TNRC Beyond the institutional fix? The potential of strategic litigation to target natural resource corruption
Beyond the institutional fix? The potential of strategic litigation to target natural resource corruption
Strategic litigation has emerged as a crucial institutional space for contesting environmental and natural resource management (NRM) policies worldwide. In many contexts where conservation and NRM practitioners work, ineffective environmental regulations and the rule of law deficits have led to irreparable social and environmental damage, such as the diversion of scarce water from pressing local needs and the disruption of fragile ecosystems (Bell 2018). Corruption has enabled this damage, undermining regulations and promoting impunity for violating laws or causing harm.
Many efforts to control this corruption, such as freedom of information laws, reforming the civil service, and anti-corruption agencies, have not effectively reduced systemic corruption (Tacconi and Williams 2020; Heeks and Mathisen 2012). Causes range from implementation challenges (Mutebi 2008) to the changing context of natural resources extraction in remote developing country locations away from regulatory and anti-corruption agencies (Williams and Dupuy 2016). Anti-corruption approaches that cut across state and society may be more effective, if a combination of policy changes, institutional adjustments, and organizational mobilization can create sufficient support (Khan, Andreoni, and Roy 2019; Mungiu-Pippidi and Dadašov 2017).
Strategic litigation can be one such approach. It has been used to promote human rights and justice goals in the context of natural resource-driven economic development, connect harms suffered by vulnerable communities to polluters, and advocate for more significant information disclosures by corporations (UNEP and Sabin Center 2020). In the case of biodiversity conservation, strategic litigation can pursue corporate liability and the legal right to remedy when the environment is harmed and help prevent responsible parties from escaping liability for the harm they cause (Phelps, Aravind, et al. 2021).
In this context, this TNRC Brief addresses anti-corruption lessons conservation and NRM practitioners can glean from past attempts at strategic litigation, especially in the field of climate change mitigation and adaptation. This focus on climate change is justified for three main reasons.
- Practitioners working in NRM and climate change face common challenges, including the inherent difficulty of implementing international agreements and the need to rely on imperfect domestic regulatory solutions. Strategic litigation offering a valuable means of connecting actors and issues across multiple scales and national boundaries, and so “may serve as a source of regulation well suited to the complexity of the problem” (Peel and Osofsky 2015). In this way, strategic litigation can offer opportunities to catalyze improved domestic regulations (Osofsky 2010).
- Strategic litigation can act as an alternative avenue to progress anti-corruption goals in settings where conventional state regulatory tools are weak or unduly influenced by private and/or corporate interests (Blackman 2008). Strategic litigation can be subject to those same limitations of weak institutions and the state's unwillingness or incapacity to enforce court rulings. However, when conducted simultaneously with other forms of influence such as media campaigns and lobbying initiatives, strategic litigation can bring to bear general awareness and public discussion and debate. Those efforts can have impacts far beyond the primary aims of individual cases (Mirocha 2019).
- Strategic litigation offers potential opportunities to address corruption risks along globalized natural resource commodity supply chains, building on the role such litigation has played in addressing climate change issues across various levels of governance (Peel and Osofsky 2015).
In the following sections, this Brief surveys the history of the strategic litigation concept, explores the three trends that have emerged in its use, and closes with a set of anti-corruption lessons for conservation and NRM practitioners.
Growth of strategic litigation in NRM
The evolution of strategic litigation in environmental and NRM sectors has had four important impetuses.
First, efforts focusing on rights, laws, and multi-level governance concerning the environment and natural resources have dominated recent efforts to resolve environmental problems. Beginning in the 1980s, environmental sustainability debates were dominated by the unequal distribution of environmental “bads” such as pollution and the inequitable access to environmental “goods” such as clean open space. Debates also focused on the situation of polluting industries and the role of the legal system in enforcing environmental law and upholding environment rights and responsibilities. These debates, in turn, fed into the continual evolution of the role of courts and legal systems in implementing environmental laws and policies. Those policies provide the foundation for environmental sustainability, including participatory decision-making and protection of vulnerable groups from disproportionate negative environmental impacts.
