symposium on environmental adjudication in the 21 …

Foreword 58

Public participation in environmental adjudication: 60some further reflections

Opening Address at the Environmental Adjudication Symposium Auckland

Judging the environment – back to basics 64Keynote address

The role of environmental courts and tribunals in 72promoting the rule of law and ensuring equal access to

justice for all

The National Green Tribunal, India: 82decision-making, scientific expertise and uncertainty

How green is my ECT? The challenge of impartial objectivity 88

Green statutory interpretation by environmental courts 92and tribunals

Climate change: the role of the judiciary 97

Environmental adjudication in Kenya: a reflection on the 103early years of the Environment and Land Court of Kenya

Environmental Justice in Chile: three years after the 110establishment of the Environmental Court of Santiago

Specialised courts for environmental matters – 115the Swedish solution

Issues with access to justice in the Environment Court of 125New Zealand

LAURIE NEWHOOKPrincipal Environment Judge,

Environment Court of New Zealand

THE HON JUSTICE STEPHEN KÓSPresident, Court of Appeal of New Zealand

LORD ROBERT CARNWATHJustice of the Supreme Court of the

United Kingdom

THE HON. JUSTICE B J PRESTONChief Judge,

Land and Environment Court of New South Wales

DR GITANJALI NAIN GILLProfessor in Law, Northumbria Law School,

Northumbria University, UK

MICHAEL RACKEMANNJudge of the Planning and Environmental Court and

District Court of Queensland

TRACY D HESTERUniversity of Houston Law Center

MICHAEL D WILSONAssociate Justice, Supreme Court of Hawai‘i

HONOURABLE JUSTICE SAMSON OKONG’OPresiding Judge,

Environment and Land Court of Kenya

RAFAEL ASENJOChief Justice of the Environmental Court of Santiago,

Chile

ANDERS BENGTSSONSenior Judge, Land and Environment Court,

Växjö, Sweden

ENVIRONMENT JUDGES LAURIE NEWHOOK, DAVID KIRKPATRICK,

JOHN HASSANEnvironment Court of New Zealand

Volume 29 Issues 2–3 2017 ISSN 1067 6058

Symposium onENVIRONMENTAL ADJUDICATION IN THE 21ST CENTURY

Auckland, New Zealand, April 2017

Contents_Verso_ELM Article template 09/10/2017 09:51 Page 53

MANAGING EDITORProfessor Ben PontinProfessor of Environmental Law,Cardiff Law School,Cardiff University

EDITORS

CASE LAW EDITORJason LowtherAssociate Professor,School of Law,University of Plymouth

EUROPEAN UNION EDITORJoanne SellickAssociate Dean,Teaching and Learning, Associate Professor in Law,School of Law,University of Plymouth

SCOTTISH EDITORSarah HendrySenior Lecturer in Law,Centre for Water Law,Policy and Science,University of Dundee

BEHIND THE HEADLINESDr David PocklingtonDirector, Enviro-Law & Policy

BOOK REVIEW EDITORNeil ParpworthDepartment of Law,De Montfort University

EDITORIAL BOARD

Andrew BryceEnvironmental lawyer

Professor Malcolm ForsterPrincipal Consultant, Freshfields Bruckhaus Deringer, British Institute for International andComparative Law

Brian GreenwoodPartner, Clyde & Co

Professor William HowarthProfessor of Environmental Law,University of Kent at Canterbury

Tim JewellLegal advisor,HM Government

Owen LomasConsultant,Environment and Safety Group,Travers Smith

Gordon McCreathPartner, Pinsent Masons

Professor Colin ReidDepartment of Law,University of Dundee

Paul RicePartner, Head of Energy SectorPinsent Masons

Andrew WaiteConsultant,Keystone Law

Chris WillmoreSchool of Law,University of Bristol

Andrew WisemanPartner, Harrison Grant Solicitors

Environmental Law & Managementwww.lawtext.comISSN 1067 6058

Volume 29 (2017)6 issues plus index

£615

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Volume 29 Issues 2–3 2017 ISSN 1067 6058

Contents_Verso_ELM Article template 09/10/2017 09:51 Page 54

ENVIRONMENTAL ADJUDICATION SYMPOSIUM – PRINCIPAL SPEAKERS : (2017) 29 ELM 55

ENVIRONMENTAL LAW & MANAGEMENT PUBLISHED BY LAWTEXT PUBLISHING LIMITEDwww.lawtext.com

Professor Denise Antolini has served as the Associate Deanfor academic affairs at the University of Hawaii Law SchoolFaculty since 2011. She joined the Law School Faculty in 1996and directed the nationally recognised environmental law pro-gramme for several years. Since 2006, she has spearheadedthe Law School building excellence project. She serves on theState Water Commission Nominating Committee (2013), wasthe inaugural chair of the Honolulu City Council’s Clean Waterand Natural Land Commission, and is the past chair of theState Environmental Council. Her courses have included torts,environmental law, environmental litigation, domestic oceanand coastal law, and legal writing. She served as the Chair ofthe American Association of Law Schools environmental lawsection and from 2005 until 2008 she was on the ABAStanding Committee on environmental law. Professor Antoliniis the past chair of the Hawaii State Bar Association’s naturalresources section and was selected by Hawaii woman lawyersas the 2002 recipient of the distinguished community serviceaward.

