Civil society is key to environmental litigation holding companies to account

Maysa Zorob & Andrea Hearon, Business & Human Rights Resource Centre & Thomas Istasse, Advocates for International Development

CLA Quarterly Update

Communities and individuals across the globe whose livelihoods and natural resources are harmed or threatened by business operations are using environmental litigation as a key strategic tool to assert their human rights. The past decade has seen a steady increase in lawsuits brought directly against companies to redress climate and other environmental harm. There have been some key wins and setbacks in courtrooms around the world and new drivers of action have emerged. These include shareholders bringing legal claims against the companies or private institutions in which they own shares (so-called shareholder litigation) and civil society organizations taking companies to court over environmental harm or supporting litigation efforts by others.
 
This blog highlights the crucial role of civil society organizations in environmental litigation, and the various ways they contribute not only to securing specific forms of relief for affected people, but also to shaping resulting jurisprudence, legal doctrine, and company policies and practice. These findings are based on research carried out in a joint project by Business & Human Rights Resource Centre, Advocates for International Development and the Harvard Law and International Development Society (LIDS).
 
Bringing Legal Action
 
Civil society organizations have brought numerous legal actions against companies to seek redress for human rights abuses resulting from environmental harm. For example, the Rio Sonora Basin Committee in Mexico, a community group of 600 local residents, partnered with Latin American human rights organization PODER in 2014 to sue Grupo México over water pollution.
 
The Committee and PODER filed seven class action lawsuits against Grupo México and the Mexican Government. This was after the company failed to fulfill promises to build water treatment plants, and to finance a trust fund for the community, over a spill of 40,000 cubic meters of copper sulphate into the communal water source. The lawsuits alleged a violation of the right to water, requesting that the defendants redress environmental harm and guarantee the community’s right to participate in spill remediation plans. As a result, the government re-tested dozens of water sources near the river and promised to open a medical clinic to treat any ailments community members experience as a result of the spill. In January 2020, the Second Chamber of the Supreme Court of Justice ordered the Rio Sonora Trust remain open, a mechanism to help the remediation and clean-up process.
 
In India in 2013, the Supreme Court revoked the clearance, initially granted to Vedanta Alumina Limited by the Indian Government in 2004, for a mining project in the Niyamgiri hills in the eastern state of Orissa. The mining project would have destroyed the hills on which the local Dongria Kondh tribe relied for their livelihood. After local civil society organizations filed several court petitions against the project, the court acknowledged the harmful environmental impact of the project on the tribe and on wildlife, ruling that the mining project would not proceed.
 
Funding and Participating in Legal Action
 
Civil society organizations have also funded or otherwise supported environmental litigation. For example, in 2015 local and international groups financed the lawsuit of a Peruvian farmer against German energy company RWE through crowdfunding. The farmer alleged that the company’s greenhouse gas emissions were contributing to global warming and creating severe flooding risks that acutely threatened his property and livelihood. The plaintiff’s home was located on the flood path of Palcacocha Lake, which had suffered from rising water levels resulting from the melting of the nearby glacier. In 2017 the German court moved into evidentiary procedures, suggesting a willingness to hear the claim.
 
Moreover, NGOs have submitted amicus briefs with a view to influencing court decisions in environmental cases. One such example is the 2015 lawsuit filed by Indian fishermen and farmers against the World Bank Group’s International Finance Corporation in US federal court over environmental damage from the Tata Mundra plant in Gujarat, India. When the court ruled that financial institutions were immune from suit, the plaintiffs appealed to the US Supreme Court. In response, nine NGOs filed amicus briefs. In 2019 the Supreme Court ruled that international organizations like the World Bank are not immune from proceedings in US courts and can in fact be sued where established exceptions to immunity apply.
 
Visibility & Documentation
 
Efforts by NGOs around the globe to monitor and document corporate environmental harm have generated public attention and proven a key source of evidence and analysis in legal proceedings. In the example of Vedanta mentioned above, the decision of the Indian Supreme Court to revoke the mining clearance came against the backdrop of international advocacy campaigns and research initiatives by human rights organizations such as Survival Internationaland Amnesty International. These informed the decision of several investors, including governments, to divest from the company. For example, in 2007 the Norwegian Government decided to sell its USD 13 million stake in Vedanta, noting “the unacceptable risk of contributing to severe environmental damage…by continuing to invest in the company.”
 
Another notable example is the lawsuit filed against Shell in the London High Court by the Bodo community in Nigeria. The plaintiffs sought compensation for losses suffered to their health, livelihoods and land, in relation to two oil spills, which occurred in 2008 and 2009 in the Niger Delta. The 15,000 plaintiffs alleged that the pipelines were poorly maintained, and that Shell should have taken action to prevent the spill, requesting that Shell clean up the oil pollution
 
Various human rights organizations drew international attention to the case and documented the human rights abuses against the community, which later served as evidence in the case. The UK High Court noted it was “entirely accurate” to include a report by Amnesty International as part of the evidence against the defendants. Within one year of bringing suit in the UK High Court, Shell accepted responsibility and agreed to pay GBP 55 million to the community in 2015, a vast increase from the initial offer of £4,000 that Shell made in 2010.
 
As momentum for litigating environmental harm continues to grow around the globe, so does the role of civil society organizations in bringing, financing and winning legal action.