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The environment gets its day in court

Environmental liability law and its implementation in countries that struggle with deforestation have come under scrutiny.
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When an oil palm company was taken to court for lighting fires, people took notice.
When an oil palm company was taken to court for lighting fires, people took notice. Aulia Erlangga

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The message was clear: Don’t think you can get away with it.

In 2012 Indonesian palm oil company PT Kallista Alam sent 1000 hectares of Sumatran peat forest up in flames so they could use the land for agriculture.

The fires in Aceh’s Tripa forest threatened wildlife and human health, and sent vast quantities of carbon into the atmosphere. They were also illegal.

Although the Acehnese provincial government had issued the company a permit, the area should have been covered by Indonesia’s national moratorium on new concessions. In addition, the Tripa forests are part of the Leuser ecosystem – a globally important biodiversity hotspot, and the last area worldwide where orang-utans, tigers, elephants and rhinos coexist in the wild.

Still, companies had done worse before with few consequences.

This time, it was different.

Indonesia’s Ministry of the Environment sued Kallista Alam for the harms it had caused the environment, and in September last year, the country’s Supreme Court upheld an earlier verdict ordering the company to pay Rp. 366 billion (US$ 27 million) in fines and compensation for the damage.

It was a precedent-setting ruling that caught the attention of researchers from the Center for International Forestry Research (CIFOR) and the Environmental Law Institute (ELI).

The decision was potentially a game-changer, adding natural resource liability to the portfolio of tools the Indonesian government can use to address deforestation.

How widely was this tool used across the tropics, the researchers wondered.

ON THE BOOKS

In a new paper, they explore the status of natural resource liability law and its implementation in Indonesia and in other countries that struggle with deforestation.

“Environmental liability law is well established in the United States and the EU for things like oil spills and hazardous waste accidents, but is it being used for the environmental harms that tropical countries confront, such as deforestation and wildlife trafficking?” asked lead author Carol Adaire Jones from ELI, based in Washington, D.C.

Jones and colleagues looked at Brazil, the Democratic Republic of Congo (DRC), India, Indonesia, Nigeria, Mexico and the Philippines, and found that all but Nigeria had established a statutory right to bring cases for damage for resources in the public domain.

They were surprised to find that in two ways, the law makes it easier to sue for damage to the environment in the tropical countries than in the US and the EU.

Firstly, in the US and EU only the government has the authority to file suits. But in many of the tropical countries, civil society can also bring cases.

This provision can help move cases forward faster, says co-author John Pendergrass.

“It may not be a priority for government prosecutors, either because they’re overworked or because they’re corrupt. If civil society is allowed to bring the case, it can get around both of those issues,” he says.

You have to be able to monitor and detect violations, identify who the responsible parties are, and document the injuries to the environment

Carol Adaire Jones

Secondly, in the US liability laws only apply to hazardous activities, such as oil spills and toxic discharges; to protected places like national parks; or to protected species, such as migratory birds and endangered wildlife.

In many of the study countries, however, the laws cover the loss of any resources in the public domain – from deforestation as in the Kallista Alam case, to wetland destruction, illegal logging, and mining pollution.

So the laws are on the books – but they’re not always implemented consistently, the authors say.

“We have to acknowledge there are issues with rule of law, sometimes due to civil war and insurgencies, other times due to corruption or weak institutions,” Jones says.

“Promoting rule of law is important, by establishing laws and regulations that are clear, strengthening institutions, and promoting accountability through transparency.”

“But it’s also a question of capacity, in terms of using data and science to successfully bring a case to court,” Jones says. “You have to be able to monitor and detect violations, identify who the responsible parties are, and document the injuries to the environment.”

LAW SCHOOL

Judges and prosecutors need environmental training, too – something that is already happening in Indonesia. The country’s Supreme Court has established a ‘Green Bench’, training and certifying judges to deal with environmental legislation.

Foresters and inspectors – the people on the ground – also need training, adds Pendergrass.

“This needs to be something that’s a regular part of what professional foresters cover,” he says.

“So they understand there’s the possibility to restore the damaged area, and how much that’s going to cost, and understand all the reasons why this is important, so that they can be the advocate for bringing the case to the court.”

And once that happens, courts also need to value the harms to the environment correctly.

Jones highlights a 2014 case in the DRC where two mining companies dumped toxic waste (including arsenic and cyanide) into a river. It killed fish, contaminated drinking water and destroyed agriculture along a 200 kilometre stretch – and the companies were fined only US$ 6000 in damages.

“It had tremendous impact on people’s livelihoods over an extended period – so obviously $6000 is not the right amount,” Jones says. “Calculating the value of harms could definitely be improved across the study countries.”

Where the money goes once it’s collected also matters, the authors say.

In the US and many other countries, fines are placed in a specialised fund used to restore the damage to the environment, but in two of the study countries, Indonesia and the Philippines, the money goes straight into the Treasury.

That means there’s a risk that in cases like Kallista Alam, the $US27 million paid by the company might not get spent on restoring the damaged ecosystem – a huge task involving not just planting, but reviving the watershed that keeps peat damp.

“If the money goes to the Treasury it can get spent on anything,” Pendergrass says.

“If it doesn’t go to restoration, then you may still have a deterrent effect, but it also looks a lot like a revenue-raising scheme for the government – and I would expect there could be backlash from the responsible parties.”

Ultimately, Jones says, the power to bring cases like these is just part of the set of tools governments can use to stop deforestation.  Good policy – the rules of the game – is a key starting point.

“But if people fail to abide by those rules, or the rules are implemented in a very inconsistent way, then you have to bring enforcement actions.

“And then liability can be a very powerful tool.”

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For more information on this topic, please contact Steven Lawry at s.lawry@cgiar.org.
This research forms part of the CGIAR Research Program on Forests, Trees and Agroforestry.
Topic(s) :   Wetlands