law. For our purposes, however, we must consider the more specific and substantive objective of environmental litigation, especially when viewed from the perspective of the environmental litigant who seeks redress for or amelioration of environmental damage or pollution. The broad objective of litigation in this respect may be termed “ environmental justice” , defined as the objective and accurate application of procedural and substantive environmental law through which an environmental litigant may enforce environmental rights and/or achieve redress for environmental damage or pollution. For our purposes the specific defining parameters and criteria of environmental justice are defined by the surrounding legal framework, which will be discussed in more detail in Chapter 2. Environmental justice is thus defined in a narrower legal sense in the present context, when compared to its wider usuage in numerous international instruments and agreements such as the Rio Declaration and Agenda 21, where it is used in a more general (and transjurisdictional) sense in recognition of ecological interdependence and the need for environmental sustainability.27
From a private litigant’ s perspective, environmental justice implies the vindication of key individual rights such as the right to a “ good and healthy environment” , as guaranteed by art. 5 of Indonesia’ s Environmental Management Act 1987, or the right to adequate compensation and restoration where environmental damage or pollution has occurred. Other rights may be more procedurally defined, such as the right to access accurate environmental management or the right to participate in environmental management. In this manner, the judicial process plays a crucial role in “ making rights effective” and facilitating access to justice through bridging the gap between formal legal rights and the actual inability of many people to recognise such rights and
26 E Roberts and J Dobbins, "The Role of the Citizen in Environmental Enforcement" (paper presented at the International Conference on Environmental Enforcement, Budapest, Hungary, September 22-25 1992), p531.
27 see N.A. Robinson, "Principles of Environmental Justice: A Foundation for Dispute Prevention and Resolution," $VLD3DFLILF-RXUQDORI(QYLURQPHQWDO/DZ 3, no. 4 (1998).
realise them satisfactorily.28 Litigation may thus provide a concrete link between formal environmental rights and entitlements and actual social realities. Such a link is especially important given the growing interconnection between environmental principles and human rights in both theory and practice.29 It is increasingly common to find environmental principles couched in terms of “ rights” , such as the right to a pollution-free or healthy environment. Whilst a rights approach to environmental matters is not without its drawbacks, it also has great potential for facilitating environmental protection.30
From a public interest perspective, environmental justice also may imply protection of the public interest in environmental sustainability. The specific manner in which this public interest is realised in practice will again depend on the specific features of the prevailing legal framework.
Environmental justice from a public interest perspective, for instance, might encompass compliance with regulatory standards on the discharge of industrial waste, rehabilitation or restoration of areas where environmental damage or pollution had occurred or the prevention of potential environmental harm through mechanisms such as environmental impact assessment. In the wider political context, environmental litigation may also act as a “ catalyst” for policy or political change on particular issues and thus facilitate environmental justice in a broader extra-legal sense. 31 The primary focus in this thesis, however, is the realisation of environmental justice through effective enforcement of the laws designed to protect the public interest in environmental sustainability.
28 M Cappelletti and B Garth, "Access to Justice: The Worldwide Movement to Make Rights Effective," in
$FFHVVWR-XVWLFH $:RUOG6XUYH\, ed. M Cappelletti and B Garth (Milan: Sijthoff and Noordhoff, 1978), p6. 29 For a discussion of the indivisibility of environmental and human rights see Tony Simpson and Vanessa Jackson, "Human Rights and the Environment," (QYLURQPHQWDODQG3ODQQLQJ/DZ-RXUQDO 14 (4), no.
August (1997).;
30 Michael Anderson, "Human Rights Approaches to Environmental Protection: An Overview," in +XPDQ
5LJKWV$SSURDFKHVWR(QYLURQPHQWDO3URWHFWLRQ, ed. Alan E Boyle and Michael R Anderson (Oxford:
Clarendon Press, 1996), p21.
31 Nonetheless, some writers have questioned the political or social “ value” of public interest litigation.
For example, Hutchinson and Monahan refer to the desegregation cases in America, which, they claim, had little or no impact on social practices of segregation. Allan C Hutchinson and Patrick Monahan,
"Democracy and the Rule of Law," in 5XOHRI/DZ ,GHDORU,GHRORJ\, ed. Allan C Hutchinson and Patrick Monahan (Carswell, 1987).Furthermore, some critics have argued that pursuing such a process is actually counterproductive, as it has the effect of legalising political issues and removing such issues out of the public domain into the rarefied and elitist world of legal “ experts” . It may thus be a moot point whether public interest litigation exposes or “ … simply paper[s] over the abyss, which separates formal legal promises from… social reality” . Cassels, "Judicial Activism and Public Interest Litigation in India:
Attempting the Impossible?," p519.