A second impetus is perhaps the most crucial reason for the increased use of strategic litigation. National regulatory bodies have largely failed to effectively make and enforce the regulations and legislation required to address the adverse impacts of climate change (Fisher 2013). Despite a surge in national and transboundary environmental laws and treaties, the enforcement of environmental law remains a significant challenge. This is especially true in developing countries due to factors such as lack of institutional capacity, lack of competence of relevant enforcement officials to enforce legislation, and lack of information and national guidance materials on enforcement. All of these operate to weaken the effectiveness of the law for protecting the environment and preventing environmental degradation.
Third, strategic litigation actors have been encouraged by the growing political importance of international courts and tribunals. Specifically, those institutions have developed a global environmental law framework to manage environmental risks and protect biodiversity from the adverse effects of human economic activity (International Bar Association 2014). There has also been a corresponding growth in global treaties and conventions that aim to monitor climate change (Birnie, Boyle, and Redgwell 2009) and national legislation and international law on indigenous groups and their rights to natural resources (Gilbert 2020).
Finally, the scope and impact of rights work by non-governmental organizations (NGOs) and environmental NGOs (ENGOs) have put environmental issues on the international agenda. Efforts to protect and improve the environment globally, nationally, and locally have expanded access to legal systems and mechanisms that can provide redress for various grievances (Cassel 2008).
Trends in strategic litigation as applied to NRM and anti-corruption
Strategic litigation has tended to focus on domestic and international regulatory efforts to address climate change and shape climate governance (Osofsky 2005; Osofsky and Peel 2013; Peel and Osofsky 2019). However, recent trends indicate the increasing use of strategic litigation in diverse areas. In corruption, for example, victims might sue for compensation, restitution, or other relief from corrupt government officials and private parties (Stephenson 2016). This section explores three broad trends in strategic litigation in NRM:
- Strategic litigation of corruption and strengthening anti-corruption enforcement;
- Strategic litigation of NRM governance; and,
- Strategic litigation around transnational governance and sustainability of natural resources.
Strategic litigation of corruption and strengthening anti-corruption enforcement
Enforcement of anti-corruption laws and policies is critical for curbing corruption, and strategic litigation has been used to that end. Aided by the growth in domestic legislation and international and regional treaties proscribing corruption (Open Society Institute 2005), strategic litigation has been employed to address two main challenges that flow from corruption.
Mitigating corruption and strengthening enforcement of anti-corruption policies. Especially where public bodies like anti-corruption agencies and law enforcement agencies have failed to act, NGO-led anti-corruption actions have provided new avenues for litigating corruption. NGOs have brought cases on behalf of alleged victims of corruption to domestic and international courts to seek remedies, including compensation, restitution, or other relief from corrupt government officials and private parties (Stephenson 2016). In the 2017 case APDHE v. Equatorial Guinea, the Spanish human rights organization Asociación pro Derechos Humanos de España (APDHE) and others filed a complaint to the African Commission on Human and Peoples’ Rights against the Government of Equatorial Guinea for systematic corruption, including misappropriation of land and diversion of the oil wealth by the ruling Obiang family (Hurwitz 2005). Although the African Commission declined to hear the case on the basis that the applicants had not exhausted domestic remedies, the case unraveled a network of corrupt dealings. Revealed details of resource-based corruption created opportunities for legal action in Spain and a US Senate investigation into the accounts of Equatorial Guinea’s president and his associates in Riggs Bank in the US (Sanz 2019). Following an investigation by the US Justice Department, Riggs Bank was fined USD 25 million for federal criminal violation of the US Bank Secrecy Act due to its failure to report suspicious transactions in the accounts (Open Society Institute 2005).
