On the necessity to strengthen environmental justice

What is environmental justice?

Environmental justice can be understood as the processing by justice systems of environmental litigation. It applies to a vast set of issues, such as the fight against climate change, waste trafficking, pesticide use, or the management of dwindling resources, such as water…

According to the UN Environment Program (UNEP) and Columbia University’s Sabin Centre for Climate Change Law, the total number of climate-related cases has more than doubled since 2017. The Sabin Centre provides an inventory of referrals for climate cases: 676 cases against national or local governments in 2022, and 241 against corporations or persons, outside the United States. Environment-related litigation, including climate, diversity and pollution cases, can be estimated at 1 to 3 % of the total number of cases processed by legal systems. But this low percentage doesn’t represent the complexity facing these cases: they require specific approaches. In addition to legal issues, the state of scientific knowledge at any given moment represents a challenge. For example, our knowledge of pesticides has considerably evolved in the past 10 to 15 years.

In this context, I think it would be interesting to talk about “justice for nature” since these issues are all interconnected. The climate crisis, the loss of biodiversity, the development of various types of pollution are systemic and jeopardize every living thing. According to EU’s climate regulation, climate change poses an existential threat. For some scientists, humans’ stress on the environment ushered in a new era: the Anthropocene.

What is the place of environmental justice in international cooperation projects?

Environmental justice is increasingly important, especially because citizens place strong expectations upon legal systems’ ability to process conflicts resulting from environmental public policies. Decisions stemming from these policies, at different levels, are, in effect, not always equitable. Their enforcement often generates conflicts. For example, they can impact populations, exposed to pesticides or subjected to urban pollution, or corporations having to manage waste, forever chemicals, or water pollution…

With this approach, legal processes must be globally overhauled, and to do that, magistrates must receive legal training in new areas, such as the innovating process of conducting preliminary consultation phases for projects that impact the surrounding environment. It is essential to grasp new concepts, such as the notions of reversibility or monitored trajectory control, and the upheaval of standard hierarchy resulting from them (permeation of domestic and international law, place given to soft law tools). The definition of the common good must serve as a compass for judges. Justice systems’ rulings will also have multiple implications that must be taken into account. To facilitate this, it is crucial to develop a cross-national discussion among judges, and this will be achieved through international cooperation. The handling of these cases needs to meet citizens’ expectations from their justice systems.

What are the stakes for the countries in the Balkan region?

From an environmental standpoint, multiple issues face the West Balkan region. In the winter, cities in this area are among the most polluted in the world, partially because of an ageing automobile fleet and an economy that hasn’t been decarbonised yet. Coal power plant emissions cause thousands of deaths. In addition to this type of pollution, waste management is also an issue. Collection and processing are dysfunctional, and insufficient. Degraded situations threaten populations’ environments and health. Although these countries are looking to join the European Union, wastewater treatment facilities are obsolete and don’t match European standards. Cases were brought to the courts in several countries against over a hundred companies. For citizens and NGOs, justice is becoming a way to mitigate authorities’ failures and inaction.

Water, access to it and its distribution remain challenges in the region. Yet, because of increasing energy needs, multiple hydraulic infrastructures were built without any of the appropriate controls. The pressure exerted by tourism also generates hydric stress. Questions regarding water use, equal access to the resource and its price are the grounds of many legal proceedings.

What kind of actions does Expertise France conduct on this issue?

The core of our actions lies in the collective designing of legal strategies aimed at protecting the environment. We must build and strengthen the capacities of legal systems in this area. To do that, several types of action can be taken.

We need to assess beforehand, together with legal actors, potential grounds for litigation. It is vital to know contexts, weaknesses and flaws, be they of a legislative nature or within legal organizations, so that we can identify priorities and possible levers. Then these levers must be measured, quantitatively and qualitatively, to finally design effective action plans, capable of addressing citizens’ problems and demands. To design legal protection strategies for the environment, the legal community must be open to sharing knowledge with all stakeholders: NGOs, citizens, researchers… They represent as many areas of expertise necessary for legal systems to handle the upsurge of new cases, to identify needs, and even to develop anticipation methods in case of a collective environmental accident for example.

This requires a significant effort in terms of education. Cooperation can be deployed via methodological guidelines, training design, and support for legal strategy planning. This goes hand in hand with the introduction of means to evaluate and analyse performance and results.

This issue is a democratic one, it rests on the legitimacy of justice systems. It is an opportunity for them: the possibility to strengthen expectations in ethics, independence, and impartiality.

Could you describe characteristic projects?

Expectations are high around the implementation of the Climate Environmental Justice Convergence in the Western Balkans project, supported by Expertise France and AFD. It aims to improve access to justice and make citizen involvement in environmental justice more efficient, ultimately promoting the convergence towards European standards, especially in Albania, North Macedonia and Montenegro.

In Albania, the first steps of the initiative are in progress. The collaboration with the Albanian High Inspector of Justice could lead to a thematic effort dedicated to assessing the connections between justice and environmental issues, in the context of the current approach between the EU4justice program, the Council of Europe’s CEPEJ and Expertise France.

In Central and Latin America, the focus is on the training of judges and prosecutors. Their capacities must be strengthened in contexts of environmental crime and attacks on biodiversity overlapping with the fight against corruption and organized crime.

Could you talk about the three-pronged approach, on which relies Expertise France, aimed at supporting the implementation of effective environmental protection?

The concepts that make up this three-pronged approach are: “prevent, sanction, repair”, an interdependent set constituting an integrated approach. It is the foundation of environmental legal protection and has been recognized in international spaces, at France’s initiative. It echoes the “avoid, reduce, compensate” practice that influences the design of environmental public policy.

First, prevent. It implies means for a legal system to act before litigation, such as mediation. It is essential that justice be accessible and information available to allow citizens to find out about projects that could potentially harm the environment, so they can, if necessary, start the appropriate procedures. This requires the deployment of points of access to environmental justice. Another aspect is the creation of emergency procedures to stop ecological damage.

Then, sanction. Sanctions come in after damage has occurred. It is necessary to establish penal, administrative or civil responsibility. Sanctions must be designed with a preventive dimension in mind, to limit reoccurrence. For fair, efficient and acceptable sanctions, it is essential to have quality inquiries and investigations, or a robust expertise to foster impartial and transparent debates.

And finally, repair. After destruction or damage occurs, things must be restored to their former state. This can mean financial compensation, rebuilding the damaged environments or repairing a specific prejudice. But other forms are possible, such as reparations in kind.

To conclude, I would say that the involvement of Expertise France in these areas is essential. To strengthen the rule of law, its legitimacy, and legal and judicial systems, key actors must tackle these issues, without any hesitation.

Interview in May 2024.