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Enforcement of Aarhus

Rovinj 5th nov 2010

Peggy LermanLagtolken AB, Sweden

Court systems Differences, functions, enforcement

SLAPP Strategic lawsuits against public participation

Court Systems

Rigths and Courts gDifferent ScopeExperiences

How to Make a Change?

Problems Politics Implementors Law §

Manageable

Much effect

Clear goals AdequateActive

Staffan Westerlund, Prof. Environmental Law, University of Uppsala, Sweden

Little effect

Complex Unclear goals InadequatePassive

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Good environment? No…”…no consensus on right to clean environment, so we leave it to the courts to decide on conflicting interests.” Ludwig Krämer, sept 2010

Procedural rights in Aarhus i i f ti

Rights According to Aarhus

give me informationlet me participategive me justice if national env law is violated

But does procedural focus in Aarhus mean that also courts should have procedural focus?

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Rights and Remedies* …..“…for every right, there is a remedy;

where there is no remedy, there is no right…”

Sir William Blackstone (1723 –1780) English judge and professor”Commentaries on the Laws of England”g

*remedy = cure, healing, making it OK

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Remedies How?Injunctive relief – time to think

preserve status quo (do no more) action to prevent injustice (do something)

Judicial relief (legal remedy) – make it rightenforce a right (restore)compensation (money) punishment (money, prison)

Typpically something for the courts!But what type of court and what mix of power – jurisdiction – is suitable?

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Suitable Jurisdiction?Limits to jurisdiction – perspective on law?

rule of law – onfly defined legal issuesformal – thin interpretation = procedural compliance “HOW”substantive – thick interpretation = a juste result derived from law “WHAT”

problem solving - balancing social, economic, cultural, and environmental impacts of proposals(politics or natural sciences instead…?) “WHAT!”(p )

Enforcement in many ways?civil - individual’s injury from violation of env lawsadministrative - review government decisions, rules, permits, fines and so oncriminal - prosecutions of environmental crimes, permit violations and so on

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Main Types of Courts Administrative courts - HOW

focus on procedure (law disputes)no (few) experts on environmentenforcement – no (few) remedies to stop / compensate

General courts (civil / criminal) – WHAT and howfocus on substance (facts, requirements)no (few) experts on environmentenforcement – few remedies to stop / compensate

Specialized courts – WHAT and howfocus on environment (or other types of facts)experts participateenforcement – adapted measures to stop / compensate environmental impacts

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Why Env Courts…? There is no right if there is no remedy….Remedy is more than procedure….Remedy need special understanding – experts...

But is there any point in creating a specialist jurisdiction if there is little env law to apply?

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Management of resourcesProtect Long time considerations before changesCumulative impacts

Env Laws to Set Boundaries

Stop for unacceptable effectsQuality criteria

Prohibit

Space left for decisionReasonable quality?

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PlanningWider picture for analysisCumulativ changes

PoliticsPriorities

Long time goals

Some Env Laws Make Lousy Houses

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Why Env Courts…? continued A separate specialist court would be able to develop a coherent body of environmental law that would be highly unlikely to emanate from the (earlier) fragmented system, or would take much longer to come about and, even then, lack consistency.”The Hon Justice Paul L Stein AM Judge New South Wales Court of Appeal, Sydney

A greater degree of informalit desirable more easil achie ed bA greater degree of informality desirable, more easily achieved by a separate specialist court than within the general court structure(I’m not sure of that?)

Tribunal not the same status and independence as a court

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Why Env Courts…? continued UNEP: Establish effective courts, additional resources on env courts and tribunals to support better env legislationwww.unep.org/dec/onlinemanual/Enforcement/InstitutionalFrameworks/EstablishEffectiveCourts/Resource/tabid/1063/Default.aspx

www.accessinitiative.org/blog/2010/01/greening-justice-creating-and-improving-environmental-courts-and-tribunalsand tribunals

350 ECT have been developed in dozens of countries in recent years

Respect cultural differences!!!