Promoting transparency and advocating for greater information disclosure in NRM. Via freedom of information laws, NGOs have brought cases seeking access to government and corporate information critical to curbing corruption associated with natural resource extraction. For example, a frequent target for public disclosure is money paid and received by governments, to make the corruption and adverse impacts of resource extraction (human rights violations, degradation, and violation of free prior and informed consent rules) difficult or impossible to conceal (Open Society Institute 2005). This is illustrated by successful litigation action in the 1998 case of Claude Reyes v. Chile. In this case, the Inter-American Court of Human Rights (IACHR) granted a request for information originally submitted to and refused by the government of Chile. The Court cited guarantees to the right to such information by the American Convention on Human Rights in its decision.
Other actors have turned to strategic litigation to obtain disclosure of more information about the nature and impacts of natural resource investments. Litigation strategies include challenging misleading corporate statements, government-initiated cases to enforce consumer protection laws, and NGOs challenging alleged “greenwashing” campaigns (UNEP and Sabin Center for Climate Change Law 2020). For instance, in the 2020 O’Donnell v. Commonwealth case, investors alleged that the Australian government breached its obligations when it failed to disclose climate change risks in term sheets and information memoranda on two classes of exchange-traded government bonds. In the 2018 People of the State of New York v. Exxon Mobil Corporation, the defendants were accused of engaging in a scheme to deceive investors by, among other things, stating one proxy cost of carbon publicly but applying another in internal guidance. While unsuccessful in the particular case, the precedents established may have positive future implications for similar company disclosures.
Strategic litigation of NRM governance
Strategic litigation in NRM governance is rooted in a deliberate process of collaborating with affected people to identify advocacy goals and the legal means to achieve changes in law, policy, practice, and the lives of actual people harmed by injustice. The core issues in strategic litigation of NRM transparency and governance fall under three broad areas:
- Promotion of climate change regulations and environmental protection;
- Promoting accountability and remedying biodiversity loss; and,
- Litigating human rights and protection of minority and Indigenous peoples in NRM.
Promotion of climate change regulations and environmental protection
Litigation has become a central strategy to meet international climate change mitigation and adaptation goals. While most climate change governance strategies focus on risk analysis and preventive measures for climate-related threats, climate change litigation centers on the question of who is responsible for climate change and how relief can be provided to affected communities and states. It focuses directly on the gaps between governmental regulatory efforts and the goal of sustainable futures (Osofsky and Peel 2013).
Strategic litigation employed in the field of climate change takes two primary forms: litigation as a response to the inadequacies of government regulatory efforts (Osofsky and Peel 2012) and litigation against government actors for rights violations as a result of climate change.
Challenging domestic (non)enforcement of laws and environmental regulations by states. Litigation against states often involves a call for priority actions such as regulating carbon emissions, ensuring the participation of local and indigenous communities, and instituting adaptation measures. For example, a First Nations group filed the 2020 case Lho’imggin et al. v. Her Majesty the Queen against the Canadian government. They challenged the Canadian government’s approach to climate change, alleging that Canada failed to meet its international commitments, and cited the impacts of warming on their communities as the resulting damage. While the initial case was dismissed on the grounds that it “was not justiciable, had no reasonable cause of action, and the remedies were not legally available,” the group later appealed, and the case is still being determined.
Two similar cases come from Africa. A group of CSOs in Uganda brought a recent lawsuit in the East African Court of Justice, seeking to stop a planned East African Crude Oil Pipeline. As justification, the case cites the lack of proper environmental, social, human rights, and climate impact assessments by the governments of Tanzania and Uganda. Another example is the 2005 decision of a Nigeria federal court ordering the government of Nigeria and oil company Shell to stop gas flaring in the Niger Delta. The court considered the practice a violation of the Iwherekan community’s fundamental rights of life and dignity guaranteed in the Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples Rights.
Strategic litigation can also seek to create new regulatory pressures and policy precedents for positive environmental outcomes (Ghaleigh 2010). For example, Alvarez et al. v. Peru, filed by seven young Peruvians against their government in 2019, is seeking to create concrete goals and objectives to reduce net deforestation in the Peruvian Amazon to zero by 2025. Litigation as a regulatory tool has been particularly prominent in the United States and Australia, where lawsuits under environmental law have served as a primary driver of new regulations (Osofsky and Peel 2013). For instance, the US Supreme Court’s 2007 decision in Massachusetts vs. MPA classified greenhouse gases as a regulatable pollutant. However, courts can also be an arena for reactive “anti-regulatory” climate lawsuits (Markell and Ruhl 2012). In response to a petition by coal companies and some supportive US states, the US Supreme Court took up a case in 2021 that may limit or overturn its 2007 decision.
