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Environment, Development and Human Rights

New York Law Journal

October 26, 2007
by Stephen L. Kass and Jean McCarroll

Two and one-half years ago we urged U.S. environmental lawyers, and the environmental community generally, to avoid the temptation to view environmental challenges in isolation from social, economic and human rights conditions, both in the United States and abroad. (“Integrated, Not Segmented, View of the Environment Is Needed,” NYLJ, April 21, 2005). 

We cautioned that support for environmental causes would erode if not coupled with concern for economic fairness and respect for civil liberties and the rule of law, on which the environmental movement also depended. 

We also called on U.S. environmental organizations to recognize that, for their environmental counterparts in the developing world, this integrated view of environmental protection and human rights is often a matter of life or death and that neither environmental protection nor respect for fundamental rights can succeed at the expense of the other.

Competition for Water

But if environmental leaders are coming, sometimes belatedly, to recognize this connection, many of the world’s leaders do not yet do so. In June 2007, the new United Nations Secretary General, Ban Ki-Moon, wrote in the Washington Post that much of the slaughter in Sudan’s Darfur region could be traced to an underlying competition for water between migrating Arab herders and African farmers. The secretary general repeated this analysis in Khartoum, Sudan’s capital, in September 2007, stating:

You all know that the conflict in Darfur began, long ago, in part because of draught. When the rains failed, farmers and herders fell into competition for an increasingly scarce resource. The decisions of man to wage war over these precious natural resources further compounded other factors and challenges.

It is true, as the secretary general noted, that water scarcity in Darfur and elsewhere in Africa’s Sahel region, exacerbated by climate change, is an important environmental constraint and that any long-term solution for Darfur must address residents’ need for water for agricultural irrigation, household use and livestock grazing. 

However, as Human Rights Watch noted in an Aug. 31, 2007 letter to the Secretary General’s deputy, Won-Soo Kim, the widespread killing, rape and forced displacement of civilians that began in 2003 in Darfur was not caused by climate change or water scarcity but by government troops and their allied “Janjaweed” militias, who systematically bombed and razed hundreds of villages in a counterinsurgency campaign that left some 200,000 people dead and 2.4 million displaced in Darfur and neighboring Chad. 

Whatever role water had in sparking disputes between farmers and herders was soon eclipsed by the government’s policy to use its Janjaweed proxies to murder and uproot -- ethnically cleanse -- civilians deemed potentially hostile to the government. Put simply, conflicts over natural resources -- fresh water, forests, or fisheries, for example -- should never be accepted as an excuse for abuses of the kind and scale carried out by the Sudanese government and its militias in Darfur.

Fair and efficient allocation and management of fresh water resources is an essential ingredient of any successful development program today, when potable water resources are stressed by climate change, rapid urbanization and population growth. But experience in both developed and developing countries makes clear that successful environmental management is possible only where the rule of law is respected. This requires respect for individual rights of speech, assembly, access to governmental data and, most fundamentally, a functioning and independent judiciary to which citizens, environmental organizations and their lawyers have access without fear of retaliation. These are the same foundations on which the human rights movement depends.

The Rule of Law

As experienced U.S. environmental lawyers know, it has been the threat (and often the fact) of successful citizen challenges, through either administrative or judicial proceedings, that has made the broad array of U.S. environmental laws so effective over the past 35 years. That success would not have been possible without a functioning legal system to enforce the substantive requirements of state and federal environmental laws and without citizens and lawyers willing and able to compel that enforcement.

This is particularly true of environmental impact assessment (EIA), which was born in the United States with the National Environmental Policy Act of 1969 and spread rapidly at the international level after the Earth Summit in Rio de Janeiro in June 1992. EIA is now a fundamental part of domestic environmental law in most developed and many developing countries and an integral part of decision-making at the World Bank and other international financial institutions that assist developing countries. To be meaningful, EIA requires active citizen participation in reviewing government agencies’ environmental impact statements and in suggesting alternatives with reduced impacts. Citizens must have the right, and the confidence, to challenge EIA conclusions and government projects when they are not supported by the environmental analysis or when required EIA procedures have been ignored. None of this can happen without an independent judiciary able to set aside governmental actions that violate legal requirements and to protect citizens’ right to participate actively in the EIA review.

This is not a matter of “mere” compliance with law. Meaningful EIA with public participation serves three important functions in developing countries. First, EIA helps build public acceptance of major environmental projects (dams, roadways, pipelines, urban development plans) or programs (water conservation, species protection) that are controversial because of their impacts on nearby communities, impacts that EIAs must both disclose and seek to mitigate. Second, EIA is now a requirement for virtually all international financial institutions and, increasingly, for many of the world’s largest commercial banks, which have pledged not to approve or disburse loans until adverse impacts have been assessed and, if feasible, mitigated, following public review. Third, EIA public review helps to overcome the tendency of many governmental agencies to treat environmental protection as a luxury they cannot afford if they are to carry out their assigned governmental functions, a tendency that undermines nominal environmental priorities.

