Jordanian Cultural Association for Development Law (JADEL) was established in 2006 as a non-profit organization, and as such works to serve Jordanians by raising legal capacity and capabilities through trainings, awareness and research activities.
JADEL aims to offer quality services to the legal and development community with an in-house training center and specialized library.
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JADEL JORDAN: FUHEIS CASE
A Public Interest Action:
Case No. 01/2012
Environmental rights for Fuheis, Jordan residents v. Cement Factory
- 1. Client Identification, location and relevant case background:
The clients reside in Fuheis, a 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.
- 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:
- 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.
- 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.
- 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.
- 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.
- 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
- 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. 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.
- 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.
- 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.
- 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.
- 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.
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.
– 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.
Articles referenced in this post: