Environmental Law

Environmental Law

THE BLIND MEN AND AN ELEPHANT: WHY GALA IS NEEDED

Before going into detail on GALA’s partners and the specific role GALA will play collaborating with partners around the world, I wanted to focus on the overall ‘why’ of GALA; why do we need an international organization focused on legal aid? How can GALA be effective when every country has its own laws, cultural norms and legal proceedings that are so country and region specific? I could blunder my way through the legal explanations and probably lose my audience in the first sentence or I can suggest a parable that provides an excellent example of the “why” and the “how” behind GALA.

There is an allegory that appears to come from India and is recounted by Buddhists, Hindus, Sufi Muslims and many disciplines. The story begins with six blind men (sometimes four or five, depending on the person sharing the story) who, having never seen an elephant before, are invited to the Shah’s palace to stand in one’s presence and touch the animal to learn more about it. Each blind man had their own opinion prior to visiting as they had heard stories about an elephant being powerful enough to scare away adults and children alike, strong enough to haul kilos of material for miles and yet gentle enough that the Shah’s daughter would ride one. Most of them skeptical, they were eager to have the chance to feel one for themselves.

Arriving, each one felt a different part of the elephant; “It is like a rope,” scoffed the man who touched the tail. “It resembles a pillar,” believed the blind man who touched the leg. “I’d say it’s a snake,” believed the man who touched the trunk. “This animal is similar to an oversized hand fan,” believed the one who touched the ear. “It’s like a sharp spear, believed the man who felt the tusk. “It is exactly like a big wall,” thought the one who touched the belly. Resting afterwards, the men began discussing the experience and discovered that all of them disagreed with what an elephant was. Becoming boisterous, the Shah heard them and came out to hear what the problem was. Immediately the Shah realized what had happened and announced: “you all are correct and yet you are incorrect at the same time. All of you have a partial understanding of the elephant and must come together to understand what is the structure of a true elephant.”

Attacking one element of injustice gives a limited and oftentimes inaccurate perspective of the big picture!

Attacking one element of injustice gives a limited and sometimes inaccurate perspective of the big picture!

How does this relate to GALA? Social injustice occurs in many forms and in many places yet all of these injustices contribute to the cycle of poverty and oppression. It is only by addressing all of these issues that real change can occur and the rights of the poor can become what the name implies yet struggles to fulfill: a right. GALA works with expert lawyers who have the perspective that comes from years of training in Universities and practice in their field. GALA also works with local law practitioners who may be willing to step out of their areas of expertise to help those who need representation the most. Most importantly, GALA intervenes on behalf of the poor and marginalized when the government or regulator fails to protect the poor due to corruption or lack of capacity.

GALA’s commitment to act as a defender of the public’s right to have clean air, water and a planet free from harmful toxins; to eat safe, nourishing food that is appropriately labeled; to have access to electricity and to medicines that heal is what makes it necessary. Without an organization like GALA, those fighting for social justice can’t “see the whole elephant,” and address the plethora of legal issues in developing countries where an injustice has been committed and as a result, a poor individual or community has suffered.

GALA is looking to partner with individuals, lawfirms and organizations who feel that same call to justice and want to join the movement that not only encourages discussion and communication, but demands action and accountability by those who are privileged with power. If you fill any of these categories, we are looking forward to having you on the journey!

 

JADEL JORDAN: FUHEIS CASE

A Public Interest Action:

Case No. 01/2012

Environmental rights for Fuheis, Jordan residents v. Cement Factory

  1. 1.    Client Identification, location and relevant case background:

The clients reside in Fuheisa small town of 25,000 residents located about 10km west of Amman and known for its lush olive groves and pleasant weather.

Unfortunately, Fuheis‘ residents have long been suffering from the fumes produced by a cement factory constructed in the area more than 60 years ago. The existence of the factory in the heart of the city, and its continued use of  petroleum coke have created irreparable environmental, health, and communal damages in the city.

The factory was established in 1954, and in 1998, the Jordanian Government sold 33% of its shares to the France-based Lafarge Group.

  1. 2.    Legal issue (s)presented:

When the factory was originally constructed, there were no environmental regulations in effect.

There are now some 187 articles in at least 18 laws and 8 regulations dealing with the preservation of environmental resources in Jordan.

Most of the applicable laws date back to the fifties and the sixties when environmental awareness was still limited, and its impact on the environment less noticeable.