EIA is not the only environmental process that requires public participation and the rule of law to implement a nation’s environmental goals. Emissions standards for air and water pollutants; remediation of hazardous soil or groundwater contamination; protection of forests, fish stocks and endangered species; waste reduction and recycling; protection of marine resources; and ensuring a healthy and urban environment all depend on meaningful enforcement of environmental laws and regulations. Few enforcement agencies in any country have the resources by themselves to oversee compliance with these requirements by the myriad public and private actors engaged in the development process. Public scrutiny of permit compliance through freedom of information laws, coupled with private rights of action to compel performance of permit requirements (as under the Clean Water Act and Clean Air Act in the United States), provides the necessary complement to public enforcement and substantially increases environmental compliance by both public and private actors.

Nowhere is this need for citizen enforcement and a vigorous judiciary better illustrated than in China. As China’s leaders have belatedly recognized, severe water, air and soil pollution now represent the principal challenges to China’s continued economic growth and to its domestic tranquility. Social protests against the failure by local, provincial or national environmental agencies to protect public health figured prominently in an estimated 51,000 separate public demonstrations in China in 2005. As Elizabeth Economy, director of Asia Studies at the Council on Foreign Relations, noted in a recent article (“The Great Leap Backward,” Foreign Affairs, September/October 2007), these protests have forced China’s leaders to adopt more stringent environmental standards and to instruct provincial governments to implement more vigorously central environmental directives and laws.

That, however, is more easily decreed than implemented. Alex Wang of the Natural Resources Defense Council has pointed out (“One Billion Enforcers,” The Environmental Forum, March/April 2007) that local compliance with Beijing’s environmental directives is sporadic, and that only ongoing scrutiny by the Chinese public and the nascent environmental bar offers any real prospect for sustained environmental enforcement. Unfortunately, while China has tolerated environmental protests as an acceptable public safety value, it has not afforded nongovernmental organizations or their lawyers the same freedom to challenge governmental action in the courts and has both limited the activities of such organizations and incarcerated some of those who raise such challenges.

China is only the latest, and most visible, example of governments and established interests that fear environmentalists who insist on exercising civil and political rights. Direct threats against environmental activists have been commonplace in developing countries, including the highly publicized murders of Chico Mendez and Dorothy Stang in Brazil and the execution of Ken Sara Wiwo in Nigeria.  If environmental protection is to be taken seriously, governments must act affirmatively to protect the rights of those who speak for the environment, especially when they challenge local government authorities or influential private interests. That requires both law enforcement officers willing to arrest and prosecute and courts willing to convict those who use violence to stifle environmental dissent -- in short a functioning legal system committed to the protection of fundamental civil and political rights.

Social and Economic Rights

Environmental protection is also related directly to social, economic and cultural rights, most obviously in the case of potable water -- the very resource singled out by Ban Ki-Moon. Even without climate change, water resources in developing countries are threatened both by increasing industrial pollution and by population increase. Global warming and more violent storms -- both now all but inevitable for the next 50 years and thereafter -- will exacerbate greatly the challenges such countries face as more rural areas become arid (or flooded) and migration to the swollen cities of Africa, Asia, Latin America and China accelerates.

Many of those cities already lack clean water and decent sanitation for their current residents. Climate change will not only accelerate urban migration; it will also threaten existing water supplies for major coastal and river cities and expose water and sewage treatment systems to coastal or storm-related flooding, much as Hurricane Katrina devastated New Orleans’s water and sewage systems. Since prevention of these impacts is in many cases impractical, responsible state and municipal governments will need to develop and implement comprehensive land use plans that relocate vulnerable population centers and critical municipal facilities and site new housing and infrastructure outside of flood-prone zones.

 This will require massive funding from international donors and lenders, as well as the allocation of the huge oil revenues now enjoyed by developing countries such as Nigeria and Angola. However, none of this can be done by local fiat, since millions of lives will be severely disrupted by these attempts to adapt to the inevitability of severe water and other climate-induced impacts. Only an open public process, including EIA and opportunities for public comment and judicial review, can provide the basis for both public consensus and the necessary international financing for such plans.

Conclusion 

Effective environmental protection requires a national commitment to the rule of law, including an independent judiciary, respect for freedom of expression by the public, public access to governmental data (to review environmental analyses and permit compliance) and lawyers willing to challenge arbitrary or illegal government conduct. Without respect for the rule of law and basic human rights, environmental programs simply can not succeed. While long-term peace in Darfur (and other environmentally stressed regions) requires careful attention to natural resource protection and allocation -- above all, of water -- that must not come at the expense of human rights or be used to excuse human rights abuses. Any attempt to separate environmental protection from respect for human rights disserves both causes and undermines these two essential pillars of successful development.

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Stephen L. Kass and Jean M. McCarroll, together with Clifford P. Case III andMichael C. Davis, direct the environmental practice group at Carter Ledyard & Milburn. 

Reprinted with permission from the October 26, 2007 edition of The New York Law Journal   © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. 


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