INTERNATIONAL SYMPOSIUM ON ENVIRONMENTAL ADJUDICATION IN THE 21ST CENTURY
PROGRAMME
8:30 am – 5:00 pm, Tuesday, 11 April 2017
Venue: Princes Ballroom, Pullman Hotel, Corner Princes Street and Waterloo Quadrant, Auckland
8:30 – 9:00 Powhiri – Maori Welcome 9:00 – 9:05 Opening remarks Judge Newhook & Associate Professor Ceri Warnock 9:05 – 9:30 Welcome to the Symposium – The Honourable Justice Stephen Kós,
President of the Court of Appeal of New Zealand 9:30 – 10:10 Right Honourable Lord Robert Carnwath (UK Supreme Court) 10:20 – 10:50 Honourable Chief Justice Preston SC (New South Wales) 11:00 – 11:30 Morning break 11:30 – 11:50 Dr Gita Gill (Indian National Green Tribunal) 12:00 – 12:20 His Honour Judge Michael E Rackemann (Queensland) 12:30 – 12:50 Dr Aine Ryall (Eire) 1:00 – 1:45 Lunch 1:50 – 2:10 Professor Tracy Hester (Houston) 2:20 – 2:40 Emeritus Professor Ben Boer (Sydney / Wuhan) 2:50 – 3:10 Honourable Michael D Wilson and Professor Denise Antolini (Hawai’i) 3:15 – 3:30 Afternoon break 3:30 – 3:50 Honourable Justice Samson Okong’o (Kenya) 4:00 – 4:20 Chief Justice Rafael Asenjo Zegers (Chile) 4:30 – 4:50 Their Honours Principal Environment Judge Laurie Newhook and
Environment Judge David Kirkpatrick 4:50 – 5:00 Closing remarks Judge Newhook & Associate Professor Ceri Warnock
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WELCOME SPEECH BY:
Justice Stephen Kós President of the Court of Appeal of New Zealand Justice Stephen Kós graduated LLB (Hons) from Victoria University in 1981 and LLM from Cambridge University in 1985. He became a partner in Perry Wylie Pope & Page in 1985, and in Russell McVeagh in 1988. He joined the independent bar in 2005, and was appointed Queen’s Counsel in 2007. His principal fields of practice were commercial and environmental litigation. In the latter field he led for the ferry companies in the Fast Ferry Wash cases, and for the applicants in the Transpower North Island Grid Upgrade and the Contact Energy Hauauru Ma Raki wind farm inquiries. He was formerly Pro-‐Chancellor of Massey University and Chairman of the New Zealand Markets Disciplinary Tribunal. Justice Kós was appointed to the High Court in April 2011, and to the Court of Appeal in September 2015. He was appointed President of that Court in July 2016.
PRESENTERS Lord Robert Carnwath of Notting Hill CVO
Robert Carnwath is a current member of the UK Supreme Court. The son of Sir Andrew Carnwath KCVO, Robert Carnwath was educated at Eton College (where he won the Newcastle Scholarship), and Trinity College, Cambridge. He was called to the Bar at Middle Temple in 1968. He practised in parliamentary law, planning and local government, revenue law and administrative law. He was appointed junior counsel to the Inland Revenue (Common Law) from 1980 to 1985. He became a Queen’s Counsel in 1985, and was
Attorney General to the Prince of Wales from 1988 to 1994 (for which service he was awarded Companionship of the Victorian Order). Lord Carnwath was appointed as a High Court Judge on 3 October 1994 in the Chancery Division, and received the customary Knighthood. He served as chairman of the Law Commission from 1999 to July 2002. He was promoted to the Court of Appeal on 15 January 2002 and, as is customary, became a member of the Privy Council. Between 2004 and 2012 he provided judicial leadership for the reform of the specialist tribunal system and was formally sworn in as the first Senior President of Tribunals on 12 November 2007. On 20 December 2011, Lord Carnwath was announced as a new appointee to the Supreme Court of the United Kingdom. Lord Carnwath also currently serves as the Chairman of the Advisory Council for the Institute of Advanced Legal Studies and is honorary President of the UK Environmental Law Association. Since 2004 he has worked as an adviser to the United Nations Environment Programme (UNEP) on judicial training and is currently a member of their International Advisory Council on Environmental Justice. In 2004, he was a founder-‐member and first Secretary General of the EU Forum of Judges for the Environment (“EUFJE”).
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In his free time, he enjoys golf and tennis. He is a keen amateur musician, playing the viola, as well as singing in the Bach Choir (with whom he sang The Britten War Requiem at the Wellington Arts Festival in 1994).
The Honourable Justice Brian J Preston SC Justice Preston is the Chief Judge of the Land and Environment Court of New South Wales. Prior to being appointed in November 2005, he was Senior Counsel practising primarily in New South Wales in environmental, planning, administrative and property law. He holds a BA and LLB (first class honours) from Macquarie University, practised as a solicitor from 1982-‐1987 and then at the bar from 1987-‐2005. He was appointed Senior Counsel in 1999. Justice Preston has lectured in post-‐graduate environmental law for over 23 years, principally at the University of Sydney, but also at other universities in Australia and overseas. He established two law courses: environmental dispute resolution and biodiversity law. He is currently an Adjunct Professor at the University of Sydney. Justice Preston is the author of Australia’s first book on environmental litigation and the subjects of his writings include: sustainable development; biodiversity; climate change; heritage; environmental impact assessment; environmental crime; the courts and the environment; public interest litigation; and administrative law and environmental law. He has been involved in a number of international environmental consultancies and capacity-‐building programmes, including for the judiciaries in Indonesia, Kenya, China, Trinidad and Tobago, Thailand and Sri Lanka. Justice Preston is an official member of the Judicial Commission of New South Wales. He was the recipient of a commendation in the 2010 Australian Institute of Judicial Administration -‐ award for excellence in court administration -‐ for his work in implementing the international framework for court excellence in the Land and Environment Court of New South Wales. He was also the recipient in 2010 of an award by the Asian Environment Compliance and Enforcement Network in recognition of his outstanding leadership and commitment in promoting effective environmental adjudication in Asia.
Dr Gitanjali Nain Gill Dr Gill joined the School of Law, Northumbria University in 2011 where she is currently a Reader in Law. Previously Dr Gill was employed at India’s leading University, Faculty of Law, Delhi University. She has been awarded Fellowships by UNITAR, the British Council, Cardiff University and also a British Academy Research award that supported her field work and research into the innovative National Green Tribunal of India. Her project focused on the National Green Tribunal as one element of a reformist approach to environmental government and explores its working and effectiveness. She is widely published on environmental law
in India and has articles in the Environmental Law Journal, Environmental Law Review, Transnational Environmental Law, Northern Ireland Legal Quarterly, Public Law and chapters
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in several books. In January 2017 her research findings and conclusions were published in her book ‘Environmental Justice in India: The National Green Tribunal’ [Routledge, Earthscan, UK]. Her research agenda will continue to focus on India and will also include comparative work within China.
His Honour Judge Michael E Rackemann His Honour Judge Rackemann is a Judge of the Planning and Environment Court in Queensland, Australia, and since 2009 has been the Senior Listings Judge for the Court. He has also been a Judge of the District Court since January 2004. He holds a Bachelor of Laws (Hons) degree from the University of Queensland. Prior to his appointment, Judge Rackemann was Convenor of the Bar Association of Queensland Planning and Environment Subcommittee and a Member of the Queensland Environmental Law Association’s Integrated Planning Act Subcommittee. He was admitted as a Barrister of the Supreme Court of
Queensland in 1990 having previously been a clerk to Judge Row of the Queensland District Court, and an articled clerk and solicitor of the law firm Morris Fletcher & Cross. His Honour has been a member of various committees and associations including the National Environmental Law Association, the Queensland Environmental Law Association, District Court Planning Committee, District Court Conferences and Judicial Education Committee, District Court Salaries and Entitlements Committee, the District Court Civil Procedure Committee and the Rules Committee.
