Environmental Permit

ENVIRONMENTAL PERMITTING IN ETHIOPIA:
NO RESTRAINT ON “UNSTOPPABLE GROWTH?”
James Krueger,* Aman K. Gebru,** and Inku Asnake***
I. Introduction
When rapid development threatens Ethiopians’ environmental health,

the people must decide whether the immediate economic benefits are worth
the environmental damage. Many controversies flow from this one idea.
Some optimists say that economic development “need not” harm the
environment at all, or that environmental damage in fact will result from
lack of development. Others ask what group of people should have the
power to choose environment or development. The national legislature?
The people most affected by the environmental damage? Or must we
consider the perspectives of animals and plants as well, or the perspective
of the earth itself, perhaps personified as “Gaia?” Still others want to know
how environmental damage can be quantified so that a cost-benefit analysis
is can be conducted.
All of these issues and more are crammed into the now-popular phrase
“sustainable development.” First introduced in the World Commission on
Environment and Development (“WCED”) report in 1987, sustainable
development was defined as “development that meets the needs of the
present without compromising the ability of future generations to meet
their own needs.”1 The familiar definition appears also in the 1997
Environmental Policy of Ethiopia (“EPE”).2 The definition has been
* James Krueger is a former Assistant Professor of Law at Haramaya University. He is now

pursuing a Ph.D. in Environment and Resources at the University of Wisconsin-Madison,
WI, USA. He can be contacted at jskrugs@gmail.com
** Aman K. Gebru is a Lecturer at Haramaya University College of Law and former
director of the Social Justice Center. He is currently studying for an LL.M. in Intellectual
Property Law and Policy at the University of Washington School of Law, Seattle, WA,
USA. He can be contacted at amanabesha@gmail.com
*** Inku Asnake is a public prosecutor in Ethiopia.
1. World Commission on Environment and Development, Our Common Future:
Report of the World Commission on Environment and Development, Introduction, ¶27, U.N.
Doc. A/42/427/Annex (Aug. 4, 1987) [hereinafter WCED].
2. ENVIRONMENTAL POLICY OF ETHIOPIA, art. 2.1 (1997), available at http://www.epa.
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74 Haramaya Law Review [Vol. 1:1
criticized as being vague,3 and this is not surprising: all of the issues
identified above cannot be resolved in an abstract definition. People must
flesh out what sustainable development means to them through many tough
decisions at the edges, at the point that development really means
environmental damage. Perhaps most important is the clarity of the
process by which the tough decisions are made.
This article argues that environmental permitting is one of those very
important areas in environmental governance where the process of deciding
between environment and development can be made clear. An
environmental permit is a decision measuring an economic project against
an explicit set of environmental criteria. The criteria are set in advance and
form a definite lower limit of what is sustainable. If people do not like the
decision on the permit, they can contest it at the relevant government
agency, or in court, or politically through elections. At minimum, the
people know what decision has been made.
The main thesis of this article is that international environmental
ideals like “sustainable development” actually take the place of hard
decisions and hide the government’s position on the right balance between
environment and development. First is the question of whether
“sustainable development” is used merely to please the international
community. In Ethiopian environmental laws, the Amharic for
“sustainable development” is actually “unstoppable growth,” or, in other
words, sustained development.4 Thus, there is one meaning for English
readers and another for Amharic readers, and in matters of interpretation it
is the Amharic that is binding.5 The more important question is whether
the people understand and decide upon minimum environmental standards
that are more specific than the EPE’s guarantee of sustainable development
or the Constitution’s rights to sustainable development6 and a clean and
healthy environment.7
The grand rhetoric of international ideals is not sufficient to protect
Ethiopia’s environment. The government must build on a national
conversation about the needs and priorities of Ethiopian citizens. Such a
gov.et/Download/Proclamations/ENVIRONMENT%20POLICY%20OF%20ETHIOPIA.pdf
[hereinafter EPE].
3. See e.g., David Hodas, The Role of Law in Defining Sustainable Development:
NEPA Reconsidered, 3 WIDENER L. SYMP. J. 1, 3 (1998).
4. Different Amharic words are used in different legal documents for the English
“sustainable development.”
5. CONSTITUTION, Art. 106 (1995) (Ethiopia).
6. Id. Art. 43(1).
7. Id. Art. 44.
2012] Environmental Permitting in Ethiopia 75
conversation is only possible when the real choices between environment

and development are made clear. An easy path to clarity is to give the
Environmental Protection Authority (“EPA”) a straightforward permitting
power, such that potentially polluting businesses cannot open or continue to
operate without a permit directly from the EPA. The people may choose to
have weaker environmental standards, or to give EPA some discretion to
allow more pollution in cases where the economic benefits are particularly
great, but at least the process would be clear. EPA would be directly
accountable, rather than the current situation in which accountability is
spread among the ministries, licensing agencies, EPA, and regional
environmental agencies, allowing everyone to always point the finger
somewhere else. Moreover, with clear permitting decisions that are
publicly accessible, citizens would be more able to contribute to
enforcement efforts through citizen suits.
II. Ethiopia’s Environmental Policy and Sustainable Development
Like most countries, Ethiopia adopted its current environmental laws

under the influence of increased global environmental awareness that came
in the wake of the Stockholm Conference in 1972, the WCED report in
1987, and the United Nations Conference on Environment and
Development (“UNCED”) in 1992.8 The WCED and UNCED specifically
called on donors to help developing countries establish the national legal
infrastructure for environmental protection.9 Also, with the fall of many
communist regimes in the early 1990s, new environmental laws became
part of the international agenda for rebuilding communist countries and
converting them to more capitalist economies.10
Even before the fall of Ethiopia’s communist government, the process
8. For a historical overview of international cooperation to solve environmental

problem, see e.g., Nicholas A. Robinson, Befogged Vision: International Environmental
Governance a Decade After Rio, 27 WM. & MARY ENVTL. L. & POL’Y REV. 299 (2002);
Paolo Galizzi, From Stockholm to New York, Via Rio and Johannesburg: Has the
Environment Lost Its Way on the Global Agenda? 29 FORDHAM INT’L L. J. 952 (2006).
9. WCED, supra note 1, at 319; UNITED NATIONS CONFERENCE ON ENVIRONMENT AND
DEVELOPMENT, REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND
DEVELOPMENT, U.N. Doc. A/Conf.151/6/Rev. 1 para 39.1(d) (1992). For more details about
the role of international donors in fostering environmental laws in developing countries, see
William Andreen, Environmental Law and International Assistance: The Challenge of
Strengthening Environmental Law in the Developing World, 25 COLUM. J. ENVTL. L. 17, 22-
25, 30 (2000).
10. The legal reform process in former communist countries in Eastern Europe is well
documented. See UNITED NATIONS ECONOMIC COMMISSION FOR EUROPE, ENVIRONMENTAL
POLICY IN TRANSITION: TEN YEARS OF UNECE ENVIRONMENTAL PERFORMANCE REVIEWS (2003).
of developing a National Conservation Strategy was begun with

international help from the World Conservation Union (“IUCN”).11 This
process continued under the new government (of the Ethiopian Peoples’
Revolutionary Democratic Front, or EPRDF) as the Conservation Strategy
of Ethiopia, culminating in a five-volume report and providing the initiative
for major environmental actions like the establishment of the
Environmental Protection Authority in 1995 (and reformation in 2002), the
incorporation of environmental rights into the 1995 Constitution, and the
passing of the sweeping cross-sector Environmental Policy of Ethiopia by
the Council of Ministers in 1997.12 Other environmental laws followed,
including the Water Resources Management Proclamation in 2000 and the
Environmental Pollution Control Proclamation and Environmental Impact
Assessment Proclamation in 2002.
Although much of the initiative for Ethiopian environmental law came
from international meetings and conversations and responded to scientific
assessments of environmental health, the domestic policy situation is more
complex. Ethiopia is not a passive receiver of international dictates, nor is
it a micro-model of scientific debate about the environment that mirrors the
international scientific debate. This can be seen in domestic laws and
policies that apply sustainable development ideals. As Heinz Klug has
remarked of transnational lawmaking, domestic policymakers often deploy
international ideals to circumscribe the domestic policy debate, resulting in
a dialectical interaction between international and local and producing
“hybrid” rules.13
There is no question that Ethiopian environmental policy has been
heavily influenced by international norms, particularly by the principle of
sustainable development. The newly formed EPRDF government in 1992
sent representatives to the UNCED in Rio de Janeiro and came away
energized to promote sustainable development.14 The IUCN has been
encouraging sustainable development in Ethiopia and has provided funding
11. This started in 1989. See James Keeley & Ian Scoones, Knowledge, Power and
Politics: The Environmental Policy-Making Process in Ethiopia, 38 J. OF MODERN AFRICAN
STUDIES 89, 103 (2000).
12. See JONATHAN MCKEE, EUROPEAN COMMISSION, ETHIOPIA: COUNTRY
ENVIRONMENTAL PROFILE 50 (2007).
13. Heinz Klug, Hybrid(ity) Rules: Creating Local Law in a Globalized World in
GLOBAL PRESCRIPTIONS: THE PRODUCTION, EXPORTATION, AND IMPORTATION OF A NEW
LEGAL ORTHODOXY (Yves Dezalay & Bryant G. Garth eds., 2002) (discussing how
international ideals were brought to bear on domestic property rights in South Africa’s
constitution-making process).
14. Keeley & Scoones, supra note 11, at 104.
and technical assistance for Ethiopia’s National Conservation Strategy.15

