Environmental litigation

Introduction It is through litigation that courts enjoy their unique role in upholding the environmental rule of law. Environmental litigation can take many forms, including civil actions based on tort, contract or property law, criminal prosecutions, public interest litigation, or enforcement of constitutional rights. Particularly complex issues may arise when cases involve transboundary environmental harm.

JURISDICTION 1. Locus standi: A right of appearance in a court of justice, or before a legislative body, on a given question. Traditional locus standi rules require a party bringing suit to have a sufficient interest or personal stake in the outcome of a case to distinguish the individual from other persons or the public at large. The plaintiff must have experienced a distinct injury traceable to the alleged conduct of the defendant. In Abdikadir Sheika Hassan and Others v. Kenya Wildlife Service (High Court of Kenya, Case 2059/1996), for example, the court permitted the plaintiff on his own behalf and on behalf of his community to bring suit to bar the agency from removing or dislocating a rare and endangered species from its natural habitat. The Court observed that according to customary law, those entitled to use the land are also entitled to the fruits thereof, including the fauna and flora; thus the applicants had standing to challenge the agency action.

JURISDICTION 2. Enforcement of statutes Environmental statutes and regulations allowing citizen suits, either against an administrator for failure to perform a required act or against a person who is allegedly in violation of an environmental regulation or standard, have served to enlarge the standing of citizens to seek redress through the courts.

JURISDICTION 3. Public and private interest litigation Public interest litigation differs from conventional litigation where the parties seek to resolve a dispute that is peculiar to them and there is no impact on the general public except in so far as it clarifies the law on that point. Public interest litigation, on the contrary, generally involves disputes over the rights of the public or a segment of it and the grievance is often against the state in respect of administrative or executive action. A public or common nuisance can be described as an act which interferes with the enjoyment o f a right which all members of the society are entitled to, such as the right to fresh air, or travel on the highways. It can also be seen as a large number of acts injurious to the public at large, such as keeping of a common gaming house, or the obstruction of highway. Though, nuisance of this kind are criminal offences and may give rise to an action for damage as civil wrongs.

Subject matter jurisdiction Some courts have limited subject matter jurisdiction and plaintiffs must demonstrate that the case they seek to bring falls concerns a subject over which the court has jurisdiction. Otherwise the court will be unable to proceed. Discussion on environmental litigation in Somali Judicial system

TRIALS Trials are usually the most time-consuming of judicial activities. In some cases, the disputing parties agree about the interpretation and application of the law but offer differing versions of the facts. A pollution case, for example may turn entirely on whether or not the defendant released the harmful emissions or whether or not the pollutants caused the plaintiff’s injury. In other cases, both parties may agree on the relevant facts, but disagree on the application of the law to those facts. Trial courts must have the necessary evidence to decide questions of fact in order to resolve disputes. If a trial court misinterprets or misapplies the law, its error can be corrected on appeal, but if it lacks the necessary or relevant facts, the result is harder to correct. In an adversary system, the obligation to present evidence rests on the advocates for each side and it is assumed that they will bring forward all the evidence and legal arguments to support their positions. Nonetheless, judges generally have the authority to appoint experts or to make site visits to obtain the best evidence about the environmental conditions in question. See e.g. Ramiah and Autard v. Minister of the Environment and Quality of Life (Mauritius Environment Appeal Tribunal, March 7, 1997) (making a site visit to an area whose character as a sensitive wetland was challenged).

Alternative Dispute Resolution (ADR) There exist a number of alternative dispute resolution (ADR) options that can provide parties with an efficient way to address problems and at the same time alleviate over-burdened court dockets. The two most common types of ADR are Mediation (sometimes also referred to as “conciliation”) and Arbitration.

Alternative Dispute Resolution (ADR) Additional advantages in using ADR exist for environmental cases. Certain ADR methods such as consensus building, facilitation, or conflict management dialogues have proven particularly effective in the kind of multiparty litigation that typifies environmental disputes. ADR is also especially effective in environmental disputes where parties have an ongoing relationship, such as neighbors, where parties significantly benefit from improving their interrelationships in the long run. ADR has been effective, for example, in addressing land-use and riparian disputes between neighbors. Moreover, because of the procedural flexibility it affords, ADR allows for retention of subject matter experts as mediators and arbitrators, which in complex environmental cases can assist the process in moving forward

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