Posted on July 26, 2013 by Nicholas Robinson
Environmental adjudication today is global. Fifty nations have established more than four hundred specialized environmental courts and tribunals, supplementing their courts of general jurisdiction. A new body of ecological jurisprudence, ripe for comparative law analysis, has emerged.
This world-wide phenomenon should not be surprising. As the environment degrades (see UNEP GEO5), disputes arise and courts are engaged. Most nations have adequate environmental statutes, but problems fester with weak or corrupt enforcement. Courts put the teeth back into these laws. Throughout South Asia, courts establish judicial commissions to oversee remediation of refuse dumps or abatement of acute pollution. In China, a court in Quingzhen enforced a state-owned chemical enterprise from polluting drinking water and mandated remediation. In Brazil, a rule-of-decision (in dubio pro natura) guides judges to protect nature when the merits are balanced or in doubt. In the Philippines, the Supreme Court established a new, extraordinary, Writ of Kalikasan (nature). This precedent shifts the burden of proof to the party alleged to have and violated environmental law; the respondent must prove it has not harmed the environment and has complied with all laws.
Judicial decisions also enforce constitutional guarantees of environmental rights. Of the 196 member states in the United Nations, 147 currently recognize a right to the environment comparable to human rights. Procedural access to justice was enshrined as Principle 10 in the 1992 United Nations Rio Declaration on Environmental and Development and has become a treaty of obligation across Europe (Aarhus Convention, 2161 UNTS 447).
In the United States, federal courts have shaped administrative law for two decades through environmental cases. The United States inspired Principle 10 initially through the Administrative Procedure Act § 10 and the National Environmental Policy Act litigation, confirmed by the citizen suit provisions in federal statutes. It is ironic that as most nations liberalize standing in environmental matters, the U.S. Supreme Court’s rulings are gradually restricting such access. Although many state courts continue to liberalize standing, U.S. federal courts are out of step with trends worldwide.
Courts are crucial to realizing the objectives of environmental laws. The Environmental and Law Court of New South Wales (Australia) boasts three decades of innovative environmental adjudication. From the oldest of such courts, in New Zealand (1950’s), to the most recently formed court in Kenya (2010), courts provide prompt effective decisions. Not all nations are responsive to environmental claims. Courts in most Arab states have so far resisted reforms to provide access to justice, as has Russia.
Environmental disruption is a gathering storm across the earth. Courts, embedded in society, ignore environmental claims at the risk of proving Lord Denning’s maxim, “the delay of justice is a denial of justice.” Early judicial action has a new gloss and remedies escalating ecological harm. Delay aggravates the harm, rendering later remedies more costly and difficult.
In the majority of nations, the courts increasingly understand this reality. Will the U.S. Supreme Court join the laggard nations, and retard access to environmental justice?