Fighting dirty business: litigating environmental racism

11 July 2000

Barbora Kvočekova¹

Chester, Pennsylvania, U.S.A., is a small industrial city of roughly 42,000 inhabitants, sixty-five percent of whom are black.² The rest of Delaware County, where Chester is located, is ninety-one percent white.³ By the 1980s, Chester had one of the highest crime rates in the state, the poorest schools in the state, and dramatically lower median incomes than the remainder of the county. Chester also had the highest child mortality rate in Pennsylvania, the lowest birth rate, and among highest death rate due to certain malignant tumours.⁴ These conditions led city government officials to adopt policies aimed at encouraging anyone and everyone to bring jobs to Chester. As a result, as of 1999, Chester had one of the highest concentrations of industrial facilities in Pennsylvania and was home to numerous hazardous waste producers and two oil refineries.⁵ Moreover, since 1987, the Pennsylvania Department of Environmental Protection (PADEP) has issued seven permits for waste facilities within Delaware County, five of which are located in Chester.⁶

Residents of Chester complained that the town was plagued by the smell of acid and by thick smoky air, and that dump trucks hauling toxic waste passed through residential neighbourhoods up to six days a week, fifteen hours per day.⁷ Official assessment studies in 1994 revealed "unacceptable cancer and non-cancer risks" including abnormally high levels of lead in the bloodstream of children living in Chester, traceable to the air-borne emissions from the city's various toxic waste facilities.⁸ In 1996, the inhabitants of Chester filed a law suit against PADEP alleging that the process used by PADEP to determine whether to grant a permit for a waste-processing facility had discriminated against the minority community by "concentrating the burden of pollution and the negative health effects it causes within the African American community in Chester while leaving the white residents of Delaware County essentially free of the pollution their waste caused."⁹

Chester is a typical example of a phenomenon that in recent years is referred to as "environmental racism" or "environmental injustice". These terms represent the claim that members of racial and ethnic minorities suffer from disproportionate exposure to environmental hazards, such as automobiles, industrial factories, both legal and illegal hazardous waste sites, incinerators and other sources of pollution.¹⁰ Moreover, environmental abuses often result in various exposure-related illnesses, and bring about significant increases in the rates of cancer, asthma, chronic bronchitis, emphysema and other respiratory diseases, reproductive and birth defects, immunological problems, and neurological disorders.¹¹ These health risks are often coupled with limited access by minorities to adequate health care facilities that specialise in, or even recognise, health effects resulting from environmental exposure. The "environmental justice" movement, though controversial,¹² seeks to remedy this inequity.

The environmental justice movement originated in response to public outcry in communities like Chester. An incident in Warren County, North Carolina, is commonly acknowledged to be the event that first brought attention to the movement against environmental racism. In 1982 protesters attempted to prevent the location of a polychlorinated biphenyl plant in a predominantly black community. Although the effort was ultimately unsuccessful, it focused national attention in the United States on the issue of inequities in hazardous waste facility location.¹³

In response to the Warren County protests, civil rights and other groups have conducted a variety of studies to assess the correlation between an unhealthy environment and minority populations. For example, in 1983, Dr Robert Bullard, a professor of sociology, published a study on location of solid waste facilities and incinerators in Houston, Texas. Dr Bullard concluded that 80% of the incinerators and 88% of the landfills in the city were located in minority neighbourhoods.¹⁴

The United Church of Christ Commission for Racial Justice conducted and published a study in 1987 evaluating the connection between the location of commercial waste treatment, storage and disposal facilities and uncontrolled toxic waste sites on the one hand, and the racial and socio-economic characteristics of the region in which these sites were located on the other. The study concluded that a strong correlation exists between race and the location of hazardous waste facilities. Additionally, the study showed that the racial factor was statistically more significant than income or property value in predicting the presence of facilities.¹⁵ Another study by Eric Mann, conducted in 1991 in the heavily populated South Coast air basin of the Los Angeles area, estimated that over 71% of African Americans and 50% of Latinos reside in areas with the most polluted air, while only 34% of whites live in highly polluted areas.¹⁶ Numerous other studies have reached similar conclusions.