Dr Áine Ryall Dr Ryall teaches and researches environmental law, European Union law and tort law at the School of Law, University College Cork, Ireland. She is a graduate of the London School of Economics (LLM) and holds a PhD in European Union environmental law from the European University Institute, Florence. She is also a barrister and was called to the Irish Bar in 1995. On 6 October 2015, Dr Ryall began her term as a member of the Aarhus Convention Compliance Committee. The Committee is tasked with overseeing how State Parties comply with their obligations under the Convention as a matter of international law. Dr Ryall served recently as Vice-‐Chair of the An Bord Pleanála Review Group (appointed by the Minister for Environment, Community and Local Government) which reported in February 2016 and made over 100 recommendations relating to An Bord Pleanála (the Planning Appeals Board). Dr Ryall served previously as a member of the Environmental Protection Agency Review Group which reported to the Minister for Environment, Heritage and Local Government in May 2011. In February 2013, she was appointed directly by the Minister to the Advisory Committee of the
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Environmental Protection Agency for a three-‐year term. In December 2016, she was reappointed by the Minister for a further three-‐year term. Dr Ryall was recently a Senior Emile Nöel Fellow at the Jean Monnet Centre, New York University School of Law. While working at NYU, she focused on a particular research project Mapping the future of environmental justice: the transformative effect of international and European Union law. Dr Ryall is a member of the Board of the Irish Centre for European Law and a member of the academic panel at Francis Taylor Building, Inner Temple, London. She is also a member of the Avosetta Expert Group on EU environmental law and the Royal Irish Academy Climate Change and Environmental Sciences Committee. Dr Ryall’s research interests lie primarily in the fields of international and EU environmental law, with particular reference to environmental assessment, law enforcement and access to justice. Current research projects focus on: the impact of the Aarhus Convention and EU environmental law on access to justice in national legal systems; strategic environmental assessment and integrated environmental governance; and the legal response to climate change, with a particular focus on Ireland and the EU.
Professor Tracy Hester Professor Hester teaches environmental law and emerging technology courses at the University of Houston Law Centre. His research focuses on the innovative application of environmental laws to emerging technologies and risks, such as climate engineering, nanotechnologies, genetic modification, advanced renewable power projects, and on novel compliance and liability issues. Prior to joining the University of Houston Law Centre, Prof. Hester served as a partner in Bracewell LLP for sixteen years and led the Houston office's environmental group. Prof. Hester co-‐directs the Environment, Energy &
Natural Resource Centre's Speaker Series, which annually draws top speakers on energy and environmental topics to the University of Houston campus. He also organizes and assists in the preparation of workshops and symposia on current energy and environmental topics. Prof. Hester was inducted into the American College of Environmental Lawyers in 2015, elected as a member of the American Law Institute in 2004, and named the Top Environmental Lawyer in Houston in 2011 by Best Lawyers of America. He was also elected to the Council of the American Bar Association’s Section on Environment, Energy and Resources (SEER) in 2011, and he currently co-‐chairs SEER's new Law Professors Committee.
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Emeritus Professor Ben Boer Emeritus Professor Ben Boer began teaching environmental law in 1979 at Macquarie University, in Sydney. He was Professor in Environmental Law, University of Sydney between 1992-‐2008. He was also international director of the IUCN Academy at the University of Ottawa from 2006 to 2008. He was appointed as Emeritus Professor in the University of Sydney in late 2008. In 2011 he was appointed as Distinguished Professor at Wuhan University Law School, China, in its Research Institute of Environmental Law and now works in Wuhan for three months per year. He served as Deputy Chair of the World Commission on Environmental Law of the International Union for the Conservation of Nature between 2012 and 2016. He has been granted several awards, including the Brazil Association of Judges Medal for contributions to Judicial Education, 2016; IUCN Academy of Environmental Law, Senior Scholarship Award, 2015; Law Council of Australia award for “Exceptional contribution to the development of environmental law” 2011; New Zealand Law Foundation Distinguished Visiting Fellowship in 2011; and the Fernand Braudel Senior Fellowship, European University Institute, Florence, 2010. Ben Boer has published steadily in environmental law since 1979. He has authored or co-‐authored five books and has edited or co-‐edited six books. He has published 25 book chapters and 25 articles, many in peer-‐reviewed journals. He has also authored 45 shorter articles, reports and reviews. His latest books are: Boer B. (ed) Environmental Dimensions of Human Rights (Oxford 2015); Boer, B., Hirsch, P Johns, F., Saul, B., Scurrah, N. The Mekong: A Socio-‐Legal Approach to River Basin Development. United Kingdom (Routledge 2016). He is the founding co-‐editor of the Chinese Journal of Environmental Law, (Brill 2017). For further information on his publications see Google Scholar: https://scholar.google.com.au/citations?hl=en&user=2Cd4BGAAAAAJ&sortby=pubdate&imq=Ben+Boer
Associate Justice Michael D. Wilson Associate Justice Michael Wilson was appointed to the Hawaii Supreme Court on April 17, 2014, after serving as a Circuit Court Judge of the First Circuit since May 10, 2000. As a Circuit Court Judge, he presided over the adult drug court, adult mental health court and the felony criminal trial court. Prior to his appointment as a Circuit Court Judge, Justice Wilson was the director of the Department of Land and Natural Resources, Chair of the Board of Land and Natural Resources, Chair of the State Water Commission and a Trustee of the Kahoolawe Island Reserve Commission. He was awarded a lifetime membership in the Western Association of Fish and Wildlife agencies in 1999. Previously, he was a partner in the law firms of Pavey Wilson & Glickstein and Hart
Wolff & Wilson where he practiced civil and criminal trial and appellate law. Justice Wilson received his law degree from Antioch School of Law in Washington D.C., and bachelor’s degree from the University of Wisconsin-‐Madison.
