Environmental Courts & Tribunals Guide

For Policy Makers — Part One

June 15, 2017

Posted by Edward Padilla

Photographs by Debi Alvarez

While there is no crystal ball that can point to any piece of evidence that can let us know if any other Republican Presidential Candidate for the 2016 US Presidential Election would have withdrew from the Paris Agreement, many Institutional Actors within the GOP and the Conservative Movement — from members of Congress (including the Senate Majority Leader) to Think Tanks to Activist Groups to Media Outlets to Conservative Donors (including many with Fossil Fuel Wealth) — strongly support this move and have in fact been urging Trump to make it.

Furthermore, even leading Republicans who might have supported sticking to the Paris deal — it is, after all, nonbinding — would have likely supported an agenda of weakening environmental regulations and taken little if any action aimed at reducing carbon emissions.

EPCF often monitors environmental policies that are proposed for what ever the circumstance calls for on local, state, regional, and national levels. Never before have there been such a guide as the Environmental Courts & Tribunals Guide for Policy Makers. EPCF would like to thank its authors — Professors George (Rock) Pring & Catherine (Kitty) Pring, University of Denver Environmental Courts and Tribunal Study and Global Environmental Outcomes LLC. This guide was published by UN Environment in September of 2016. To view and copy this guide, just click on http://wedocs.unep.org/bitstream/handle/20.500.11822/10001/environmental-courts-tribunals.pdf?sequence=1

Also, EPCF is honored to have been given standing approval from the copyright holder to reproduce this publication in whole or in part and in any form. EPCF’s sole purpose is to post this information for informational, educational, and non-profit purposes. EPCF has acknowledged the source of this publication, and has provided the UN Environment a copy of this post.

EPCF is proud to partner with UN Environment in sharing this information. EPCF and the UN Environment promotes environmentally sound practices globally and in its own activities. This report is printed on paper from sustainable forests including recycled fibre. The paper is chlorine free, and the inks vegetable-based. EPCF along with the UN Environment’s distribution policy aims to reduce both EPCF and the UN Environment’s carbon footprint.

Moving Forward

Sound governance and enforcement of the environmental rule of law are crucial to delivering the 2030 Agenda for Sustainable Development and the Paris Agreement on Climate Change. However, as some countries face judicial backlogs of up to ten years, government reforms increasingly combine the expansion of infrastructure and personnel, with the use of specialized Environment Courts and Tribunals, which vary in both structure and performance. That is why UN Environment Programme commissioned this ECT Guide to inform policy makers on the existing situation, the lessons learned and the available options.

The importance of such options for national and international progress is underscored by the creation of a specific 2030 goal to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels. This reinforces Principle 10 of the Rio Declaration, which acknowledges that sustainable development can only be achieved through access to effective, transparent, accountable and democratic institutions.

With over 1,200 environmental courts and tribunals now operating worldwide at the national and state/provincial level, this guide shares concise, practical advice and best practices to make them more effective, updating the 2009 “Greening Justice” report by the University of Denver Environmental Courts and Tribunals Study and published by World Resources Institute. I hope it will be useful to policy makers and judiciary experts in all countries in their quest to deliver the 2030 Agenda, and I thank all of those who contributed their time and case studies such as Ibrahim Thiaw, United Nations Assistant Secretary General and Deputy Executive Director, UN Environment Programme.

Executive Summary

Improving the environmental rule of law, access to justice and environmental dispute resolution is essential for achieving the UN’s 2030 Agenda for Sustainable Development and the Sustainable Development Goals (SDGs), particularly SDG Goal 16 — “to provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” Specialized Environmental Courts and Tribunals (ECTs) are now widely viewed as a successful way to accomplish this important goal.

The objective of this UN Environment guide is to provide the most current, comprehensive, comparative analysis of ECTs available — a synthesis of the experiences, opinions and recommendations of leaders at the forefront of the ECT field. It is designed to be a helpful “roadmap” for policy makers, decision makers, and other stakeholders who are exploring how to improve adjudication of environmental and land use disputes, to make them — in the memorable words of Australian court law — “just, quick and cheap.” It presents an easy reference for those considering creating a new ECT or improving an existing one — to make it fair, fast, and affordable.

This UN Environment guide is a 2016 update of the University of Denver ECT Study that produced the book Greening Justice — Creating and Improving Specialized Environmental Courts and Tribunals, published by the World Resources Institute (WRI) in 2009. This update clearly identifies the necessary goals, steps and standards for an effective ECT. The “explosion” in the number of ECTs since 2000 is astounding. Today, there are over 1,200 ECTs in 44 countries at the national or state/provincial level, with some 20 additional countries discussing or planning ECTs.

This continuing explosion is being driven by the development of new international and national environmental laws and principles, by recognition of the linkage between human rights and environmental protection, by the threat of climate change, and by public dissatisfaction with the existing general judicial forums. A systems analysis of both traditional general courts and existing ECTs has been done to identify the hurdles to effective environmental dispute resolution and environmental justice. An ECT is different from general courts because it specializes in environmental cases and has adjudicators trained in environmental law.

The decision-making process often incorporates both lawyers and scientific/technical experts, and relies on alternative dispute resolution, open standing, streamlined case review and sophisticated use of information technology. There are many different models of ECTs around the world, and this UN Environment guide describes the major choices. ECTs can be either courts (judicial branch) or tribunals (executive or ministerial branch), both reflecting the social, economic and environmental characteristics of the host nation.

Some are free standing and independent, while others are “captives” inside the agency whose decisions they review. The specific ECTs described — such as the New South Wales, Australia, Land and Environment Court, India’s National Green Tribunal and the Environmental Courts of Kenya — are outstanding examples of each of the models, and employ many of the best practices identified by experts surveyed for this updated publication. “Best practices” are recommended by expert judges, officials, academics, and other stakeholders and they are listed and explained because they enhance access to justice and support international principles of sustainability.

