Quietly Finding Space to Promote Environmental Justice: Legal Empowerment Under Constrained Civic Space

Using legal empowerment to pursue land and environmental justice

Legal empowerment is a people-centered justice approach in which grassroots justice advocates, often called community paralegals, ⁵ help a community respond to environmental injustice by empowering the community to know, use, and shape the law. ⁶ The approach has gained momentum as an avenue to meet justice needs of the 5.1 billion people who lack meaningful access to justice. ⁷ The defining feature of legal empowerment is the relationship between a grassroots justice advocate and the individual or community experiencing an environmental harm. When talking to a community experiencing harm, a grassroots justice advocate says: “I will not solve this problem for you. Instead, we will identify and solve this problem together so that later you will know better and will be able to solve this problem on your own. Then, you can also support others solving their problems.” ⁸ This approach contrasts with top-down efforts where an organization assesses a problem and defines a course of action or a lawyer–client relationship wherein the lawyer is the active party, and the client is meant to be passive. Over the period of working together, the individual experiencing harm, which we call a justice seeker, ⁹ is able to take more ownership and confidence in partnership with the advocate.

Evidence of the positive impact of legal empowerment for communities and environmental justice abound. ¹⁰ Grassroots justice efforts in India have been responsible for reducing individual instances of pollution and for combining experiences across cases to create system-wide changes in regulation. ¹¹ In places where land tenure is insecure, grassroots justice advocates, like Samburu Women’s Trust in rural Kenya, have supported thousands of indigenous women to have title over their land. ¹² Several studies show that legal empowerment can improve access to livelihood for justice seekers, including for farmers in the Philippines who show higher levels of productivity, higher farm incomes, and more investment in their farms after engaging with grassroots justice advocates. ¹³ Further, legal empowerment has supported communities to mitigate or adapt to climate change. In Indonesia, for example, the Epistema Institute used grassroots justice advocates to support communities living in peatlands to protect their land tenure, reducing evictions and destruction of the peatlands. ¹⁴ In addition to achieving environmental remedies, legal empowerment stands out as it increases civic engagement and often the responsiveness of civic institutions. ¹⁵

Constricting civic space and security concerns for legal empowerment practitioners pursuing environmental justice

The work of grassroots justice advocates seeking environmental justice is hampered by constricting civic space and security. In 2021, 74% of Grassroots Justice Network members reported struggling to do legal empowerment work in their political and social contexts, and more than half said they or someone they know has been threatened, arrested, or harassed pursuing justice in the last year. ¹⁶ The situation is getting worse. The rate of members who report struggling to do their work because of the context has increased each year since the survey began in 2015. ¹⁷

Like other advocates for land and environmental justice, the range of civic and security challenges that legal empowerment practitioners face are myriad, including criminalization, intimidation, sexual violence, and killings. INGOs have increasingly resolved to document the challenges faced by land and environmental justice advocates, but it remains under-reported. ¹⁸ Instead of duplicating efforts to document all types of security and civic space challenges here, we limit our description below to illustrate how some types of civic space challenges make it more difficult to pursue legal empowerment work.

Building community power

Organizing within a community, called building community power, is fundamental to the process of empowering communities to resolve environmental justice challenges. Community organizing can be used across various steps on the path to environmental justice. This includes providing the community with updates of the laws, systems, and institutions and helping the community determine the potential risks and benefits of engaging with those systems. When space is constricting and shifting quickly, it can be very difficult for community members to know what paths to remedy may exist and the risks associated with different avenues. In addition to educating the community about the law, the grassroots justice advocates help the community make collective decisions about how to proceed, building their sense of agency and ownership. Many practitioners explained that rootedness within the impacted community is a key advantage that grassroots justice advocates have over litigation-centered environmental justice tactics. When formal opportunities to gather are closed to many NGOs, paralegals often have the access to the community in informal spaces. ²⁷

When civil space is constrained, grassroots justice advocates report finding creative ways to organize communities. For example, a practitioner explained that when civic space was constricted and a community faced food insecurity, community paralegals created a soup kitchen. Because a soup kitchen was not viewed as threatening, people were allowed free access. Overtime, the soup kitchen also served as a space where the community could organize and learn more about the law.

While the details of building community power differ by context, it nearly always includes iterative in-person relationship building. The purpose of building community power is both to pursue environmental justice remedies and to respond to security threats. An organized community response to security threats can distribute risk across multiple members of the community and create layers of protection for those at higher risk. One practitioner observed that when one or two people are visible, all the other people are invisible—and those who are visible are more susceptible to threats. In a model of collective security, the community decides together how to spread risk across multiple people in the community.

Many respondents cautioned against romanticizing communities who are operating in constrained space. In one case, a practitioner found that the stress of closing space combined with internal divisions made it difficult for the community they worked with to move quickly to file a case for remedy. When the community was given space and time to discuss internally, they later requested support from the legal empowerment organization to re-file their case. The practitioner understood this to be a lesson in trusting the community’s agency to decide when to pursue remedy amid security concerns. Another practitioner shared with pride of finding that a community that was initially reluctant to seek remedy used the knowledge they gained to later seek justice on their own.