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Professor Denise Antolini Professor Antolini has served as the Associate Dean for academic affairs at the University of Hawaii Law School Faculty since 2011. She joined the Law School Faculty in 1996 and directed the nationally recognised environmental law programme for several years. Since 2006, she has spearheaded the Law School building excellence project. She serves on the State Water Commission Nominating Committee (2013), was the inaugural chair of the Honolulu City Council’s Clean Water and Natural Land Commission, and is the past chair of the State Environmental Council. Her courses have included torts, environmental law, environmental litigation, domestic ocean and coastal law, and legal writing. She served as the Chair of the American Association of Law Schools environmental law section and from 2005 until 2008, was on the ABA Standing Committee on environmental law. Professor Antolini is the past chair of the Hawaii State Bar Association’s natural resources section and was selected by Hawaii woman lawyers as the 2002 recipient of the distinguished community service award.
The Honourable Justice Samson Okong’o The Honourable Justice Okong’o is the Presiding Judge of the Land and Environment Court of Kenya. Justice Okong’o was educated at the University of Nairobi and practised in commercial, land and environmental law for 19 years before being appointed to the bench. He is a commercial arbitrator and a member of the Chartered Institute of Arbitrators Kenya Branch.
Chief Justice Rafael Asenjo Justice Asenjo is the Chief Judge of the Environment Court of Santiago, Chile. Justice Asenjo has degrees from the University of Chile and was a Fulbright scholar at American University and University of Georgetown, Washington D.C. He is an environmental policy and law Professor, held high level positions within the UN system, and was a legal advisor for many corporations (including Banco Interamericano de Desarrollo) before becoming a judge. He was appointed Justice of the Environment Court for a period from 2012 to 2018.
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His Honour Principal Environment Judge Laurence Newhook Principal Judge of the Environment Court of New Zealand, LLB (Hons) (Auck), AAMINZ
Judge Laurie Newhook has been the Principal Judge of the New Zealand Environment Court since 2011, and a Judge of the Court since 2001. Prior to that he was a partner at Brookfields Lawyers and had over thirty years of advocacy experience to that point, with particular emphasis on environmental matters, land, property, and maritime laws. Judge Newhook has presented at many national and international conferences on the themes of environmental adjudication and the use of technology in adjudicative settings, and has written multiple papers on the subjects. His Honour is a consulting editor of the New Zealand Resource Management Bulletin and edits the ‘Annual Review by Members of the New Zealand Environment Court’ (https://environmentcourt.govt.nz/decisions-‐publications/). Judge Newhook has hosted international delegations to his Court from many parts of the World; chaired
and presented at the ‘International Forum for Environment Judges’, Oslo, Norway, June 2016; and chaired and addressed plenary sessions at IUCN Academy of Environmental Law Colloquia and other international conferences. With Associate Professor Ceri Warnock, Faculty of Law, University of Otago, he has established a website https://environmental-‐adjudication.org to facilitate interaction between environmental adjudicators around the world, and organised the international symposium ‘Environmental Adjudication in the 21st Century’ in Auckland in April 2017.
His Honour Judge David Kirkpatrick Judge of the Environment Court of New Zealand, LLB (Hons) (Auck) Judge Kirkpatrick had, prior to his appointment to the Court in February 2014, been a Barrister sole since July 2004. He specialised in administrative and public law generally, and resource management law in particular. He appeared regularly before consent authorities, the Environment Court, and the High Court. He also appeared before the Court of Appeal, the Privy Council, and the Supreme Court. From 1994 to 2004 Judge Kirkpatrick was a partner in the Local Government and Environment practice area of Simpson Grierson. In that role he was the primary legal advisor to a number of local authorities in the Auckland region in regard to public administration, the regulation of public utilities and resource management. He has also acted for a wide range of corporate clients, incorporated societies and individuals in those fields. In 2008-‐09 he acted as counsel assisting the Royal Commission on Auckland Governance. Judge Kirkpatrick has presented numerous conference and seminar papers relating to resource management and local government law, and is a contributing author of the chapter ‘Land Use and Subdivision – Resource Consent Procedures, Designations and Appeals’ in Derek Nolan (ed) Environmental and Resource Management Law (LexisNexis) now in its fourth edition.