The Environmental Policy of Ethiopia has as its overall goal “to promote
sustainable social and economic development.”16 The words “sustainable
development” appear in many different environmental laws, including the
Environmental Impact Assessment Proclamation and the Environmental
Protection Organs Establishment Proclamation, as well as the Constitution,
which guarantees the right to sustainable development in Article 43(1).
It is not fair to say, however, that the idea of sustainable development
is imposed in a top-down manner by international bodies. In the first place,
sustainable development came into popularity at the international level as a
compromise between developed countries and developing countries, with
developed countries generally favoring sustainability principles and
developing countries generally favoring economic development.
Developing country representatives to international conferences pointed out
that their nation’s poor are polluted by poverty, not industrial contaminants,
and even accused rich Western countries of pushing an environmental
agenda in order to slow their development.17 The tension between rich and
poor countries over environmental protection was evident at Rio and
subsequent conferences like the World Summit on Sustainable
Development in 2002, and appeared again most recently at the 2009
Copenhagen Climate Conference.18 To the extent that representatives from
developing countries (typically members of the political elite) truly
represent developing country citizens, the idea of sustainable development
must also reflect these citizens’ concerns.
Sustainable development in any case is difficult for the international
community to impose because it has an indefinite meaning. Many of the
parties to the international compromise on sustainable development have an
interest in keeping the meaning unclear so as to avoid binding
environmental commitments. After Rio, international meetings on
15. Id.
16. EPE, supra note 2, art. 2.1.
17. Joao Augusto de Araujo Castro, Environment and Development: The Case of the
Developing Countries, 26 INT’L ORD. 401 (1972).
18. See Galizzi, supra note 8, at 989. Notably, at the 2009 Copenhagen Climate
Conference, a new subgroup of countries emerged, composed of Brazil, South Africa, India,
and China. It appears that this subgroup, led perhaps by China, manipulated poorer
countries into a blocking move that prevented the normal exchange between rich and poor
countries—development assistance for environmental guarantees—from happening. See
Joseph Curtin, The Copenhagen Conference: How Should the EU Respond?, INSTITUTE OF
INTERNATIONAL AND EUROPEAN AFFAIRS 9 (2010). Although countries like China certainly
have divergent interests from the rest of the developing country bloc, attempts to approach
developing countries separately have been met by accusations from the Chinese of a
“conspiracy to divide the developing world.”
sustainable development have reiterated the importance of development but

have diluted the sustainability aspect.19 Academics also have despaired of
coming up with an agreed-upon definition for sustainable development.20
Inevitably, the economic component of sustainable development is better
defined than the environmental component. WCED stated that economic
growth at a rate of 3 percent to 6 percent per year would be sustainable, but
more vaguely that “sustainable development must not endanger the natural
systems that support life on Earth.”21 Measurements of earth endangerment
are various, contested, and generally clouded by the sweeping scope of the
problem.
In Ethiopia, the Amharic words used in various laws to mean
“sustainable development” are translated literally as unstoppable or
continuous and ongoing growth. In other words, Ethiopians think of
sustainable development as sustained development. The language of the
Constitution makes clear that sustainable development in Ethiopia is about
economic development. The Constitution has separate provisions for the
“right to a clean and healthy environment”22 and the “right to improved
living standards and to sustainable development,”23 implying that
sustainable development is about development and not about
environmental health. It has been said of Ethiopia’s primary policy
document on sustainable development, the Plan for Accelerated and
Sustained Development to End Poverty (PASDEP, 2005-2010), that
“[e]conomic development is the priority whilst . . . issues of environmental
sustainability are relegated into the background.”24
Although on a local level Ethiopians may prove to be excellent
environmental stewards, there is little evidence of a pro-environmental
preservationist movement. In part, this may be because rural Ethiopians do
not value the “wild” environment apart from the managed environment of
their farms and rural communities.25 Pro-environmental sentiment comes
19. The definition of sustainable development coming out of the 2002 World Summit
on Sustainable Development held in Johannesburg lacked any serious ecological
commitment, and was thus a step away from the Rio definition. See Galizzi, supra note 8,
at 991-993.
20. To put it succinctly: “Sustainable development means different things to different
people.” JON M. CONRAD, RESOURCE ECONOMICS 166 (1999).
21. WCED, supra note 1, at 45.
22. CONSTITUTION, Art. 44(1) (1995).
23. Id. Art. 43(1).
24. MCKEE, supra note 12, at 7.
25. See Yohannes GebreMichael & Ann Waters-Bayer, Trees are Our Backbone:
Integrating Environment and Local Development in Tigray Region of Ethiopia, IIED ISSUE
PAPER NO. 145 at 2, 19 (2007).
from the concern for daily survival and not from the desire to preserve
animals and wild places for their own sake. The problem of global
warming is widely known and often invoked as an explanation for
anomalous weather patterns, but many Ethiopians feel, perhaps rightly, that
global warming is caused largely by actions in developed countries and that
Ethiopians can do little about it.26
The preservationist perspective does appear in official policy
documents, but the government is more likely to follow the local
nonpreservationist perspective when applying policy. The Environmental
Policy contains commitments to preserve biodiversity,27 support for a
“conservation culture,”28 and even a right of species to continue existing.29
Moreover, Ethiopia has a national park system—the ideal for
preservationists—that was established primarily under the emperor in the
late 1960s and early 1970s in a top-down manner. However, the Ethiopian
government has shown itself willing to compromise on conservation in
parks in favor of economic interests. For example, the Ethiopian
Investment Commission, after accidentally allocating land for a German
biofuel project inside the Babille Elephant Sanctuary, remedied the
situation by changing the sanctuary boundaries.30 Also, when it comes to
environmental impact assessment, it is often foreign investors or foreign
banks rather than the Ethiopian government insisting on impact statements
from the EPA.31
When considering how Ethiopia uses “sustainable development,” then,
it is necessary to distinguish between international and domestic audiences.
Ethiopia uses the language of sustainable development to communicate to
the international community its commitment to world ecological stability
and, thus, to secure foreign aid. For the domestic audience, sustainable
development represents the promise of a brighter future and a higher
standard of living for Ethiopian citizens, and is almost synonymous with
26. Ethiopian farmers and pastoralists do their best to adapt to changing weather
patterns, although they are ill-positioned to do so. See OXFAM, THE RAIN DOESN’T COME ON
TIME ANYMORE: POVERTY, VULNERABILITY, AND CLIMATE VARIABILITY IN ETHIOPIA (April,
2010). Aside from certain changes in local forest management, Ethiopians cannot be
expected to address the roots of global warming, and they see the problem as economic
rather than environmental.
27. EPE, supra note 2, art. 2.2(a).
28. Id. art. 2.3(n).
29. Id. art. 2.3(q).
30. Yirmed Demeke & Negusu Aklilu, Alarm Bell for Biofuel Development in Ethiopia:
The Case of Babille Elephant Sanctuary, in AGROFUEL DEVELOPMENT IN ETHIOPIA (Tibebwa
Heckett & Negusu Aklilu eds., 2008)
31. Interview with Environmental Protection Authority officials (June 2009).
steady economic growth. By using the term “sustainable development,”

