THE ROLE OF JUDICIARY IN ENVIRONMENTAL GOVERNANCE

This article is written by Zibiri Sheila, Obafemi Awolowo University, Ile-Ife, an intern under Legal Vidhiya.

ABSTRACT

Environmental degradation remains one of the most pressing challenges facing the global community. From deforestation to climate change, pollution and biodiversity loss, the consequences of environmental harm are increasingly catastrophic. Governance in this sphere is traditionally the role of the executive and legislative arms of government. However, the judiciary has emerged as a pivotal actor in enforcing, interpreting, and shaping environmental laws, especially in jurisdictions where executive inaction or legislative gaps exist. This article explores the evolving and active role of the judiciary in environmental governance, examining legal principles, judicial activism, and landmark case law across different jurisdictions, with a particular focus on India, Nigeria, and international legal trends. The judiciary’s engagement in environmental governance is often guided by principles of sustainable development, intergenerational equity, the precautionary principle, and the polluter pays principle. These principles are now deeply entrenched in environmental law and have been shaped, interpreted, and enforced by courts globally.

KEYWORDS

Judiciary, Environmental Law, rights, policies, judicial activism, ecosystems, resource use, climate change, sustainable development, pollution

INTRODUCTION

Environmental governance refers to the system of policies, institutions, and processes that guide how we manage the environment and natural resources. Its core aim is to ensure that decisions concerning the environment are transparent, inclusive, and effective, promoting sustainability and addressing global challenges such as climate change. Key aspects of environmental governance include laws, policies, and international agreements that provide the framework for protecting ecosystems and ensuring responsible resource use. While the government plays a central role, other actors such as businesses, non-governmental organizations (NGOs), communities, and individuals also contribute significantly to environmental governance. As the three arms of government, the Legislature, Executive, and Judiciary each have specific responsibilities in this domain. The Legislature enacts laws, the Executive implements them, and the Judiciary interprets and enforces these laws when disputes arise. The judiciary, though traditionally a passive interpreter of laws, has become an active participant in this process, especially through public interest litigation (PIL), judicial review, and the development of environmental jurisprudence.

SOME LANDMARK LAWS ON ENVIRONMENTAL GOVERNANCE

1. United States’ National Environmental Policy Act (NEPA) of 1969[1].

This laid the foundation for modern environmental regulation by requiring federal agencies to assess the environmental impact of their actions through Environmental Impact Statements (EIS). NEPA institutionalized the principle of sustainable development by mandating that environmental considerations be integrated into decision-making processes, especially for large-scale projects. It also promoted transparency and public participation in environmental governance. NEPA’s model has significantly influenced environmental legislation worldwide, including Nigeria’s Environmental Impact Assessment Act of 1992, by emphasizing preventive measures and the importance of assessing potential environmental consequences before implementation.

• The Environment (Protection) Act, 1986 (India)[2]

Enacted in the wake of the Bhopal gas tragedy, the Environment (Protection) Act, 1986 is a comprehensive legislation empowering the central government to take all necessary measures for protecting and improving environmental quality. It serves as an umbrella law for coordinating activities under existing environmental laws such as the Water Act and the Air Act. The Act grants wide powers for setting environmental standards, regulating industrial activities, and penalizing violators, making it a cornerstone of India’s environmental governance framework. Its significance also lies in enabling rules for handling hazardous waste, biomedical waste, and coastal zone regulation.

• The European Union’s Environmental Liability Directive (2004/35/EC)[3]

The EU Environmental Liability Directive is a landmark piece of legislation that enshrines the “polluter pays” principle into European law. It holds operators financially liable for preventing and remedying environmental damage to biodiversity, water, and land. The Directive establishes a clear liability framework to ensure that businesses bear the costs of pollution and environmental harm caused by their operations. By linking economic accountability with environmental protection, this law strengthens both preventive and remedial governance mechanisms across EU member states.

THE JUDICIARY’S ROLE: A MULTIFACETED ENGAGEMENT

1. Enforcing Environmental Laws

One of the fundamental roles of the judiciary in environmental governance is the enforcement of existing laws. Courts have been instrumental in ensuring compliance with environmental regulations, holding individuals, corporations, and even governments accountable.

In Vellore Citizens Welfare Forum v Union of India, the Indian Supreme Court held that industries discharging untreated effluents into water bodies were violating constitutional rights and environmental regulations[4]. The court invoked the precautionary principle and the polluter pays principle, thereby reinforcing the binding nature of these doctrines in Indian law.

Similarly, in Nigeria, the judiciary has relied on statutory provisions like the Environmental Impact Assessment Act 1992 and constitutional guarantees to protect environmental rights. In Gbemre v Shell Petroleum Development Company Nigeria Ltd, the Federal High Court held that gas flaring by oil companies violated the applicants’ constitutional rights to life and dignity as provided under sections 33 and 34 of the Nigerian Constitution[5].