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Associate Professor Ceri Warnock University of Otago Associate Professor LLB (Hons)(Cardiff), LLM (Auck), MSt (Oxon)
Ceri Warnock is an Associate Professor in the Faculty of Law, University of Otago. Her primary research concerns environmental constitutionalism and explores in particular the impact of modern governmental ordering on theories for environmental adjudication. She was the recipient of the 2014 ‘New Zealand Law Foundation International Research Fellowship -‐ Te Manatū a Ture o Aotearoa Te Karahipi Rangahau Ā Taiao’ for her work into legitimacy and specialist environment courts and tribunals. Ceri course manages and teaches Resource Management Law, Energy Law and Inter-‐disciplinary Aspects of Climate Change, and is part of the Public Law teaching team. She has been a visiting lecturer at Kings College London,
tutored at Hertford College, University of Oxford and prior to joining the Faculty of Law at Otago in 2006 practiced as a barrister in England and Wales.
ORGANISING COMMITTEE Alan Webb
Bronwyn Carruthers
Ceri Warnock
Judge Laurie Newhook
Russell Bartlett QC
Suzanne Janissen
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ABSTRACTS The role of ECTs in promoting the rule of law and ensuring equal
access to justice for all
The Honourable Justice Brian J Preston SC Principle 10 of the Rio Declaration of Environment and Development advocates that individuals and communities should have appropriate access to information concerning the environment, the opportunity to participate in decision-‐making processes and effective access to judicial and administrative proceedings, including redress and remedy. Sustainable Development Goal 16 is 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. Target 16.3 is to promote the rule of law at the national and international levels and ensure equal access to justice for all. Environmental courts and tribunals (ECTs) can play an important and influential role in promoting Rio Principle 10 and Sustainable Development Goal 16. The paper explores the particular ways in which ECTs are promoting the rule of law and access to justice in environmental matters. The paper will provide examples of best practice from ECTs around the world. The National Green Tribunal, India: Decision-‐Making, Scientific
Expertise and Uncertainty
Dr Gitanjali Nain Gill
My presentation focuses on the role of scientific experts and their expertise within the National Green Tribunal (NGT) India where they act as decision-‐makers in environmental disputes. Experts are ‘central’ not ‘marginal’, to the NGT’s normative structure. I trace and evaluate how an Act of the Indian Parliament created a symbiotic relationship between legal and scientist experts operating as decision-‐makers and adjudicators of environmental conflicts within the context of the NGT. The NGT’s efforts to reach decisions by centralising scientific experts (an epistemic community) as full court members, within the decision-‐making process thereby promotes a collective, symbiotic, inter-‐disciplinary bench that seeks to harmonise legal norms with scientific knowledge. The robust application of environmental principles, particularly a ‘strong precautionary principle’, has promoted a response that tackles serious threats to human health or the environment. The decisions, through expansive rationale and innovative judgments, extend beyond the 'courtroom door' thereby having external social and economic implications. By offering ecological, technological and scientific resource knowledge, NGT experts either formulate policies or assist states with the implementation of these policies, thereby adopting both a problem-‐solving and policy-‐creation approach. The interdisciplinary bench through expansive interpretation of both statute law and Article 21 of the Indian Constitution produces a fascinating case study of how a developing nation seeks to resolve its environmental issues through a ‘judicial lens’.
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How green is my ECT?
The challenge of impartial objectivity
His Honour Judge Michael E Rackemann
[1] The growth in environmental law, environmental litigation and the recognition of the special character of environmental disputes has been accompanied by the proliferation of specialist environmental courts and tribunals (“ECTs”). The primary determinant of the proper role and function of any ECT is the legislative or other authority by which jurisdiction is conferred. The particular context within which the ECT operates will also be influential. Otherwise however, ECTs can be pulled in different directions. Some want ECTs to be de facto statutory regulators or government agencies, whilst others look to ECTs for protection from the excesses of such bodies. Some want ECTs to be environmental advocates and activist, in light of the importance of environmental protection and the broader significance, beyond the parties, of environmental litigation. Others seek a more neutral forum.
