HARAMAYA UNIVERISITY SCHOOL OF LAW

LEGAL RESEARCH PROPOSAL

TITLE: THE ROLE OF PUBLIC INTEREST ENVIRONMENTAL

LITIGATION IN ENVIRONMNETAL PROTECTION; A FOCUS
ON EXISTING ETHIOPIA ENVIRONMNETAL LEGAL
FRAMWORKS

A THESIS SUBMITTED TO THE

SCHOOL OF LAW

By : MILION WORKU
TITLE: THE ROLE OF PUBLIC INTEREST ENVIRONMENTAL LITIGATION IN ENVIRONMNETAL PROTECTION; A
FOCUS ON EXISTING ETHIOPIA ENVIRONMNETAL LEGAL FRAMWORKS................................................1
Declarations...........................................................................................................................................4
Acknowledgment..................................................................................................................................5
CHAPTER ONE..................................................................................................................................................7
1.1 Background of Study...................................................................................................................................7
1.2 Statement of Problem...................................................................................................................10
1.3 GENERAL Objectives.............................................................................................................11
1.4 SPECIFIC OBJECTIVE............................................................................................................11
1.6 Review of Literature..................................................................................................................12
1.8 Scope of the study.....................................................................................................................14
1.10 Limitation of the study...............................................................................................................15
CHAPTER TWO...............................................................................................................................................15
2.1 Definitions of Public Interest Environmental litigations....................................................................15
2.2 The Role of Public Interest Environmental Litigation in Environment protection...........................16
 Enforce legality in governance and ensure executive accountability.................................................16
 Assists in the Progressive and Principled Development of Environmental Law and Policy Shape
Environmental Law and Policy...........................................................................................................17
 Improve the quality of executive decision making............................................................................17
 Lobbying for Legislative and Administrative Actions........................................................................18
 Attain Environmental Justice.............................................................................................................18
 Foster Environmentalism and Environmental Conscience in Society................................................18
 Others..............................................................................................................................................19
2.2.1 The Condition to Success of Public Interest Environmental Litigation.....................................19
2.2.2 Access to Justice.....................................................................................................................19
2.3 Locus standi (right to standing)................................................................................................20
2.3.1 Broader Interoperation of rules.................................................................................................21
2.3.2 Independent Judiciary..............................................................................................................21
2.3.3 Remedial Flexibility and Adequacy...........................................................................................22
CHAPTER THREE.............................................................................................................................................23
Public Interest Environmental Litigation and Its Practices in Ethiopia..................................................23
3.1 Introduction....................................................................................................................................23
3.2 The Impacts of Public Interest Environmental Litigation in Environment Protection under Ethiopia
.............................................................................................................................................................24
3.2 Public Interest Environmental Litigations under the Ethiopian environmental legal frame work....25
3.2.1 Under FDRE Constitution...........................................................................................................25
3.2.1.1 Accesses to Environmental Justice............................................................................................25
3.2.1.2 Locus standi (The Rights to Standing)......................................................................................28
3.2.2 Under pollution Control proclamation..........................................................................................30
3.2.3 Under Prevention of Industrial Pollution Council of Ministers’ Regulation..................................31
3.3 Major challenges concerning the implementation of Public Interest Environmental Litigation.......32
3.3.1 Under Environmental Legal frame works.....................................................................................32
3.3.2 Standing Under the Civil Procedure Code Decree 1965................................................................32
3.3.3 Lacks of Enforcement by The Environment Protection Organ (Authority)..................................33
3.3.3 Absence of Creations of Awareness Towards Public Interest Environmental Litigation...............33
3.3.4 Court Are Passive on Environment Protection in Ethiopia...........................................................34
3.3.5 Court Fee in Environment Proceeding..........................................................................................35
3.4 The practical Legal Problems Under Pollution Control Proclamation.............................................35
I
CHAPTER FOUR..............................................................................................................................................37
Conclusions and Recommendations.....................................................................................................37
4.1 Conclusions..............................................................................................................................................37
4.2 Recommendations...................................................................................................................................39
Bibliography BOOKS PUBLISHED......................................................................................................1
UNPUBLISHED.................................................................................................................................................1
LAWS...............................................................................................................................................................1
JOURNALS AND ARTICLES.................................................................................................................................2
INTERNET........................................................................................................................................................3
INTERNATIONAL INSTRUMENT.........................................................................................................................3

II
ACRONYMS

EIP- Environmental Impact Assessment

FDRE- Federal Democratic Republic of Ethiopia Constitution

FEPA- Federal Environmental Protection Authority

NGO- Nongovernmental Organization

PCP- Pollution Control Proclamation

PIEL- Public Interest Environmental Litigation

UN- United Nation

USA- United States of America

III
 Declarations
I MILION WORKU, hereby declare that this research paper is original and has not been
Presented in any other institutions. To the best of my knowledge and belief, I also
declare That any information used has been duly acknowledged.
Name: MILION WORKU
Signature:

This dissertation has been submitted for examination with my approval as university
Advisor:
Signature:

IV
Acknowledgment
First of all, for deep gratitude and glory to the Almighty God . Unless he is with me, it could not
be possible this success.

I would like thanks and appreciate to my advisor; Nahom Teketel, for his help by each and every
point thoroughly a devoting this precious time in reading and correcting the paper as well as
advise and respect full approach.

My deepest and heart full thanks to all my family for their contribution. Lastly but not least, my
heart full thanks for all My friends for their unreserved support by different means to conduct
this paper.

V
Currently the environment issue is an obvious at the global level, that it whereby affected due to
the existence of all human activities attached with it. Because, the very existence of human and
most others organism depend on goods and services that are to be produced by nature. Due to
this fact in order to protecting the environment, the state has enacted different international and
regional laws through their bilateral and multilateral agreements to protecting their environment.
In addition to effect this, the states have enacted their different national law in lights of
international law and their own aspects at their national level such as constitutional law,
environment and other relevant law with environment in their jurisdictions. From this above our
country Ethiopia has been adopt and implementing this international and regional law through
participating in and ratifying into their constitution. In our constitution the environment right is
recognized. The constitution is stipulated, that all persons have the right to a clean and healthy
environment. In order to protecting this environment, the different countries have employed
different mechanisms to protect their environment such as PIEL. Ethiopia has been injected
PIEL as an instrument of protecting the environment. However, the existence of PIEL in
Ethiopia is less role in environment protection. This study to examine the roles PIEL in
environment protection in general and particular under Ethiopia environmental law regimes and
the recognitions of PIEL in environment protection under Ethiopian environmental legal frame
works and to see the challenges under the legal problems, in its practical implementation and the
institutional application under Ethiopian environmental laws.

VI
 CHAPTER ONE

1.1 Background of Study

Since a recent year, environmental issues are gaining attention at global level, because
environmental problems are more intensive and critical in developing and tropical countries, due
to continuous pressures from ever increasing population growth coupled with the expansion of
ill-defined investments, exhaustive extraction of important resource bases and weak
environmental legal frameworks to manage and govern the natural status-quo and exploitation of
natural resources. The world population especially, people of developing countries highly rely on
natural resources (land, forest, water wetland, Biodiversity…) to generate most of their
livelihoods and survival strategies (Gross Domestic Product and income through crop production,
livestock rearing, forestry and mining etc.) all of which are aggravating the problem extensively.1

The demands of this natural resources consequently inevitable damage on the environment. This
damage doesn’t affect only that producing country. This environmental damage is exacerbated
into other international community. As a result, international community is collectively
participated to reverse and prevent this environmental damage through cooperation by making
agreement means of bilateral and multilateral agreements. One of prominent conference held by
state is the United Nation (herein after UN) conferences in Stockholm, Rio and Johannesburg
prominently concerned on the environmental issue at international level. This conference showed
that the international community sees environmental protection as a matter of global concern and
is stepping up its efforts at international level. The landmark united nation conference on human
environment was held in Stockholm in 1972, establishing the concept of a right to healthy
environment. For a long time now, people have been wondering whether on top of the many
important bilateral and multilateral treaties something could be done to tackle this problem from
the human rights angle2.