• Expanding Environmental Rights

The judiciary has also played a key role in recognizing and expanding environmental rights. In many cases, courts have interpreted constitutional rights broadly to include environmental dimensions. For instance, Article 21 of the Indian Constitution, which guarantees the right to life, has been expansively interpreted to include the right to a healthy environment.

In Subhash Kumar v State of Bihar, the Supreme Court of India held that “the right to life includes the right to enjoyment of pollution-free water and air.”[6]. This interpretation allowed citizens to challenge industrial pollution under the constitutional framework, thus giving environmental rights constitutional status.

In Centre for Oil Pollution Watch v NNPC, the Nigerian Court of Appeal emphasized that environmental protection is implicit in the right to life and the duty of care owed by corporations to affected communities[7]. Such rulings show the judiciary’s willingness to embed environmental protection within human rights frameworks.

• Filling Legislative and Executive Gaps

In many jurisdictions, environmental legislation may be insufficient, poorly enforced, or absent. The judiciary, through creative interpretation and judicial activism, has stepped in to fill these gaps. This form of engagement, while controversial, has proved vital in contexts where executive agencies are unwilling or unable to act.

The Indian judiciary’s contribution through judicial activism is most notable. The evolution of environmental PILs since the 1980s allowed non-governmental organisations and concerned citizens to approach courts without the traditional requirement of locus standi. In M.C. Mehta v Union of India, a case concerning the leakage of oleum gas in Delhi, the court not only awarded compensation but also evolved the principle of absolute liability for hazardous industries[8].

In FEDECO v National Union of Petroleum and Natural Gas Workers, although not an environmental case per se, the Nigerian Supreme Court reaffirmed the power of courts to intervene in matters where statutory duties are neglected[9]. This approach has influenced environmental litigation where regulators fail in their duties.

• Developing Environmental Jurisprudence

Courts contribute to environmental governance by developing doctrines and legal principles. In the absence of detailed legislation, courts have laid down guidelines, mandates, and new doctrines that shape environmental decision-making.

The Indian Supreme Court developed the ‘public trust doctrine’ in M.C. Mehta v Kamal Nath, ruling that the state holds natural resources like forests, water bodies, and air in trust for the public, and cannot transfer them for private use[10]. This doctrine has since influenced several judicial decisions and environmental policies.

Internationally, courts like the Inter-American Court of Human Rights have recognized environmental protection as essential to the enjoyment of other human rights. In its Advisory Opinion OC-23/17, the Court stated that the right to a healthy environment is an autonomous right under the American Convention on Human Rights[11].

• Promoting Sustainable Development

Judicial decisions have been instrumental in promoting sustainable development. Courts now balance environmental concerns with developmental needs, ensuring that economic growth does not come at the expense of environmental health.

The principle of sustainable development was affirmed in Narmada Bachao Andolan v Union of India, where the Indian Supreme Court upheld the construction of a dam but emphasized the need for environmental safeguards and rehabilitation of affected populations[12].

In Attorney General v Mobil Oil Nigeria Unlimited, the Nigerian Supreme Court stressed the importance of balancing environmental protection with economic development, especially in the oil sector, while ensuring that corporations do not neglect their environmental responsibilities[13].

• Ensuring Compliance with International Environmental Obligations

Courts have also ensured that states comply with international environmental treaties and obligations. Although international treaties may not always be directly enforceable, courts have used them as interpretative tools to strengthen domestic environmental protections.

In People’s Union for Civil Liberties v Union of India, the Indian Supreme Court noted that international environmental conventions, though not incorporated into domestic law, can guide constitutional interpretation if they are not inconsistent with domestic statutes[14].

The Nigerian judiciary has also recognized this interpretative approach. In Abacha v Fawehinmi, the Supreme Court held that international treaties that reflect fundamental human rights principles can inform the interpretation of constitutional rights even if they are not domestically legislated[15]. This principle has been employed in environmental cases invoking global standards on environmental protection.

Challenges Faced by the Judiciary

While the judiciary has played a commendable role, several challenges limit its effectiveness in environmental governance.

Judicial Capacity

Many judges lack specialized training in environmental science, law, or sustainable development. This can result in inconsistent decisions or overreliance on expert testimony, which may be biased or contested.

Implementation and Enforcement

Court judgments are only as effective as their enforcement. In many cases, environmental decisions are ignored due to weak institutional frameworks or lack of political will.

Overreach and Separation of Powers

Judicial activism in environmental matters raises concerns about overreach. Courts may be accused of encroaching on the executive’s domain, especially when they issue detailed policy guidelines or administrative directions.