[2] The allure of an activist or interventionist approach can be strong, particularly for
the passionate. Nevertheless, subject to particular statutory provisions, there is merit in the traditional self-‐limiting judicial approach in which jurisdiction is exercised without fear, favour or affection to arrive at a determination based on established principle in order to do justice according to law, irrespective of the personal beliefs, values or passions of the decision maker. ECTs which adopt a different approach may be cheered by some, but risk underestimating the value of impartial objectivity if not also disrespecting the rule of law and undermining the sustainability of the ECT itself, to the potential ultimate detriment of the environment.
Delivering Access to Environmental Justice in Ireland: Challenges and Opportunities
Dr Áine Ryall
This paper examines the impact of international and European Union (EU) law on access to environmental justice in Ireland. The UN ECE Aarhus Convention, and Aarhus-‐inspired EU directives, continues to have a profound impact on fundamental matters including standing to bring judicial review proceedings and liability for costs in environmental litigation. The precise implications of international and EU law obligations for access to environmental justice in Ireland continue to be teased out, with three significant judgments delivered by the Supreme Court of Ireland in late February 2017. These judgments address standing, costs and the wider impact of international and EU law on national legislation and practice governing access to the courts. International law, in the form of the Aarhus Convention, is prompting the Irish courts to examine more closely a range of issues impacting on access to justice and, in particular, whether a right to legal aid might arise in certain circumstances. There is no doubt but that international and EU law have led to significant improvements in access to environmental justice in Ireland. Further interesting developments are guaranteed as the applicable international and EU principles mature and become embedded in the national legal system.
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Rethinking Environmental Statutory Interpretation
Professor Tracy Hester
The legal study of statutory interpretation in the United States has matured into an active and important field of scholarship, but it has also produced a small backlash of objection from environmental scholars. Mainstream statutory interpretive principles and canons typically focus on providing reliable and credible interpretations without regard to the subject matter of the statute. Some environmental scholars have complained that this unchallenged bias for content neutrality overlooks unique and important facets of environmental policy and law, and it can lead to corrosive statutory interpretations that undermine the effectiveness and vitality of environmental programs. With the rise of new canons that directly target recent efforts to create or expand regulatory programs under the canopy of long-‐standing environmental statutes, this tension will likely continue to boil and resurface in several pending challenges to future environmental statutory efforts. This paper will explore alternative models to interpret environmental statutes by revisi-‐ting the keystone assumptions of current statutory interpretive doctrine and proposing a modification of the federal courts’ current heavy reliance on strong concepts of subject-‐matter neutrality in interpretation. Some suggested alternative approaches will likely focus on (i) the special facets of environmental law that current statutory interpretive doctrines fail to capture, (ii) an accounting of the unique institutional competencies of courts, legislative bodies, and administrative agencies engaged in environmental statutory interpretation, and (iii) a fuller conception of the scope of legislative intent underlying environmental statutory goals. As an empirical check, it will explore whether these interpretive reorientations have begun to emerge in caselaw on statutory interpretation from special-‐jurisdiction common law environmental courts in Hawaii, Vermont, India, New Zealand, Australia and other nations.
ECTs and the Environmental Rule of Law
Professor Ben Boer
This paper examines the attempts in recent years to formulate a range of special environmental law principles that together can be characterized as significant elements underlying the emerging ‘Environmental Rule of Law’. It argues that the ‘Environmental Rule of Law’ will be of central relevance to Environmental Adjudication in the coming years. The paper first looks at the history of development of these principles, from the 1972 Stockholm Declaration on the Human Environment to the 2013 UNEP Decision on Advancing Justice, Governance and Law for Environmental Sustainability, through to the 2016 IUCN World Declaration on the Environmental Rule of Law. From the latter document, the paper selects several of the more innovative and perhaps controversial principles for analysis. These include the Right to Nature and Rights of Nature, the Right to Environment, In Dubio Pro Natura, Ecological Functions of Property, Non-‐Regression, and Progression. The specific sources of these principles will be identified and discussed. It concludes with some reflections on the theoretical and practical barriers to the adoption and implementation of the principles and concepts associated with the
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Environmental Rule of Law by environmental courts and tribunals at national level, especially in the context of Asian courts.