the government adds to its power and legitimacy, holding out the image of
richer prospects and invoking the power of industrialized nations where the
term originates. Ethiopian optimism about development is not, however,
very useful in its legal applications. The very flexibility in the meaning of
“sustainable development,” which is necessary in order to put the word to
its various uses, makes any legal right or policy goal associated with it
rather chimeric.
Environmental policy in Ethiopia has many additional layers of
complexity. Keeley and Scoones, for example, identify three environmental
policy discourses in Ethiopia: a Green Revolution discourse, an
Environmental Rehabilitation discourse, and an emergent Participatory
Natural Resource Management discourse.32 Both the Green Revolution
discourse and the Environmental Rehabilitation discourse originate in
science. The Green Revolution is the movement of technological advances
in crop productivity from industrialized countries to developing countries.
Environmental Rehabilitation responds to the scientific assessment of
resource degradation, particularly relating to soil fertility. Within Ethiopia,
these are modern perspectives which lead to uncomfortable juxtapositions
of science with traditional ways of doing things, often with urban elites
championing science and blaming “backwards” traditional practices for
environmental problems. In theory, Participatory Natural Resource
Management is the opposite of top-down policies that originate in
international discourse and elite circles in Addis Ababa and filter down.
Unfortunately, however, “participation” often relates more to attempts by
national officials to build up legitimacy for programs than attempts to
transfer real political power to local people.
The participatory management discourse highlights one of the
overarching problems addressed by this article: How can governments
consciously build support for environmental policies from the ground up?
Often it appears that the international community is pushing for
sustainability against the will of a great many poor people who just want
development. Interestingly, Agenda 21 of the UNCED’s Rio Declaration
called for “local Agenda 21s” that would build local community support for
32. Keeley & Scoones, supra note 11, at 90. Keeley and Scoones take a less explicit
interest in “sustainable development” and do not address at all the way that international
buzzwords like “sustainable development” are manipulated in local contexts. Apparently,
some soil scientists took issue with Keeley and Scoones for treating hard data as an element
of subjective discourse and for introducing unhelpful contradictions between environmental
rehabilitation and local resource management. Jan Nyssen et al., Environmental Policy in
Ethiopia: A Rejoinder to Keeley and Scoones, 42 J. OF MODERN AFRICAN STUDIES 137
(2004).
sustainable development.33 With some naiveté, the international

community expected local governments everywhere to organize
conversations with local citizens about sustainable development. Sparking
local conversations, not surprisingly, has been difficult.34 Ethiopian law
follows the idea of “local Agenda 21s” in that it requires all regional states
to have “regional conservation strategies,”35 but these have not led to
widespread discussions about the sustainability of development projects. It
has been reported that government officials look down on rural opinions
and practices with regard to the environment, indicating that the direction
of discourse is often top-down.36
The starting point for local debate may be empowerment of local
government, but this leads directly to another question, which is how to
structure local government so that it can rally local support and produce
positive environmental outcomes. Local management is difficult in the
context of development decisions because the scale and power of local
government often does not match the scale and power of regulated private
parties. Lower level government officials do not have the political standing
to challenge wealthy businessmen who may have better political
connections at higher levels in the government.37 In addition, local
governments may compete for development projects, resulting in a race to
deregulate in order to attract businesses. Sadly, decentralized management
may be attractive to national governments simply because it puts the
responsibility for unwanted decisions onto unqualified actors, allowing the
national government to avoid difficult decisions. The Ethiopian
government has decentralized many environmental permitting decisions to
regional governments (including the two federal cities, Addis Ababa and
33. Conference on Environment and Development, June 3-14, 1992, Rio Declaration
on Environment and Development, Ch. 28, U.N. Doc. A/CONF.151/26 (vol. I).
34. Local Agenda 21s arguably have been more successful in some developed
countries, where a discourse about sustainable development fits culturally. For one example
in Australia, see Ben Boer, Institutionalizing Ecologically Sustainable Development: The
Roles of National, State, and Local Governments in Translating Grand Strategy Into Action,
31 WILLAMETTE L. REV. 307, 329 (1995). The U.S. and Canada also have had some limited
success encouraging local discourse on sustainability. See Virginia MacLaren et al.,
Engaging Local Communities in Environmental Protection with Competitiveness:
Community Advisory Panels in Canada and the United States, in SUSTAINABILITY, CIVIL
SOCIETY AND INTERNATIONAL GOVERNANCE 31 (John J. Kirton & Peter I. Hajnal eds., 2006).
35. Environmental Protection Organs Establishment Proc. No. 295/2002, FEDERAL
NEGARIT GAZETA, art. 15 [hereinafter EPO Proc.].
36. See GebreMichael & Waters-Bayer, supra note 25.
37. For example, one author has noted that Tigray’s Environmental Protection, Land
Administration and Use Authority “has little political leverage to enforce environmental
regulations, e.g. to oblige large-scale enterprises . . . to operate in an environmentally-
friendly way.” GebreMichael & Waters-Bayer, supra note 25, at 8.
Dire Dawa) that simply lack the resources and expertise to evaluate
environmental dangers. Local districts known as woredas are expected to
handle certain development decisions directly—and have their own budget
to do so—but devote very little of their small budgets to environmental
projects, and do not coordinate at all with regional governments on
preventive measures like pollution control.38
In the APAP case, discussed below, the EPA argued at one point that
it should not be responsible for the pollution of rivers because it was
merely a coordinating organ for regional environmental agencies, and that
the real responsibility for environmental protection fell on the shoulders of
the regional agencies. This argument shows the dangers of the
decentralization of responsibility, which can become simply the diffusion
of responsibility.
III. Environmental Permitting in Ethiopia
The problems with Ethiopia’s permitting process get to the heart of the
difficulties and contradictions in Ethiopia’s overarching policy of
sustainable development. Environmental permitting is where
environmental policy meets practice; it cannot be effective without a real
commitment by government officials and without real leverage to make
hard choices between environment and development. In Ethiopia, delays in
implementing environmental permitting systems are apparent in several
government offices and are not explained by simple lack of resources. In
the few cases where environmental permitting has been implemented, the
responsible offices lack the political will or bargaining power to make clear
choices in favor of the environment and deny permits on the grounds of
environmental harm. Instead, what prevails is a state of confusion in which
it is not clear which office has control over the environmental decisions on
the permit and, therefore, which office should take responsibility for
implementing the environmental policy.
Permitting is the most basic form of government control over modern
industry.39 The phrase “environmental permitting” is meant here in the
broadest sense possible, including any type of license or permit that has at
38. MCKEE, supra note 12, at 56-58.

39. Most environmental laws incorporate some aspect of permitting. In the U.S., the
Clean Water Act and Clean Air Act rely heavily on permitting, and the National
Environmental Policy Act (and corresponding State Environmental Policy Acts), which can
be invoked when a project proponent seeks any government permit, renders many
permitting decisions subject to environmental impact assessment. In addition, permitting is
the basis for all cap and trade programs.
least one environmental criterion. In Ethiopia, environmental permits are

required for any discharge into water bodies,40 for collection and disposal
of solid or hazardous waste,41 for operating businesses that cause air or
water pollution,42 and for starting a project or business that has
environmental impacts and requires an impact statement. Permitting serves
the function of registration as well as control, and provides the government
with a record of potential threats to the environment and a starting point for
inspections. The permitting process places the initial cost of gathering
information and the burden of proof on the regulated party rather than the
government, and therefore can be relatively inexpensive for the
government to operate. Permits are also a great aid to government
transparency, because they force public communications to and from the
regulated party.
Surprisingly, the government environmental agencies in Ethiopia—the
EPA and regional environmental agencies (“REAs”)—do very little of the
environmental permitting. In fact, the EPA and REAs have legal authority
only to issue permits for hazardous waste,43 and, in practice, do not issue
any permits or licenses at all. The EPA and REAs have the authority to
conduct environmental impact assessments,44 but this authority will be
exercised only if a licensing authority (or a bank) refuses to go forward
without EPA/REA approval. The Ministry of Water Resources has legal
authority to issue permits for the discharge of waste into water resources45
but also does not issue any such permits in practice. Instead, the Federal
Investment Commission, the Ministry of Trade and Industry, and regional
government bureaus46 exercise permitting power over certain business
40. Ethiopian Water Resources Management Proc. No. 197/2000, FEDERAL NEGARIT
GAZETA, art. 11(1)(d) [hereinafter WRM Proc.]; Ethiopian Water Resources Management
Regulations, Council of Ministers Reg. No. 115/2005, FEDERAL NEGARIT GAZETA, art. 11(1)
[hereinafter WRM Reg.].
41. Solid Waste Management Proc. No. 513/2007, FEDERAL NEGARIT GAZETA, art. 4(2);
Environmental Pollution Control Proc. No. 300/2002, FEDERAL NEGARIT GAZETA, art. 4(1)
[hereinafter EPC Proc.]. The Solid Waste Management Proclamation was issued in 2007,
and it is not expected that urban administrations have taken steps yet to put their permitting
systems in place. The administrations also have the additional responsibility of conducting
environmental audits on existing disposal sites and ensuring that new sites undertake
environmental impact assessment.
42. Prevention of Industrial Pollution Regulation, Council of Ministers Reg. No.
159/2008, FEDERAL NEGARIT GAZETA, art. 5 [hereinafter PIP Reg.].
43. EPC Proc., supra note 41, art. 4.
44. Environmental Impact Assessment Proc. No. 299/2002, FEDERAL NEGARIT GAZETA,
art. 3(1) [hereinafter EIA Proc.].
45. WRM Reg., supra note 40, art. 11(1).
46. The regional governments, including Addis Ababa City Administration and the Dire
Dawa Administrative Council, have separate divisions that handle business licenses and
activities and, through this permitting power, effectively decide whether or