However, some studies have sought to downplay the role of race and instead emphasise problems associated with the economic and political weakness of the neighbourhoods concerned. Some writers have called attention to the fact that historically, poor people do not have the economic means to leave environmentally risky neighbourhoods for resettlement elsewhere. At the same time, hazardous waste facilities frequently offer economic benefits, such as new jobs, tax revenues and a boost to the local economy. When faced with a choice between improvements in economic conditions or environmental quality, poor communities often opt for increased income.¹⁷ Industries that pollute are attracted to poor neighbourhoods because land values, incomes, and other costs of doing business are lower. A related and equally serious concern is the lack of any real political power on the part of low-income groups. Industries are drawn to poor neighbourhoods where political power and community resources to fight back are weak or lacking. Higher income areas are usually more successful in preventing or controlling the entry of polluting industries into their communities.

Many environmental justice activists respond that race and class discrimination are intertwined and cannot be separated,¹⁸ especially because housing discrimination often makes it difficult to find alternative dwellings at affordable rates. Also, minorities are particularly vulnerable because generally they are perceived as politically powerless and passive citizens who are less aware and concerned with environmental issues and will not protest against the poisoning of their neighbourhoods.¹⁹

Prompted by the results of environmental justice studies, and in acknowledgement of the issues of serious concern raised by them, the federal government of the United States and many American states have enacted statutes that attempt to minimise the environmental burdens levied on minority communities. For instance, on February 11, 1994, President Bill Clinton signed Executive Order 12,898, requiring federal agencies to make environmental justice part of their missions.²⁰ The Executive Order requires each agency to develop its own environmental justice strategy, to participate in an inter-agency working group on environmental justice, and to collect and analyse data concerning the environmental and health risks borne by populations identified by race, national origin, and income.²¹

Although international discourse on environmental racism is limited compared to the United States, analogous concerns have arisen on the international scene as well. Over the past decade or so, international human rights bodies and non-governmental organisations have increasingly recognised the human impact of environmental degradation as a legitimate human rights concern. For example, the Stockholm Declaration, developed at the 1972 United Nations Conference on the Human Environment, recognises the link between discrimination and environmental protection. The first Principle of the Declaration provides: 

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies of apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.²²

The passage is significant as one of the first efforts to clearly link human equality and well being with environmental quality. This effort was consolidated twenty years later at the 1992 United Nations Conference on Environment and Development in Rio de Janeiro, when the participating states declared:

Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.²³

Between these conferences, in 1989, the United Nations began formally to address the issue of discrimination and the environment through the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. The Sub-Commission, a subsidiary body of the UN Commission on Human Rights, initiated a study focusing on the connection between human rights and the environment.²⁴ That study involved the appointment of then Sub-Commission member Fatma Zohra Ksentini as UN Special Rapporteur on Human Rights and the Environment and culminated in the publication of Ms Ksentini's Final Report in August 1994. In her report, Ms Ksentini also addresses the position of the most vulnerable groups, including minorities, children, the disabled and environmental refugees.²⁵ In May 1994, an international group of experts on human rights and the environment, including Ms Ksentini, met in Geneva and produced a Draft Declaration of Principles on Human Rights and the Environment.²⁶ The Draft Declaration, with its twenty-seven environmental human rights principles, is the first instrument comprehensively to address the environmental dimension of human rights. The third Principle of the Draft Declaration recites environmental justice as a human rights principle:

All persons shall be free from any form of discrimination in regard to actions and decisions that affect the environment.²⁷

Legal strategies to combat environmental racism

Litigation addressing environmental racism generally employs two instruments: environmental laws and international human rights law.

A. Environmental legislation

One approach to protecting environmental equality has been through the use of environmental legislation.²⁸ Environmental laws traditionally focus on protection of the environment: some protect particular natural resources (but generally not people),²⁹ while others regulate specific facilities or activities or impose liability for creating environmental hazards. In general, these laws create guidelines for managing the full spectrum of activities which may produce environmental harm including production, transport, and waste treatment and disposal. They usually require a producer or developer to obtain a permit or license to operate a given facility.