And also under UN draft declaration on human rights and the environment also provides a
comprehensive list of substantive environmental rights for the protections of the environment in

1
Mohammed Seid; The Veer from Frontier Economics to Eco-development Paradigm: Approaches,
Policies and Strategies of Sustainable Development - The Case of Environmental Governance in
Ethiopia. Journal of Energy, Environmental & Chemical Engineering. Vol. 4, No. 2, 2019 p 21-29
2
Mrs. cristina Agudo, Spain Soc, Committee on the environment, agriculture and regional Affairs 16
April 2003
7
which peoples will exercise their environmental rights; such as the right to secure, healthy and
ecologically sound environment; the right to freedom from pollution; and the right to safe and
healthy working environment and procedural environmental rights such as the right to information
concerning the environment; the right to effective remedies in administrative or judicial
proceedings for environmental harm; and the right to association for the protection of the
environment3. In addition, to that currently more than forty-four national constitutions now contain
provisions on environmental protection, either as individual rights or state obligations, or both 4.
From these nations’ constitution; they are acknowledged the right to live in a clean and healthy
environment. For instance, the FDRE constitution, stipulates that the government shall endeavor to
ensure that all Ethiopians live in a clean and healthy environment 5. Furthermore, it does provide
individuals with a personal right to a clean and healthy environment 6. It also brings the government
and citizens together as having the duty to protect the environment7. Nonetheless, Ethiopia has
suffered from other several environmental problems, particularly on environmental pollutions such
as air pollution, land pollution and water pollution. Therefore, the constitution recognized
environmental rights through directly and indirectly to environment protection.

Environmental protection is the practice of protecting the natural environment by individuals,

organization and governments. Its objective is to conserve natural resource and existing natural
environment and where possible, to repair damage and reverse trends 8. It also defined under
Ethiopian environment protection authority proclamation (herein after EPA), Environmental
Protection" means the protection of land, water, air and similar other environmental resources,
factors and conditions which affect the life and the development of all organisms including
human beings9. However, the environment protection rights is required the standing rights its
different from civil litigation before court. Because of the environment is common rights of the

whole people. To represent this right, it needs the recognition under the country legal system
including the constitution and under environmental laws.

3
Draft Principles on Human Rights and The Environment, E/CN.4/Sub.2/1994/9, Annex I (1994)
4
Mrs. C. Agudo cited above note 2 vol. p..
5
FDRE Constitution 1995. Art. 92 (1). Fed. Neg. Gaz. Year 1 No.1.
6
IBId, Art, 44 (1).
7
IBId, Art, 92(4) Cum 91(2)
8
Wikipedia https://en.wikipedia.org ›environment protection
9
Environmental Protection Authority Establishment Proclamation 1995.Art 2(2), Pro. No.9, Fed. Neg. Gaz,
year 1 No.9
8
 Now, we are in the era of sustainable development which requires paying equal attention to
economic development, social development and environmental protection. To protect this
environment therefore, it requires the public participation. Because an environment is where we
live in it10. Which is the common issue to the whole community. Hence, public interest
environmental litigation (here in after PIEL) can and should complement the government’s effort
to protect the environment in countries like Ethiopia. It has the role on the environment
protections. Because it has been employed as an innovative environmental tool in many legal
systems of the world especially in South Asian Countries like as an India, Pakistan, Bangladesh,
are seen as the champion of the legal protection of sustainable development and the
environment11. Because, it plays a central role in the environmental right enforcement and it has
been used as legal tool to bring about environmental law and policy reform, environmental law
enforcement and compliance and contributes for bringing sustainable development into effect.

Moreover, it to enhances access to environmental justice in developing countries 12. However, it

founded at the infancy stage in environment protection under Ethiopia. Due to this fact, it does
not expressly provide under FDRE Constitution. Indeed, the environmental rights is recognized
under this constitution. However, environment pollution control proclamation has been
recognized as the right to locus standi/right to standing. In Ethiopia, however, the existing
environmental legal frame works suffer from various defects which affect their ability to
promote environmental protection. From these defects, it’s difficult to enforce this environmental
right. Due to this fact, there is the lack of specific component of regulation and directive. Their
also lack of strong institutions that supported to protect the environment. Their no integrations
among the governmental organs to protecting the environment.

10
Tsegai Berhane and Merhatbeb Teklemedhn Mekelle University Faculty of Law, environmental law
teaching material
April 2008. P1
11
Factors for its Dormant and Stunted Features, 2017, p,305
12
Id, 312
9
In some relevant components of the laws that would help people and enterprises comply with their
obligations are not properly regulated.

1.2 Statement of Problem

The very existence of human and most others organism depend on goods and services that are to
be produced by nature. However, the natural environment is being challenged by strong
environmental problems questioning the availability of these nature provided goods and services.
Ethiopia is not an exception to this. Ethiopians obtain their means of living from direct and
indirect consumption of fruits of the healthy functioning environment. Nonetheless,
environment in Ethiopia is being threatened rapidly for multiple factors among which human
activities are the main cause. As any further degradation of the environment can have a far-
reaching impact, the problem needs to be reversed. Moreover, inaction will further the problem.

Today, the international community has realized the problem and recognizes the need to reverse
it. To that end, set of legal principles and norms regarding the subject at international, regional
and national levels have been adopted. Most national jurisdictions including Ethiopia now have
legal and institutional mechanisms concerning the matter and different Jurisdictions have
injected multiple principles including PIEL as a mechanism of environmental protection in their
environmental legal regime. However, the existence of PIEL in environment protection under
Ethiopian legal mechanism not free from the defects. From this FDRE constitution does not
provides or contain very clear provision on the issue of standing right to the public to protecting
their environment and it also doesn’t define under FDRE constitution. That will be affecting on
the judiciary to enforcing the environmental rights. The other problem existed to PIEL in
environment protection in Ethiopia is; Firstly, it doesn’t still recognize under all environmental
legal frame works as a common base knowledge of all government body to exercises upon
except to pollutions control proclamation and its regulation.

The second problem with relation to PIEL in Ethiopia to exercising environmental rights in
environment protections founded under environmental legal frame works are not properly

1
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 implemented; due to their no immediate regulation and directive that make more clearing and
defining the rights and obligations of environment protections authority (herein after EPA) and
the rights of people to protect their environment under environmental impact assessment
proclamation (herein after EIA). The EPA does not provide grievance remedies available, due to
the absence of a provision relating to review exhibits the legislative intent of keeping EPA
decisions away from judicial scrutiny which avoid accountability of the agency and it’s also not
responsibility for his inaction of environmental litigation.
In addition to this under pollution control proclamation, there is no sectors with competent
agencies is identified, that will legally responsible to formulate practicable environmental
standards. The provision under this says EPA in consultation with competent agencies, has been
made legally responsible to formulate practicable environmental standards for the sectors
identified. The fact that such standards are not formulated means enforcement against
environmental standards causes difficulty.

The third problem with relation to the PIEL in environment protection is access to environmental
information is constitutionally guaranteed in Ethiopia. It is also provided for in the
environmental policy the freedom of mass media and access to information proclamation (herein
after FMMAI) and other mainstream environmental legislation. However, the practical
availability and disclosure of environmental information is inadequate. This is exacerbated by
the absence of administrative law that governs and ensures the transparency of the procedures
through which government entities exercise their power. In addition to under this proclamation
FMMAI is empowered to establish a central information system and promotes efficiency in
environmental data collection, management and use and prepare a periodic report on the state of
the country’s environment. It is expected to be the information hub concerning the environment.
But it lacks the capacity to effectively discharge this duty.
1.3 GENERAL Objectives
The principal objective this research is to investigate the role that PIEL has in environmental protection
and a focus on existing Ethiopian enviromental legal frame works.

1.4 SPECIFIC OBJECTIVE

 To investigate the role of PIEL in environmental protection

 To scrutinize existing Ethiopian environmental law if it recognizes PIEL
 To suggest legal solutions to the problems based on finding of the study
 To discussing the common knowledge of public regard to PIEL in Ethiopian aspect
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1.5 Research Questions
 This research has sought to answer the following questions
 Does PIEL have a role in environmental protection?
 What is the role of PIEL in environmental protection?
 Does existing Ethiopian environmental law recognize PIEL?
 Does the concept PIEL commonly known to all peoples?

1.6 Review of Literature

Under this topic relevant literature are reviewed in order to get broader insight and understanding.
Though the international, regional and the national constitution provides that all persons have the
right to clean and healthy environment. However, in Ethiopia the environment is suffered due
different activities by human and organisms for their surviving and other purpose taken by them.
This mostly in developing countries, that means the environment doesn’t affect in the developed
world country. The most environment problem is more intensive and critical in most developing
and tropical countries, population growth coupled with the expansion of ill-defined investments,
exhaustive extraction of important resource bases and weak environmental legal frameworks to
manage and govern the natural status-quo and exploitation of natural resources. Ethiopia has one
from those developing country and affected by this environmental problem. To reverse these
environmental problems, PIEL has adopted by different country including Ethiopia. It used as an
instrument in the environment protection and reversing the environment damage. Nonetheless,
there is the different problem that had been developed during inception of PIEL in environment
protections.