not to apply environmental criteria.
The history of pollution standards in Ethiopia shows how reluctant the
government has been to act in this area. As early as 1995, the first
proclamation establishing the EPA tasked the agency to set environmental
standards.47 In 2002, the Environmental Protection Organs Establishment
Proclamation (reestablishing the EPA) again gave EPA the power and duty
to set environmental standards,48 and the Environmental Pollution Control
Proclamation, also in 2002, more specifically called on the EPA to set
standards for water, air, soil, noise, and waste management.49 Nonbinding
ambient “guidelines” for air, surface water, groundwater, and noise have
been in place at the EPA since at least 2004. Nonetheless, the
Environmental Council, the governing body of the EPA, did not pass
binding standards until 2008, and even then restricted their purview to
effluent air and water discharges.
The Environmental Council of the EPA—which failed for six years to
have any of its regular meetings—finally met and passed standards in 2008
seemingly in response to a lawsuit waged by a nongovernmental
organization (“NGO”), Action Professionals for the People (“APAP”).
APAP sued the federal EPA in 2006, alleging in essence that the agency
should have done something to prevent pollution to the Akaki and Mojo
Rivers in the area near Addis Ababa.50 The EPA argued that APAP had
standing to sue only the polluter, not the EPA, but at that time no standards
existed on which APAP could base its suit. Perhaps to forestall any greater
judicial probing, EPA passed the standards in time for the Supreme Court’s
assessment of the case in 2009. Of course, the EPA did not state its exact
motive for enacting the standards when it did.
The same delays as those at the EPA have been apparent at the
Ministry of Water Resources, which was first charged with establishing
water quality standards in 1995.51 The 2000 Ethiopian Water Resources
Management Proclamation again called for water quality standards, and
prohibited discharges of pollution into water without a permit from the
investment permits.
47. Environmental Protection Authority Establishment Proc. No. 9/1995, FEDERAL
NEGARIT GAZETA, art. 6(3).
48. EPO Proc., supra note 35, art. 6(7).
49. EPC Proc., supra note 41, art. 6(1).
50. Action Professionals Association for the People v. Environmental Protection
Authority, Civil File No. 64902, Federal First Instance Court (2006).
51. Definition of Powers and Duties of the Executive Organs Proc. No. 4/1995,
FEDERAL NEGARIT GAZETA, art. 17(9).
Ministry.52 The Proclamation explicitly anticipated a set of regulations that

would lay out the details of the permitting process,53 but these regulations
were not issued until 2005. Unfortunately, although the regulations
provide some detail on how a “Waste Water Discharge Permit” would be
issued, they are premised on a set of water quality standards that do not
exist and, furthermore, anticipate a directive that must be issued for the
implementation of the waste water provision of the regulation.54 Neither
the standards nor the directive has yet been issued. Although the Ministry
today engages in professional licensing and some construction permitting
for water works projects, it does not issue permits for pollution
discharges.55 The Ministry of Water Resources exhibits the same pattern of
delay on environmental protection as the EPA, waiting for a proclamation,
then for a regulation, and then for a directive, in order to control pollution.
This process should be compared with the process to set up professional
licensing at the Ministry of Water Resources, which was outlined in the
same proclamation of 2000 as pollution permits but was implemented more
quickly and efficiently.
Presently, only two types of pollution standards have been adopted:
effluent limits on certain water pollutants for a specified list of industries,
and similar limits on certain air pollutants for a specified list of industries.
There are no ambient standards for overall air and water quality, despite the
fact that these are required by law, although it should be noted that ambient
standards would present considerable costs in urban and regional planning,
administrative coordination, and air and water testing.
For the two pollution control standards that have been approved by the
EPA, there remain serious problems with enforcement and implementation.
The primary role for the EPA and REAs under the Environmental Pollution
Control Proclamation is to monitor and inspect polluting industries.56 It has
been argued, in fact, that the proclamation goes too far and provides too
little oversight of Environmental Inspectors who, in enforcing the
standards, may enter any place, question anyone, and inspect and seize any
materials at the Inspector’s discretion.57 While such powers are sweeping
52. WRM Proc., supra note 40, art. 11(1)(d); WRM Reg., supra note 40, art. 11(1).
53. WRM Proc., supra note 40, arts. 11(1)(d), 11(2), 13(1), 14(2), 28(2), 30.
54. WRM Reg., supra note 40, art. 12(2); interview with official at Ministry of Water
Resources (July 2009).
55. Interview with official at Ministry of Water Resources (July 2009).
56. See EPC Proc., supra note 41, art. 8(1)(a).
57. Id. art. 8(1). For a more detailed analysis of the problem of Inspector oversight, see
Khushal Vibhute, Environmental Policy and Law of Ethiopia: A Policy Perspective, 23 J.
ETHIOPIAN L. 75, 97 (2008). Vibhute worries that “[the EPC Proclamation] gives an
impression that the [Environmental Inspector], in the name of seeking compliance with the
in law, they are not so sweeping in practice. Unlike a licensing power, a

monitoring power is rather expensive and difficult to exercise. The EPA or
REA has to go to the industry in question with its own people, conduct its
own inspections and tests, and confront powerful business interests head-on
in the field. The agencies simply do not have the resources or political
standing to do this, and in practice they have not done it.58 As in most
countries, the degree of environmental enforcement often depends more on
political will than on the requirements of the law.59
Along with the environmental standards, the Environmental Council
simultaneously adopted the Prevention of Industrial Pollution (“PIP”)
regulation that explained how the standards would be applied.
Subsequently, in 2008, the EPA issued a directive identifying the eight
categories of factories that fall under the regulation and thus are subject to
the standards.60 The regulation gave existing factories (in one of the eight
categories) a maximum of five years to comply with the standards, with the
expectation that the EPA (or appropriate REA) would oversee the process
of transition. Specifically, existing factories are called on to undertake an
environmental audit and implement an environmental management plan.61
Meanwhile, new factories will become operational without the direct
oversight or approval of the EPA. The Ministry of Trade and Industry or
regional bureaus are expected to catch noncompliant factories at the time
they apply for business licenses. Theoretically, in order to obtain a
business license, a factory must prove that it will meet the environmental
standards and must continue to do so every year when it renews its
license.62 This provides an opportunity to check environmental compliance
[environmental standards], is free to exercise his powers even in a capricious manner with
impunity.” Id. at 98. The only explicit restraint on Environmental Inspectors in the EPC
Proclamation is that they “exercise due diligence and impartiality in the discharge of their
powers and duties.” EPC Proc., supra note 41, art. 7(2).
58. The EPA more or less admitted its failure to control pollution of the Akaki and
Mojo Rivers in the APAP suit. General problems with monitoring and inspections were
confirmed by interview with EPA officials.
59. This is equally true of developed countries. For instance, amid allegations of loose
environmental oversight at the U.S. EPA under the administration of former President
George W. Bush, one survey found that two-thirds of the staff scientists at the EPA reported
political interference with their work. Meddling at EPA? Activists Point to Survey: Two-
Thirds of 1,586 EPA Scientists Polled Cite Interference, UCS Reports, ASSOC. PRESS, Apr.
23, 2008.
60. EPA Directive NO. 008/2008, on file at the EPA. Under the regulation, the EPA
may choose to take action against a factory not identified by the directive if that factory
poses a risk. PIP Reg., supra note 42, art. 4(5).
61. PIP Reg., supra note 42, art. 12(2).
62. Currently, a business must renew its business license annually. See Commercial
Registration and Business Licensing Proc. No. 67/1997, FEDERAL NEGARIT GAZETA, art.
on a regular basis.
The “competent licensing agency” for issuing a business license may
be the Investment Commission, the Ministry of Trade and Industry, or a
bureau of the regional government, depending on the type of project, where
it is located, and whether foreign investors are involved. In any case, none
of these agencies has an environmental focus. Officials at these licensing
agencies are hardly aware of environmental standards and EPA directives;
they have no expertise or incentive to evaluate license applications for
compliance with environmental standards. Accordingly, they do not
actually apply environmental standards but rather defer to the EPA in
expectation of future monitoring and enforcement.
Notably, the PIP regulation requires an environmental check only in
the case of “business licenses,” not investment permits.63 This changes the
timing of things. An investment permit is needed at the planning stages of
a project; a business license is not required until the start of operations.
Presumably, the factory may be designed and built to pollute in excess of
the standards, and not be reviewed until it is ready to start production. This
is somewhat surprising, although it is expected that an environmental
impact assessment would catch such an ill-designed factory at the planning
stages. If not, it is hard to imagine that a business license would be denied
based on environmental problems—typically problems of design—at the
point when the factory has been built and is ready to start production. The
review process in practice is more a matter of course, requiring a fee and
validation of appropriate documents like the investment permit (if the
applicant is a foreign national). The Investment Commission, which has its
own authority to issue an initial business license to an investor (although
not a renewal), requires only the application, fee, and a signed statement by
the investor that he or she will respect the laws and directives of the land.64
25(2).
63. See the definition of “competent licensing agency” in PIP Reg., supra note 42, art.
2(1). This is in contrast to the Environmental Impact Assessment Proclamation, which
requires that the licensing agency check EIA compliance before issuing “an investment
permit or a trade or an operating license for any project.” EIA Proc., supra note 44, art.
3(3).
64. The Investment Commission’s authority to issue business licenses is based on the
Investment Proclamation. See Investment (Amendment) Proc. No. 375/2003, FEDERAL
NEGARIT GAZETA, art. 24(5). Notably, this provision indicates that the Investment
Commission need not bother with article 22(2) of the Commercial Registration and Business
Licensing Proclamation, which potentially requires, as part of an application for a business
license, some type of confirmation of environmental compliance from the appropriate
government organ. In place of such confirmation, the Investment Commission requires the
investor to sign “an undertaking to respect the relevant laws and directives of the land.” Id.
art. 13 (adding article 24(5) to the original Investment Proclamation). Presumably, this was
included in the Investment Proclamation in order to speed up the approval process for
Although the competent licensing agency has the main responsibility