Changing paths to remedy

In many cases, legal empowerment practitioners changed their pathway to remedy when security concerns arose. This means that they helped the community consider multiple ways that they might respond to the environmental justice they are experiencing. Sometimes subtle changes can increase security, for example, who is involved in pursuing remedy. In one case, before a civic space crack-down, a paralegal would accompany people to submit paperwork to document their land ownership. When the security situation was more difficult, the paralegal would prepare community members to submit paperwork on their own. With this increased understanding, some justice seekers also started supporting their peer’s cases. In a similar vein, in a location where men were under increased surveillance, women were trained to pursue remedy and interact with various administrative officials. In other contexts, the community organized to have multiple people submit petitions asking for an administrative response to a corporate pollution. By submitting the petitions together, the community felt there was less risk to each individual.

Considering pathways to remedy can include when to gather evidence and when to share that more broadly. After carefully balancing concerns of increased exposure, justice advocates facing intrascient local officials found most success with broad outside media coverage. In a few cases, they found that the increased exposure created more security for the community and practitioners because there was a sense that others were watching. However, this is a tactic that created a lot of discussion among members because other times the increased exposure also increased risk. In some very insecure context, practitioners shared that justice seekers decided to simply document their observations and experiences to be ready to push for institutional change when openings occurred. Many employed innovative tools, like mobile devices, to collect and transmit this data in a more secure way.

Building relationships with allies

In addition to building power within the community, many legal empowerment practitioners carefully build relationships with allies who might be able to provide increased protection. This can include building solidarity networks with religious leaders, local leaders, lawyers, and traditional leaders. When an activist was arrested and harmed by the police, the solidarity network was able to respond quickly and take the activist to safety. In order for the community to not be discouraged, the grassroots justice advocate explained, it was important for them to see that someone who got into trouble received quick and active support. Multiple respondents mentioned intentionally reaching to members of the military and police to explain their work. One respondent indicated “if the military understands the legal empowerment process and what we are trying to do, they will be more likely to understand that we are not just anti-government.” ²⁸ The respondents were hopeful that the personal relationship would make the military more likely to respond to security concerns and less likely to act against grassroots justice advocates.

Others noted building alliances with powerful actors outside the country, such as donor governments, global civil society, or media outlets. Practitioner mentioned needing to manage these relationships carefully. One practitioner, who fostered close ties with the US Embassy in their country, explained they thought the government stepped back from offering a potential remedy because they did not want to appear to be agreeing with the US government. At the same, the practitioner, who experienced frequent threats of violence, noted that they thought that they and their team were physically more protected because the government feared reprisal from the US government if they were harmed.

Using and shaping the law to respond to security concerns

Many legal empowerment practitioners have found paths to use the law to respond to security concerns. In some instances, this includes directly responding to SLAPP suits and filing counter-suits that increase the costs for those who file SLAPP suits. In one case of increased criminalization, the practitioners used legal empowerment techniques to enable community members to more quickly advocate for themselves and each other when they were arrested. The practitioner explained that there were not enough lawyers to represent the people arrested, but through legal empowerment, the community could assert their rights.

Increasing security-specific resources and skills

While they are keen to focus on land and environmental justice remedies, many legal empowerment organizations mentioned conducting security-specific training with their staff or within the communities. This included reinforcing the ethics (respect for privacy, confidentiality, and the consensus of justice seekers) and equipping crosscutting skillsets such as offline and online digital tools, digital security, and trauma awareness. In many cases, trainings helped the organization and the community develop security protocols that would provide a minimum level of risk mitigation, like not traveling alone or at night. Security protocols also helped organizations plan for how to respond when someone was arrested or killed.

Because of challenges associated with travel in constricted space, many practitioners mentioned the importance of expanding online resources. This included having the hardware necessary to access the internet and power so that they can connect to Zoom and other forms of online support. Some communities that were well organized reported involving youth to support community elders in accessing information online.

Donors can provide flexible funding and supportive leadership

Donors have an opportunity to make it easier for legal empowerment environmental justice defenders to continue to creatively adapt their tactics. This requires investment through flexible, unrestricted support that allows for continuity and ownership of ideas and interventions. Reporting requirements in tricky operating environments should be very flexible to allow grantees to make decisions about what information is best for them to keep protected.

Further, the experience of grassroots defenders shows that the types of activities that should be included in budgets may not always have a clear, straight line to environmental impact. Resources are necessary to slowly build and maintain trust within communities that are fractured or under stress. Overhead costs and equipment costs, often hard for small organizations to fund, are necessary to be a stable, connected presence within communities.