Environmental justice may be furthered by attacking a defendant's procedural compliance with existing environmental laws. For example, in the American case El Pueblo para el. Aire y Agua Limpio v. County of Kings,³⁰ Hispanic residents of Kettleman City, California - a predominantly Latino community - successfully challenged the discriminatory establishment of a hazardous waste incinerator in their community. In the El Pueblo case, a California superior court found several violations of the California Environmental Quality Act's public participation requirements, most notably a failure to provide local residents with a Spanish translation of pertinent documents, namely the environmental impact assessment, public meeting notices, and public hearing testimony.³¹ The court held that such a failure effectively precluded those residents from meaningful participation in the environmental review process. In the words of the decision, "providing the materials in Spanish would enable Spanish-speaking residents to counteract the systematic bias that led to the selection of their community as the site for a toxic facility in the first place."³² Based on its findings, the court overturned the approval of the facility.

Environmental anti-racism activists can also seek to eliminate harmful practices arising from discrimination in health care and sanitation services, such as, for example, lead poisoning of minorities. Overwhelming scientific evidence exists on the ill effects on the human body of lead from the paint in dilapidated houses. In another American case, Matthews v. Coye,³³ environmental justice advocates attempted to shift the focus from treatment (after people have been poisoned) to prevention (elimination of the threat through reducing lead in houses). The Natural Resources Defense Council, the NAACP Legal Defense Fund, the American Civil Liberties Union, and several other groups brought a suit on behalf of a group of predominantly black children in Oakland, California.³⁴ The suit involved the failure of the State of California to perform federally-mandated testing for lead on more than 557,000 poor children. Ten months after the complaint was filed, the case was settled after the state agreed to implement a program to detect and treat lead poisoning harm and to establish an educational program to prevent it in the future.

Another strategy available to environmental justice plaintiffs is to bring complaints on grounds of nuisance³⁵ or apply arguments on strict liability³⁶ for abnormally dangerous activities and negligence.³⁷ One can also insist on imposing rigorous penalties and fines for polluters. The problem, however, is that in most countries in such cases, the plaintiff bringing nuisance claims against polluters must demonstrate intentional or unreasonable conduct by the operator. If an existing facility has acquired the necessary environmental permits, the court is unlikely to find its operation unreasonable. At trial, plaintiffs often cannot produce sufficient data on the health effects of pollution. Expert testimony is generally needed, but this can be very expensive for the affected community.³⁸

Importantly, the very act of bringing an environmental lawsuit often yields benefits. These include the leverage and impact derived from "naming names" - identifying government officials, persons or private organisations engaged in environmentally harmful practices, as well as generating publicity about the problem of environmental racism and gaining allies.

B. Human rights principles

In contrast to traditional environmental law, environmental justice advocates in recent years have turned to human rights provisions for remedies to combat environmental injustice.

First of all, they argue that environmental racism constitutes a breach of the ban on discrimination.³⁹ The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination all prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground, including race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In addition to prohibiting discrimination, these treaties require remedial action against it. Governments and other authorities may not initiate discriminatory activities or policies, nor may they tolerate such activities or policies. Governments have an affirmative obligation to eliminate existing discrimination. Thus, once a government learns that a seemingly neutral environmental law, regulation or policy has a discriminatory effect, it must remedy the discriminatory situation.

Environmental racism also violates a number of other fundamental human rights. Civil, cultural, economic, political and social rights with environmental implications include:

• the right to life - includes the right to health and freedom from health-threatening environmental degradation;⁴⁰
• the right to food - includes the right to safe and healthy food;⁴¹
• the right to safe and healthy working conditions - includes the right to environmentally safe working conditions;⁴²
• the right to housing - includes the right to housing in satisfactory environmental conditions;⁴³
• the right to information - includes the right to information about the environment;⁴⁴
• the right to popular participation - includes the right to participate in environmental decision-making;⁴⁵
• the right to free association - includes the right to associate freely for purposes of protecting the environment or people affected by environmental harm;⁴⁶
• cultural rights - includes the right to the preservation and use of the environment for cultural purposes.⁴⁷

All these rights are applicable to environmental justice because they include freedom from racial discrimination.

In Europe, at an international level, the European Court of Human Rights has decided several cases that implicate environmental issues. Because the European Convention on Human Rights does not contain any specific right to a clean environment, any environmental questions considered by the Court were viewed in relation to other provisions of the Convention, such as Article 8 (right to private and family life). For example, in the 1994 case López Ostra v. Spain,⁴⁸ the European Court unanimously ruled that locating a waste treatment facility a few metres from a home violated the occupant's right to private and family life under Article 8 of the European Convention on Human Rights.