Promoting accountability and remedying biodiversity loss
Strategic litigation efforts on biodiversity have tried to operationalize liability for conservation by defining harm, identifying appropriate remedies to that harm, and understanding allowable remedies under the law (Phelps et al. 2021). In a recent lawsuit in Indonesia, litigants WALHI North Sumatra and the Medan Legal Aid Institute (LBH) demanded that a zoo raided for keeping protected species without legal permission pay to rehabilitate the animals and fund patrols and education to prevent IWT in the future.
Courts have consistently recognized various types of environmental harm and delivered important decisions with strong deterrence effects (Phelps et al. 2021). Also from Indonesia, relevant precedents include Dedi et al. v Perum Perhutani et al., where the defendants were held responsible for the economic harm to a nearby community caused by their illegal logging on a slope. In another important case, The Ministry of Environment v PT Kallista Alam, the court ruled that the environmental harm caused by a fire within PT Kallista’s plantation concession area impacted the biodiversity of that site and the genetic resources of the affected species. Notwithstanding these examples, these kinds of lawsuits are rare in the global south and biodiversity hotspots (Phelps et al. 2021).
Litigating human rights and protection of minority and Indigenous peoples in NRM
Cases in this category tend to be filed before local courts, regulatory institutions, and international bodies by civil society actors. Relevant issues include holding governments and corporate actors accountable for the adverse effects of resource extraction and recognition of fundamental rights for present and future generations. Most positive strategic litigation cases in this category include monetary damages, the allocation of compensation, and/or creating special development funds to compensate communities for the losses they suffered. The courts have also been used to affirm the pre-existing land rights of Indigenous peoples and associated cultural connections to the land. For example, decisions in the Malaysian cases Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors and Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors created a precedent of “native title,” recognizing traditional land rights as a source of the welfare of native peoples.
Transnational governance and sustainability of natural resources
Finally, three litigation strategies have emerged to push the limits of environmental rights.
First, intergenerational responsibility efforts have sought to defend the rights of future people. In the 1993 case Oposa v Factoran, for example, the Supreme Court of the Philippines agreed with arguments for present obligations to future generations. This growing acceptance aligns more or less with the principle of intergenerational equity (Slobodian 2019).
Second, another emerging avenue for climate litigation is based on transnational mitigation efforts, such as Reducing Emissions from Deforestation and Forest Degradation (REDD+). Programs and commitments like REDD+ create space for strategic litigation efforts as well as broader action to shift norms and behaviors beyond any specific case.
Third is wild law, based on the idea that humans do not have an explicit right to destroy our natural environment and that ecosystems’ rights surpass the interests of any one species, including humans. Wild law has, in turn, given rise to new forms of strategic litigation in NRM. For instance, in Bolivia the national constitution was amended to give nature equal rights to people. This has increased requirements for mining companies operating in the country to adhere to strict environmental standards.
Anti-corruption insights from the global application of strategic litigation
First, strategic litigation is more effective when part of a broader, long-term, multi-tactic advocacy strategy. Advocacy, in conjunction with litigation, can mobilize affected peoples, build coalitions of similarly-minded organizations and partners, and help secure favorable judgments beyond home countries (Open Society Institute 2005). In both APDHE v. Equatorial Guinea and Claude Reyes v. Chile, the litigation was anchored in advocacy, and broader campaigns in multiple jurisdictions sought to drive accountability. While Claude Reyes v. Chile was lost in its home country, it received a favorable ruling from the IACHR. And while APDHE v. Equatorial Guinea was ultimately denied, it was part of broader effort involving other cases and coordination and information sharing between local and international NGOs. That broader effort helped focus attention on, and achieve some accountability for, the corruption committed.