The different literature has tried to seek out these problems relating to the PIEL in environment
protections. In our country there are different faced problem of PIEL in the environment
protection as studied by different literature. From those literature. According to Yenehun birlie as
he stated that PIEL in Ethiopia is yet a dormant and stunted tool in its environment protection. Due
the limitation on judicial activism, legal culture, political will, the role and perception of the public
towards law, judicial process and justice, the type of legal system, the perception and behavior of
the government towards civil society and gaps in environmental information and the other
exacerbated unawareness of the law and their rights. Those are the main root problem in Ethiopia
on the development of PIEL. Therefore, that need to be addressed and heigh deserves13.

13
Y. Birlie, cited above note 11 p,305
1
2
In addition, similarly by Mellese Damtie and Mesfin Bayou stated that the gaps and challenges
under the public interest environmental litigation particularly under the environmental impact
assessment even there is the recognition given by legislation. Such gross lack of awareness and
widespread, lack human and resource capacity are highly affecting on effective
coordination and communication among the regional and sectoral offices are also
affecting14.However, this study is unique from the above viewed, that intended to examine
whether PIEL in environment protection is recognized under all environmental law or not and the
legal problems on its practical implementation under environmental legal frame work. And the
main problem under the environmental proclamation that affecting the implementations of PIEL in
environmental protection. To suggesting it will be a better implementation and enforcing the
environmental right, if this obstacle solved in lights of PIELs.

1.7 Research methodology

This research type is doctrinal legal research type and it has employed/used qualitative research
type. The research has used primary source of data such as statute and secondary source of data
such as research articles published in standard textbooks and reference books, that is collected by
using primary type of data collection method and secondary type of method collection. The
research uses both the primary and the secondary sources. Among primary sources the researcher
used the document review including laws. The researcher also would use secondary sources
like,journal articles, textbooks and other internet-based sources done regarding with this topic and
other relevant to the works. To investigating the reasons for, or motives behind, certain issue it
relies on reason behind various aspects this approach best suits this research because this study
aims at examining and assessing the legal coverage PIEL role in environment protection under
Ethiopian environmental legislations.
The data collected from these primary and secondary sources would be analyzed, presented and
interpreted in systematic way by using qualitative data analysis method to provide a research
work in accordance with research questions and research objectives. In doing that the research
not only talk of the research methods but also consider the logic behind the methods, to take
rational decisions at every step of this research and objectivity in perceiving the research
problem and seeking solutions therefor.

14
Mellese Damite and Mesfin an over view Enviromental impact assessment in Ethiopia IN 2008 at 58
1
3
1.8 Scope of the study
“The core aim of this research is to assess the role of PIEL in environmental protection.
Accordingly, its scope is limited to the examination how PIEL is helpful in this regard. To
that end, the research emphasized on the examination of provisions of some relevant
national (Ethiopian) environmental legislations.” In addition to this, I will assess PIEL under
different state jurisdictions.
In doing that I will assess and examine the legal frame works regarding with the role of public
interest environmental litigation in environmental protection and identify the legal problems and
I will propose a possible solution to fill such problem in Ethiopian environmental laws

1.9 Significance of the study

Finding of this research will contribute to a piece of knowledge on the concept and the role
PIEL in environment protection. And its recognition under the law of nation, identifying the legal
obstacle in the practice of PILE that under Ethiopian environmental proclamation and providing
the suggestions for existing legal problems that could helping better PIEL role in environment
protection. Moreover, this research will be creating an integration to protecting the environment
among governmental organs including court. It will also create an awareness to the government
establishing strong institutions in relations with environment protections through PIELs. Thus, my
research will be contributing as an input to further lawyers, law makers a n d w i l l help policy
makers and public at large in line with the environment protection which were incorporated in
different laws, and enabling environmental legislation in light of the modern PIEL.

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1.10 Limitation of the study
It is Obvious, every academic work its own challenge which obstacle you from better successful to
the jobs. By connection to this the limitation of the study visible as follow. There is lack of source
available this on title and enough time to do exhaustive work. There is a load of the exit exam and
externship program. The study will encounter a number of problems which might pose challenges
to the smooth sailing of the research. Shortage of time to get reliable information and literature and
unavailability of data connection are the major one. There will be also challenges budgets
constraint and to mature understanding to the study in relation to the personal and skill efficiency
of the researcher being this study is the first.

CHAPTER TWO

CONCEPTUAL FRAME WORKS OF PUBLIC INTEREST ENVIRONMNETAL

LITIGATION

2.1 Definitions of Public Interest Environmental litigations

PIEL is difficult to come up with its single applicable definition. Nonetheless, the definition
ranging from the narrow formulation given for public interest litigation to the broader public
interest law are the role in the environmental enforcement15. Accordingly the term Public Interest
is expressed an act beneficial to the general public. While Litigation means an action enforcing
one’s right or seeking a remedy for the wrong committed by another person.

As defined under Black’s Law Dictionary, when we see public interest litigation which including
the environment. Therefore, an environment litigation is a legal action initiated in a court of law
for the enforcement of public interest or general interest in which the public or class of the
community have a pecuniary interest or some interest by which their legal rights (environmental

15
Ayalew Abate Bishaw, The international journal research publications Research journal of social
science and management, 2015 P,72
21
5
 rights) or liabilities are affected16.
From the definition that public interest litigation is purely court action in pursuit of financial or
other interests and liabilities. Indeed, the interest may be environmental for environmental
interest is sub category of public interest. But the scope of the legal action is limited only to the
court which may not be true in the environmental litigation. This is because environmental
litigation may include to administrative actions 17. The another is that the definition emphasis
seems to be more on the legal rights and/or other entitlements of the class or the group affected.
However, PIEL may not be limited to only seeking enforcement of existing legal rights. Further,
for PIEL involves representing the environment and environmental rights, it is inextricably
related to the rights of future generations.

Moreover, Michael Barker defined PIEL as litigation with the particular object of obtaining a legal
remedy from a court, or a decision or ruling from an administrative tribunal, that has the effect of
conserving or protecting, or advancing the conservation or protection of, the environment18.

2.2 The Role of Public Interest Environmental Litigation in Environment protection

Public interest environmental litigation has more than enough roles to play in the environment
arena. And among fundamental roles include the following: -

 Enforce legality in governance and ensure executive accountability

Environmental litigation can enforce compliance with the law by the executive arm of
government. The legislative arm of government proclaims its will and establishes fundamental
standards
and parameters for executive decision making and conduct, in the form of environmental legislati
on and legislative instruments. The executive is bound to implement the will of the legislature,
by applying and enforcing legislative instruments. hence public interest environmental litigation
can enforce the principle of legality and ensure executives accountability19.

16
Black’s Law Dictionary (7th edition) 1229
17
A. Abate Bishaw cited above note 2015, p 72
18
Dr C. McGrath, flying foxes, dams and whales: Using federal environmental laws in the public interest
2008 p 327
19
J. Salzman and B.H. Thompson (2003), Environmental Law and Policy, Foundation Press, New York
p.72
21
6
 Assists in the Progressive and Principled Development of Environmental Law
and Policy Shape Environmental Law and Policy
Environmental litigation and the judicial adjudication of it can expose weaknesses in the law and
suggest law reform. Not all laws are “pure and thoroughly considered20.
Particular environmental disputes may reveal short comings. Courts can, through their reasons
for decision, identify these shortcomings and call for law reform. Through public interest
environmental litigation, the environmental spirit of the interpretation will be forwarded so that
it can shape environmental law and policy. Environmental litigation can help to reform existing
laws that hinder or prevent members of disadvantaged groups from participating fully and fairly
in society. It can also enforce rights that existing laws guarantee, but which are not followed in
practice.
Litigation can also complement a broader political movement, or foster mobilization and
encourage alliances that then produce political action. Furthermore, litigation can help change
attitudes towards the law and create a culture in which government and private entities respect
and enforce environmental values.

 Improve the quality of executive decision making

Environmental legislations such as the Environmental Impact Assessment Proclamation
Usually establishes discretionary decision-making procedures through mandating the preparation,
the obtaining and the consideration of some written form of environmental impact assessment
report and the consideration of prescribed relevant matters such as the various impacts of the
development on the environment and means to mitigate those impacts.
Compliance with these procedural requirements for decision making not only ensure legality in
governance and executive accountability, but also improves the quality of decision making.
Environmental impact assessment and consideration of relevant matters are not ending in
themselves. They are a means to achieve the desirable objectives of informing the decision-
makers.
By improving the quality of the decision by ensuring environmental impact assessment occurs in
the circumstances and to a standard required by law, public interest environmental litigation
ensures that these objectives are achieved. By requiring that projects aren’t approved or carried

20
Patricia M. Wald in his article, The role of judiciary in environmental protection, Boston College
Environmental
Affairs Law Review, Vol.19 p3.
21
7
 out until all relevant environmental matters have been properly, genuinely and realistically
considered, challenges to permits and other kinds of approvals, as well as regulations, can also
improve the quality of executive decision making21.