The applicant in this case was a resident of Lorca, Spain. In 1988, a company called SACURSA erected a plant for the treatment of liquid and solid waste twelve metres from Ms López Ostra's house. Although the plant was built on the basis of a state subsidy on municipality land, SACURSA did not obtain the required license for activities classified as causing a nuisance and being unhealthy, noxious and dangerous. Gas fumes, pestilential smells and contamination originating from the plant polluted the atmosphere in the town and caused health problems and nuisance to many Lorca people, particularly those living in Ms López Ostra's district. In July 1988, the city council re-housed local residents, including Ms López Ostra, providing them with new apartments free-of-charge. In October 1992, Ms López Ostra and her family voluntarily returned to their old flat and lived there until late 1992, when they were re-housed for a second time, free of charge, by the municipality. In her application to the European Court of Human Rights, Ms López Ostra complained of unlawful interference with her home and her peaceful enjoyment of it, attacks on her physical and psychological integrity, and infringements of her liberty and safety. Courts of all instances in Spain, including the Constitutional Court, found the applicant's claim unfounded and dismissed it.

After exhausting all domestic remedies, Ms López Ostra brought the case before the European Court of Human Rights. She based her claim on Article 3 and Article 8, paragraph 1 of the European Convention. The Commission considered the claim admissible under Article 8 but not under Article 3. In the meantime, the plant was closed in 1992, on a judge's order, as hazardous to human health, but re-opened again after an appeal. The plant was again temporarily closed in 1993.⁴⁹ The Commission found a causal link between the emissions and the illness of the Ms López Ostra's daughter. Subsequently, the Court, in connection with Article 8, decided that severe environmental pollution, even without causing serious damage to health, can affect the well-being of individuals and impede their enjoyment of their homes in such a manner as to have an adverse effect on their private and family life.

The Court made several other important pronouncements in the López Ostra case. For example, the Court stated that the payment of rent for the substitute apartment did not completely compensate for the nuisance suffered by the family for three years, and that the state did not strike a proper balance between individual and public interests. It also ruled that, although the plant was built on public grounds and subsidised by the municipality, public authorities had knowledge of the harm caused by the plant and failed to remedy it. In summary, the Court held that the effects of environmental degradation may affect an individual's well being, since they may have adverse consequences for the enjoyment of private and family life. Also, public authorities have a duty to protect family and private life and home.

In addition to those provisions of the European Convention of Human Rights listed above, Article 14 of the Convention guarantees that the enjoyment of the rights and freedoms set in the Convention "shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin". Thus, Article 14 violation is demonstrated first by identifying a right protected by the Convention and then by showing disparate enjoyment of that right on the basis of race, colour or other protected category. In addition to the Article 8 violations seen in the López Ostra case, one can easily imagine how Article 14 violations could be found, in relation to environmental cases, in combination with, for example, Article 2 (right to life), Article 3 (prohibition on torture and degrading treatment) and/or Article 1 of the First Protocol (peaceful enjoyment of one's possessions).

Roma rights advocates have not yet made significant inroads into linking the cause of environmental protection with the pursuit of equity and justice for Roma. However, the environmental justice perspective is worthy of inclusion in the fight for justice for Roma. Problems of noise, sanitation and congestion are present to a higher degree in Romani neighbourhoods than in other areas. Overcrowding, rats, flaking leaded paint, deteriorating housing and ever-present litter plague many Romani neighbourhoods. All of these problems are linked to the issue of racial discrimination against Roma.

In the evolving struggle to secure Roma rights, the right to a healthy environment could be formulated and added to current catalogue of human rights and made the subject of litigation. As the environmental justice strategies discussed above indicate, many environmental justice problems occur in situations where the victims lack the possibility of claiming basic rights such as access to justice and political process. Moreover, environmental degradation often creates serious health problems, which may violate the right to health. In this regard, the right of Roma to equal protection against the ill effects of environmental degradation deserves closer attention.



