IJIEA Symposium: Environmental Adjudication Around the World

On Friday April 1st, Pace Law School, in collaboration with the NY State Judicial Institute, the Environmental Law Institute, and the IUCN Commission on Environmental Law held a working symposium on Environmental Adjudication Around the World.  The symposium was held as a way to launch Pace’s new International Judicial Institute For Environmental Adjudication (IJIEA) and to bring together judges and scholars from around the world to take part in a dialogue on the development of mechanisms to strengthen existing environmental courts and to strengthen new ones across the globe.

The day began with introductory remarks by the Honorable Janet Johnson, Vice Dean of Academic Affairs at Pace Law School; Julia Marton-Lefèvre, Director-General of the IUCN; Dr. Sheila Abed de Zavala, Chair of the IUCN Commission on Environmental Law and Executive Director of the Instituto de Derecho y Economia; the Honorable Juanita Bing Newton, Dean of the New York State Judicial Institute; and John Pendergrass, Esq., Senior Counsel, Environmental Law Institute.  Professor Nicholas A. Robinson followed with introductions.

H.E. Antonio Herman Benjamin, Justice of the Superior Tribunal de Justiça of Brazil, gave the Keynote Address.  The theme of the presentation was “The Environment & The Rule of Law.”  In his presentation, Justice Benjamin focused on judges and the environment.  He analyzed two basic models of judicial participation of courts in environmental governance.  The first model is that of a spectator judiciary, where the judiciary acts as an institutional non-actor in responding to environmental crises.  Proponents of this approach claim that environmental conflicts raise legal issues that are too complex for the judiciary, in addition to the fact that most environmental issues in quick resolution.  Justice Benjamin does not agree with these arguments, and pointed out that judges must deal with complex legal issues in their traditional duties.  The second model is that of a protagonist judiciary, which is the model we are currently moving towards as a result of various political and legal developments since the Stockholm Convention of 1972.  Today, many treaties require States to legislate on environmental protection and many countries have “greened” their constitutions.  Further, since the Rio Conference in 1992, the international community’s emphasis has moved towards compliance and enforcement of environmental law.  Justice Benjamin also discussed various challenges that judges will face in the future in terms of environmental governance.  In this context, he brought up the principle of non-regression, which is a response to the fact that environmental legislation in many countries is waning.  Justice Benjamin asserted that this principle should be regarded as a general principle of environmental law.

The Keynote Address was followed by a presentation by Justice Brian J. Preston, Chief Judge of the Land & Environment Court of New South Wales, Australia.  The topic of Justice Preston’s speech was “Judicial Specialization through Environmental Courts.”  Justice Preston began by describing the structure of the Land and Environment Court in New South Wales, the first specialist environmental superior court of record in the world.  He described the court as a “multi-door courthouse,” and dispute resolution center, offering many alternative dispute resolution mechanisms.  He then went on to discuss the twelve advantages of the establishment and operation of the Land and Environment Court.  They are: (1) Rationalization and centralization of jurisdiction; (2) Specialization; (3) Multi-door courthouse; (4) Superior court of record; (5) Independence from the government; (6) Better responses to environmental problems; (7) Facilitates access to justice; (8) Development of environmental jurisprudence; (9) Better court administration; (10) Unifying ethos and mission; (11) Value-adding function; (12) Flexibility and innovation.

Next up was a presentation by the Honorable Donald Kaniaru, Judge for the Environment Court of Kenya.  The topic of the presentation was “Launching a New Environment Court: Challenges and Opportunities.”  Kenya’s new court was mandated by the country’s new constitution.  The constitution’s bill of rights also acknowledges a right to a clean and healthy environment.  Judge Kaniaru discussed the structure of the new court system, which includes a Supreme Court at the very top, followed by an Appeals Court, then the High Court, and lastly two Superior Courts.  One of the Superior Courts is dedicated to land and environment issues and the other hears employment cases.  Under the new structure, the High Court is excluded from the jurisdiction of the Superior Courts.  Further, Judge Kaniaru addressed the various challenges and opportunities that faced the creation of the court in Kenya.  He acknowledged two critical problems that Kenya faced prior to the creation of the new court: (1) corrupt practices and (2) an increase in the number of unheard cases.

H.E. Hilario Davide Jr., former Ambassador and Permanent Representative of the Philippines to the UN and former Chief Justice of the Republic of the Philippines, spoke via video on the judiciary and the environment.  Justice Davide discussed the Philippines new Rules of Procedure for Environmental Cases, which includes two innovative mechanisms, the writ of kalikasan and the writ of continuing mandamus.  The Philippines is the first nation to include a right to balanced and healthful ecology in its constitution, and the writ of kalikasan provides a legal remedy to those individuals, or entities, whose constitutional right to a balanced and healthful ecology is violated.  The writ of continuing mandamus is used when a government agency, or entity, fails to perform a duty in connection with the enforcement or violation of an environmental law.  Overall, Justice Davide stressed that “environment” is synonymous with “life sources,” and stressed the importance of protection, and the need for more environmental laws and courts.

Professor George (Rock) Pring and Catherine (Kitty) Pring, University of Denver School of Law, spoke on “Comparing Environmental Courts and Tribunals.”  The Prings are the authors of the report, Greening Justice (available at http://www.accessinitiative.org/blog/2010/01/greening-justice-creating-and-improving-environmental-courts-and-tribunals), in which they analyze the various environmental courts and tribunals (ECTs) across the globe.  They documented over 370 specialized ECTs in over 43 nations.  The Prings argue that there is a need for ECTs to deal with big global issues, such as climate change and sustainable development.  In addition, they claim the world’s problem is the lack of fair and effective enforcement of environmental laws.  According to the Prings, there have been three shifts in the development of ECTs: (1) a move to specialized courts, (2) judges becoming more proactive problem solvers, and (3) more accountability and transparency.  Further, the Prings, in their report and presentation, set forth the twelve building for ECTs: (1) type of forum desired; (2) jurisdiction; (3) what level the ECT is to operate at; (4) geographic area of ECT; (5) case volume; (6) standing; (7) costs of bringing litigation; (8) how to handle experts; (9) use of alternative dispute resolution; (10) competence; (11) case management; and (12) enforcement.  The Prings also addressed the question of the need of an international ECT.  They stated that there is the ultimate question as to whether sovereign states will commit to an international environmental court.  The Prings suggested the amendment of treaties to allow for the expansion of the jurisdiction of existing institutions, as an alternative to creating a new judicial body.

In the afternoon, there were two panel discussions.  The first was on the rule of law and environmental adjudication, and included the following panelists: (1) Honorable Merideth Wright (moderator), Environment Court of the State of Vermont, (2) Charles E. Di Leva, Chief Counsel, Environmental and International Law, Legal Vice Presidency, the World Bank, (3) Kenneth Markowitz, Managing Director, INECE Secretariat, International Network on Environmental Compliance and Enforcement, and (4) Professor Robert Percival, Robert F. Stanton Distinguished Professor and Director of the Environmental Program, University of Maryland School of Law.  Judge Wright addressed the fact that a background in science is not necessary for environmental law judges, but they do need an understanding of science; an environmental literacy of sorts.  Charles Di Leva discussed the World Bank’s Inspection Panel, which serves as an accountability mechanism, which those affected by a particular bank project may use.  Similar to Judge Wright, Di Leva also pointed out that one cannot have real environmental enforcement without an understanding of environmental damage.  According to Kenneth Markowitz, without compliance, laws are just words on paper, and without enforcement, there can be no compliance.  He stressed that each aspect of the compliance continuum must be strong, which requires good laws and strong enforcement.  Markowitz also discussed INECE’s current focus on the transboundary movement of hazardous waste, particularly electronic waste.  Finally, Professor Percival pointed out that we really have no choice but to have environmental courts whether they are actually designated as such or not.

The second panel was a case study on the capacity of the Chinese environmental courts.  Panelists included Timothy Epp (moderator), Environmental Appeals Board, US EPA, Professor Tseming Yang, Deputy General Counsel, Office of General Counsel, US EPA, Professor Jing Jing, Liu, Associate Director, US-China Partnership for Environmental law, Vermont Law School, Professor Robert Percival, University of Maryland School of Law, and Vivian Wang, Legal Fellow and member of the Litigation Team at NRDC.  According to Professor Liu, China has one of the most comprehensive environmental legal frameworks in Asia.  The panelists discussed the differences between the US and China court systems.  In addition, they pointed out that China has some specialized courts, including an environmental court and maritime court.  In China, there are over fifty environmental courts and tribunals, spread over three levels of courts.  One of the primary purposes of these courts is public interest litigation.  Further, the panelists examined the role of global environmental networking.  They stated that conversations, training and education will be very useful in allowing for the sharing of ideas and experiences.  They also pointed out the value in judges engaging other institutions, creating a dialogue amongst various sectors.  It is important to share varying experiences from developing countries, civil law countries, etc.

Scott Fulton, General Counsel, US EPA, gave a presentation at the end of the day on the rule of law and environmental adjudication.  He stated that now is the time for contemplation, as the EPA just had its 40th birthday and next year is Rio+20.  Environmental governance, which contemplates strong environmental laws and enforcement, is an emerging concept of the Rio+20 Conference.  Fulton set forth the seven precepts of effective environmental governance: (1) recognize that environmental governance is complementary of other organic governance notions; (2) environmental laws must be clear, implementable and enforceable; (3) recognize the importance of effective institutional arrangements; (4) environmental information should be shared with the public; (5) affected stakeholders should be offered the opportunity to participate in the environmental decision making process; (6) environmental decision makers must be accountable for their decisions; and (7) there must be a provision for fair and responsible resolution of disputes.

During the wrap-up discussion, conference participants had the opportunity to pose any questions or comments they desired to the audience.  It was pointed out by several participants that there are many definitional issues that must be worked on.  In addition, participants called for more conferences, such as this one or Rio, to bring judges together.  The importance of peer-to-peer exchange of information was stressed, as well as a need to build links to places themselves where judges are receiving training.  Overall, the conference was a great success, bringing together judges and scholars from around the world, and allowing them to enter into a dialogue on the current status and future of environmental adjudication.  On Saturday April 2nd, a select group of conference participants, composing the initial IJIEA steering committee, met to review and adopt constitutive documents for the institute.  The goal was to draft text on to be adopted at the Rio+20 Conference.

For more information on IJIEA, please visit http://www.ijiea.com.

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