Best practice examples include judicial independence, flexibility, use of ADR, comprehensive jurisdiction, open standing, effective remedies and enforcement powers, and unique case management and expert evidence tools. The guide also identifies recent trends in ECT development, including amalgamation, incrementalism and judicial reform, trends designed to make courts more open, transparent, accessible, affordable and accountable. The guide outlines “the steps” on the road to ECT creation or improvement, including assessment of the existing judicial system, engaging stakeholders, assessing the need for change, selecting a model and planning the best practices which optimally serve each country’s unique judicial, legal, social, economic and political environment.

To prepare this 2016 update for UN Environment, the authors surveyed and consulted over 50 current ECT judges and other experts in 2015–16, reviewed a wealth of new ECT literature, and extensively updated the University of Denver ECT Study database. The guide includes in Appendices A, B, C and D current lists of known operating ECTs, ones in discussion, those created but never implemented, and the few that were created and disbanded. Perhaps most important is the Appendix E contact list of ECT and Access to Justice Experts, who can help policy makers and others understand more fully the challenges and opportunities in creating an ECT. The authors’ credentials are summarized in Appendix F, and recommended readings are provided in Appendix G.

Background

EPCF’s reason for posting this information is to bring awareness to this UN Environment guide to Specialized Environmental Courts and Tribunals (ECTs) which is designed to provide an overview for policy makers, decision makers and other leaders who are interested in improving adjudication of environmental disputes. It identifies ECT features that can enhance the resolution of environmental cases, resulting in better informed decisions that directly support achievement of many of the UN’s Post-2015 Sustainable Development Goals (SDG), particularly SDG Goal 16.

Special Acknowledgements

EPCF would like to give a special thanks to the publishing team who brought this book to life. For the countless hours given, the invaluable sharing of knowledge, and the willingness to support UN Environment, we wish to thank George (Rock) Pring, Catherine (Kitty) Pring and the University of Denver ECT Study, pioneers in this field of research and the experts who provided valuable input. A huge vote of thanks goes out to the over 50 ECT and Access to Justice experts who contributed their wisdom and advice to this publication — justices, judges, court staff, government officials, attorneys, advocates and academics.

Specialized Environmental Courts and Tribunals: The Transformation of Environmental Adjudication. The On-Going “Explosion” of ECTs

“Environmental conflicts require quick action or response, which is incompatible with the slow pace of the court system that, due to its bureaucracy and technical rituals, eventually becomes an obstacle to effective protection of the environment and to economic progress.” — Justice Antonio Herman Benjamin, High Court of Brazil, http://digitalcommons.pace.edu/pelr/vol29/iss2/8 at 584

A world-wide “explosion” of specialized courts and tribunals for adjudicating environmental lawsuits is dramatically changing the playing field for environmental justice around the world. The fast-global spread of these ECTs is one of the most dramatic changes in environmental law and institutions in the 21st century.

In the 1970s, only a handful of these specialized environmental courts and tribunals (ECTs) existed — primarily in Europe. In 2009, when the first global study of ECTs was done, 350 ECTs could be documented. Today, a mere 7 years later, there are over 1,200 ECTs in at least 44 countries, at the national and state/province levels, including local/municipal ones that are part of a national or state/province ECT system (listed in Appendix A). This does not count the great number of “stand-alone” ECTs at the local/municipal levels, which are not included in this study — such as, for example, at least 4 county/city ECs in the USA State of Tennessee alone.

ECTs are being planned or discussed in another 20 countries (Appendix B), and 15 more nations have authorized but not yet established them (Appendix C), while 7 nations have operated then chosen to discontinue them (Appendix D). These new specialized adjudication bodies are rapidly changing not only traditional judicial and administrative structures, but the very manner in which environmental disputes are resolved. Calls for improved access to environmental justice, the environmental rule of law, sustainable development, a green economy and climate justice are being heard around the world. In response, policy makers, decision makers and other stakeholders — legislators, judges, administrative officials, business and civil society leaders — are responding by taking a hard look at their governance institutions and are creating new judicial and administrative bodies to improve access to justice and environmental governance.

ECTs are increasingly being looked to as the logical solution to the existing barriers in traditional justice systems. In the words of Justice Brian Preston, Chief Judge of the Land and Environment Court of the State of New South Wales, Australia, the first EC established as a superior court of record in the world: “The judiciary has a role to play in the interpretation, explanation and enforcement of laws and regulations. … Increasingly, it is being recognized that a court with special expertise in environmental matters is best placed to play this role in the achievement of ecologically sustainable development.”3 Questions immediately arise: • What is behind this ECT explosion? • How are ECTs different from existing courts and tribunals of general jurisdiction? • How can they improve access rights, environmental justice and the rule of law? • What different “models” have evolved over the last two decades? • What “best practices” make them more effective than traditional courts? • What are the “next steps on the road” to creating an effective ECT? EPCF is confident that this guide answers these questions for policy makers, decision makers and other stakeholders. It provides answers from ECT experts and an extensive list of additional resources for those interested in learning more about the ECT phenomena.

Posted by Edward Padilla

Photographs by Debi Alvarez

Edward Padilla is the President/CEO and DebiAlvarez is a CLA/CP, J.D. and Vice President/Legal Advisor, for EPCF. EPCF is committed to educating, training, and developing programs, facilitating the resources needed to provide information and assistance to the Public, Public Officials, and businesses, so while reaching their potential can keep our planet in mine.

edwardpadilla@epcfinfo.com

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