Accessibility and Delays

Litigation is often expensive and slow. Marginalized communities, who are most affected by environmental degradation, may lack access to legal remedies.

Comparative Perspectives

India

India’s judiciary is perhaps the most active in the realm of environmental governance. Its contribution includes expanding environmental rights, crafting new legal doctrines, and directing administrative actions. The National Green Tribunal (NGT), established under the National Green Tribunal Act 2010, provides a specialized forum for environmental cases, ensuring speedier and expert adjudication.

Nigeria

Nigeria’s courts have increasingly embraced environmental rights, particularly through constitutional and statutory interpretation. However, environmental litigation still faces procedural hurdles, such as locus standi and long delays. Despite these challenges, landmark decisions like Gbemre and Centre for Oil Pollution Watch demonstrate the growing influence of judicial decisions in holding corporations and regulators accountable.

International Courts

International courts and tribunals have begun to consider environmental claims more seriously. For instance, the European Court of Human Rights in Lopez Ostra v Spain held that serious environmental pollution could violate Article 8 of the European Convention, which guarantees the right to respect for private and family life[16]. This decision paved the way for a human rights-based approach to environmental protection.

CONCLUSION

The judiciary has become a vital player in environmental governance. Through interpretation, enforcement, innovation, and activism, courts have helped bridge gaps in legislation and regulation, ensured accountability, and protected both current and future generations. While limitations exist, particularly in enforcement and capacity, the judiciary’s role in environmental matters is indispensable. As environmental challenges become more complex, the evolution of environmental jurisprudence must continue, balancing the demands of justice, sustainability, and development. Strengthening judicial independence, capacity, and access to justice is essential to deepening the judiciary’s positive impact in this crucial domain.

REFERENCES

1. National Environmental Policy Act 1969 (US) 42 USC § 4321–4347.
2. Environmental Impact Assessment Act Cap E12 LFN 2004 (Nigeria).
3. Environment (Protection) Act 1986 (India).
4. Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56.
5. Vellore Citizens Welfare Forum v Union of India AIR 1996 SC 2715.
6. Gbemre v Shell Petroleum Development Company Nigeria Ltd (2005) Suit No FHC/B/CS/53/05 (Unreported).
7. Constitution of the Federal Republic of Nigeria 1999 (as amended), ss 33, 34.
8. Subhash Kumar v State of Bihar AIR 1991 SC 420.
9. Centre for Oil Pollution Watch v Nigerian National Petroleum Corporation (2019) LPELR-50038(CA).
10. M.C. Mehta v Union of India AIR 1987 SC 1086.
11. FEDECO v National Union of Petroleum and Natural Gas Workers (1998) 2 NWLR (Pt 537) 585.
12. M.C. Mehta v Kamal Nath (1997) 1 SCC 388.
13. Inter-American Court of Human Rights, Advisory Opinion OC-23/17 (15 November 2017).
14. Narmada Bachao Andolan v Union of India (2000) 10 SCC 664.
15. Attorney General v Mobil Oil Nigeria Unlimited (2018) 7 NWLR (Pt 1619) 222.
16. People’s Union for Civil Liberties v Union of India (1997) 3 SCC 433.
17. Abacha v Fawehinmi (2000) 6 NWLR (Pt 660) 228.
18. National Green Tribunal Act 2010 (India)
19. Lopez Ostra v Spain (1994) 20 EHRR 277.

[1] National Environmental Policy Act of 1969, 42 USC §§ 4321-4370h (1970).

[2] Environment (Protection) Act 1986 (India), Act No. 29 of 1986.

[3] Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56.

[4] Vellore Citizens Welfare Forum v Union of India AIR 1996 SC 2715.

[5] Gbemre v Shell Petroleum Development Company Nigeria Ltd [2005] AHRLR 151 (NgHC 2005).

[6] Subhash Kumar v State of Bihar AIR 1991 SC 420.

[7] Centre for Oil Pollution Watch v NNPC [2018] LPELR-50830(CA).

[8] M.C. Mehta v Union of India AIR 1987 SC 1086.

[9] FEDECO v National Union of Petroleum and Natural Gas Workers (1982) 3 NCLR 915.

[10]  M.C. Mehta v Kamal Nath (1997) 1 SCC 388.

[11] Inter-American Court of Human Rights, Advisory Opinion OC-23/17, 15 November 2017.

[12] Narmada Bachao Andolan v Union of India (2000) 10 SCC 664.

[13] Attorney General v Mobil Oil Nigeria Unlimited [2013] 1 NWLR (Pt. 1336) 525.

[14] People’s Union for Civil Liberties v Union of India AIR 1997 SC 568.

[15]  Abacha v Fawehinmi [2000] 6 NWLR (Pt. 660) 228.

[16] Lopez Ostra v Spain (1995) 20 EHRR 277.

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Hitesh Prajapat