Endnotes: 

1. Barbora Kvočekova is a staff attorney for the Prague-based human rights organisation Counselling Centre for Citizenship, Civil and Human Rights.
2. See Chester Residents Concerned for Quality Living v. Seif, 132 F 3d 925, 927 n.1 (3d Cir 1997).
3. Ibid.
4. See Hill, Barry, Chester, Pennsylvania - Was It a Classic Example of Environmental Injustice?, 23 Vermont Law Review 492 (1999).
5. See Chester Residents Concerned for Quality Living, Op. cit.
6. Ibid.
7. Ibid.
8. Ibid.
9. Ibid.
10. See White, Jimmy, Environmental Justice: Is Disparate Impact Enough?, 50 Mercer Law Review 1155 (1999); and Mahoney, Valerie P. Environmental Justice: From Partial Victories to Complete Solutions, 21 Cardozo Law Review 361 (1999).
11. Lee, Douglas and H.K. Lee, "Conclusions and Reservations", in Environmental Factors in Respiratory Diseases, Lee, Douglas ed., U.S. Environmental Protection Agency, 1972, pp.250-51.
12. Observers disagree about the very existence of inequity, causation, possible solutions, and the state's responsibility to address the problem.
13. See Lazarus, Richard J., The Meaning and Promotion of Environmental Justice, 5 Maryland Journal of Contemporary Legal Issues 1 (1994).
14. See Bullard, Robert D., Levelling the Playing Field Through Environmental Justice, 23 Vermont Law Review 453 (1999).
15. Chavis, Benjamin F. Jr. and Charles Lee, Toxic Waste and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites, United Church of Christ Commission for Racial Justice, 1987, p.128.
16. Mann, Eric, L.A.'s Lethal Air: New Strategies for Policy, Organizing, and Action, Labor/Community Strategy Center, 1991, p. 31.
17. This phenomenon has been called "environmental blackmail", since poor communities often face a difficult trade-off between environmental risks and economical opportunities supposedly created by locating a hazardous waste facility in a community. See Lazarus, Richard, Pursuing Environmental Justice: Distributional Effects of Environmental Protection, 87 Northwest University Law Review 787 (1993).
18. In recent years, the environmental justice movement has tried to make visible the connections between environmental harms - such as pollution or ill health - and larger patterns of economic and social injustice, including crime. Poor neighbourhoods are more likely to be susceptible to crime. As a neighbourhood shifts from richer to poorer, homeowners begin to invest fewer resources in keeping up their property. (See Massey, Douglas S. and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass, Cambridge: Harvard University Press, 1993, p.145). Abandoned buildings do not attract stable households and tend to become a magnet for other social problems, such as rats, litter, drugs, crime, and delinquency; such neighbourhoods also suffer from the withdrawal of commercial institutions like banks and grocery stores. For this reason, Michel Gelobter argues, "environmental justice must be linked to increased economic and political control over the life of the city... Environmental justice activists are working not only for immediate justice, but also for new models of economic and environmental activity that will form the foundation of true justice and sustainability for cities around the world." (See Gelobter, Michel, "The Meaning of Urban Environmental Justice", 21 Fordham Urban Law Journal 841 (1994). Additionally, a declining neighbourhood is vulnerable to increasing levels of "social disorder", by which social scientists mean public behaviour such as street-corner drinking, catcalling, sexual harassment, graffiti, and littering. Although these are not necessarily criminal in themselves, they violate norms that are widely shared about what constitutes a good and desirable neighbourhood.
19. See Bullard, Op. cit., p.453.
20. Executive Order No. 12,898, 59 Fed. Reg. 7629 (1994).
21. Ibid.
22. U.N. Conference on the Human Environment, at 1, U.N. Doc. A/ CONF. 48/14/Rev. 1, U.N. Sales No. E. 73.II.A.14 (1973).
23. Rio Declaration on Environment and Development, U.N. GAOR, U.N. Doc. A/CONF. 151/5/Rev.1 (1992).
24. U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities Decision 1989/108 71, U.N. Doc. E/CN.4/Sub.2/1989/58 (1989).
25. Ksentini, Fatma Zohra, Final Report 90, UN Doc. E/CN.4.Sub.2/1994/9 (1994).
26. Draft Declaration of Principles on Human Rights and the Environment, Fatma Zohra Ksentini, Final Report 90, UN Doc. E/CN.4.Sub.2/1994/9 (1994).
27. Draft Declaration of Principles, Principle 3.
28. See Mahoney, Op. cit., p.371.