Second, strategic litigation can help enforce NRM and anti-corruption laws at higher jurisdictional levels. It can contribute to the enforcement of international treaties and related state obligations, and effect legal and policy changes needed for anti-corruption initiatives in NRM. Cases such as Massachusetts v. EPA in the United States and the 2019 case Urgenda Foundation v. State of the Netherlands in the Netherlands have shaped planning and environmental laws and the duty to take climate change mitigation measures (Peel and Osofsky 2019). This indicates that there are opportunities to change the law and impact policy in NRM and anti-corruption. For example, strategic litigation targeting NRM corruption at the local level may be used to trigger anti-corruption law enforcement and help bridge the gaps between anti-corruption law and its adequate enforcement. This lack of enforcement is a key obstacle in the effective implementation of anti-corruption policies (Kolstad, Søreide, and Williams 2008).
Third, proactive targeting of high-carbon emitting projects or policies could provide incentives for government and corporate actors to disclose information relevant to goals beyond carbon mitigation, like anti-corruption in NRM (Kim Bouwer and Setzer 2020). Reducing information asymmetries between project proponents and beneficiaries is a key factor for improved natural resource governance (Ensminger 2017). Recent successful cases like Save Lamu et al. v. National Environmental Management Authority and Amu Power Co. Ltd in 2016 have secured state obligations to provide effective information on economic development projects via EIAs, licenses, planning rules, subsidies, allocation/ trading of carbon credits, etc. This, in turn, could help reduce corruption risks associated with opacity in natural resource governance and commodity supply chains.
Fourth, collaboration and networking are immensely important for protecting the rights of vulnerable groups. Previous cases have underscored this importance for managing the adverse effects of climate change on vulnerable and Indigenous peoples with inadequate adaptation capacity. Similarly, strategic litigation can help hold corporations accountable for harms committed in resource extraction, even if the governments where the harms take place are unwilling or unable to act. Legal action in host countries might promote prosecutions of harms committed by home corporations, as exemplified by the case of the French Association Sherpa on behalf of Cameroonian victims of logging activities undertaken by a subsidiary of a French company (Open Society Institute 2005). In fact, a distinctive feature of litigation in the Global South is the number of human rights or (environmental) constitutional rights claims asserting failures of climate mitigation or that adaptation measures violate rights protections (Peel and Lin 2019). Since strategic litigation allows multiple actors to engage and collaborate at different scales in a broader dialogue (Osofsky 2005), it could have significant impacts on the capacity of the public to help strengthen the environmental rule of law in addressing corruption (Nemesio 2015).
Finally, strategic litigation can help advance governments’ accountability to their citizen’s collective rights. Litigants worldwide have sued corporations and regulatory bodies' efforts to deliberately or negligently bypass human rights due diligence and environmental and social impact assessments (EIA) for mega natural resource projects. Recent successful cases, such as Save Lamu et al. v. National Environmental Management Authority and Amu Power Co. Ltd and EarthLife Africa Johannesburg v. Minister of Environmental Affairs in 2015 have prohibited constructing high carbon-emitting infrastructure for violating EIA regulations. While there was no direct evidence of corruption, violation of the regulations and lack of proper and meaningful public participation suggested gross negligence or even deliberate attempts to contravene the law. Strategic litigation thus has the potential to hold governments accountable, not only for their NRM regulatory responsibilities, but also for corruption in NRM.
Limitations and risks of strategic litigation
Despite the many potential advantages of strategic litigation for pursuing anti-corruption goals in natural resource governance, several limitations and risks should be considered before selecting it as a tool for social transformation. There are three main criticisms: enforcement mechanisms, abuse potential, and high cost.
First, since the core of strategic litigation is based in law, challenges can occur if relevant authorities do not accept or comply with legal judgments against them (Gloppen 2018). This can reduce the regulatory and rights-protection impacts of strategic litigation, requiring the additional efforts outside the courtroom that are also often part of the broader strategic litigation concept. However, those efforts have additional risks and costs associated with them.