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Example specialized CourtsEnv Court New Zealand 1996

National Env Courtone Principal Environment Judge and several judges working regionally, Commisionersappeals mainly (planning & permits resource consent)facts & law (what & how)written & oralwritten & oraladversarial (lawyers arguing) & inquisitorial (court asking) policies decided locally and interpreted by the court

Appeals to National High Courtonly the law, not the facts

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Scope of Cases New ZealandHistoric Places Act archaeological sites Forests Act felling beech forests Electricity Act maintain existing electrical transmission lines Biosecurity Act regional pest strategies Public Works Act objections to notices of taking of land Public Transport Management Act controls and/or contracting requirements within Regional Public Transport Plans

Resource Management Act 1991contents of regional and district statements and plansapplications for resource consent (land use, coastal permit, water permit, discharge permit) authorising public works (energy projects, hospitals, schools, prisons, sewerage works, refuse landfills, fire stations, major roads and bypassesauthorising major private projects (dairy factories, tourist resorts, timber mills, shopping centres) water permits for dams and diversions takingwater permits for dams and diversions, taking of geothermal fluids, discharges from sewerage works, underground mines; levels of lakes and rivers, minimum quality standards; water conservation ordersenvironmental effects of prospecting, exploration, and miningenforcement proceedings, declarations about the legal status of environmental activities and instruments

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New Procedure New Z. Env C 2004To Manage workload AND

ensure just treatment of all litigants maintain public confidence in the Courtpromote efficient cases improve quality of processensure efficient use judicial and administrative resourcesachieve purposes of the Resource Management Act

Multi-track approachMulti-track approachStandard – most resource consent appeals, non-urgent declarationsComplex - most plan appeals, complicated resource consent appeals, priority applications - including enforcement orderParties' On Hold – mediating or plan change promoted by a local authority

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Another Example Specialized CourtsSweden 1999 (may 2010 Env & Land Use)

Regional & National qualified judge, env counsellor (technical or natural sciences), two experts (either municipal, industrial operations, env conservation)

permits & appeals

facts & law (what & how)

National High Court facts & law

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Another Example Specialized CourtsAustralia 1979

Created to administer environmental law“set up to deal with disputes and the enforcement of the laws, that relate to the development and management of land, the natural and built environment and natural resources”

l 77 % ( ld ith l )appeals 77 % (seldom with lawyers)Commissioners expertise in town planning, architects, engineers, irrigation, water resources and native vegetation experts

At the top of the judicial hierarchy Subject only to the Court of Appeal

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1 Type of Forum Judicial court, quasi-judicial tribunal, ombudsman or other

Vermont Environmental Court, Tasmania Resources, Management and Planning Appeals Tribunal, Hungary’s Office of the Parliamentary Commissioner for Future Generations, Japan’s Environmental Dispute Coordination Commission

2 Legal Jurisdiction

What laws included under ECT’s authority; civil, administrative, criminal or

Land and Environment Court of New South Wales, Australia, Environmental Commission of Trinidad and Tobago

12 Building Blocks for Env Court or Tribunal (ECT)

combined jurisdiction

3 Level Internal agency review, trial, intermediate appellate, or final appellate

Supreme Court of India, United States Environment Protection Agency

4 Geographic Area

Area included in jurisdiction: municipal, regional, state, provincial, national or other

Amazonas Environmental Court in Brazil, Planning and Environment Court of Queensland, Australia

5 Case Volume Number of cases needed to justify type of ECT selected

Environmental Court of Dhaka, Bangladesh

6 Standing Plaintiff credentials needed to file a complaint

Republic of South Africa, Supreme Court, Philippines

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7 Costs Variety of costs and risks to parties filing an environmental complaint

Environmental Court of New Zealand

8 Access to Scientific Technical Expertise

Methods for assuring decision-makers have access to unbiased experts

Environmental Court of Appeal in Sweden, Environmental Board of Appeal in Denmark

9 Alternative Dispute Resolution (ADR)

Incorporation of various types of ADR in ECT process to save money and generate better outcomes

Multi-door courthouse of Land and Environment Court of New South Wales, Australia

continued

outcomes

10 Competence judges and decisionmakers

Need for selection processes, qualifications, training, tenure and salary to support competence

Finland’s Supreme Administrative Court, Supreme Court of Thailand, New York City, Brazil

11 Case Management

Administrative tools to increase efficiency, effectiveness, and access

Planning and Environment Court of Queensland, Australia

12 Enforcement Tools and Remedies

Powers of ECT to use the right remedy(ies) to solve the problem

Federal prosecutors of Brazil

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Experiences in a Nut ShellAn integrated environmental and land use planning court, with civil, administrative, and criminal jurisdiction,enforcement powers adequate to the task, represents the jurisdictional scope that best provides comprehensive access to environmental justice.