 Lobbying for Legislative and Administrative Actions

Environmental litigation and movement by societies can play a role in the passage and
implementation of effective environmental laws. They can obtain judicial review when the
environmental authority takes actions that are inconsistent with the law or facts 22.

 Attain Environmental Justice

Public interest environmental litigation can help promote environmental justice. As can be seen
access to justice, through public interest environmental litigation interested groups can ensure
environmental justice wherever and whenever environmental problem affects either the physical
or human environment. And hence once right of access to environmental justice is ensured to
interested citizens, through public interest environmental litigation remedies in the law can be
enforced.

 Foster Environmentalism and Environmental Conscience in Society

Environmental litigation can also have a broader beneficial role in developing environmentalism
and environmental consciousness. The serious threats to outstanding natural environments by
activities and litigation against can heightened public awareness and raised the profile of the
disputes and the importance of the issues at stake. It can encourage society to debate public
values and sense of place.

Through environmental litigation courts can explicate and give force to environmental values.
Adjudication of environmental litigation is “not to maximize the ends of private parties, nor
simply to secure peace, but to explicate and give force to the values embodied in authoritative
texts such as the constitution and statutes; to interpret those values and to bring reality into
accord with them23.”

21
Environmental Impact Assessment proclamation, 2002 Art (9&10), Pro. No.11. FED. Neg. Gaz. year 9.
No.11
22
J. Salzman and B.H. Thompsons cited above note 19 New York. p.72
23
P Brain. Public interest environmental litigation can lobby for legislative and administrative
actions or reform in Australia Customs House, Sydney, NSW, 13 may 2005.
21
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 Others
Public interest environmental litigation has also other functions. It serves as a means of ensuring
environmental and natural resource rights24. It explicates and gives force to the values embodied
in authoritative texts such as the constitution and statutes; to interpret those values and to bring
reality into accord with them. It can ensure rational discourse on environmental issues and
disputes etc. In nutshell it could be deemphasized that public interest environmental litigation is
a cure to environmental problems. Proper deployment can ensure environmental justice, both
physical and human. And it is against these backgrounds of the critical importance of
environmental litigation in the environmental law reform, enforcement and compliance that one
should appreciate the whole essence and significance of public interest environmental litigation.
2.2.1 The Condition to Success of Public Interest Environmental Litigation
The following are essential dozens of constitutional and legal conditions that a certain system of
law shall contain for development and operation of public interest environmental litigation.

2.2.2 Access to Justice

The concept of access to justice is one of the fundamental considerations in any discussion of
public interest litigation. Access to justice is a very broad concept. The right of access to justice
generally guarantees that every person has access to an independent and impartial court and
the opportunity to receive a fair and just trial when that individual’s liberty or property is at
stake. Moreover, access to justice involves the availability of appropriate means of redress or
remedies to aggrieved individuals or groups. It also implies that appropriate means of ensuring
governmental accountability are put in place. It is said that access to justice is not the same as
access to court. In other words, it is access to remedies i.e., substantive justice as opposed to
access to procedural justice that needs to be pursued.This notion goes beyond just providing
judicial remedies in the case of private disputes25.

24
Odhiambo, M, Ochieng, Legal and Institutional Constraints to Public Interest Litigation as a
Mechanism for the Enforcement of Environmental Rights and Duties in Kenya at the 5th international
conference on environmental compliance and enforcement p. 265
25
BY YOSEPH MULUGETA BADWAZA 31 October 2005, PUBLIC INTEREST LITIGATION AS
PRACTICED BY SOUTH AFRICAN
HUMAN RIGHTS NGOs Any lessons for Ethiopia?' (Unpublished LLM thesis, University of Pretoria)
p15
21
9
 Access to justice is access to an independent and impartial court, access to fair and just trial and
access to appropriate legal remedy when environmental damage sustains. It also otherwise means
the right to be heard and to appeal the decisions as it is guaranteed by the Human Rights
Conventions. Access to justice is crucial for public interest environmental litigation and the
national legal system in effect needs to efficiently regulate it. Ensuring access to justice is
ensuring impartial and independent court, ensuring right of environmental hearing and ensuring
appropriate environmental remedy. Access to environmental justice may be affected by different
legal barriers. The important legal barriers are the question of standing, scope of judicial review,
inability to obtain injunctive relief and cost of litigation. And due treatment of these barriers
ensures access to justice. Thus, ensuring these elements in the law equally ensures development
and operation of public interest environmental litigation26.

2.3 Locus standi (right to standing)

The term locus standi denotes the existence of a right on an individual or group of individuals to
have a court enter upon the adjudication of an issue brought before that court by proceedings
instigated by the individual or group. The right once found exists apart from the factual or legal
merits of the issue before the court or the jurisdiction of the court to adjudicate upon the issue.
Standing to sue is not dependent on the success or merits of a case. It is a condition precedent to
a determination on the merits. It follows therefore that if the plaintiff has no locus standi or
standing to sue, it is not necessary to consider whether there is a genuine case on the merits;
his/her case must be struck out as being incompetent.37

Without legal cognizance of standing, it will be impossible to mobilize the laws as a resource for
holding the government accountable and environmental polluters liable. And the right to
standing of individuals, groups or societies in bringing public interest litigation is as such vital.

Individual’s action to the environment in fact may amount to what Marc Galanter calls 'one shot'
in challenging the government in isolated court case. Group or societies on the other hand, have
better prospects of facing government on more equal terms as 'a repeat player'. And hence group
or society standing legal cognizance and action is far better compared to individuals in the
environmental enforcement27.

26
A. Abate Bishaw cited above note 15, P 78
27
Ibid
22
0
 2.3.1 Broader Interoperation of rules
Broader interpretation of fundamental freedoms essentially entails the creative application of
constitutional provisions of fundamental freedoms with a view to converting formal guarantees
in constitutions to positive human rights28. Public interest environmental litigation is requiring
the interpretation it is one of fundamental human right under international convention as the
Committee on Economic, Social and Cultural Rights noted.

The right to an effective remedy need not be interpreted as always requiring a judicial remedy.
Administrative remedies, will, in many cases, be adequate and those living within the jurisdiction
of a State have a legitimate expectation, based on the principles of good faith, that all
administrative authorities will take into account the requirements of the Covenant in their
decision making. Any such administrative remedies should be accessible, affordable, timely and
effective. An ultimate right of judicial appeal from administrative procedures of this type would
also often be appropriate29.

2.3.2 Independent Judiciary

Existence of independent and impartial judiciary is a requirement for public interest
environmental
litigation. It is the central organ where public interest environmental case is taken for action.
Independence requires separation of the judiciary from the political branches of government,
being the executive and the legislature, and also from all influences external to the court which
might lead it to decide cases other than on the legal and factual merits.

The judiciary, as the third arms of the government, has a vital role to play in enforcing executive
compliance with the law or, put another way, enforcing legality in governance and also makes
the executive accountable to the people. It also can ensure adherence in environmental decision-
making to the legislative object and mandate. Agency decision makers may stray from these for
many reasons30.

28
Y. Mulugeta Badwaza cited above note 35, p. 16
29
The Committee on Economic, Social and Cultural Rights, ‘The Domestic Application of the Covenant’
General Comment Number 9 (Ninth Session) UN doc. E/C. 12/1998/24, Paragraph 2.
30
A. Abate Bishaw cited above note 15, P 79
22
1
2.3.3 Remedial Flexibility and Adequacy
The need for remedial flexibility arises from the understanding of the inadequacy of existing
remedies intended to deal with situations where public interest is pursued. As far as remedies are
concerned, in most cases, law suits between private parties and the enforcement of legal right are
achieved through the attainment and execution of monetary judgment quantifying the established
harm. But this doesn’t ensure comprehensive environmental enforcement. A flexible remedy
may involve the courts‟ ongoing follow up and supervision of the enforcement and sustainability
of the relief it gave in a public interest litigation action31.

The remedies available need also to be adequate if environmental public interest litigation is to
be successful. The available court remedies depend on the type and nature of cause of action or
another legal suit. The remedies in environmental civil action may include declaration, an
injunction, orders in the nature of prerogative orders such as a mandamus or certiorari, monetary
damages, punitive damages, natural resource damages and restitution. And hence unless such
broad-spectrum remedies are available in the civil action mere recognition of public interest
environmental litigation as strategy will be futile. Administrative bodies also shall have
alternative remedies such as granting or refusing permits or making other administrative orders.