Second, strategic litigation can potentially be abused by influential stakeholders. Corporations and governments can use litigation to institute extra-legal regulatory rollbacks and other attempts to undermine climate protections (Adler 2019). Courts can also be an arena for the pursuit of “strategic lawsuits against public participation,” also known as SLAPP suits. In these suits, the goal is to “intimidate, censor, disparage, burden, and punish activists” and drain the resources of individuals and NGOs pursuing political or social activism to undermine their public engagement and discourage them from future activism (Verza 2018; Paige 2014).
Third, confrontational efforts like strategic litigation can have negative repercussions. It may limit future paths to success by excluding collaborative options, and confrontation in one policy arena may spill over into others. In cases where practitioners have existing, collaborative relationships with officials, alternative dispute resolution mechanisms may offer a viable alternative (Michel 2010). More direly, confrontational approaches can provoke backlash. NGOs and individuals bringing litigation against governments and corporations are increasingly threatened, attacked, and labeled as dangerous criminals or accused of being a threat to national security.
Finally, strategic litigation can be a prohibitively costly strategy with uncertain outcomes. Direct costs can include legal and administrative expenses, fees, fines, and awards of damages (Setzer 2020). The expensive nature of strategic litigation coupled with uncertain outcomes could lead to early termination of claims and the discontinuation of proceedings. Even if continued, strategic litigation can take years to resolve, and “frequently litigation has a “long tail” with the full effects manifesting much later down the line” (Kim Bouwer and Setzer 2020).
Conclusion and recommendations
The recent history of strategic litigation since the mid-2000s shows that courts and international tribunals have considerable potential to shape the behaviors of regulatory agencies, corporations, and individuals. Anti-corruption efforts in conservation and NRM could significantly benefit from some of strategic litigation’s accomplishments, like information disclosures, enforcement of legal accountability, and reversal of policies and decisions resulting from improper practices.
However, as the limitations above suggest, strategic litigation approaches will not be appropriate in all contexts. Practitioners should carefully consider the tradeoffs and consult with trusted expertise familiar with the local social, political, and legal context. Other strategies may achieve conservation and anti-corruption goals more quickly or safely.
Should practitioners decide to pursue this approach, two concluding lessons from the past application of strategic litigation should be considered to strengthen anti-corruption work in NRM.
First, the design of any anti-corruption litigation should include broader advocacy and action in multiple jurisdictions (local, regional, and international courts and tribunals) through coordination and information sharing among local and international NGOs. Through action in multiple jurisdictions, NGOs can raise awareness about corruption and help drive accountability for it, especially if corporations headquartered in a country with strong environmental rule of law are involved in the corruption. Moreover, strategic litigation can raise the profile of environmental corruption and, potentially, deter violations. If successful, it could secure punishment for corruption and remedies for harm suffered due to corrupt practices. But even if individually unsuccessful, public cases can promote the expectation that those responsible for NRM must operate within the law and regulatory standards, including anti-corruption laws, or face action that could result in significant negative publicity.
Second, strategic litigation may be important to vindicate victims of climate change impacts, human rights violations, and negligent actions caused by corruption. In particular, it can allow opportunities for the declaratory vindication of the rights of politically, economically, and legally marginalized communities and help victims receive legal remedies and material benefits. Appropriate standards for establishing harm and the legal remedies available are needed, but strategic litigation can help address problems like large-scale harm to biodiversity and the illegal wildlife trade, and identify potential remedies (Phelps et al. 2021).
 Dedi, et al v Perum Perhutani, et al, Court Decision No. 49/Pdt.G/2003/PN.Bdg jo. Appeal Court Decision No. 507/Pdt/2003/PT.Bdg jo. Supreme Court Decision No. 1794 K/Pdt/2004.
 The Ministry of Environment v PT Kallista Alam, Court Decision No. 12/PDT.G/2012/PN.MBO jo. Appeal Court Decision No. 50/PDT/2014/PT.BNA jo. Supreme Court Decision No. 651 K/Pdt/2015 (cassation) jo. Supreme Court Decision No. 1 PK/Pdt/2017 (review).