As result, there was duplication and over-lap in the legislation, and many gaps, where environmental protection issues are concerned. The National Environment Strategy for Jordan, developed in 1991, highlighted all these legal difficulties and recommended the introduction of a comprehensive body of environmental legislation.

Applicable relevant Jordanian laws and standards that impacts the case include:

  1. A.   Article 256 of the Jordanian Civil Code No. 43 of 1976, which provides a general rule for civil liability for any injurious act or omission resulting in  damage inflicted on individual body or property. According to this article, civil remedies namely compensation is available for any person whose property was damaged as a result of such conduct.
  1. B.   Environment protection law (No.52, 2006):

The Environment Protection Law was promulgated in 2003 as a temporary act, and was issued in final form, ratified by the parliament in October, 2006 (Law No. 52 of 2006). The Act is composed of 27 articles; Articles 1 and 2 deal with terms and definitions. Article 3 considers the Ministry of Environment as the only competent authority for the protection of the environment, as well as the reference for environmental affairs at the national, regional and international level. Articles 4 and 5 define the competencies and tasks of the Ministry. Article 6 specifies the prohibited materials to be introduced or imported into Jordan. Article 7 entrusts the Minister of Environment to nominate the specialists and officers for the inspection and control on all activities which may damage or prejudice the environment. Article 8 decrees the ban on discharge of any pollutants or harmful materials in the marine environment. Articles 9 and 10 contain offences and penalties. Article 11 decrees the ban on the dumping, collection or storage of solid, liquid, gaseous, radioactive or thermal materials harmful to water sources. Article 12 pertains to the maximum and minimum levels of noise pollution. Article 13 imposes upon all establishments, conducting activities with negative impact to the environment, to prepare the environmental impact assessment report. Article 16 decrees the establishment of the Environment Protection Fund at the Ministry of Environment. Article 19 deals with the obligations and measures to be taken by the owners of vehicles, factories, establishments and workshops producing negative impact to the environment in order to reduce and prevent pollution. Article 24 refers to licensing and renewal of licences for non-governmental organizations operating in environment fields. Article 25 entrusts the Council of Ministers to issue the regulations necessary for the implementation of this Law.

  1. C.    Environmental Impact Assessment by-law (No.37, 2005):

Environmental Impact Assessment by-law (No. 37, 2005) includes the procedures for conducting ESIA in Jordan and also provides that the Ministry of Environment is responsible for providing/reviewing/approving terms of reference and reviewing ESIA study reports. Article 13 of the Environmental Protection Law No. 52 of 2006 empowers the Ministry of Environment to require any new establishment to prepare an ESIA study to assess its potential impact on environment.

  1. D.   The Air Protection Law Number 28 of 2005: issued to provide the legal powers to the Ministry of Environment for conducting and enforcing air monitoring programs. The law is based on the “Polluter Pays Principle” under which the polluting facility is committed to pay for any remediation and mitigation measures, whether technical or financial, with the aim to curb pollution sources. Any facility shall ensure that no leak or emission of air pollutants occurs beyond the allowable limits. Regulators should ensure that the location where a project is being built is appropriate for its activities, that the permissible limits for air pollutants are not exceeded, and, in all cases, that the total pollution from facilities in the specific area do not exceed the permissible limits.
  1. E.  Article 47 of the Public Health Law No 47 of 2008 specifies that any stack that emits pollutants that might affect public health can be closed and that the owner will be penalized
  1. F.         The Jordanian Institute for Standards and Metrology has published the Pollutants – Ambient air quality standards (No. 1140 for 1999, updated in 2006) provide limits for total suspended particulates (TSP) and PM10 and gaseous substances SO2, CO, NO2, H2S, and Pb.

Previous case law in Jordan on point:

Three decades ago Fuheis residents began to initiate lawsuits to claim compensation for damage and some successes have been achieved in this area:

  1. 1.    Jordanian Court of Cassation’s decision No. 2915/2006; Which underlined the right of landowners adjacent to Fuheis Cement Factory obtain full compensation for the material damage caused by the devaluation of land including trees as a result of dust rising from the factory.
  1. 2.    In addition, according the Jordanian Court of Cassation’s decision No. 1250/2002 Date 5/9/ 2002), the new owner of the land deserves compensation for the continuing damage due to continued emissions of cement dust; even though the owner bought the land after the establishment of the factory, and should be compensated according to the following equation:

1 – The estimated value of the land before the injury and its value after its  occurrence on the date of prosecution.