Environmental Adjudication in the 21st Century
Associate Justice Michael D. Wilson
This presentation will address two challenges faced by judges who must contend with application of the environmental rule of law: access to environmental justice and the personal challenges facing judges who must apply the environmental rule of law. The impending catastrophic consequences of ecological destabilization are galvanizing many to seek protection through environmental law. The courts—international, national and subnational—are often the fora of last resort for those who endeavor to protect human health and biodiversity. Accordingly, access to the courts by parties seeking the protection of the environmental law—particularly indigenous and poor people—is essential to achievement of environmental justice. In Hawaii, access of indigenous people to decision-‐makers engaged in environmental decision-‐making was recently addressed in the Hawaii State Supreme Court decision: Kilakila O Haleakala vs Board of Land and Natural Resources. Informed, specialized decision-‐making by the judicial branch of government to achieve protection of natural resources was the primary purpose for the creation of Hawaii’s environmental court. The challenge of being an environmental court judge in Hawaii will be highlighted by the proposed changes to the judicial selection process and the reduction of judicial pensions sought during the present legislative session.
Hawaii’s New Environmental Court: The Fledgling Years
Professor Denise Antolini
“Pring Challenges” 3 (Defining Jurisdiction) and 8 (Public Trust Doctrine) are two powerful lenses in which to view the early years of the new Environmental Court in the State of Hawaii in the United States (“HIECT”). The HIECT’s jurisdiction, defined by the State Legislature in 2014, is the product of politics not principle. Most of the statutes under its umbrella involve environmental review, pollution, and criminal natural resource violations. Excluded, deliberately, were land use and zoning cases, where development interests lobbied to avoid a court of specialized jurisdiction – and was perceived to be a biased jurisdiction. Also removed, in 2015, were cases involving administrative appeals of discretionary permits involving development on state land, public utilities law (e.g., renewable energy policy), and freshwater resources. On the other hand, the HIECT will benefit from the years of case law in Hawaii prior to 2014 that lay a strong foundation for the public trust doctrine, not only in freshwater cases, but also now in ocean pollution and beach protection. Although the PTD in Hawaii pre-‐dates the HIECT, and will be articulated by the appellate, not the civil or criminal trial courts, this strong common law provides an outer layer of protection of the fledging HIECT as its begins to develop in the coming years.
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Environmental Adjudication in Kenya: A reflection on the Jurisdiction of the Environment and Land Court
The Honourable Justice Samson Okong’o
Environmental adjudication in Kenya has a long history. Initially, Kenya did not have a law or policy in place specifically formulated to address grievances of environmental nature. In the year 1999, Kenya developed and enacted a modern framework environmental law; the Environmental Management and Coordination Act, No. 8 of 1999 (“EMCA”) which sets out the principles of environmental conservation, management and administration. EMCA, which was amended in the year 2015, established National Environmental Management Authority (NEMA) as the principal government agency on environmental matters. EMCA also expanded the standing to sue. It conferred on every person in Kenya a right to clean and healthy environment and gave standing to any person alleging contravention of a right to clean and healthy environment to apply to court for redress. With regard to dispute resolution, EMCA established two (2) entities, namely, National Environmental Complaints Committee (NECC) and National Environmental Tribunal (NET). The function of the NECC includes investigation of complaints against any person or NEMA in relation to the conditions of the Environment in Kenya while the primary function of NET is to hear and determine appeals against administrative decisions of NEMA and its committees. The enactment of EMCA was hailed as a turning point for Kenya in environmental protection and conservation. It was also seen as a bold step towards the promotion and protection of environmental rights in Kenya. In the year 2010, Kenya promulgated a new constitution; the Constitution of Kenya 2010(“the Constitution”). The Constitution opened a new chapter in environmental protection and conservation in Kenya. The Constitution elevated a right to clean and healthy environment to a fundamental right status. The rule on legal standing was also expanded further. The Constitution established the Environment and Land Court (“ELC”) to hear and determine all disputes relating to environment and land. ELC which has the same status as the High Court has original and appellate jurisdiction in environmental and land disputes. In this paper, I intend to discuss the jurisdiction of the Environment and Land Court (ELC). The paper would be divided into seven (7) parts. The first part would have a short introduction which will cover a brief history of environmental adjudication in Kenya. In the second part, I will look at the structure of the Kenyan Judiciary to highlight the position of the ELC in the hierarchy of courts in Kenya. This will become relevant later in the paper, when I will be discussing the challenges facing the ELC. In the third part, I will discuss the policy considerations which informed the establishment of the ELC. Here, I will briefly discuss the land question in Kenya, developments in land legislation and the relationship between land use and environmental sustainability. In the fourth part, I will discuss the constitution of the ELC and its jurisdiction. In this part, I will briefly look at the structure of the court and its jurisdiction as set out in the Constitution and the establishing statute. In the fifth part, I will discuss the emerging questions on the jurisdiction of the ELC. Here, I will consider the emerging issues such as; whether the ELC has supervisory jurisdiction over courts and tribunals subordinate to it; whether ELC has judicial review powers; whether ELC has criminal jurisdiction; whether ELC has power to interpret the Constitution; whether the subordinate courts have power to handle disputes falling within the jurisdiction of the ELC and how the
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court should deal with matters raising cross-‐cutting issues which can be dealt with by other courts. In the sixth part, I will discuss jurisprudence emerging from the ELC with special focus on how the court has utilized its broad jurisdiction in interpreting and applying environmental law and norms and how the court has applied international law in its decisions. In the seventh and final part of the paper, I will consider the benefits which have accrued to the public following the establishment of the ELC; the challenges facing the court and what the future holds for the court. I believe that many of the challenges highlighted by George Pring and Catherine Pring in their paper, “The Challenges facing Environmental Judges” which was delivered at the IUCN Annual Colloquium at Oslo on 21st June 2016 shall emerge in this paper.