31
P.N. Bhagwati, Judicial Activism and Public Interest Litigation‟, (1985) 23 Columbia Journal
of Transnational Law, 568 Cited in Agrawal.
22
2
 CHAPTER THREE

Public Interest Environmental Litigation and Its Practices in Ethiopia

3.1 Introduction
This chapter devotes to see the recognitions of Public Interest Environmental Litigations and it
also address the legal problem under Ethiopian constitution and environmental legal frame works.
FDRE Constitution recognised the right to a clean and healthy environment under its different
provisions. The Constitution does not merely recognize the constitutional environmental rights.
It also determines the enforcement of constitutionally-entrenched environmental rights through
courts and other judicial bodies are the locus standing (standing) of the applicant. Standing
determines whether an individual or group of individuals or an entity has the right to claim
redress on a justiciable matter before a tribunal authorised to grant the redress sought. Standing is
a preliminary issue, the lack of which precludes any form of determination over the merits of the
case. Access to justice is indeed the conscience of any environmental right instrument.

In addition to that PIEL also recognized under Ethiopian pollution control proclamation and its
regulations; any person shall have, without the need to show any vested interest, the right to
lodge a complaint at the authority or the relevant regional environmental agency against any
person allegedly causing actual or potential damage to the environment. This sees avoiding any
restriction on interest (against traditional standing approach), has given all persons the right to
bring a case for administrative and court remedy.

With this in mind, above recognitions under environmental legal frames works. However, there
is the legal problem on its enforcement of environmental rights. From such highlights there is
the problem in legal such; the lack of immediate regulations, directive and strong institutions
highly affected on the PIEL in environment protections.

22
3
 3.2 The Impacts of Public Interest Environmental Litigation in
Environment Protection under Ethiopia
PIEL has been introduced into the Ethiopian legal system since 2002 with the prime purpose of
facilitating and complementing the environmental protection efforts of the country32. However,
in Ethiopia the experience of PIEL less and infant. Due to their judicial activism, legal culture,
political will, public perception towards law, judicial process and justice, the type of legal system,
the perception and behavior of the government towards civil society, and inadequate
environmental information have adversely affected the development of PIEL33.

Nonetheless, under article 37 of the FDRE Constitution which, as stated embodies right to access
justice is recognized applies to any action including violations of environmental rights. Article
37(2) provides that “the decision or judgment referred to under sub-article 1 of this Article may
also be sought by any association representing the collective or individual interest of its members;
or any group or person who is a member of or represents a group with similar interests”. Article
37(2(a) provides that for an association to bring a legal action, it must show an injury to the
collective or individual interest of its members 34. Hence, an association can challenge only those
actions that violate the rights of its members or its rights as an association. Therefore, an
environmental organization in Ethiopia can claim that pollution from an industry endangers the
lives of the group's members and thus its existence as a group.

As part of the move to realize the right, Article 11 the Pollution Control Proclamation has
introduced PIEL as one of the innovative strategies in the Ethiopian legal system, and has thus
opened the door for individuals and environmental rights advocacy groups to bring cases before
courts. Sub-article 1 of the provisions guarantees any person the right to “lodge a complaint at
the Environmental Protection Authority (hereinafter EPA) or the relevant regional environmental
agency against any person allegedly causing actual or potential damage to the environment”
without the need to show any vested interest 35. A complainant is granted with the same broad
right of standing before a court when the EPA or regional environmental agency fails to give a

decision within thirty days or when he/she is dissatisfied with the decision 36.However, is there

32
Y. Birlie, cited above note 11 p,305
33
Ibid
34
FDRE Constitution cited above note 5.1995. Art 37(2)
35
Environmental Pollution Control Proclamation 2002. Art 11(1), Pro. No 12. Fed. Neg. Gaz. Year 9 No.12
36
Ibid art 11(1)
22
4
are various questions that remain unanswered whether the suit can be filed against environment
protection authority or not. This will be affecting on PIEL on environment protection in Ethiopia.

3.2 Public Interest Environmental Litigations under the Ethiopian

environmental legal frame work
As see in the above introduction, is recognized environmental rights under FDRE Constitutions,
pollution control proclamation and its regulation. See it thoroughly under this…

3.2.1 Under FDRE Constitution

3.2.1.1 Accesses to Environmental Justice
The rights of every person to approach a court is fundamental role in environment protection
where its clearly stipulated under the constitution. As we see in chapter two 2.3, the recognition
of this standing right has been fundamental role in environment protections in south Africa and
in an Indian experience. In South Africa the issue of standing is covered by its constitution, the
standing right of every person to approach a court claiming in violation of fundamental the rights
included in the constitutional environmental rights. Suit can be brought by any one against such
person who violate or threaten the environmental right. The same like to south Africa the India
constitution provides the legal bases for the development of Public Interest Environmental
Litigation in environment protections, the supreme court of Indian given an original jurisdiction
over all cases concerning the fundamental freedoms enshrined in the constitution in general and
in environmental right in particular. This shows that both the Indian and south African
constitution clearly provides and addressed the issue of locus standing and the definition of
Public Interest Environmental Litigation with in their respective constitutions.
The FDRE constitution does not provides or contain very clear provision on the issue of standing
right and the definition of Public Interest Environmental Litigation in environment protection.
Despite of the constitutional silent in regarding to the locus standi the recognition of
environmental right in the constitution opens door for Public Interest Environmental Litigation in
environment protection. Although, the assertion is not without sense it may too much to try to
derive standing right or locus standi right from environmental law recognized in the
constitutional provision. It is important to search and to read some constitutional provisions
which provide environmental rights;

For instance, article 44(1), of FDRE Constitution says; all persons have the right to a clean and
22
5
 healthy environment37.Article 43(3) and article 89(8) of this constitution also provides; all
international agreements and relations concluded, established or conducted by the State shall
protect and ensure Ethiopia’s right to sustainable development38. Accordingly to these provisions
the right to development recognized, however without affecting the environmental rights of other
person. This ensured according to states ratified in international agreement and states has not
only ratified in its abstract rather they have the duty to protecting their environment through
enshrined under their laws. Under 89(8) government shall endeavor to protect and promote the
health, welfare and living standards of the working population of the country. In additions article
90(1),91 and 92 of the constitution. Under article 90(1) to the extent the country’s resources
permit, policies shall aim to provide all Ethiopians access to public health and education, clean
water, housing, food and social security. Article 91(2) Government and all Ethiopian citizens
shall have the duty to protect the country’s natural endowment, historical sites and objects.
Government shall have the duty, to the extent of the its resources permit, to support the
development of the arts, science and technology. Article 92 of FDRE constitution provides the
government and its citizens has the duty to protecting the environment from harm by any means.
And the government shall endeavor to ensure that all Ethiopians live in a clean and healthy
environment39. The constitution clearly provides that the duty to protect the environment is
imposed on both the government and the individual citizens. So, both have duty to protect the
environment from any damage, to create conductive environment and to bring about the legal
penetration of the above responsibilities on the government and the citizens we should have to
use the constructive constitutional interpretation to came up with environmental standing right or
locus standi that enables any one to bring environmental case and filed before the appropriate
environmental agency or the regular court.

The incorporation of these important provisions into the supreme law of the land has raised
environmental issues to the level of fundamental human rights. However, effective
implementation mechanisms (like laws, policies, and institutions) are needed to realize these
rights. For example, the Constitution in many places’ underlines consultation and community
participation as indispensable elements of development activities, but these still require
subordinate legislation to put effective mechanisms in place. Such legislation should oblige
government agencies to effectively reach out to the community, handle and respond to their

37
1995 of FDRE constitution cited above note 5 article 44(1)
38
Ibid 43(3)
39 50
Ibid 92(1)(4)
22
6
 concerns, communicate findings, and provide access to judicial review. It imposes an obligation
to the state has an obligation to protecting the environment and provides healthy environment to
their citizens. where the environment is damaged, it needs to be reversed to its original place.

When we read the above legal constitutional provisions in conjunction, they imply that everyone
has the right to live in clean and healthy environment, and the duty to protect the environment.
So, everyone is presumed to have vested interest when damage is done to the environment due to
unconstitutional act of administrative organs or any person. From this we can infer, the fact that
everyone could claim that he has interest in case when damage is done to the environment. Any
person has the right to bring his case before the appropriate body or regular court without the
need to show any personal injury that he had been specially and differently aggrieved by the
injuries to the environment. The constitution clearly provides that the duty to protect the
environment is imposed on both the government and the individual citizens. This will need
justice. The constitution also provides the access to justice according, article 37 of the
constitutions provision40. In which citizens are bring their environmental standing right or locus
standi that enables any one to bring environmental case and filed before the appropriate
environmental agency or the regular court. Sub article 1 of this constitution; This provision
guaranteed to everyone in Ethiopia has a right to claim. Everyone has the right to bring a
justiciable matter to and to obtain a decision or judgment by, a court of law or any other
competent body with judicial power”. 52 Moreover, to representing the environmental right sub
article 2 referred as; The decision or judgment referred to under sub-Article 1 of this Article may
also be sought by:(a) Any association representing the Collective or individual interest of its

members; or (b) Any group or person who is a member of, or represents a group with similar
interests41.Article 37(2(b)) that allows PIEL seems more plausible because during the enactment of the
FDRE Constitution, PIEL was in the mainstream in most countries and the protection of environment,
particularly with participation of all including NGOs, was a pertinent agenda of the time by the world
community. This provision expressly guarantees the right of access to justice for all persons
whether its claim is environmental or not. In fact, all claims are not justiciable to the court or the
court cannot be entertained in to the case and rendering the decision.