to deny a business license to an applicant who does not meet pollution
control standards, the EPA has a separate power under the PIP regulations
to vary or cancel existing business licenses of polluting industries.65 This is
a strange provision that allows the EPA (or regional environmental
authority) to intercede between the licensing authority and the license
holder, and in effect makes the license holder beholden to two different
government agencies for the same license. It is hard to imagine the EPA
exercising its authority to vary or cancel a license if to do so would offend
the business licensing authority. In addition, this provision confuses the
direct line of accountability, because each of the two concerned agencies
can blame the other for any failure to regulate polluting industries.
Moreover, the regulation essentially places the onus of monitoring and
gathering evidence about pollution on the EPA, which must have this
evidence to prove that the license should be varied or cancelled. At the
time of application for the license, on the other hand, it is the applicant who
provides the evidence that pollution will not exceed the requisite level.
Officials at the EPA expect that environmental impact assessment
(“EIA”) laws will ensure that new factories comply with environmental
standards. When it comes to the issue of new factories, most people,
including officials at the licensing agencies, conflate EIA and pollution
control. Although it might be more efficient to fold pollution control into
the EIA process—at least for new factories—it must be kept in mind that at
present EIA is a separate legal requirement that is itself difficult to enforce
and is not set up formally to meet an explicit set of environmental
standards. Officials at the Investment Commission are not even aware of
the pollution standards and are certainly not applying these standards in
practice. If the EIA process is to replace pollution control for new
industries, this should be stated in the law and applied more rigorously by
the licensing authority.
foreign investors and increase foreign direct investment. Nonetheless, it is a rather

surprising provision for its seemingly arbitrary and unequal treatment of investors. A
foreign applicant for a business license who goes through the Investment Commission may
face fewer application requirements than a domestic applicant for the same license who goes
through the Ministry of Trade and Industry or a regional bureau. The provision also runs
contrary to every other law that attempts to place responsibility on the licensing authority
for environmental protection.
65. PIP Reg., supra note 42, arts. 6, 7.
IV. Environmental Impact Assessment and the

Ethiopian Investment Commission
Most pollution comes from new entrepreneurial undertakings, and the

responsibility for encouraging and coordinating entrepreneurship in
Ethiopia lies with the Ethiopian Investment Commission (“EIC”). In
Ethiopia from 1992 to 2009, about 71.1 percent of all capital investment
was approved through the EIC.66 This indicates how important this one
office is to the trajectory of economic development in Ethiopia. The EIC
deals with foreign investors or Ethiopians working in partnership with
foreign investors, and issues investment licenses and other permits so that
projects can proceed. Permits for domestic investors will typically be
obtained from regional bureaus, or may not even be required.67 In some
cases, as for example with mining projects, the project proponent will need
a specific permit from another government agency like the Ministry of
Mines and Energy, and this permit will also be conditioned on the
proponent satisfying EIA requirements.
The EIC boasts of a one-stop shopping philosophy such that an
investor can get government approval for a project through one office, the
EIC.68 This means that EIC must undertake to coordinate with all other
Ethiopian government agencies on behalf of the investor to get the project
approved, for example by contacting the appropriate regional government
to secure land for the project. EIC itself takes over some of the
responsibilities of other agencies, for example by issuing initial business
permits and construction permits. By law, EIC must respond to
applications for investment licenses within five days,69 and publications by
EIC tout its ability to deliver the investment permit within four hours.70 In
the period between 1992 and 2009, the EIC gave out a total of 44,669
investment licenses in various sectors, including agriculture, hunting, and
forestry (9,715); construction (3,094); manufacturing (10,748); and mining
66. EIC database, accessed June 2009.

67. The EIC has jurisdiction over foreign investors and foreign and domestic partners,
as well as domestic investors who want to be eligible for certain incentives. Investment
Proc. No. 280/2002, FEDERAL NEGARIT GAZETA, art. 23. Regional bureaus are responsible
for investment by domestic investors in their regions, although an investment permit may or
may not be required depending on regional laws. Id. art. 23(3). Regional bureaus also
handle business licenses for projects in their regions. Commercial Registration and
Business Licensing Proc. No. 67/1997, FEDERAL NEGARIT GAZETA, art. 20(1).
68. Investment Proc. No. 280/2002, FEDERAL NEGARIT GAZETA, art. 24.
69. Investment (Amendment) Proc. No. 375/2003, FEDERAL NEGARIT GAZETA, art.
14(1).
70. INVESTMENT REVIEW, May 2009, on file at EIC.
and quarrying (189).71

One of the government agencies with which EIC is supposed to
coordinate is the EPA. The EIC is required by law to ensure that EIA either
is done or is not mandated for the particular project before approving an
investment permit.72 According to the language of the EIA Proclamation, a
project proponent must have “authorization” from the federal EPA or REA
to start a project that requires EIA, and it is incumbent upon the licensing
agency to contact the EPA or REA for this authorization before issuing an
investment permit or business license. For EIC, the process of consulting
EPA has been awkward and ultimately unsuccessful—not surprising
considering that EIC wants to process investment applications efficiently
and EIA takes a great deal of time. The EIC has asserted alternatively that
the EPA takes too long to verify that a project meets EIA requirements, or
that the EPA always approves the project thereby making consultation a
waste of time.73 Interestingly, it was proposed that EPA delegate its
authority to review environmental impact statements to the EIC, but the
EIC, perhaps wisely, refused.
At present, EIC no longer consults the EPA for authorization and
argues that the new Investment Proclamation, by omitting any reference to
EIA, somehow overrides the requirement in the EIA Proclamation to get
EPA authorization before issuing an investment permit.74 More troubling,
the EIC has asserted repeatedly that it is the EPA’s responsibility to check
for EIA compliance in the field after the investment permit has been
approved. It is hard to understand this argument. The project may
commence once the investment permit is issued, and the EIC itself may
issue construction permits. Once construction starts, it is too late to do
EIA. EIA only works if it is part of project planning. Because the EIC is
71. EIC database, accessed July 2009.