2 – The estimated damage or harm to the plaintiff’ Land from the date of purchase to the date of prosecution be what plaintiff deserves compensate for the lack value is the difference between the second value of the first value.

  1. 3.    Why the community requires legal aid:

Fuheis‘ residents have a right to live in a clean and pollution- free environment.. They have been pushing for its relocation and rehabilitation of lands that suffered from its presence but they have failed.

Conducting studies show that costs to the state for solving the environmental problems created by the factory are larger than the profit gained by the state through the factory. Furthermore, the negative effects on national income as citizens and the state are unable to generate income from tourism in the city of Fuheis which can easily be a touristic site with its location, natural beauty, and its historical significance. Another problem is the negative effects on farmers as a result of farmlands becoming barren and on the owners of these lands as a result of the continuous decline of the land value in the areas surrounding the factory. As for the costs on the community and culture, the presence of the factory and its environmental effects on residents goes beyond financial costs since the social cost of separated families due to moving out of the city is much higher. Migrating birds leaving from the city also brought a sort of grief over its airspace. Other issues include increased competition between farmers, poverty, and the spread of illnesses especially respiratory problems. All these elements affect the health of the community, and its creative and inspirational nature which it was always known for.

A public interest legal action is therefore the ideal solution.

  1. 4.    Counsel’s advocacy strategy:

Our strategy is to file a public interest action (pursuant to civil procedure or specific legal authority ) so that court can consider the issue.

  1. 5.    Assistance requested from local Counsel from lawyers in other Jurisdictions:

A)  Funding for:

i)              Fees for the private investigator to conduct environmental impact assessment : estimated $2500.

ii)            Legal costs for counsel including transport and honorarium: estimated $1000.

iii)          Court filling fees: estimated $700.

 6.    Counsel’s certification

This is a public interest case and there is no need for a certification.

The environmenal activist and head of the Fuheis branch of the Jordan Environment Society Mr. Yasser Akroush, and has shown interest and is willing to collaborate.  In addition, Dr. Ratib Sweiss, who is member of JADEL and who will be the focal point between JADEL and Fuheis community.  Dr. Sweiss is a resident of Fuheis and directly affected by the environmental abuses.   Further, we have talked to a number of Fuheis residents who are in favor of proceeding with the action.

 

WHY GALA? A FOCUS ON ENVIRONMENTAL JUSTICE

GALA has centered its mission around three core areas: human, consumer and environmental rights. Although expansive, GALA believes it does not have the luxury to focus on just one as all three are core components to social justice issues facing the world’s poor and ignoring even one of these three focal points would detract from the mission to help the poor reclaim their rights.

 In this blog I will focus on all three issues highlighting specific cases GALA is representing as well as the importance, or more emphatically, the necessity for an organization like GALA to exist. While many cases and country partners will confront simultaneous breaches on the rights of the poor, we hope to highlight one specific injustice and what GALA is doing to fight back.

Jordanian Cultural Association for Development Law (JADEL), GALA’s Jordanian partner, is focused on giving the poor a direct link to policy makers and big business. In the small town of Fuheis, located about 10 kilometers from Amman, the residence have struggled for 60 years with health and environmental problems due to a cement factory and its use of petroleum coke, (recently a product the Environmental Protection Agency has declined to provide new licensing permits to produce in the United States). Petroleum Coke, commonly referred to as petcoke, emits 5-10% more carbon dioxide than coal.

Although this case aims to force the Jordanian government to assess the repercussions to the local communities near the cement factory, this is an issue for those residing in any country.. Just recently, the New York Times wrote an article about the rising mountain of petcoke on the skyline of the Detroit/Canadian border. D Mark Routt, a staff energy consultant at KBC Advanced Technologies in Houston tell the NYT, “I’m not making a value statement, but it comes down to emission controls,” Mr. Routt said. “Other people don’t seem to have a problem, which is why it is going to Mexico, which is why it is going to China.” What Routt means is that other business leaders and politicians don’t seem to have a problem. In other words, those with money and resources are willing to overlook the environmental blight and health problems that accompany using dirty fuel and harmful chemicals, most often because they aren’t the ones who face the immediate repercussions associated with living near highly polluted areas. This is not a coincidence: affluence affords the luxury of moving more desirable locations or influencing business and policy leaders to reconsider placements of factories or landfills, notably to areas of the poor and disadvantaged.

