Political ecology in the courtroom

Contributor: Jacob Phelps, Lancaster University (feature image: Jaclyn Schwanke)

Political ecologists have a particular interest in recognizing diverse values, questioning prevailing policy narratives, and challenging entrenched power dynamics.  It is therefore surprising that the field is not more concerned with discussions of courtroom proceedings, specifically lawsuits enabling governments, citizens and NGOs to challenge environmental injustice via the courts.  This relatively under-explored legal political ecology provides interesting directions for a field where many grow frustrated with the relative lack of applied theory and activist engagement. 

In this post, I discuss www.conservation-litigation.org, a collaboration among lawyers, ecologists, conservationists, critical social scientists, and economists that asks, “How can we sue large commercial wildlife traders?”.  It  explores how environmental liability lawsuits can hold large-scale, commercial traders liable for the egregious harm they cause. Such liability extends to providing remedies to that harm, such as paying for habitat restoration, animal rehabilitation, issuing apologies, funding species conservation and investing into cultural funds. 

Beyond the obvious opportunities for lawsuits to correct injustices by remedying harms, I highlight two reasons why such litigation offers are exciting spaces for political ecology: 

(1) They allow challenges to mainstream narratives about the values of nature, by pressing courtrooms to formally recognise diverse types of values; and 

(2) They enhance environmental democracy, challenging the state monopoly over the enforcement of environmental rights by creating space for other stakeholders.

These are empowering opportunities that remain underutilised globally, including across most of the Global South.

    www.conservation-litigation.org 

Ours is a scholar-practitioner-activist exploration of alternative legal responses to illegal wildlife trade.  Rather than the traditional focus on punishment, which often ends up targeting low-level wildlife traders with fines and imprisonment, we are exploring how strategic liability litigation can hold high-level actors responsible for remedying the harm they cause.  Amidst concerns on the over-criminalisation in conservation, this project shifts enforcement focus away from punishment and onto remedy; away from small-scale harvesters and onto large-scale commercial traders, and from government-led to citizen-directed enforcement actions. 

Environmental liability litigation will be familiar to many readers. The Exxon Valdez and Deepwater Horizon oil spills are key examples of how government and citizen litigation can hold polluters responsible for actions such as clean-up, funding restoration and compensating victims.  We are exploring how this approach can be used to address a wider range of harms, including from illegal trade, and across broader geographies.  Enabling laws already exist in many countries, including China, Indonesia, Mexico, Brazil, and DR Congo, but are comparatively new in many countries; unfamiliar to legal practitioners, and rarely mobilised. Their potential to address key drivers of biodiversity loss from IUU fishing, illegal logging, illegal wildlife trade are untapped. 

We developed a practitioner-oriented framework for how these cases might be developed. It integrates ecology, law and geography to present diverse types of harm (to individuals, species, human wellbeing), and help to identify corresponding remedies that might be secured via a lawsuit.   It seeks to lower the barriers to justice by making lawsuits development more achievable.  

Venue for formal recognition 

Such litigation is motivating because it creates opportunities for plaintiffs to seek formal, public recognition of their values and rights. In order for a lawsuit to be successful, a court must recognise that the plaintiff has a right to make a claim (standing), that a specific harm occurred, and that it merits a legal response.  As such, lawsuits are a potential pathway for plaintiffs–including NGOs, citizens, community groups and government agencies–to convince a judge or jury of their values.  Such formal recognition of rights and plural values has legitimising potential, and geographers are uniquely placed to help others articulate these values in ways that are legible to lawyers, jurors and judges.

For example, although we (the public, decision-makers, judges) may often recognise that nature has many intangible values, these are rarely institutionalised into our formal governance processes, where a narrow utilitarian economic perspective prevails.  Indeed, much of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) has been guided by “the view that acknowledging and fostering the use of diverse conceptualizations of multiple values of nature and its contributions to people is required for adequately addressing the challenge of achieving global sustainability.”  Conservation litigation provides a vehicle through which to help translate these complex values into tangible, public, formal court orders. 

In our work, we discuss a hypothetical lawsuit against a repeat, commercial wildlife trader that illegally sells one Critically Endangered Bornean Orangutan. The example demonstrates that what may appear like harm to a single individual animal, has diverse, cascading impacts on different communities and types of values.   Notably, these include intangible and sacred values that are potentially non-commensurable with monetary compensation (e.g., moral harm, harm to cultural values).  These types of values merit broad, public recognition, and courtrooms are a way through which to achieve this.

Harm to an individual orangutan has diverse, cascading impacts. Illustration by Alamsya Elang 

Enhancing environmental democracy 

Conservation litigation also challenges the state monopoly on the enforcement of environmental rights.  Enforcing legal violations, which typically includes enforcement of criminal and administrative regulations, is squarely the role of government agencies that have the right to fine and imprison. 

It is no secret that this presents challenges and frustrations for many conservationists, especially in the context of under-resourced government agencies, low capacity, different priorities, corruption and collusion.  Many civil society groups have responded very assertively, not only lobbying and pushing governments to fulfill their responsibilities to the environment, but also privatisation conservation enforcement.  This includes NGO and private sector management and enforcement of protected areas, as well as civil society investigations and prosecutions of wildlife violations.  These represent a distrust of government’s ability and willingness to execute their core functions, and a (sometimes questionable) attempt to deconcentrate and even democratise enforcement. 

Conservation litigation offers a very distinct, parallel space for non-state actors to engage with the enforcement of environmental rights and rules.  In many countries, legislation allows citizens and NGOs the standing to bring forward liability lawsuits for harm to the environment.  This can include making demands that responsible parties undertake remedial actions for harm caused to public goods (e.g., biodiversity, public waterways).  As such, rather than wait for government agencies to undertake enforcement actions or remedy harm, this type of litigation allows citizens to make requests via the legal system.

This is especially important in the context of uncertain government enforcement, and growing demands for environmental democracy. It aligns with the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, which has 41 parties across Europe and Central Asia.  Litigation provides a formal forum and pathway through which to increase this access.

Overcoming barriers to justice 

Strategic conservation litigation has the potential to facilitate access to meaningful, just remedies, highlight values that have struggled to achieve formal recognition in other venues, and increase democratic engagement in environmental enforcement.  There are also other  important types of important courtroom actions that speak directly to the interests of political ecologists, including to order injunctions to order the stop to harmful projects; lawsuits to order, revisions of unjust e legislation, and lawsuits to order government agencies to meet their legal mandages. The courtroom thus seems a uniquely appropriate setting for a field concerned with rights, (in)justice, contested narratives and creating meaningful change.

There are huge barriers to courtroom engagement and access to justice–technical, conceptual, procedural, political and financial.  This includes huge challenges for academics that engage with law, particularly those without legal training, for whom the jargon and detailed mechanics of national-level legislation can be daunting.  Importantly, they are even greater barriers for the marginalised communities who are often most affected by environmental harm.  This is precisely the reason for a strategic legal political ecology to operate in the public interest.  

Geographers and conservationists can help to bridge the gaps between how harm and remedies are experienced on-the-ground, how these are presented in lawsuits, and how formal legal processes can be navigated. Progress will necessarily require novel collaborations, including work with plaintiffs, public interest lawyers, public prosecutors and legal aid groups, to help overcome barriers to justice.