One case, three insights – what a legal case from Egypt can teach us about our right to breathe clean air
Marking Clean Air Day #cleanairday, 16 June 2022
Air pollution adversely impacts human rights, specifically the right to health (Art. 25 of the Universal Declaration of Human Rights), the right to education (Art. 26), the right to work (Art. 23), and in extreme situations, the right to life (Art 3).
Yet despite this, lawyers pursuing air pollution cases have tended to avoid invoking human rights’ harms, but rather pursued other legal avenues, such as environmental, tort or constitutional arguments.
However, some human rights gains have been won, and the lawyers and NGOs involved should be commended for their resilience and creativity in seeking justice for those adversely affected by toxic pollution caused by business activities.
The legal case
The APCC refuted the community’s complaint that harmful air pollution was affecting their health and environment, arising from the burning of coal at the cement factory next to the residential area. The community alleged they experienced an increase in respiratory illnesses, such as asthma, due to the dust and particulate matter emissions from the cement plant.
Rebutting the claims, the APCC outlined its adherence to management systems, including controls and monitoring protocols, as evidence of the precautionary measures it undertook.
Responding in January 2018, the judge from Dekheila Appellate Misdemeanour Court convicted the CEO of the APCC on three charges:
- Failure to take precautions and measures necessary to prevent the emission of pollutants into the air;
- Failure to take measures pertaining to the disposal and production of hazardous materials, and causing harm to the victims because of negligence, wanton behaviour, and;
- Failure to comply with national laws and regulations.
The CEO was fined LE20,000 (US$1,000) for the first two charges and LE200 (US$10) for the third charge.
Despite an appeal, the Dekheila Appellate Misdemeanour Court upheld the judgment in March 2018, finding the APCC guilty of causing environmental pollution and violating the neighbouring residents’ right to health.
Insight #1: Lived experience is evidence
The success of this case is largely due to the powerful evidence gathered by the community who videoed the pollution billowing from the cement factory, located next to their homes. Parent company, TITAN Cement Group acknowledged an incident took place on 18 May 2017, stating "The incident was detected and brought under control very quickly."
However, this charge was challenged as inconsistent by the Egyptian Initiative for Personal Rights, which collated 14 videos taken by residents. The collection of evidence effectively disproved the company’s assertion the incident in May 2017 was an isolated one.
These videos are available to view on YouTube and Facebook. They supplement many more videos’ residents took, which highlighted the extent, frequency and prolific nature of the air pollution arising from the cement factory.
Insight #2: The corporate responsibility to respect human rights
This case is unusual in attributing a direct omission of responsibility to firstly, the CEO within the company, and separately, to the company, for its failure to uphold adequate corporate procedures and controls and observe national laws and regulations.
The Egyptian court acknowledged companies have a legal responsibility to respect human rights, and those in positions of power have a separate responsibility to discharge their duty, to ensure precautionary practices are carried out to an acceptable manner.
In summary, this case highlights the suitability of the corporate responsibility to respect human rights (Pillar 2 of the UN Guiding Principles on Business and Human Rights) as an applicable and relevant standard in air pollution cases, where harm to human health is apparent.
Insight #3: The role of responsible standards and investors
In November 2010, IFC made an indirect EUR80 million equity investment in the APCC. Being an IFC client, APCC was expected to adhere to the IFC Performance Standards (2006, and revised version, 2012).
In April 2015, an anonymous complaint was filed with the Office of the Compliance Advisor Ombudsman (CAO) regarding APCC’s operations.
Two complaints concerned air pollution. Specifically, the proximity of the plant to the residential area, and separately, the impact of toxic pollution from APCC’s cement factory on the workers’ and communities’ health and safety.
The complaint noted, “complainants stated that local residents had engaged in peaceful protests against the project due to air and noise pollution,” (p.14).
This case, and the CAO report reveals significant gaps and limitations within the IFC Performance Standards, which currently rely on annual corporate disclosures as evidence, and pay minimal attention to the views expressed by affected communities.
Greater attention should be placed on strengthening the grievance mechanism processes within IFC-funded projects, to ensure important concerns from the community are heard and considered, so they can be addressed in a timely manner and further harm avoided.
by Désirée Abrahams, Senior Programme Manager at Global Action Plan in the clean air team. In 2021, she wrote the White Paper, “Air Pollution: the next business challenge” which highlights why and how businesses should be taking proactive steps to address their contribution to harmful air pollution, alongside their efforts to tackle climate change. The White Paper can be downloaded here, following registration.