Factory emitting pollution into the air in Jordan
Roughly 23,000 tonnes of hazardous waste is emitted annually by Jordanian industries.

What must be emphasized is that this is not a developing country issue but a global issue; Even in the United States, poverty has been proven to be the single most critical factor in placement of environmental blight including landfills, chemical plants and large factories. While no one wants black plumes of smoke or the scent of decomposing garbage from their vista to accompany their morning newspaper and cup of coffee, it is the poor who are overwhelmingly likely to have these consequences of modern-day needs impede into their lives.

Some examples:

– In 1983, Congresses General Accounting Office finds that three-fourths of the hazardous waste disposal sites in eight southeastern states are in poor and African-American communities.

– In a poor Latino community in 1988, a group of mothers defeats an attempt to construct a massive toxic waste incinerator in their community

– Rural poor villages in India are the location of the brick kilns, possibly the highest the biggest source of air pollution in areas such as Uttar Pradesh.

These communities face several other common factors besides poverty; oftentimes they do not have the resources to hire lawyers to defend their rights. Communities may face an additional barrier when regulations, contracts and notices are put up in another language (an example would be Latino communities in the United States or indigenous communities in South America). Furthermore, in a community stricken by poverty, health comes secondary to daily necessities and when communities are paid to house harmful toxins in their backyards, long-term consequences give way to putting food on the table that evening.

Unfortunately, this “oversight” of how environmental issues contribute to the cycle of poverty continues to remain in an ad-hocracy, where those with power and influence freely choose how to best utilize the environment for the needs of a few. As globalization increases, the problems incurred by the world’s poor become the problems of all.

 

 

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Articles referenced in this post:

http://www.nrdc.org/ej/history/hej2.asp

http://priceofoil.org/2013/01/17/petroleum-coke-the-coal-hiding-in-the-tar-sands/

http://www.globalissues.org/article/425/poverty-and-the-environment

http://poly.rpi.edu/2012/04/04/poverty_gap_leads_to_environmental_injustice/

 

NATURAL JUSTICE: SAVE LAMU

A Public Interest Action: Case No. 01/2012.

1. Client Identification, location and relevant case background.

Save Lamu is a Kenyan community-based coalition of local non-government organisations that formed in response to the decision by the Kenyan government to develop a massive port in Lamu without an environmental impact assessment (EIA) or meaningful consultations with communities impacted by the development. The port is being constructed on land with contested tenure, will have a significant impact on the delicate environment, and will have a significant negative impact on the livelihoods of numerous communities in Lamu. Save Lamu has sought to make it explicit that it is not against the port in all forms, but is seeking to ensure that the port is developed according to feedback from a credible environmental, social and cultural impact assessment and the demands of affected communities. A petition to this effect has been filed at the Mombasa Constitutional Court, but the legal challenge has been stalled repeatedly and remains difficult for the community to engage with.

At the community level, Save Lamu has been very active in mobilising community engagement around the port. With Natural Justice’s support, Save Lamu is developing a Biocultural Community Protocol (BCP), an instrument where communities identify their values and practices and ground them in protections under international and national law. Through the BCP process Save Lamu has canvassed over 45 communities in Lamu East and West and is now collating the results of the meetings to develop a BCP. Parallel to these meetings Natural Justice has supported legal capacity training to increase community understanding of rights. The construction of the port began in early 2012 but it is still in early stages. Save Lamu is attempting to engage with relevant stakeholders to ensure that community concerns are addressed.

2. Legal issue (s)presented:

The primary issue presented is the development of a major port without an environmental impact assessment or community consultation and consent. While the port’s development is being challenged in court, this challenge will move slowly and even if it is successful it is unlikely that the government will acknowledge it. The challenge, therefore, is to advance a rights-based engagement with government actors parallel to the court petition to seek a productive solution with community consultations prioritised for the port’s development and a credible environmental impact assessment conducted and incorporated into the development plan.

3. Why the clients require legal aid:

Save Lamu and its members require legal aid in establishing clear rights to have their input incorporated in port development plans and using those rights to productively engage with relevant stakeholders. This legal aid will include legal empowerment trainings for community leaders, facilitation in identifying community demands, and legal support in dialoguing with port decision-makers.