In fact, it says, everyone “it seems it is referring to individual parties claiming their own
interests”. Nevertheless, it could also be interpreted broadly to include juristic persons (societies)
40
Ibid 37
41
Ibid 37(2)
22
7
 who seek to litigate in pursuit of group or public interests. This is because in the specific
provision there seems to be no condition attached to interest specific to the person approaching
the court. The focus is rather on justiciability of the claim. And this sub article seems to ensure
that the door is wide open for nonstate actors or active citizens to satisfy its needs of access to
justice. These makes the courts would interest themselves and actively engage in broad social
issues, such as entertaining public interest cases and ensuring the right to a clean and healthy
environment42. Thus, whether environmental legislations are put in such a manner containing
specific environmental remedies for rights and duties in dispute and its enforceability are
determining factors for justiciable claim.

3.2.1.2 Locus standi (The Rights to Standing)

As discussed above, the term “everyone” can be construed broadly to include juristic persons so
long as there is no condition attached to interest specific to the person approaching the court. In
fact, when it says „everyone‟, it seems, it is referring to individual parties claiming their own
interests‟. Nevertheless, it could also be interpreted broadly to include juristic persons (societies)
who seek to litigate in pursuit of group or public interests. It can be construed broadly to include
juristic persons so long as there is no condition attached to interest specific to the person
approaching the court. The focus is rather on justiciability of the claim.

Under sub article (2) (b) of Article 37 and Article 84 (2) of the constitution is liberal approach to
locus standi Article 37 (2) (b) reads as any group or person who is a member of, or represents a
group with similar interests‟ whereas Art 84 (2) reads as „where any Federal or State law is
contested as being unconstitutional and such a dispute is submitted to it by any court or interested
party, the council shall consider the matter and submit it to the house of the federation for a final
decision.

42
Fasil Nahum, Constitution for Nation of Nations: The Ethiopian Prospect,1997, P.150
22
8
Indeed, environmental claims connote beyond group interest and represents, among others,
diffused or collective rights, rights of future generations, biodiversity and ecological balance.
According article 84(2) the powers and functions of the Council of Constitutional Inquiry
(hereinafter CCI) provides that, where any federal or state law is contested as being
unconstitutional and such a dispute is submitted to it by any court or interested party, the Council
shall consider and submit it to the House of the federation for a final decision.

The constitution seems to try to adopted broad locus standing for public interest litigation in
environmental case. Under the Ethiopian environmental laws. It is for these groups and public-
spirited individuals to engage courts and other organs with judicial competence by taking up
cases of significance to the development of environmental rights, the constitution reflects, the
locus standi, broad interpretation of environmental rights and the right to access to justices but
this is only by implications and derivative interpretations of some constitutional provisions, the
constitution does not provide clearly those necessary preconditions of public interest litigation.

The FDRE constitution also provides a civil remedy in case of environmental damage; all
persons who have been displaced or adversely affected as result of the state programs have the
right to commensurate monetary or alternative means of compensation in closing or relocation
with adequate assistance, the piece legislative Environmental law of Ethiopia also provides a
liability for a tort arises when a wrongful act complained of amount either to an infringement of
a legal private right or violation of the legal duty shall be made good, in terms of monetary
compensation or injunctions .In case of administrative remedy, any person who causes any
pollution shall be required to clean up or pay cost of cleaning up the polluted environment in
such a manner and within such period as shall be determined by the Authority or by the relevant
regional environmental agency.

22
9
When any activity poses a risk to human health or to the environment, the Authority or the
relevant regional environmental agency shall take any necessary measure up to the closure or
relocation of any enterprise in order to prevent harm. The administrative and legal measures could
entail among other things installation of sound technology, recycling of waste, cleaning up or
payment of the cost of cleaning up the polluted environment, and any measure up to the closure or
relocation of any enterprise in order to prevent harm, the seriousness of the Environmental wrong
doing has a consequence of criminal liability either imprisonment or fine, this covers in both
criminal code of Ethiopia and the Environmental piece legislations. This implies that the
environmental law tries to adopt a flexible remedy for any Environmental damage.

In sum, there are sufficient grounds to assume that the Constitution envisages a broad locus
standi regime that is conducive to public interest groups, to defend the environment and play a
role in the enforcement of environmental rights. It seems for these groups and public-spirited
individuals to engage courts and other organs with judicial competence by taking up cases of
significance to the development of public interest environmental litigation in Ethiopia.

3.2.2 Under pollution Control proclamation

Among several listed and available environment and environment related legislations, public
interest environmental litigation has been broadly recognized only under pollution control
proclamation. The Ethiopian pollution control proclamation article 11 reads: 1) Any person shall
have, without the need to show any vested interest, the right to lodge a complaint at the authority
or the relevant regional environmental agency against any person allegedly causing actual or
potential damage to the environment. 2) When the Authority or regional environmental agency
fails to give a decision within thirty days or when the person who has lodged the complaint is
dissatisfied with the decision, he may institute a court case with in sixty days from the date the
decision was given or the dead line for decision has elapsed43.

As discussed earlier in preceding chapter 2 this provision is a prototype public interest

environmental litigation provision in Ethiopian environmental law history. It has given full
recognition to deployment and development of public interest environmental litigation. Avoiding
any restriction on interest (against traditional standing approach), has given all persons the right
to bring a case for administrative and court remedy. Thus, one who can prove that an action

43
Environmental Pollution Control Proclamation2002, cited above note 46 Art.11
33
0
 (individual, organizational or government action) produces actual or potential environmental
damage can cause administrative or court action for environmental remedy. It has vividly made
damage to the environment of public interest.

The Proclamation establishes several environmental standards to ensure that socio-economic

development activities may not become counter-productive by inflicting irreversible and
disproportionate harm on the environment. It further enjoins everyone to refrain from polluting
the environment by passing the relevant environmental standards.

As the proclamation stated that, any person shall have, without the need to show any vested
interest, the right to lodge a complaint at the Authority [Federal Environmental Protection
Authority] or the relevant regional environmental agency against any person allegedly causing
actual or potential damage to the environment44.

When the Authority or the relevant regional environmental agency fails to give a decision within
thirty days or when the person who has lodged the compliant is dissatisfied with the decision, he
or she may institute a court case within sixty days from the date the decision was given or the
deadline for the decision has elapsed.57 As one can see from this article, standing is granted to
everyone to seek both judicial and administrative remedies. This means, a suit can be brought
against any person who is allegedly causing actual or potential damage to the environment. Thus,
compared to other environmental laws that do not contain stipulations on standing at all, the
Environmental Pollution Control Proclamation is an important piece of environmental legislation
on the issue of standing. This piece of environmental legislation is allowing the first liberalizing
right in protection of the environment in Ethiopia from this we can safely say that the
environment is more protected under the proclamation than the constitution.

3.2.3 Under Prevention of Industrial Pollution Council of Ministers’ Regulation

PIEL is also recognized under article 10 of Prevention of Industrial Pollution Council of
Ministers’ Regulation No.159/2008 which was issued as per Article 20 of the pollution control

proclamation provides that any person without the need to show any vested interest can submit
his complaint before the competent environmental organ (the Ministry of Environment, Forest
and Climate Change or Regional Environmental Organs) concerning industrial pollution 45. The
44
Ibid article 11(1)

45
Prevention of Industrial Pollution Council of Ministers’ Regulation No.159/2008, Art 10(1)
33
1
 competent organ to which the complaint is submitted is duty bound to respond to the
complainant within 90 days46. Any person dissatisfied with the decision of the competent organ
has 30 days to submit a complaint notice to the head of the competent organ who should issue
his/her decisions within 30 days47.

This were enacted as to the better implementation of PIEL in relation with the people
environmental rights without showing their vested interest, they can claim before the competent
environmental organ which available at both federal and regional states.

3.3 Major challenges concerning the implementation of Public

Interest Environmental Litigation
3.3.1 Under Environmental Legal frame works
However, the existing proclamation is not without problem it provides that, any person shall
have the right to lodge a complaint at the authority against any person allegedly causing actual or
potential damage to the environment the main defect of this legal provision is it denies the right
to lodge a complaint against the Environmental protection organs or institutions in case where
they fail to discharges their duty.

