Image Credit: Alice Toietta, illustrator for the Sensing for Justice project.

Written by Anna Berti Suman

The ‘Sensing for Justice’ (SensJus) research project – running between 2020 and 2023 – explored how people use monitoring technologies or just their senses to gather evidence of environmental issues and claim environmental justice in a variety of fora. Among the other research lines, we looked at successful and failed cases of civic-gathered data introduced in courts. The guiding question was: what are the enabling factors and/or barriers for the introduction of civic evidence in environmental litigation?

Civic environmental monitoring is the use by ordinary people of monitoring devices (e.g., a sensor) or their bare senses (e.g., smell, hearing) to detect environmental issues. It can be regarded as a form of reaction to environmental injustices, a form of political contestation through data and even as a form of collective care. The practice is fast growing, especially thanks to the widespread availability of audio and video-recording devices in the hand of diverse publics, but also due to the increase in public literacy and concern on environmental matters.

Civic monitoring can be a powerful source of evidence for law enforcement, especially when it sheds light on official informational gaps associated with the shortages of public agencies’ resources to detect environmental wrongdoings. Both legal scholars and practitioners as well as civil society organizations and institutional actors should look at the practice and its potential applications with attention.

Among the cases explored for the SensJus project, the Formosa case, Texas, United States, stands out as it sets a key precedent: issued in June 2019, the landmark ruling found a Taiwanese petrochemical company liable for violating the US Clean Water Act, mostly on the basis of citizen-collected evidence involving volunteer observations of plastic contamination over years. The contamination could not be proven through existing data held by competent authorities because the company never filed any record of pollution. Our analysis of the case highlights some key determinants of the case’s success:

1. Nature of the evidence: the simple nature of the evidence, i.e., small plastic objects that can be recognised and collected easily by anyone, even without any specialised knowledge, played an important role in the judge’s decision. Lesson: courts are more willing to accept civic evidence if the pollution can be perceived with unaided use of the senses of sight or smell, rather than if the evidence collection requires sampling or monitoring with equipment or devices.

2. Quantity and time coverage of the evidence: the 2,428 bags documenting plastic pollution collected by the plaintiffs for more than three years almost daily, and hundreds of videos and photos documenting unlawful discharge were a key convincing factor for the court. Lesson: civic evidence gathered in a systematic way over a considerable time tends to have more credibility in front of the court.

3. Complementarity of the evidence: in the case, the civic evidence was backed by expert opinions and by company and governmental evidence, including several company’s audits. In addition, agency’s documentation included confirmed all these violations. Lesson: civic evidence is stronger if confirmed or complemented by the available official data.

4. Plaintiffs’ standing and injury: the plaintiffs in the Formosa case managed to demonstrate that the defendant’s discharge contributed to pollution impairing the plaintiffs’ use of the water body; the plaintiffs also managed to demonstrate violation of their right to access environmental information. Lesson: a right-based discourse, drawing both on substantial and on procedural environmental rights, can be effective to support the participation of affected people with their evidence in a court case.

These winning conditions can be a guidance for other interested actors willing to bring their civic evidence to court and can be replicable. Other winning factors of the case which are quite unique include the presence of a dedicated champion, i.e., a local resident and former shrimper, Diane Wilson, who guided the civic monitoring activities and even received in 2023 of the Goldman Prize for Environmental Protection. Media coverage was also crucial to the success of the case as the plaintiffs managed to attract substantial media attention. This tactic seems promising both for providing larger social support to ongoing actions and for mobilising communities for future actions. The open-minded attitude of the court also resulted to be an important determinant of the case’s success, which is difficult to predict. Lastly, a key success factor was the possibility of the civic actors to receive free legal support from a no-profit providing free civil legal services to low-income persons. These factors, which clearly contributed to the success of the case, can turn into barriers (e.g., scarce social support or media attention, prohibitive costs of a legal service) for other communities.

Based on our analysis of the Formosa case, we developed a usable table synthesising the key elements for tracking civic evidence in court. All these resources are contained in the open-access Book “Civic Monitoring for Environmental Law Enforcement” which discusses the key findings stemming from the multi- and interdisciplinary research performed within the framework of the SensJus research project. The table can be found, for the Formosa case, as Figure 2.2. In addition, Annex II – ‘Key elements for tracking civic evidence in court’ offers the full table version which can be used for other cases. The entries of the table include Case Name; Litigation or Mediation; Identification; Country; Court; Plaintiffs; Defendants; Status; Alleged violations; Type of evidence submitted; Reaction of the court/defendant to this evidence; Decision issued; 3 top winning factors for the acceptance of civic evidence.

We continued exploring the panorama for civic evidence in court to identify comparable cases and possible enabling factors/barriers, from Latin America to Europe, in order to draw usable lessons for interested actors. We noticed that cases of civic evidence deriving from civic monitoring are still scant, especially in European courts. A promising avenue for introduction of civic evidence in court is currently represented by climate litigation across Europe. The Book “Civic Monitoring for Environmental Law Enforcement” will hopefully trigger a fruitful engagement from various communities with this emerging topic.

Civic Monitoring for Environmental Law Enforcement

Anna Berti Suman, Research Fellow in Sustainable Innovation Law, Libera Università Internazionale degli Studi Sociali – Luiss, Law School, Rome, and former Principal Investigator, The Sensing for Justice Project, The European Commission’s Joint Research Centre, Ispra, Italy.

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This title is available Open Access on ElgarOnline.