72. EIA Proc., supra note 44, art. 3(3).
73. Interview with EIC officials (June 2009).
74. The original Investment Proclamation specifically required undertaking EIA before
issuing an investment permit. Investment Proc. No. 37/1996, FEDERAL NEGARIT GAZETA,
art. 14(1). The new Investment Proclamation (No. 280/2002) repealed the earlier
proclamation and omitted any reference to EIA. The Investment (Amendment)
Proclamation (No. 373/2003) also did not add the EIA requirement. Nonetheless, the new
proclamations do not relieve the EIC’s duty as stated in the EIA Proclamation to check for
EIA, because, although the proclamation latest in time prevails, provisions of previous
proclamations should be repealed or superseded by something more than mere implication.
The EIC’s argument, though spurious, seems to provide enough doubt to buffer the EIC
from pressure to observe the EIA Proclamation. Calls have been made to amend the
Investment Proclamation so that it, too, includes a provision requiring the EIC to check with
EPA before issuing a permit. Unfortunately, no legal requirement can make the EIA
process proceed quickly, so it is unlikely that EIA can be reconciled with the expedited
service requirements that form the backbone of investment policy in Ethiopia.
involved so much in approving and coordinating investments, its failure to

check for environmental compliance has the potential to lead to some
egregious results. For example, the EIC accidentally allowed a German
company to start a biofuel project on land that was located inside a wildlife
sanctuary.75
Another notorious example of EIC’s lack of environmental concern
comes from the floriculture industry. Fertilizers and pesticides that are
used to boost floriculture production are potentially harmful to human
health and widely recognized as sources of pollution to soil, aquatic
resources, and the atmosphere.76 Despite this fact, EIC has given permits
to at least 251 investors in this sector without checking for environmental
impacts.77 Additional investment licenses have been given out by regional
investment bureaus (without checking for environmental impacts),
including the Oromia Investment Bureau, which has given out
approximately 3,491 hectares of land to the sector.78
As with pollution standards, environmental impact assessment suffers
from a lack of clear implementing guidelines. The EIA Proclamation
anticipated two directives to guide EIA: A directive explaining which
projects are subject to EIA,79 and guidelines explaining how an
Environmental Impact Study Report (“EISR”) should be prepared and
evaluated.80 Although the EIA Proclamation was issued in 2002, it was not
until 2008, at the first meeting of the Environmental Council of the EPA,
that the Council approved a directive stating which industries are subject to
EIA requirements.81 This is a major step forward, but it remains to be
implemented through the Investment Commission and EPA. Regrettably,
there are still no legal standards for what the EISR must contain. This is
hard to understand, given that the EPA has had a comprehensive set of
nonbinding draft guidelines for EISRs in almost every major industrial
category since 2004.
75. See Demeke & Aklilu, supra note 30.

76. Mulugeta Getu, Ethiopian Floriculture and Its Impact on the Environment:
Regulation, Supervision and Compliance, 3 MIZAN L. REV. 240, 243 (2009).
77. Id.
78. Id.
80. Id. art. 8(3).
81. Environmental Protection Authority [EPA], A Directive Issued to Determine
Projects Subject to Environmental Impact Assessment, Dir. No. 1/2008, on file at the EPA.
V. Environmental Controls at the Regional Level
Regional environmental authorities review EISRs from projects in

their regions that do not have trans-regional effects and do not require
federal permits or federal supervision.82 Unfortunately, the regional
governments are even less prepared than the federal EPA to review EISRs
with strict scrutiny, or to challenge government development projects or
well-connected businessmen. Some regional governments have adopted
regional EIA regulations based on the federal law, although in general the
regional governments lag behind the federal government in implementing
environmental policies. The Oromia regional government was reviewing
its first draft EIA regulation in 2009. In 2006, the Addis Ababa city
government enacted an EIA regulation very similar to the federal EIA
Proclamation but, like the federal proclamation, the city regulation awaits
directives that are necessary for proper implementation and proper review
of EISRs.83
Unlike the EIA Proclamation, the Environmental Pollution Control
Proclamation does not explain the exact separation of duties between the
federal EPA and the regional environmental authorities. Instead, it merely
states that the regional government may adopt stricter environmental
standards than the federal standards.84 Even a project with cross-regional
impact or a federal license requirement would have to meet the local
standards of the region in which it is located. In such cases, the EPA and
regional environmental authority probably would have overlapping
responsibilities of inspection and enforcement, with the more stringent
standards forming the baseline for both federal and regional agencies.85
Decentralization is favored by the federal EPA, so it is unlikely that
jurisdictional disputes would arise. The greater problem here is that the
regional governments do not have the resources or the political clout to
stand up to larger industrial operations. Also, without clearly defined roles
for federal and regional authorities, the line of accountability to those
authorities is confused.
Some regional governments have adopted their own pollution control

83. Addis Ababa City Government Environmental Impact Assessment Regulations No.
21/2006.
85. As an example of overlapping authority, the Addis Ababa pollution control
regulation requests that applicants for pollution control permits bring their federal
investment permit when they apply. Such an applicant would end up with both a federal
and a regional permit.
regulations, but the regional governments usually lag behind the federal
government here as well. For example, the Oromia regional government in
2009 was still reviewing the first draft of its pollution control regulation,
modeled substantially on the federal law. The Addis Ababa city
government first enacted pollution control regulations in 2007. The Addis
Ababa regulations, once implemented, will be a major advance over the
federal law, setting up a separate environmental pollution control
permitting system and providing detailed rules that explain application and
review procedures for these permits.86 Unlike the federal EPA, which has
direct control only over hazardous waste permits, the Addis Ababa EPA
issues environmental permits itself and can force polluting industries to
provide information about pollution at the time of permit application. In
addition, the regulations provide that, in case the applicable environmental
standards are not yet in place, the Addis Ababa environmental agency will
use “environmental standards issued by the concerned international
organizations.”87 Despite such rigorous laws, it is expected that regional
governments will have greater difficulty with implementation due to lack
of funds, lack of expertise, small numbers of employees, and inability to
challenge better-connected businessmen and the bigger agencies of the
federal government.
VI. Citizen Suits to Enforce Pollution Limits
The alternative to government enforcement of standards is citizen

enforcement of standards. The Environmental Pollution Control (“EPC”)
Proclamation authorizes citizens to appeal directly to the courts to enforce
environmental standards against polluting industries without having to
show a “vested interest.”88 Any citizen of Ethiopia, then, may bring a suit
against a polluting industry. The idea is that the citizen steps into the shoes
of the EPA to enforce the standards. Damages may include, in addition to
the fines paid to the government and imprisonment, the full cost of
restoring the environment “to the state in which the environment was prior
to the infliction of the damage.”89 If this is not possible, then the industry
pays compensation to the victims of the pollution.90 There is no explicit
provision for compensating the citizen initiating the suit, who incurs the
86. See Addis Ababa City Government Environmental Pollution Control Regulations
No. 25/2007.
87. Id. art. 5(2).
88. EPC Proc., supra note 41, art. 11.
89. Id. art. 17.
90. Id.
costs of litigation and pollution studies. This is a shortcoming of the law

because it might prevent poor people from coming forward. Notably the
APAP case, discussed below, was funded by APAP, an NGO with
considerable resources and professional expertise. In any case, citizen
enforcement has the potential to be very effective but remains deeply
problematic for other reasons.
First, as the Supreme Court decided in the APAP case, citizens do not
have standing to sue the EPA and can only proceed against the polluting
industry directly. Action Professionals for the People (“APAP”) sued the
EPA in 2006, alleging that EPA’s own studies, as well as other independent
studies, demonstrated conclusively that the Akaki and Mojo Rivers were
being severely polluted by industrial waste from various factories as well as
by untreated waste from the city of Addis Ababa.91 The EPA’s response, in
essence, was that because pollution standards had not yet been adopted, it
was impossible to say that pollution had occurred. This argument was
awkward for EPA, considering that it was the EPA’s failure to enact
standards in the first place that had prevented APAP from suing the
offending industries directly. The legal point on which EPA eventually
succeeded was that APAP did not have standing to sue the EPA. This point
was not entirely clear from the EPC Proclamation, which says merely that,
if a person files a complaint with EPA about a polluter and is not satisfied
with EPA’s response, that person can then “institute a court case.”92
Against whom? The Supreme Court decided that a citizen suit can only
proceed against the polluter. In fact, this is probably the right decision
from the standpoint of the legislature’s intent. The citizen suit provision in
the EPC Proclamation waives the “vested interest” requirement initially for
the purpose of facilitating citizen complaints to the EPA against polluters.
Considering the current political environment and the shortage of
government funds, it is unlikely that the legislature intended to open the
door to litigation against EPA. In the end, APAP achieved a victory of
sorts when the EPA finally enacted pollution standards. As will be seen,
however, this does not mean that industries along the Akaki and Mojo
Rivers will be forced to immediately comply with the standards.
91. Action Professionals Association for the People v. Environmental Protection