In short according to this article bring an action against any person is allowed however the
expression against any person refers to the persons who the actual cause or potential damage to
the environment this implies that the environmental protection organs do not cause damage to the
environment although fails to discharge their duty from this one can say that public interest
environmental litigation is not recognized against the environmental protection organ. This
doesn’t create suitable and conductive environment for effective use of PIEL but in order to
make the provision more effective it is possible to use broadly interpreted the word any person as

per article 2(10) to apply for both legal and natural persons so by this broad interpretation of the
law any environmental protection authority can be sued for failure to discharge their duty.

3.3.2 Standing Under the Civil Procedure Code Decree 1965

The standing law in Ethiopia generally requires a vested or personal interest in the case. Civil Procedure
needs a 'vested interest' to stand as plaintiff. It puts a prerequisite of a personal loss in the outcome of the

46
Ibid, Art 10(2)
47
Ibid, Art 10(3)
33
2
 case. This may be logical since the law is primarily meant to govern cases arising out of private relations.
In any case, courts accept suit in which the applicant may prove a vested interest 48. From this one can be

understand the traditional tort law does not protect the PIEL at all, but only protect the personal damage
or injury, this implies that the individuals cannot be bring any suit to the court representing the public
interest at large or on behalf of the Environmental damage. The law is gives very strict standing right to
individuals to gate remedy or redress by bring the case to the regular court.

3.3.3 Lacks of Enforcement by The Environment Protection Organ (Authority)

In Ethiopia, environmental authorities at federal and regional level are vested with enormous
powers. Among them includes: formulating policies, laws, strategies and to ensure the
implementation and enforcing the existing environmental laws in the country. The main
objective of these institutions is to protect the environment from any pollution and to ensure the
right to live in clean and healthy environment of the citizens. While discharging these huge
responsibilities, they may delay; miss deadlines, convert mandatory standards to discretionary
ones, create loopholes, water down strict statutes in the regulatory process, or simply refuse to
use their enforcement powers when faced with blatant violations.
From this we can say that the authority or the environmental organs are given wide power to make
law which is necessary to facilitate the duty belong to them 49. But, practically the organs are fails
to do for any reason, for lack of staff, financial strength or money and man power these agencies
fail to implement the existing laws and to enact laws which have not yet been enacted under which
they operate and environmental pollutions continues due to lack of capacity and

other reasons this makes public interest environmental litigation ineffective implemented in
Ethiopia. But in order to make them financially strength the government should be funds,
subsides to the agencies. It also gives a capacity building, educating, training and motivating to
the individual who are want to participate in the environmental activity and to these who want to
be came environmentalists.

3.3.3 Absence of Creations of Awareness Towards Public Interest

Environmental Litigation
The adoption of new standing right or PIEL is a recently developed that aims to protect the

Civ pro c., 1965 article 33(2

48

49
T. Berhane and M. Teklemedhn Mekelle University Faculty of Law, April 2008. Cited
above note 10. P 120
33
3
 Environment from any pollution or damages. This newly emerged right gives for individuals,
group members and the peoples at large, however a major segment of society remains unaware
and they ignore to exercise their rights under the constitution and other piece of environmental
legislations most of the society doesn’t know about public interest environmental litigation rather
they are familiar with the only traditional court adjudication system. Hence no one can Enforces
this environmental right for lack of creations of awareness or know how for that reason public
interest environmental litigation is not effectively apply in Ethiopia is one problem.

The people should have aware of about the public interest environmental litigation through
various ways, either informally or formally mechanisms. The government has to create
awareness creation to the public at large in order to make the people actively participate in the
protections of the environment by filing and presenting environmental case before the
appropriate body or before the regular court. By informally means it could be through mass
media, simply by informing the people at any time at and place. Formally, by teaching and
giving Environmental course law.

3.3.4 Court Are Passive on Environment Protection in Ethiopia

In Ethiopia the courts are not allowed to interpret the human right in general and environmental
right in particular because of the idea that the principle of legality prevents our judges from
environmental activist which is completely contrary against the very purpose of public interest
Environmental litigation the courts are not in a position to see constitutionality test. This implies
that how much the inherent power of the court is restricted to be active in the protection of the
environment by interpret the law and apply it. But when we come to in India legal system the
courts are very activist in the protection of the Environmental pollution by interpretating the
constitution and putting the justice in to the poor and marginalized society, so the in Indian courts
are very activist and play grate role to the protection of the Environment and serving justice to the
marginalized segment of the community so public interest environmental in India is effectively
implemented by judiciary activism.

But in case of Ethiopia the courts have a little chance to be activist in the protection of the
Environmental pollution or Environmental damage as Indian courts do, however despite of the
above assertion there are some provisions which empowers the courts to be active in the
protection of the Environment according to the Environmental pollution control proclamation
which clearly stated that everyone has the right to compliant against any person who cause
33
4
actual or potential damage to the Environment. Therefore, judges or courts can be actively
participated in the public interest litigation in regarding to the Environmental case. Furthermore,
the introduction of proclamation has potential to bring judiciary activism, it provides that any
interpretation of law made by the federal supreme court in its cassation jurisdiction shall be made
binding on federal as well as well as state courts this clearly show that the supreme court come
up with very proactive approach to human right in general and Environmental right in
particularly50.

3.3.5 Court Fee in Environment Proceeding

In civil litigation the cost of proceeding is bear on the plaintiff who claims for a certain damage.
Because the court cannot proceed with the case without court fee the case is rejected if the
plaintiff fails to pay the required amount of money. This court payment also apply in the Existing
Environmental case, at present the individuals are pay the Environmental litigation cost out of
their pocket, this can be discouraged the individuals, group members and other interested
persons who want actively participate in the protection of the Environment it is a
counterproductive to the Environment for that case any group member, individual must not be
pay the court fee .If group members are pays the cost out of individual or private in came they
will not happy to motivate and to Protect the Environment.

So, in order to motivate and encourage the government must be pay the court fee or cost
litigation in Environmental case, the individuals should be free from any burden. As I try to
indicate the above, now day the procedural law of the civil procedure code of Ethiopia is also
apply to the public interest environmental litigation which against the very purpose of public
interest. This makes the public interest procedure is highly depend on the traditional tort laws.

3.4 The practical Legal Problems Under Pollution Control Proclamation

The success of public interest litigation in general and particularly on environment litigation
depend on the use of the legal and institutional arrangements of the legal system must be flexible
to allow individuals to litigate in case of public nature. Public interest environmental litigation is
expressly allowed in Ethiopia in case of environmental rights even in these cases the procedures
for implementations are not clearly set. There is also no consensus on the interpretation of access
to justice the terms vested interest, interested person and person with interest are also defined
50
Federal court proclamation, re amendment proclamation no. 454/2005 article 2 (4)
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5
 neither by law nor by practice.

The general legal basis of Public interest environmental litigation in environmental law is also
not made clear in our legal system, this creates issue of standing which is also a major obstacle to
exercising public interest environmental litigation we have only one article that deal with the
standing right under the Environmental pollution control proclamation this implies that other
piece of environmental legislations is not recognized this liberalized standing 51. The lack of
clarity regarding to the power of the courts to interpret the constitutional provision and the
presence of financial, operational and awareness constraint on the part of the judiciary the public,
the claimants make the exercise of public interest environmental litigation is very difficult.

In respect to the formant the public interest environmental litigation form of pleading is based on
the civil procedure code this show as that how much the law is restrictive for public interest
ligation, so we have no comprehensive clear legal system on public interest environmental
litigation.

It must comprehensive both substantive and procedural requirements the legal rules should
relaxed to the extent possible to eliminate hurdles. The procedures for implementations should
clearly set out; there must be a consensus in the interpretation of law in public interest

environmental litigation. The active involvement of courts, Environmental authority and other
actors can play great role on the development of public interest environmental litigation in
environmental case. The legal development of public interest litigation cannot be realized only
by the act of legislation, we can take this from the Indian experience of judiciary activism in the
Environmental protection. In India the law is very clear both in substantive and procedural
aspects.

The other also imped on the development of public interest environmental litigation in Ethiopia
is the absence of immediate regulation and directive make concerned authority52.From this article
19, 20 and 5 Environmental Impact Assessment Proclamation has proclaimed the concerned
authority makes immediate regulation and directive. This also affecting on public interest
environmental litigation, if the concerned authority enacts such regulation and directive, that will
make it clear to exercising the right in relation to environment protection. In addition, article 6 of

51
Environmental Pollution Control Proclamation,2002, Cited above note 46. Art 11
52
Environmental Impact Assessment Proclamation No. 299/2002 article 19, 20, &5
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6
 pollution control proclamation53. This could be also affecting on public interest environmental
litigation, because such standards are not formulated means enforcement against environmental
standards causes difficulty.