Lastly, donors have the opportunity to help partners prioritize and have strong connections to psychosocial support and risk planning. This begins with equipping grassroots defenders—and the communities they serve—with tools to address mental health, burnout, and stress. Donors can help by asking partners how they are including psychosocial support in their risk assessment and connecting them with resources that can be adapted to the local context. In a similar vein, donors can amplify impact by supporting trainings and the application of security protocols that are widespread, adapted to the local context, and recurring.

Bilateral donors can also enhance coordination across their government in a manner that will increase security for grassroots advocates. For example, the Human Rights Defenders Protection Act of 2024 introduced in the United States aims to protect grassroots advocates by creating a new visa category to allow quick relocation, increasing intra-agency coordination, and funding capacity for embassies to respond to emergencies. ²⁹

Corporate actors should have zero tolerance for harm

According to UN principles, businesses have a responsibility to prevent, mitigate, and, where appropriate, remedy human rights abuses that they cause or contribute to. ³⁰ This should include a zero tolerance for reprisals or civic space threats throughout a supply chain. Investors who have Environmental Social and Governance (ESG) interests must consider the civic space and security of impacted communities before investing. Risks for grassroots justice defenders are particularly high when there are weak consultation processes, and businesses can reduce risks by increasing incentives strong consultations that are free from tampering or influence.

The opportunity for corporate actors to protect security and civic space must be enshrined in law and corporate policy. At a minimum, internal corporate policy must include publicly outlining a decision framework to determine how the company responds to, protects, and promotes civic space in its business operations. Pending due diligence requirements in Europe can include obligations to understanding the civic space within a community before starting development and conduct thorough consultation. ³¹ Similarly, implementation of OECD guidelines, such as those for transnational corporations, should prioritize corporate responsibility to promote security throughout their supply chain. ³²

Moreover, the implementation of minimum human rights due diligence practices is essential in safeguarding civic space because it can reduce the stigma and confrontation for communities to raise concerns. Wider respect for corporations for basic human rights practices, through supporting frameworks like the proposed UN Binding Treaty on Business and Human Rights, will reduce the risk for defenders. ³³ When corporations systematically and proactively respond to the needs of impacted communities, they can change the risks of conflict within a community and create more space for collaboration.

Private sectors can also reduce risk by contributing to a pooled fund that would be available for communities to access independent legal and technical support. A fund that is designed carefully, including strict rules that allow no direct links between corporate donations and community support, can give communities the opportunity to respond to investments in a more organized and informed manner. As we see from the experience of legal empowerment practitioners, when communities know more about the rules, they can respond to the nuances of their concerns in a less confrontational manner.

Multilateral institutions can highlight risk throughout their sphere of influence

Multilateral institutions, like the United Nations Development Programme (UNDP), that have strong country presence and conduct cross-cutting work can also improve their protection of grassroots justice advocates. The protection of grassroots defenders must be viewed as a UN-wide priority necessitating the setting of an interagency-wide working and implementation or monitoring group. This is also consistent with global commitments such as SDG 16 on rule of law and access to justice. Within country programs, individual offices must have mechanisms to document and track cases of abuses and respond to these threats across program areas. In contexts where they are aware of constricting space, holding national actors accountable for legal frameworks that limit the work of grassroots actors is necessary.

UN bodies addressing climate change can also do more to protect environmental rights defenders. While the role and challenges of grassroots justice advocates are getting increasing attention in some climate spaces, including mention by UN Secretary General Antonio Gueterres at COP27 ³⁴ , there remains little formal acknowledgment of their need for protection in the UNFCCC framework including against reprisals for participating in UN processes. There remains an urgent need to include grassroots justice defenders and Indigenous communities in climate policy-making and securing their rights to land, and that all climate-related targets are protective and respective of the rights of communities. Formally linking the security needs of grassroots defenders to climate action could amplify their sources of allies globally, and within their country.

Frameworks, like the Escazu Agreement in Latin America, the first instrument to incorporate specific provisions for the protection of environmental defenders, can be a model of how to acknowledge the rights of grassroots justice advocates. Regional efforts to create similar environmental agreements in Africa and Southeast Asia would be wise to ensure that similar protection provisions are included. The EU Aarhus Convention adoption of the mandate of the special rapporteur on environmental defenders is a commendable step, requiring full cooperation beyond the EU for realization of protection of climate and environmental grassroots justice defenders.

Conclusion and space for additional research

This article highlights some of the creative, inspiring tactics legal empowerment practitioners use in restricted places while pursuing environmental justice. Additional research that acknowledges and surfaces flexible grassroots tactics would support shared learning of other legal empowerment practitioners in tricky places. More research is also necessary to better determine under what conditions outside attention lowers or increases risks. Lastly, research that surfaces tactics to foster community discord, including misinformation within local context, could help communities better prepare for and respond to this particularly difficult challenge. We suggest that this research be rooted in interviews and experiences from grassroots actors as much as possible.