Authority, Civil File No. 64902, Federal First Instance Court (2006). For a brief summary
of the case, see Vibhute, supra note 57, at 95. Wondwossen Sintayehu of the EPA also
produced a summary of the case at the pleading stage. WONDWOSSEN SINTAYEHU, ENVTL.
PROT. AUTH., ACTION PROFESSIONALS’ ASSOCIATION FOR THE PEOPLE VS. ENVIRONMENTAL
PROTECTION AUTHORITY: REPORT ON THE PUBLIC INTEREST LITIGATION CASE INSTITUTED AT
THE FEDERAL FIRST INSTANCE COURT OF ETHIOPIA, available at www2.unitar.org/cwm/
publications/cw/tw/tw10/written/gov/Ethiopia_Wondwossen_Sintayehu.pdf.
If citizens cannot use the courts to compel EPA to take action, EPA
will have complete discretion over whether to set pollution standards and
whether to monitor the emissions of industries. When EPA delays and
does not pass standards, or does not take enforcement actions on a case-by-
case basis for particularly bad offences, or fails to conduct adequate
inspections, then citizens have no recourse but to complain to the EPA and,
if dissatisfied, appeal only up to the level of the head of the EPA, from
which there apparently is no further appeal.93 The solution to this problem
is political: Citizens can still mobilize pressure on the national government,
or, perhaps more appropriately in this case, on regional governments.
Underlying these issues is a more pertinent issue: The EPA and the REAs
are underfunded, and their activities can be curtailed through subtle
pressures exerted by wealthy industries and investors.
With regard to the standards that have been passed, which presumably
should afford citizens an opportunity to sue industries directly, there are yet
many problems. To be effective at enforcement, citizens need to be
informed about the standards. Under Ethiopian administrative law,
“standards” are a species of “directive” and are not required to be published
in the federal Negarit Gazeta, so they are not readily available to the
public. Unless citizens go to the EPA and request specific information,
they will not have the appropriate environmental standards in hand. This is
not a problem for sophisticated actors like APAP operating out of Addis
Ababa, but it is a problem for the average citizen.
Additional concerns have been raised that citizens need information
about the activities of a particular factory in order to support a claim that a
standard has been violated.94 The standards are not ambient standards,
which set acceptable amounts of pollution in air and water bodies, but
rather are effluent standards that set limits on the amount of certain
pollutants generated by a particular factory. Thus, it is not enough to show
that a particular water body is polluted or that air in a particular area is
polluted. Rather, citizens involved in a suit would have to test the effluent
discharges of a particular factory. Typically, the amount of discharge is
information to which only the factory and Environmental Inspectors have
access. To solve this problem, the government could give citizens a right
to EPA’s records or a right to get information directly from the polluting
industry. To some degree, citizens already may access those records at the
EPA that have been made public. This access is limited in practice,
however, and in any case citizens cannot force the EPA to gather the

94. See Vibhute, supra note 57, at 96.
necessary information and make it public, nor can they sue the EPA for
failure to enforce the standards against a particular industry. A better
solution is to give citizens direct access to information about the factory,
either through court orders stemming from citizen suit litigation or through
a public reporting process.
Interestingly, the Environmental Council deleted a provision of the
Prevention of Industrial Pollution (“PIP”) Regulation that would have
allowed “anybody” to get information about pollution directly from the
concerned factory. It was decided that this information is the factory’s
property, and that information including the environmental management
plan, the report for the implementation of the PIP Regulation, and the
information gathered through periodic supervisions and checkups would be
available to the public at the EPA. The worry was that, if the public had a
right to information, “expenses will be incurred by the information provider
[and] unexpected outcomes might occur.”95 This avoids the more
important issue, which is why are not all reports submitted by the factory
made as public as possible? The EPA could require factories to publish
information about their pollution levels in a newspaper (or simply include
all of this information on the permit itself and post the permit in a public
place). The expenses of publishing this information are minimal. Under
the PIP Regulation, every factory must submit an annual report relating to
how it is meeting the pollution standards, but this report goes directly to the
EPA rather than to the general public.96
Citizen enforcement against industry is the ultimate type of
government decentralization, at least of executive powers. Every citizen is
a policeman. In the end, it would be numerous local and federal courts that
would decide the matter of liability. This is an inviting scenario, and cost-
effective for the government. Clearly, however, many administrative
reforms are needed before citizen suits will work properly. Citizens need
to have a public forum where pollution standards and EPA reports on
polluting industries are accessible. One solution already mentioned is to
change the directive so that EPA and REAs issue environmental permits.
The permit itself could state the applicable pollution standards, and regular
permit renewals would give EPA the opportunity to gather information
from the industry without incurring all of the expenses of an on-site
inspection. The industry would be required to report its pollution as part of
the permit application. In addition, if EPA received many citizen
complaints about one industry, the agency would be in a position to drag
95. Environmental Council First Ordinary Meeting Minutes (April 23, 2008).
out the permitting process and collect more information. Once public, the
information would provide the basis for a citizen suit.
VII. What Ethiopia’s Permitting Process Says About

Ethiopian Views of Sustainability
Perhaps the main question raised by Ethiopia’s permitting process is,

why is the Ethiopian government so eager to pass strong environmental
policies and initiating laws and yet so reluctant to pass implementing laws
and pollution standards? A variety of different actors in the Ethiopian
government are ready to cooperate with foreign donors who want to
contribute money toward stronger environmental policies. This includes
government officials from members of the previous communist regime to
the current workers at the EPA and Ministry of Water Resources.
However, these same actors uniformly resist making strong decisions to
implement environmental policies to stop environmental harms. This is not
only true of the EPA and the Ministry of Water Resources, but also of the
regional governments that have considerable discretion in implementing
federal environmental policy at the regional level. Because this delaying
pattern is so consistent, it is not likely that the problem is with a few lazy or
corrupt government workers or a few powerful individuals with feelings of
insidious anti-environmentalism.
It is instructive to compare environmental permitting with the
permitting system being set up to regulate nongovernmental organizations
(“NGOs”) under the Charities and Societies Proclamation.97 The Charities
and Societies Proclamation was issued in 2009, and already the Charities
and Societies Agency has been formed. Licensing of NGOs (“re-
registration”) has also commenced—by the end of 2009, 1,200 local and
foreign NGOs had been licensed. In 2009, the same year the proclamation
was issued, a draft directive was already under consideration. This shows
what the government can accomplish in a short time if the political will is
present.
Arguments about the difficulties of enforcing environmental laws are
not entirely convincing. First, enforcement is not held up by lack of
training or expertise. Environmental standards can be copied from other
countries, and have been copied. Since 2004, the EPA has had its own set
of nonbinding environmental quality standards and nonbinding EIA
guidelines ready for adoption into law. These have not been adopted.
Several studies have been done of pollution in the area around Addis
97. Charities and Societies Proc. No. 621/2009, FEDERAL NEGARIT GAZETA.
Ababa, particularly of pollution in the Akaki and Mojo Rivers, and it is

apparent that the scientific expertise for these kinds of studies is available.
A more compelling explanation is the lack of government funds to
support the personnel and infrastructure for environmental regulation over
the long term. Adopting strong environmental policies is cheap and easy,
especially if a foreign donor is contributing money for studies and policy
development. On the other hand, maintaining a complex regulatory
infrastructure staffed by experts is difficult and expensive.
Lack of funds is only a partial explanation, however, because it cannot
account for the federal government’s apparent reluctance to allow citizens
to enforce environmental standards on their own through the courts.98
Citizen enforcement is considerably less expensive than enforcement by
regulatory agencies. If the regulatory agency does nothing but enact the
standards, the citizens can at least bring suits against the worst offenders.
Although lawsuits present some cost to the courts, the government could
recoup these costs with fines and penalties, and, after the first few cases,
the mere threat of litigation should be enough to keep offending industries
in line without having to litigate every infraction.
Lack of funds also does not entirely explain the government’s
reluctance to implement EIA laws, as the expense of an environmental
impact study report is borne by the project proponents.99 Once project
proponents learn that they must prepare a report, they hire an
environmental consultant to do the technical work. It would be relatively
easy to require that such consultants be licensed by the government,100and
revocation of the license and criminal fines could be imposed on
consultants for watering down reports or accepting bribes from
proponents.101 The remaining expense to the government is for experts at
the EPA who must review the reports. Although this expense cannot be
avoided, it is considerably less than the expense of preparing the report,
and requires only cross-checking rather than detailed investigative work.
The obvious explanation for the government’s inaction on pollution is
that the government is fearful of stifling economic development. This is a
98. Citizen suits may seem like a modern legislative innovation, but in fact very similar
lawsuits were used under the common law of England and the U.S. before industrialization
to control isolated cases of pollution. Citizens could sue for nuisance when pollution
crossed onto their property and disturbed their use and enjoyment of their land.
100. In fact, the EIA Proclamation hints that the EPA will issue standards for EIA
consultants. See id. art. 7(2).
101. It is already a criminal offense to make misrepresentations in an environmental
impact study report. Id. art. 18(2).
fear both of losing central control of economic planning and of scaring off
investment by increasing the cost of business. These are fears shared by
many citizens. In the first place, decentralized management of economic
issues (citizen enforcement of pollution standards is a type of decentralized
economic management) is a threat to the structure of any modernizing
economy. Karl Polanyi has argued convincingly that economic
development appears to be organic and from the ground up, but in fact is
dependent on centralized coordination and the repression of various local
and individual interests.102 It is dangerous from the perspective of
government to create enforceable environmental rights, for example the
right to be free from a specific amount of pollution, because rights are by
their nature decentralized. The right could be asserted by one person
against everyone else, even though everyone else has agreed to waive that
environmental right in exchange for the economic benefits of polluting.
The threat is not of a grassroots environmental movement, but rather of a
small group of Ethiopian environmentalists holding hostage popular
development plans by strictly imposing environmental standards.
The fear of scaring off investment comes from the perceived threat
that other competing political jurisdictions will attract businesses more than
Ethiopia. Competition among jurisdictions produces the well-known
regulatory race to the bottom, in which jurisdictions reduce legal regulation
of business more and more in order to become the most attractive suitor to
business ventures. The race to the bottom is the inevitable effect of
allowing expansive markets at a level higher than the scale of government.
If a company can enter Ethiopia, employ Ethiopians, and generate revenues
to be spent in Ethiopia, this gives the company a kind of power to negotiate
terms with Ethiopia. Some companies can and do demand less
environmental regulation.103 Similarly, much like an international
company vis-à-vis the national government, a national company may
demand terms from local governments in exchange for jobs and growth
brought to the locality.104 The victims of pollution may agree to pollution
as part of an unbalanced exchange, in which they receive some kind of
employment or minor financial compensation. Alternatively, depending on
the integrity of the local government, a national company may be allowed
to pollute because the victims of this pollution are a small and politically
102. KARL POLANYI, THE GREAT TRANSFORMATION (1944).