Environmental Adjudication in Chile: Four Issues
Chief Justice Rafael Asenjo
The Environmental Court of Santiago (ECS), the first of two currently installed in Chile, has been working jurisdictionally since March 2013. Since then, 252 cases have been introduced to the Court, 184 have been decided and 68 remain pending up to date. Its work has been mainly concentrated in 151 illegality claims against environmental decisions of the Administration and 34 demands to repair environmental damage. The ECS´s main characteristics are: the first, its character of autonomous “operationally independent ECs” and the second, its competence of deciding Environmental Administrative litigation, reviewing the legality of the administrative decisions of the environmental institutions of the Administration, and proving the existence of environmental damage and ordering its repair when appropriate. My intention is to cover four issues or challenges that have appeared particularly important in the recent experience of the ECS and anticipate some trends that should be developed if we want to have a stronger and more effective environmental adjudication in Chile during the coming years: (a) Standing to appear in Court. Who and how can they have access to this new
jurisdictional mechanism; (b) Citizen´s involvement in the Environmental Impact Assessment process whose
decisions are reviewed by the ECS, and what the ECS has understood by “due consideration” of the observations introduced by citizens in its public participation stage;
(c) Once proven by the Court that environmental damage has occurred, it orders the
culprit or those responsible to repair the damage that has been caused. Reach and content of the Environmental Reparation Plan imposed by the Court;
(d) Compliance of the Judgments of the EC.
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Issues with access to justice in the Environment Court of
New Zealand
Principal Environment Judge Laurie Newhook & Environment Judge David Kirkpatrick, Environment Court Of New Zealand
Environmental law in New Zealand appears to be entering a period of considerable flux. While it is not our place as judges to comment on the formulating of substantive laws, our paper seeks to describe recent, past, current, and possible future legislative scenarios that might impact on access to justice in the Environment Court. We will address this issue from a number of perspectives but in doing so, we call to mind Principle 10 of the Rio Declaration on Environment and Development 1992, and aspects of the international ‘Brundtland Report’ in 1987. We commence by offering a brief description of our Court, where it fits in the system of environmental laws, how it works, and with what outcomes. The paper will outline significant changes in recent years in the nature of the work of the Court, focussing on high rates of resolution by alternative dispute resolution, and the significant scale of many of the cases left for determination by hearing. Mention will be made of innovations in both areas. We note that the Court embraces change for positive effect, and is constantly looking for efficiencies, working with regular parties, the professions and other stakeholders. It has organised itself to ensure that while offering important checks and balances to the decisions of councils and other authorities, it is not a cause of unacceptable delay in access to justice before it. In recent years the Government has passed legislation somewhat reducing the extent of access to justice in the Environment Court, by limiting its jurisdiction and by creating numbers of alternative fora that often involve case-‐specific ministerial appointments of adjudicators in contrast to the fully tenured permanent and independent members of the specialist Environment Court. Some enhancements have also been made to the Court’s jurisdiction, for instance concerning compensation for acquisition of land for public works, however such enhancements are somewhat peripheral to core aspects of environmental law such as sustainable management of natural and physical resources. When the Resource Management Act was passed into law in 1991, it was ground-‐breaking in many ways, internationally. It has been amended many times by successive governments, particularly in recent years concerning access to environmental justice. Embedded in the RMA is a core concept of sustainability, which might be seen to encompass two general components, “ecological” and “social/economic”. We question whether the trend limiting access to environmental justice might – interestingly – be seen as paralleling an ascendancy of the latter.