4. Counsel’s advocacy strategy:

5. Assistance requested from local Counsel from lawyers in other Jurisdictions:

A) Funding for the following;

i) Legal empowerment trainings presenting the BCP to representative community meetings, detailing the legal rights that underpin the BCP and identifying clear community demands to shape the port’s development;
ii) Meetings facilitated by Natural Justice between Save Lamu leadership and community leaders to determine a clear set of demands for the port’s development;
iii) Facilitated meetings between relevant government representatives and Save Lamu leadership to clearly articulate community interests and their legal underpinnings and possible productive solutions.

6. Counsel’s certification

 

GALA NATURAL JUSTICE: PARTNERS IN ENVIRONMENTAL AND HUMAN RIGHTS

GALA has centered its mission around three core areas: human, consumer and environmental rights. Although expansive, GALA believes it does not have the luxury to focus on just one as all three are core components to social justice issues facing the world’s poor and ignoring even one of these three focal points would detract from the mission to help the poor reclaim their rights. The blog will focus on all three issues highlighting specific cases GALA is representing as well as the importance, or more emphatically, the necessity for an organization like GALA to exist. While many cases and country partners will confront simultaneous breaches on the rights of the poor, we hope to highlight one specific injustice and what GALA is doing to fight back.

Recently I had the privilege of speaking with Gino Cocchiaro, an Environmental Lawyer based in Capetown, South Africa working for Natural Justice, GALA’s South African partner. Natural Justice focuses on the preservation of the environment specifically through the protection of indigenous populations and their land. As their website states, “Our mission is to facilitate the full and effective participation of Indigenous peoples and local communities in the development and implementation of laws and policies that relate to the conservation and customary uses of biodiversity and the protection of associated cultural heritage.” Until my conversation with Gino, I understood that biodiversity and indigenous rights were important but I hadn’t quite grasped the intrinsic importance of their shared value in sustaining a healthy and livable planet. My conversation with Gino emphasized how human rights and environmental rights are not separate issues but completely complementary.

Gino Cocciaro, a lawyer for Natural Justice and a partner to GALA based in Capetown, South Africa.
Gino Cocchiaro, a lawyer for Natural Justice and a partner to GALA based in Capetown, South Africa.

Natural Justice works in over a dozen countries around the world and partners with institutions including the World Bank and other international financial institutions providing legal advice, interpreting laws and working with local governments to develop tools where communities can connect through law. In many of the more remote regions of the world, people who have lived on the land for centuries have valued the importance of protecting the environment and lived in harmony with nature. Minorities including the Awá in Brazil, the Native Americans in the United States, and the Maori in New Zealand have all suffered the consequences of ‘modern land development.’ In areas where Natural Justice works, communities now have an opportunity to seek legal council and voice their concerns.

One such example of the importance of Natural Justice’s work can be found in Lamu, Kenya. Lamu, an island off the coast of East Kenya, is in the center of negotiations to build a port that will be a ‘gateway to the Horn of Africa,’ a project the Kenyan government believes will bring tens of thousands of jobs to the region. However, the project will also displace thousands of locals. Initially, plans and itineraries for the project were developed without consulting any of the local leaders, a concern that brought attention to the plight of Lamu to Natural Justice. Since then, Natural Justice has worked with those living in Lamu to bring their concerns to government officials and business leaders. In addition, Natural Justice identifies local organizations and lawyers who are then fully integrated into the process. Natural Justice connects local leaders to the national and international discussions on the formation of new laws and the interpretation of existing ones.
Their ability to work locally along with a team of internationally experienced lawyers provides a platform for dialogue to take place between the government, consultants and community leaders.

Gino’s vast knowledge of biodiversity and land issues is clearly established within minutes of speaking with him. What I really wanted to delve into was how he took his expertise and applied it to the specific case he was involved in, something that always proves a challenge when assessing an organization like GALA’s impact across international boundaries. Gino’s responses were enlightening and also demonstrated the challenges that will be a constant trial for GALA in their aim to change the face of legal aid internationally. As Gino explained, establishing who are the people and communities Natural Justice is representing and how the issue (in this case the Port) will affect their livelihood, culture and traditions is not always straighforward. This is where establishing firm relationships on the ground with the community members and local business and political leaders becomes critical. From there, Natural Justice is able to use their legal expertise to set out certain principles for discussion and obligations the government must abide by. Heavy capacity training also enables the process to take on a participatory approach and bringing community leaders into the model completes the circle. In effect, natural justice.

Lamu Island, Kenya.
Lamu Island, Kenya.