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Our discussion above has highlighted several salient aspects of environmental litigation, which will be relevant to our analysis in subsequent chapters. As we have seen, dispute resolution is achieved through litigation by the objective and impartial application of state law. The court’ s decision provides an authoritative determination of the rights and remedies of the disputing parties. From an environmental claimant’ s perspective, litigation provides an important mechanism to enforce rights, such as the right to a healthy environment, redress damage done and resolve disputes. From an environmental public interest perspective, litigation is another important mechanism through which the public interest in environmental sustainability may be protected. From these functions of environmental litigation, we may distil several relevant criteria, in the form of questions, which will be used to assess and evaluate environmental litigation in subsequent chapters.
1. To what extent have environmental claimants had access to the legal process to enforce environmental rights and obtain justice in environmental matters?
2. To what extent has litigation enabled private litigants to achieve environmental justice in practice, including the enforcement of environmental rights and the compensation of environmentally related damage?
3. To what extent has litigation facilitated protection of the public interest in environmental preservation through the application of relevant environmental legal provisions?
4. To what extent has environmental law been applied in an objective, impartial and accurate manner by courts?
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In the previous section we considered the objectives of environmental litigation from both a state and a claimant or disputant’ s perspective and endeavoured to distill from these objectives a number of evaluative criteria to apply to our consideration of environmental litigation in subsequent chapters. A review of the literature relating to environmental litigation, and litigation more generally, indicates that the manner and extent to which environmental law is applied through the process of litigation and the extent to which environmental litigation is likely to fulfill the objectives discussed above, is contingent upon a complex range of legal, political, social and
economic conditions, which are discussed in some detail below.32 This section is intended to provide a theoretical starting point for the consideration in later chapters of the legal and non-legal factors that influence the outcome and effectiveness of environmental litigation in Indonesia.
1.2.4.1 Procedural Access to Justice
The term “ access to justice” was popularised in the late 1970s by, amongst other things, the seminal Florence Access to Justice Project, which undertook an extensive comparative study of access to justice in twenty-three nations. According to Cappelletti, the editor of the study,
“ access to justice” encompassed a number of elements including procedural representation for
“ diffuse” interests, such as environmental protection. Procedural representation of environmental interests was a problem in many jurisdictions because traditional standing rules only recognised interests of a private, personal nature. A person could thus only initiate a legal action if his or her personal interests had been directly compromised by the action in question. Environmental issues, being matters of public interest, fell outside the scope of such ‘private’ interests and thus remained unrepresented within the legal system.
Reformation of traditional ‘standing’ rules to facilitate representation of environmental interests became the subject of considerable academic debate following Donald Stone’ s influential treatise entitled “ Should Trees have Standing?” .33 Whilst the notion of environmental standing have on occaison been criticised by some jurists as ambiguous, unrealistic and potentially wasteful or counterproductive34, broader rights of standing ‘caught on’ in the context of a growing global environmental movement and have now been established in a diverse range of jurisdictions.
In the United States, for instance, citizen suit provisions in both federal and state law have enabled a considerable number of environmental organisations to utilise the courts for the
32 This section draws upon the discussion of conditions for effective environmental public interest law in Robinson, "Public Interest Environmental Law- Commentary and Analysis."
33 C.D Stone, 6KRXOG7UHHV+DYH6WDQGLQJ" (Los Altos, CA: Kaufman, 1974).
34 see for instance Kramer, "Public Interest Litigation in Environmental Matters before European Courts,"
p15.; Paul Bowden, "Citizen Suits - Can We Afford Them and Do We Need Them Anyway?," in 3XEOLF
,QWHUHVW3HUVSHFWLYHVLQ(QYLURQPHQWDO/DZ, ed. David Robinson and John Dunkley (Wiley Chancery, 1995).
protection of environmental interests.35 In Australia, judicial precedentprovided some limited scope for “ special interest” litigants, although the grounds for environmental public interest suits have now been more significantly expanded by legislative reform at the federal and state level.36 Within the European Union, environmental organisations, and in some cases private citizens, already enjoy access to the courts in environmentally related proceedings in a number of member states.37 Following the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which was signed by the European Union in 1998, the Union is currently considering a proposed directive on Access to Justice in Environmental Matters, which would facilitate access of citizens and organisations to environmental proceedings.38
India is another notable example of a country where traditional standing rules were radically reformed, in this instance by the Supreme Court in the early 1980s, a move that greatly facilitated public interest litigation in a number of spheres including environmental.39 The broadening of standing provisions has also facilitated environmental public interest litigation in a number of other developing countries including Sri Lanka, Brazil and the Philipines.40 In some cases reform of traditional standing rules has been a result of judicial activism, whilst in other cases reform has
35 see discussion in Deidre H Robbins, "Public Interest Environmental Litigation in the United States," in 3XEOLF,QWHUHVW3HUVSHFWLYHVLQ(QYLURQPHQWDO/DZ, ed. David Robinson and John Dunkley (Wiley Chancery, 1995).