103. On the other hand, some international companies may end up polluting less because
of the demands placed on them by their international consumers. This is an effect that has
nothing to do with environmental law (although EIA may play a small role) and everything
to do with access to information and reports by the international press.
104. Harvey Molotch, The City as a Growth Machine, 82 AMERICAN JOURNAL OF
SOCIOLOGY 309 (1976).
inconsequential group.
Discussions about sustainability in Ethiopia may be a superficial
proxy for deeper concerns about resource distribution. That is, while it
appears that people are talking about how to prevent pollution, they are in
fact thinking about how the people who receive the benefits from economic
development do not share these benefits with the people who suffer the
environmental harms of economic development. If resource distribution is
the popular concern in Ethiopia, then the government is right to focus on
international aid concessions and redistribution of wealth within the
country rather than on environmental laws that aspire to overall
environmental health as measured by science. The permitting process
could be changed to fit the Ethiopian context, for example by focusing on
discreet payments from polluting industries—a kind of anticipatory tax on
pollution. When businesses apply for permits, the government could assess
likely pollution and increase the permit fee based on likely environmental
harm and economic damage to local residents.
VIII. Conclusions and Further Considerations
Environmental laws in Ethiopia are meant to protect the productive

capacity of the land. They include guarantees of an individual’s right to
access land, and they make promises to control the threats to natural
resources from modern factories and from development. This is not just
subterfuge. The Ethiopian government wants to protect the country’s
resources, but in a context in which economic development is an absolute
imperative. The only available model for economic development, whether
it comes from the U.S. or China, is to continue nationalization and
internationalization of markets and preempt any calls for total redistribution
of wealth with promises of general social protections like pollution
prevention. It is perhaps assumed that, after development is well
underway, the government will then have the time and resources to go back
and make good on its promises of environmental health. To some extent
this may be a real possibility, but at the same time it is prudent to confront
the real environmental costs of development, the real distribution of these
costs, and the real contradiction between meaningful local control and the
imperatives of a nationalizing and internationalizing economy.
Real environmental protection may require a different kind of
economy, and certainly will require environmental controls at the same
scale as markets. Often it is assumed that the scale problem can be solved
only by expanding environmental regulation to the international level, but
an equally plausible solution is to reduce the scope and impact of markets
to national or local levels, or in other words to re-socialize markets. Along

similar lines, real environmental protection requires decision-makers who
recognize the environment (or distribution of environmental harms) as a
problem. At present, important decision-makers in government are
connected directly to industry or focused myopically on business and
development. It is vague economic indicators, often short term, that weigh
heavily on the minds of decision-makers everywhere, and not so much the
indicators of environmental health. To change this, government decision-
makers must be isolated from industrial elites in a purposeful manner.
How will local discussions about sustainability within Ethiopia help
improve Ethiopia’s natural environment? How will meaningful local
discussions be achieved? Local discussions should not be held in the strait
jacket of objective scientific discourse on “sustainability,” but instead
should focus attention on the real concerns of Ethiopian citizens, like
resource distribution, that are the only hope for motivated political action
on environmental issues. Scientific problem-solving is crucial to dealing
with the world’s environmental problems, but it does not substitute for
political motivation. Neither is environmental science value-neutral. If
science is controlled by urban elites, it may be used simply to further elite
interests.
Many of the current environmental laws ought to be reformed, not
because they are objectively bad laws, but because they pacify the citizenry
with language invoking the power of science and the international
community and offer vast promises that cannot be fulfilled. These reforms,
though they may be initiated by elites in Addis Ababa, can at least serve to
expose administrative decisions to greater (and wider) public scrutiny
going forward. Some general suggestions from this article include (1)
empowering the EPA and REAs to issue environmental permits; (2)
providing a secure source of funding and stronger political standing for the
EPA (for example, earmarked funds from foreign donors who want to
contribute to global sustainability); (3) setting up definite links between the
EPA and REAs so that EPA can assist REAs with expert advice and
injection of funds when needed, and so that their respective responsibilities
are clear; (4) making EPA and REAs the center for all environmental
decision making, thus cleaning up the line of accountability so that citizens
know which agency is responsible for which decision; (5) making EPA and
REAs a place for public discussion and dissemination of information about
pollution and other environmental risks; and (6) placing a positive duty on
the EPA to provide information about polluters to citizens interested in
citizen suits.
***

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ENVIRONMENTAL PERMITTING IN ETHIOPIA:

NO RESTRAINT ON “UNSTOPPABLE GROWTH?”

James Krueger,* Aman K. Gebru,** and Inku Asnake***

When rapid development threatens Ethiopians’ environmental health,

* James Krueger is a former Assistant Professor of Law at Haramaya University. He is now

conversation is only possible when the real choices between environment

II. Ethiopia’s Environmental Policy and Sustainable Development

Like most countries, Ethiopia adopted its current environmental laws

8. For a historical overview of international cooperation to solve environmental

of developing a National Conservation Strategy was begun with

and technical assistance for Ethiopia’s National Conservation Strategy.15

sustainable development have reiterated the importance of development but

steady economic growth. By using the term “sustainable development,”

sustainable development.33 With some naiveté, the international

III. Environmental Permitting in Ethiopia

38. MCKEE, supra note 12, at 56-58.

least one environmental criterion. In Ethiopia, environmental permits are

activities and, through this permitting power, effectively decide whether or

Ministry.52 The Proclamation explicitly anticipated a set of regulations that

in law, they are not so sweeping in practice. Unlike a licensing power, a

Although the competent licensing agency has the main responsibility

foreign investors and increase foreign direct investment. Nonetheless, it is a rather

IV. Environmental Impact Assessment and the

Most pollution comes from new entrepreneurial undertakings, and the

66. EIC database, accessed June 2009.

and quarrying (189).71

71. EIC database, accessed July 2009.

involved so much in approving and coordinating investments, its failure to

75. See Demeke & Aklilu, supra note 30.

V. Environmental Controls at the Regional Level

Regional environmental authorities review EISRs from projects in

82. EIA Proc., supra note 44, art. 14(1).

VI. Citizen Suits to Enforce Pollution Limits

The alternative to government enforcement of standards is citizen

costs of litigation and pollution studies. This is a shortcoming of the law

91. Action Professionals Association for the People v. Environmental Protection

93. PIP Reg., supra note 42, art. 10(3).

VII. What Ethiopia’s Permitting Process Says About

Perhaps the main question raised by Ethiopia’s permitting process is,

Ababa, particularly of pollution in the Akaki and Mojo Rivers, and it is

102. KARL POLANYI, THE GREAT TRANSFORMATION (1944).

VIII. Conclusions and Further Considerations

Environmental laws in Ethiopia are meant to protect the productive

to national or local levels, or in other words to re-socialize markets. Along

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James Krueger,* Aman K. Gebru, and Inku Asnake*