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Mediation clarify issuesresolve conflicts reach agreement

Important Part of Court Work

New ZealandAll appeals assessed by Environment Judge Almost always referred to CommissionerThe Court invite the parties and their co-operation in arranging mediation as soon as possible

www.mfe.govt.nz/publications/rma/everyday/court-mediation/

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Other Functions than CourtsOmbudsman – representing the Public on a specifik interestNamibia – Environment, human rights, corruption

”The public have to deal with government officials on a daily basis. There is a general expectation that such officials be fair, polite, sensitive, etc. It happens in specific cases that an official departs from the standards expected. The general public needs protection against such officials. The Ombudsman has a duty to offer the necessary protection.”

The Ombudsman can negotiate or mediate, make recommendations to the relevant Institutions to take action against an officer.

The Ombudsman can approach the High Court to obtain enforcement.

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Aarhus Making a Change?

Problems Politics Implementors Law §

Manageable

Much effect

Clear goals AdequateActive

Procedures

Staffan Westerlund, Prof. Environmental Law, University of Uppsala, Sweden

Little effect

Complex Unclear goals InadequatePassive

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Don’t sit back &relax with Aarhus!

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Active Journalists in Sweden?Aarhus mentioned in

14.000 swedish hits on Google national papers once 2002 and twice 2004local paper i my region once 2006television, no hit, but ”env organisation” 16 hits

BUT

Environment thousands and thousands of hits !

We think we know everything about openness and are number one in democracy? Who needs Aarhus…?

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Active Courts in Sweden!Highest Court required statement from EU CourtLegal limitation of Aarhus in swedish law?

too few members and too young organisation to get access to justice?participation makes acc to justice unnecessary?

C-263/08, 2010-03-11, CELEX 62009O0024

Swedish Env Code changed sept 1st 2010…..BUT

still 3 years old and at least 100 members, or prove that they are supported by the public….

What are we afraid of?

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Our fears?Increased numer of cases!

research: one more case a year…. (1.200 EIA-cases)Increased time for a case!

efficient when several participants coordinate through an organisation….

Increased difficulties, complications!”professional” participation makes questions more clear and investigations help understanding…..

more and better factsvaliuable analys and arguments

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So, Aarhus doesn’t give us a “house”(no env boundaries)

But we do get caretakers, impartial judges,with the responsibility to let us in, in whatever ”house” we have in our country,and to take care of our ”house” and make it better

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and make it better…..

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And journalist watchdogs! To alarm us when we sleep and there is a fire, or simply keep us all active, jumping up and down to make us come out and participate …..

“SLAPP”Strategic Lawsuits

Against Public Participation

What is it?Why is it not OK?What are the tactics?How can we protect

public participation against slapping?

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”Definitions” of SLAPPCivil lawsuit against NGOs or otherswith the purpose to silence or scare offsimply because the use of constitutionally protected rights to persuade the government.

Retaliatory (revenge) lawsuits intended to silence, intimidate, or punish those who have used public forums to speak, petition, or otherwise move for government action on an issue.on an issue.

1984 University of Denver, USA:"a lawsuit involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against nongovernment individuals or organizations on a substantive issue of some public interest or social significance."

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BackgroundRight to petition –ask an official body to do something

Ancient ChinaKing Edgar the Peaceful (943 –975)US Constitutuion

Democracy cannot work if there are barriersDemocracy cannot work if there are barriers,or if interest groups are allowed to create barriers,between the governed and the governing.

Protection of Public Participation

Supreme Court Judge, New York: A gun to the head of the First Amendment

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Reasons for SLAPP circulating a petition

writing to a local newspaper

speaking at a public meeting

reporting violations of the law

participating in a peaceful demonstration

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Examples of SLAPP (1)“Mc Libel Case”Environmental group leaflet about McDonalds 1986McD sued for libelling (false statements)Case went on for 10 years and McD won

First Amendment” (and similar acts) protects free speech but not slander or libel….p

BUT Legal aid was denied the environmentalistsIn line with right to freedom of expression?

No! £24,000 damages, plus costs.

European Court of Human Rights 20051997 EWHC QB 366

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Examples of SLAPP (2) Colorado Commersial Development Environmental protection group opposedSued by the developer for $40 million"conspiracy" and "abuse of process“

Company lostp y

Lockport Corporation v.

Protect Our Mountain Environment

Dist. Ct., Jefferson County, Colo. 1981No. 81CV973

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How to Protect Public Participation?Making SLAPP illegal or frustrating

No acceptance of law suits to intimidate and harass PPWashington ”anti-SLAPP-law” 1989

Quick and inexpensive defense”anti-Slapp-motion” California 1992anti-Slapp-motion California 1992

Malicious prosecution? Easier to recover costs”SLAPP-back” California 2005

Keep an ongoing public debate – journalists SLAPP is an attempt to privatize public debate

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