The future of environmental dispute resolution.

AuthorPring, George

A new form of environmental governance--the specialized environmental court or tribunal (ECT)--is emerging as a dynamic alternative to the general courts for providing better access to environmental justice in the 21st century. The University of Denver Sturm College of Law's Environmental Courts and Tribunals Study is conducting the first global comparative analysis of this new phenomenon. (1) Hundreds of ECTs have been established around the world in just the last decade, and, based on the DU study, we predict that ECTs will be the dominant dispute resolution models for environmental risks and crises in the decades to come.

The people and nations of the world are increasingly facing three interconnected environmental risks in the 21st century, with consequent multiple threats to the health of humans and the planet. Those risks are continued degradation of fresh and salt water, air, and soil and the ecosystems dependent on them; the impacts of current and impending climate change; and widespread economic collapse. These risks and how they are managed directly impact the ability of people and nations individually and collectively to achieve sustainable development and a viable future for life on earth. The challenges are no longer confined to countries, regions, or locales in one part of the world, but are truly global in scope and impact the populations of every continent. Events perceived to be in one arena generate ripple effects which result in reduction or increase in the severity of impacts in the other two areas.

Efforts to manage these related risks are being made now at every level of government through the development of principles, policy, legislation, regulations, treaties, agreements, and new governance institutions. Since the 1970s, environmental laws have been adopted at the city, state, national, and international levels. As many as 80 nations' constitutions now include a right to a healthy environment as a human right, and hundreds of new international environmental legal authorities have been adopted. (2) New precepts have emerged--such as sustainable development, no-transboundary-harm, precautionary, polluter-pays, environmental justice, equitable utilization of resources, and other principles. (3) These and other precepts like climate change mitigation and adaptation are slowly being incorporated into a new generation of international, national, and local laws.

Today, the major difficulty is not filling the books with more environmental laws. Instead, the challenge is ensuring effective enforcement and compliance with the laws already adopted--and this can only be done through improved environmental governance and access to justice. The rapid growth of serious environmental problems, coupled with increasing public awareness and reaction, has generated global demands for new forms of governance to adjudicate and enforce solutions to environmental problems, from the smallest local issues to the largest global ones. The result has been an explosion of specialized ECTs and a parallel explosion in environmental litigation.

For the DU Study, we define ECTs as "judicial or administrative bodies of government empowered to specialize in resolving environmental, natural resources, land use development, and related disputes." (4) Environmental courts (ECs) refer to bodies within the judicial branch of government, and environmental tribunals (ETs) are those within the executive or administrative branch. They include freestanding ECs and ETs, formal and informal panels of judges within a court of general jurisdiction ("green benches" or "green lists"), individual judges within generalist courts who have training and expertise in environmental law and to whom environmental cases are assigned formally or informally, and ETs housed within another government body such as the environmental agency.

At the start of 2012, some 465 ECTs are known to exist or to be authorized in 46 countries, over 70 percent of which were created since 2005. Some of the newest examples include eleven administrative courts in Thailand, (5) four additional UCs in Brazil, (6) and nearly 100 UCs in 15 provinces in China. (7) Kenya adopted a new Constitution in 2010 that requires Parliament to "establish courts with the status of the High Court to hear and determine disputes relating to ... the environment and the use and occupation of, and title to, land." (8) Also in 2010, England created its first ET, and India's Parliament passed a "National Green Tribunal" bill in part to counteract the activist "Green Benches" of its Supreme Court. (9) In 2011, Pakistan added three new environmental tribunals, and South Africa announced it would reestablish an environmental court in Port Elizabeth, Eastern Cape. (10) Other countries, including Ecuador, Bolivia, Vanuatu, Dubai, Abu Dhabi, Lebanon, Jordan, and Kuwait considered establishing an ECT in 2011.

ECTs can be found on every inhabited continent; in civil law, common law, and other legal systems; in jurisdictions from the largest (China, India, Canada, Brazil) to the smallest (Trinidad and Tobago, the City of Memphis, Tennessee); and in both wealthy developed and impoverished developing nations. Interestingly, the nations which have most aggressively embraced ECTs as a mechanism for improving environmental governance are China, Brazil, and developing nations, not the highly developed USA or countries of the EU. Historically, Australia and New Zealand have been leaders in ECT creation, but today...

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