CHAPTER FOUR

Conclusions and Recommendations

4.1 Conclusions
In a country where the government is the main actor of developmental activities, the role of
community participation in various forms in balancing the tension between development and
environmental protection is crucial. PIEL is one of the avenues for the participation of
communities in the decision-making process because it enables representatives, interest groups,
bona fide individuals and human rights NGOs to challenge the decisions of government agencies

and polluters in the court of law. However, PIEL is requires sufficiently recognitions and needs
to be defined under the national law of the country to protecting their environment. This doesn’t
enough to the existence of PIELs. It also requires the procedural pave to its implementation.
Because use to enforcing environmental rights to protecting the environment is depend on the
use of the legal and institutional arrangements of the legal system must be flexible to allow
individuals to litigate in case of public nature.

In Ethiopia, FDRE constitution silent in regarding to the locus standi the recognition of
environmental right in the constitution opens door for Public Interest Environmental Litigation in
environment protection. It requires the search and read some constitutional provisions which
provide environmental rights. It leads to the exhaustion to persuasion/convincing as the
environmental rights. However, PIEL has recognized only under pollution control proclamation
and under Prevention of Industrial Pollution Council of Ministers’ Regulation. It has given full
recognition to deployment and development of public interest environmental litigation. Avoiding
any restriction on interest (against traditional standing approach), has given all persons the right

53
Environmental Pollution Control Proclamation, Proclamation No. 300/2002, article 6
33
7
to bring a case for administrative and court remedy. Thus, one who can prove that an action
(individual, organizational or government action) produces actual or potential environmental
damage can cause administrative or court action for environmental remedy. It has vividly made
damage to the environment of public interest. Nonetheless, there is the different legal gaps are
faced to its procedural implementation under the environmental legal frame works that affected
on PIELs. In addition, to that it doesn’t still recognize under all environmental legal frame works
as a common base knowledge of all government body.

From these legal gaps one faced under EIA proclamation has not immediate regulation and
directive that make more clearing and defining the rights and obligations of environment
protections authority and the rights of people to protect their environment. Due to this fact, an
EPA doesn’t perform his obligations in relations to the graveness remedies to the violated
environment rights. Or the environmental case brings to him. In addition, EPA doesn’t judicial
scrutiny this makes avoid accountability of the agency and it’s also not responsibility for his
inaction of environmental litigation. Due it has an enormous power.

In addition to this under pollution control proclamation, an EPA in consultation with competent
agencies, has been made legally responsible to formulate practicable environmental standards for

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8
the sectors identified. However, there is no sectors with competent agencies is identified, that
will legally responsible to formulate practicable environmental standards. The fact that such
standards are not formulated means enforcement against environmental standards causes
difficulty.
Finally, the factor that affecting PIEL still unresolved issue is inaccessibility of environmental
information. Specially in a rural area of our country is still far away from the environmental
information. Even though, it is guaranteed constitutionally in practically its difficult in our
country. This will be exacerbated by the absence of administrative law that governs and ensures
the transparency of the procedures through which government entities exercise their power,
geographically landscape and financial capacity of the country. To sum in Ethiopian
environmental regime is characterized by a rule-oriented approach with low enforcement
capacity, but there are also legal lacunae in the implementation of policy documents. Legislative
action must establish standards for different environmental concerns.

4.2 Recommendations
 Public interest environmental litigation must need to be recognized under all
environmental law as a common base. In addition, the law should define the term
public interest environmental litigations and became clear with Environmental
standing right. I suggesting that the locus standing of environmental rights are need to
be recognized under all environmental laws. Furthermore, that standing rights need to
be clear and unambiguous. For instance, article 11(1) is need to be clear because it
creates an inconvenience to the claimants against whom they instituting suit. As per it
need to be either amended in a way that it applies to Environmental protection organs
or interpreted in favor of the environment protections. In addition to this Article (11/2)
of the same proclamation should not be counterproductive to the Environment.
 The government bodies should make regulations and directives that were needed the
regulations and directive that made clear the environmental rights such as standing
 Stronger institutions are needed, with extended mandates, experts, and resources in
order to coordinate and supervise activities down to the community level. This will
involve building the capacity of environmental protection agencies and other
stakeholders at both the federal and regional levels, actively involving all

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 stakeholders at the grassroots level, and creating strategic alliances and partnerships
among stakeholders. Moreover, local NGOs and women must be supported and
allowed full participation in all aspects of the development process, especially policy
formulation, analysis, and monitoring and evaluation of impacts.
 Governmental and nongovernmental actors and the donor community must
collaborate and coordinate their activities to avoid duplication of efforts, achieve
better results, and encourage the participation of different stakeholders in decision-
making at all levels.
 There must need to be cooperation among the EPA, courts and other actor in
protection of environment. There must be a consensus in the interpretation of law in
public interest environmental litigation. The active involvement of courts,
Environmental authority and other actors can play great role on the development of
public interest environmental litigation in environment protection.
 The necessary conditions attached with public interest environmental litigations must
be satisfied under the law. Whenever it satisfied under the laws it helps to effective
and efficiently protections of the environment.
 The government must bear the litigation cost on the Environment not on the
individuals.

40
Bibliography

BOOKS

PUBLISHED

 Black’s Law Dictionary (7th edition) 1999, 1229

 L. Stein (ed.) Locus standi, (1979)
 J. Bonnie, Standing to Sue: The First Step in Access to Justice (1999), preface.
 C. Tobias, ‘Standing to Intervene’ (1991) Wisconsin Law Review
 J. Cassels, ‘Judicial Activism and Public Interest Litigation in India: Attempting the
Impossible?’ (1989) Am. J. Comp. L., 497
 Judicial Handbook on Environmental Law (UNEP Publication, 2005)
 H. Shershkoff ’Public Interest Litigation: Selected issues and examples’ an article
 Pursuing the Public Interest: A Handbook for Legal Professionals, 214

UNPUBLISHED
 Federal teaching material prepared by Tsegai Berhane and Merhatbeb Teklemedhn
Mekelle University Faculty of Law, April 2008.
 YOSEPH MULUGETA BADWAZA 'Public interest litigation as practised by South
African NGOs: Any lessons for Ethiopia?' unpublished LLM thesis, University of
Pretoria, 2005

LAWS
 The Constitution of the FDRE OF 1995
 Civil procedure code decree, 1965
 Environmental Pollution Control Proclamation, Proclamation. No. 300/2002, Neg. Gaz.,
9th Year, No.2.
 Federal court proclamation, re amendment proclamation no. 454/2005
 Environmental impact assessment proclamation. No 299/2002

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  Environmental Protection Authority Establishment Proclamation 1995
 South African constitution Section 38
 Indian constitution
 Environment Protection Act Hearings Before the Subcommittee on The Environment of
The Committee on Commerce United States Senate Ninety -Second Congress since 1971

JOURNALS AND ARTICLES

 P Brain. Public interest environmental litigation can lobby for legislative and
administrative actions or reform in Australia Customs House, Sydney, NSW, 13 may
2005.
 William and M. environmental law policy review, Breaking the Trans substantive Pleading Mold:
Public Interest Environmental Litigation After Ashcroft v. Iqbal 2011
 Mrs. cristina Agudo, Spain Soc, Committee on the environment, agriculture and regional
Affairs 2002 April 16
 N. Bhagwati, Judicial Activism and Public Interest Litigation, (1985) 23 Columbia
Journal of Transnational Law
 Mohammed Seid; The Veer from Frontier Economics to Eco-development Paradigm:
Approaches, Policies and Strategies of Sustainable Development - The Case of
Environmental Governance in Ethiopia. Journal of Energy, Environmental & Chemical
Engineering.
 Odhiambo, M, Ochieng, Legal and Institutional Constraints to Public Interest Litigation
as a Mechanism for the Enforcement of Environmental Rights and Duties in Kenya at the
5th international conference on environmental compliance and enforcement
 Tumai Murombo Law Environment and Development Journal
 Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976).

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INTERNET
 http://www.pili.org/2005r/content/view/48/53/>
 Wikipedia https://en.wikipedia.org ›environment protection
 <http//: www.worldbank.org/publicsector/legal/PublicInterestLitigation.doc>
 http://www.legalblog.in/

INTERNATIONAL INSTRUMENT
 The Committee on Economic, Social and Cultural Rights, ‘The Domestic Application
of the Covenant’ General Comment Number 9 (Ninth Session) UN doc. E/C.
12/1998/24, Paragraph 2.
 Draft Principles on Human Rights and The Environment, E/CN.4/Sub.2/1994/9,
Annex I (1994

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