The emerging role of legal action in Southeast Asia’s environmental struggle

by Simone Galimberti

It is now well known that courts can be turned into one of the best tools to fight climate change and biodiversity losses.

From the United States of America to Europe, there has been an increasingly high number of legal suits filed by citizens and civil society organizations against governments and corporations allegedly responsible for climate and biodiversity disasters.

It might be more surprising to hear that South East Asia, certainly not a beacon for the rule of law, human rights and democratic standards, is slowly evolving into a region where legal remedies against environmental destruction are still uncommon.

While we are still far from a rosy picture, it is a changing legal landscape that, step by step, is enabling the creation of a new venue where citizens can seek remedy.

Even more interesting is the fact that such a legal environment is being pushed and shaped by citizens and civil society organizations that, oftentimes, find a reliable ally in the highest courts of the land.

A recent report by EarthRights International, with the financial support of the United Nations Environment (UNEP), offers an insightful understanding of how environmental public interest litigation can provide the space for legal actions against actors causing pollution and other forms of environmental degradation.

Case Studies and Judicial Influence in Environmental Protection

The report, Enhancing the Role of Environmental Public Interest Litigation to Advance Environmental Rights in Southeast Asia, was developed through an inclusive, participatory process led by William (BJ) Schulte, the Mekong Region Policy and Legal Advisor at EarthRights International.

It does not only bring clarity about the different typologies of citizens led environmental litigations, providing readers with concrete examples emerging from the region.

The publication also proposes practical solutions to remove barriers that are still making the pursuit of public environmental litigation look more like an exception than the common practice in the region.

“Environmental public interest litigation as a potentially transformative mechanism that can empower communities across Southeast Asia to play a significant role in ensuring that environmental laws are complied with, and that the precious ecosystems of the region and the communities that depend on them are protected” explains the report.

In a way, the authors see a real potential for mainstreaming this still novel approach.

The focus is primarily on two types of litigation: administrative litigation and citizen enforcement litigation.

The former, the report explains, is when “citizen or organizational plaintiffs seeking judicial review of government agency actions or inactions”.

The latter, citizen enforcement litigation, often referred to “citizen suits” is “when a citizen or an organization “steps into the shoes” of the government and files a lawsuit against a defendant to enforce environmental laws or seek remedies for environmental damages in the public interest”.

Thailand, Indonesia, the Philippines but also China are the nations where a legal jurisprudence on environmental public litigation is emerging.

In relation to the cases of the so-called administrative public interest litigation, Thailand has an increasingly high number of these cases being adjudicated.

For example, villagers from the Kanchanaburi province moved to the Supreme Administrative Court of Thailand seeking a review of the Pollution Control Department’s failure to take adequate actions to remediate toxic pollution in a local creek. They were successful and the court issued a ruling ordering the state to clean up the site.

Challenges and Recommendations for Environmental Litigation

The role of the highest courts of law can be a decisive factor to support the emergence of this legal approach.

For example, as the report explains, in the Philippines, it was a final ruling of the Supreme Court in 2018 that ordered the governmental agencies to come up with a plan to rehabilitate Manila Bay.

Back in 2010, the same court issued the Rules of Procedure for Environmental Cases, enabling legal action by citizens.

The rules had allowed plaintiffs to review whether a government agency has neglected to “perform a required duty or has otherwise done something to violate the plaintiff’s right to a healthy environment, and gives the court the authority to retain jurisdiction over the case after its decision to ensure compliance with the court’s order”.

In certain cases, like in Indonesia, there are progressive legislations that enable the courts to issue regulations that open the doors to environmental public litigation.

Indonesia’s Environmental Protection and Management Act authorizes “everybody to file administrative lawsuits in limited circumstances – to review a government agency’s decision on the issuance of an environmental permit (or the issuance of an activity permit without an accompanying environmental permit)”.

Following the enactment of Indonesia’s Environmental Protection and Management Act, the Supreme Court of Indonesia in 2013 published a groundbreaking guideline that paved the way to citizens ‘lawsuits.

It is because of this evolution that in 2015, some of the most active environmental civil society groups in the country forced the revocation of wastewater discharge permits from three major textile manufacturers.

The report summarizes a series of other pioneering public litigations, also explaining that public interest litigations can be more effective than traditional environmental tort litigation because they are more accessible and brings more benefits to the communities.

Though we are still at the infancy of this area of litigating environmental abuses, the EarthRights’ report makes a case for cautious optimism.

“There are some encouraging signs across Southeast Asia that governments are moving toward empowering the public to file lawsuits in the public interest to enforce environmental laws and stop environmental harm”.

Yet, there are plenty of actions that should be embraced to develop and expand the use of public litigation in the environmental field.

In this regard, the report makes an exhaustive list of powerful recommendations that, if implemented, could really harness the potential of these litigations.

First enforcement. Despite the fact that the publication highlights successful and pioneering cases of public environmental litigations, courts’ ruling and orders remain often unimplemented.

“Most countries in Southeast Asia still have a long way to go to establish functioning systems of environmental standards, permitting, and reporting that would support environmental public interest litigation” explains the report.

Then, there are the high costs associated with filing litigations. This an issue strictly linked with the complexity and lengthy of such cases.

Connected to this, the reports underline the aspect of allowing citizens and civil society organizations to access information deemed essential to file a case.

Even in Indonesia, which, as we saw, could be considered a trailblazer in environmental public litigation, lawyers, as per the report, denounce the fact that it is getting harder to get essential information.

Finally, there is the “overall resistance to giving the public a more active role in environmental management and enforcement”.

This is probably the most concerning issue, based on which all the other obstacles and barriers are hampering the wider use of environmental public interest litigation.

The fact that there is no regional legal framework in place in the whole Asian Pacific region, not a supernational court like the one you can find across the world, from the Americas to Africa and to Europe, could be one of the elements that make environmental justice hard to pursue.

After all, there are not really any common legal standards in the region.

Might the ASEAN Intergovernmental Human Rights Commission play a positive role in this regard?

The Future of Environmental Justice in Southeast Asia

The AIHRC certainly isn’t anything close to a law adjudicating body, despite its gigantic weaknesses, but it could be a venue where to foster a dialogue on environmental public litigation.

While it is still hard to imagine lawsuits against carbon fossil emitters in the courts of the region, after all, the member states of ASEAN have a direct interest in preserving their environment.

Despite the fact that they often collude with the private sector or are directly responsible through state enterprises in environmental degradation, it is clear that they have more and more moral and legal duties to step in.

Internationally, UNEP has been at the forefront of enabling the creation of such a legal framework.

A decision taken in 2013 by UNEP’s governing body, for the first time, established the term “environmental rule of law”.

UNEP explains that “members States recognized the growing importance of rule of law in the field of the environment in order to reduce violations of environmental law and to achieve sustainable development overall”.

The AIHRC has initiated a work in the broad area of business and human rights from which environmental public litigations could be discussed through sharing of best practices.

Ultimately, the report is clear: it will all depend on the willingness of the ASEAN member states.

“If the governments of Southeast Asia are serious about the commitments they have made to environmental protection, sustainable development, and the rule of law, then they should be open to the idea of allowing citizens to file public interest cases against those that violate environmental laws.”

The author writes about regional integration, human rights and environment in the Asia Pacific.