29. These laws tend to state that one cannot locate, or can locate only with great difficulty, a facility in a wetland or in a navigable waterway or in the habitat of an endangered species or in some other area that enjoys the particular protections. However, in U.S. law at least, there is no overall protection of people: e.g. there is no statute that says one cannot build a landfill or an incinerator near heavily populated areas. Instead, the protection for people is implicit in such statutes. For example, some of the laws on clean air prohibit exceeding emissions standards designed to protect human health. However, protection of health under these laws is indirect and often difficult to access.
30. El Pueblo Para el Aire Limpio v. Kings County Board of Supervisors, No. 366045 (Sacramento County Super. Ct. Cal., Dec. 30, 1991).
31. Ibid.
32. Ibid.
33. Matthews v. Coye, No. C-90-3620 EFL. (N.D. Cal. Oct. 16, 1991) (Unpublished settlement agreement).
34. See Lee, Bill Lann, "Environmental Litigation on Behalf of Poor, Minority Children, Matthews v. Coye: A Case Study", unpublished paper presented at the Annual Meeting of the American Association for the Advancement of Science, Chicago, February 9, 1992.
35. Nuisance occurs when there is an unreasonable interference with the use and enjoyment of one's property, usually repeated or continued for prolonged period of time. Courts will balance the usefulness of the activity subject to complaint against the harm caused.
36. Strict liability applies when the defendant is engaged in an activity so dangerous that there is a serious risk of harm even if the defendant acts with utmost care. In general, there are three groups of people facing strict liability: owners of dangerous animals; people who engage in highly dangerous activities; and manufacturers and sellers of dangerous products.
37. Negligence is constituted by the failure to exercise a reasonable amount of care in either doing or not doing something, resulting in harm or injury.
38. See Mahoney, Op. cit., pp.361 and 399.
39. See Popovic, Neil, "Pursuing Environmental Justice with International Human Rights and State Constitutions", 15 Stanford Environmental Law Journal 338 (1996).
40. E.g. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 2, Article 6 (right to life); European Convention on Human Rights, 1950, Article 2; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 999 U.N.T.S. 3, Article 12 (the right to health includes "environmental hygiene").
41. Universal Declaration of Human Rights, U.N. GAOR, 3rd Sess., Part 1, Res. 217A (III), UN Doc. A/810 (1948) (right to adequate standard of living includes food); see also International Covenant on Economic, Social and Cultural Rights, Article 11.
42. International Covenant on Economic, Social and Cultural Rights, Article 7 (right to safe and healthy working conditions).
43. International Covenant on Economic, Social and Cultural Rights, Article 11(1) (right to housing).
44. See Rio Declaration on Environment and Development, U.N. GAOR, U.N. Doc. A/CONF. 151/5/Rev.1 (1992), principle 10 (right to information about the environment); UNESCO Convention on Preservation of the World Cultural and Natural Heritage, Nov. 16, 1972, art. 27/2, 27 U.S.T. 37, 11 I.L.M. 1358 (imposing duty to keep public informed of threats to natural heritage).
45. See World Charter for Nature, U.N. GAOR, 37th Sess., Supp. No. 51, U.N. Doc. A/RES/37/7 (right to participate in decision that affect environment); Rio Declaration, principle 10 (duty to facilitate and encourage popular participation).
46. Universal Declaration of Human Rights, Article 20/1 (freedom of assembly and association); International Covenant on Economic, Social and Cultural Rights, Article 22 (freedom of association).
47. International Covenant on Economic, Social and Cultural Rights, Article 1/1 (right to pursue cultural development); Draft Declaration on the Rights of Indigenous Peoples, U.N.Doc. E/Cn.4/Sub.2/1994/56 (1994), Article 21 (right of indigenous peoples to engage in traditional activities).
48. López Ostra v. Spain, Case No. 41/1993/436/515 (Eur. Ct. H.R. Dec. 9, 1994), (ser. A) (1994). All information in this article pertaining to the López Ostra case derives from this document.
49. On September 8, 1988, following numerous complaints and in the light of reports from the health authorities and the Environment and Nature Agency, the town council ordered cessation of one of the plant's activities - the settling of chemical and organic residues in water tanks - while permitting the treatment of waste water contaminated with chromium to continue. On September 18, 1991, after a series of other proceedings including the one at the Constitutional Court, the court, noting that the nuisance had continued after September 1988 and that the plant did not have the license required by law, ordered that it should be closed until they were obtained. However, the enforcement of this order was stayed following an appeal by the town council and SACURSA. On October 27, 1993, the judge confirmed the order of 1991 and the plant was temporarily closed.