36 In New South Wales, for instance, “ any person” has the right to apply to the Land and Environment Court to remedy a breach of the Environmental Planning & Assessment Act 1979. – see discussion in Michael L Barker, "Standing to Sue in Public Interest Environmental Litigation: From Acf V
Commonwealth to Tasmanian Conservation Trust V Minister for Resources," (QYLURQPHQWDODQG3ODQQLQJ
/DZ-RXUQDO 13, no. 3 (1996).
37 see the detailed discussion of the law in individual member states in Martin Fuhr et al., "Access to Justice: Legal Standing for Environmental Associations in the European Union," in 3XEOLF,QWHUHVW
3HUVSHFWLYHVLQ(QYLURQPHQWDO/DZ, ed. David Robinson and John Dunkley (Wiley Chancery, 1995).
38 Directives on Access to Information and Public Participation in Decision-Making in Environmental Matters have already been issued.
39 Francois du Bois, ""Well-Being" and "the Common Man": A Critical Look at Public Interest
Environmental Law in South Africa and India," in 3XEOLF,QWHUHVW3HUVSHFWLYHVLQ(QYLURQPHQWDO/DZ, ed.
David Robinson and John Dunkley (Wiley Chancery, 1995), p144-46.; Chopra, "Public Interest Litigation : An Appraisal of Its Scope and Potential as a Litigational Strategy, and of the Emerging Issues in Public Interest Activism."
40 In Sri Lanka the Environmental Foundation Ltd, a non-profit environmental organisation, has been successful in utilising rights of environmental standing to try and compel state agencies to carry out statutory functions relating to environmental protection. In Brazil environmental organisations can undertake civil public action suits pursuant to federal law to protect environmental interests - see Edesio Fernandes, "Collective Interests in Brazilian Environmental Law," in 3XEOLF,QWHUHVW3HUVSHFWLYHVLQ
(QYLURQPHQWDO/DZ, ed. David Robinson and John Dunkley (Wiley Chancery, 1995).
been legislative in nature. It is thus apparent that procedural access to the courts for environmental litigants, based on broadly defined rights of standing, is a basic or threshold condition for successful environmental public interest litigation.41
In certain circumstances procedural access may also be an issue for private litigants, who have suffered personal loss as a result of environmental pollution or damage. It is not uncommon in the environmental context for environmentally harmful activities to negatively affect hundreds or even thousands of people. In such a situation, the practicalities and expense of each individual victim bringing a separate legal action may be prohibitive and certainly inefficient. As a result of situations such as these, a number of jurisdictions have reformed procedural law to permit class or representative actions, through which ‘classes’ or groups of people suffering loss of a similar nature may be represented in a single legal suit.42 Provision for representative actions in the environmental context is also thus an important condition for effective environmental litigation.
provision of legal aid to unrepresented or disadvantaged groups, the qualititative improvement of dispute processing procedures and simplification of the legal framework.43
1.2.4.2 “ Strong” environmental law
In addition to flexible rules on environmental standing, the broader, substantive legal framework should ideally be rule oriented, giving expression to environmental principles in specific, enforceable procedures, rules or objectives. Legislation of this nature has been termed
“ strong” environmental law.44 This has generally the case in the US, where civil environmental suits have often resulted in the enforcement of environmental regulation through judicial decision.
Where, however, environmental legislation is non-specific, vague and creates a wide scope for administrative discretion, then enforcement through the courts will be much more difficult. This has largely been the case in the UK, where the wide discretion accorded to enforcement agencies
41 Robinson makes this point in his analysis of conditions for successful environmental public interest law.
see Robinson, "Public Interest Environmental Law- Commentary and Analysis," p308.
42 For a historical account of the political-legal evolution of the modern class action see Stephen C.
Yeazell, )URP0HGLHYDO*URXS/LWLJDWLRQWRWKH0RGHUQ&ODVV$FWLRQ (New Haven and London: Yale University Press, 1987).
43 see Cappelletti and Garth, "Access to Justice: The Worldwide Movement to Make Rights Effective," p3-124.
44 David Robinson, "Public Interest Environmental Law Firms in the United States," in 3XEOLF,QWHUHVW
3HUVSHFWLYHVLQ(QYLURQPHQWDO/DZ, ed. David Robinson and John Dunkley (Wiley Chancery, 1995), p44.
by environmental legislation in the UK has been cited as one factor contributing to the weak state of environmental public interest law in that country.45