Chief Justice Rafael Asenjo is the Chief Judge of theEnvironment Court of Santiago, Chile. Justice Asenjo hasdegrees from the University of Chile and was a Fulbrightscholar 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, andwas a legal advisor for many corporations (including BancoInteramericano de Desarrollo) before becoming a judge. Hewas appointed Justice of the Environment Court for the period 2012 to 2018.

Anders Bengtsson is senior judge at the Land andEnvironment Court in Växjö, Sweden. In 1985 he graduatedfrom the University of Lund, Bachelor of Laws, and subse-quently qualified as a judge. From 1989 to 1997 he served aslegal advisor/senior legal advisor to the County AdministrativeBoard in Skåne. During 1997–1999 he was Secretary to theEnvironmental Code Committee, and legal advisor to theMinistry of Environment and the Swedish National Environ-mental Protection Agency. From 1999 to 2001 he wasChairman of the Environmental Permits Board at the CountyAdministrative Board in Skåne. He has served as a judge at the Växjö Land and Environment Court since 2001. JudgeBengtsson organises education in environmental law and landlaw for the personnel at Swedish environmental courts – nowunder the auspices of the Swedish Courts Academy – and alsoserves as a trainer. He is co-chair of the working group onenvironmental law under the Association of European Admini-strative Judges, a member of the EU Aarhus ConventionCommission expert group for national judges, and also theImplementation Committee under the Espoo Convention onEnvironmental Impact Assessments in a TransboundaryContext.

Emeritus Professor Ben Boer began teaching environmentallaw in 1979 at Macquarie University, in Sydney. He was

Professor in Environmental Law, University of Sydney between1992 and 2008. He was also international director of theIUCN Academy at the University of Ottawa from 2006 to2008. He was appointed Emeritus Professor in the Universityof Sydney in late 2008. In 2011, he was appointedDistinguished Professor at Wuhan University Law School,China, in its Research Institute of Environmental Law and nowworks in Wuhan for three months each year. He served asDeputy Chair of the World Commission on EnvironmentalLaw of the International Union for the Conservation ofNature between 2012 and 2016. He has been granted several awards, including the Brazil Association of Judges Medalfor contributions to Judicial Education, 2016; IUCN Academyof Environmental Law, Senior Scholarship Award, 2015; LawCouncil of Australia award for ‘Exceptional contribution to thedevelopment of environmental law’ 2011; New Zealand LawFoundation Distinguished Visiting Fellowship in 2011; and theFernand Braudel Senior Fellowship, European UniversityInstitute, Florence, 2010.

Ben Boer has published steadily in environmental law since1979. He has authored or co-authored five books and hasedited or co-edited six books. He has published 25 bookchapters and 25 articles, many in peer-reviewed journals. Hehas also authored 45 shorter articles, reports and reviews. Hislatest books are: Boer B. (ed) Environmental Dimensions ofHuman Rights (Oxford 2015); Boer, B., Hirsch, P., Johns, F., Saul,B., Scurrah, N. The Mekong: A Socio-Legal Approach to River BasinDevelopment (Routledge 2016). He is the founding co-editorof the Chinese Journal of Environmental Law, (Brill 2017).

Lord Robert Carnwath of Notting Hill CVO is a currentmember of the UK Supreme Court. He was educated at EtonCollege (where he won the Newcastle Scholarship), andTrinity College, Cambridge. He was called to the Bar at MiddleTemple in 1968. He practised in parliamentary law, planningand 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’sCounsel in 1985, and was Attorney General to the Prince ofWales from 1988 to 1994 (for which service he was awardedCompanionship of the Victorian Order).

Lord Carnwath was appointed as a High Court Judge on 3 October 1994 in the Chancery Division, and received thecustomary knighthood. He served as chairman of the LawCommission from 1999 to July 2002. He was promoted to theCourt of Appeal on 15 January 2002 and, as is customary,became a member of the Privy Council. Between 2004 and2012 he provided judicial leadership for the reform of the specialist tribunal system and was formally sworn in as the firstSenior President of Tribunals on 12 November 2007.

On 20 December 2011, Lord Carnwath was announced asa new appointee to the Supreme Court of the UnitedKingdom. Lord Carnwath also currently serves as the Chair ofthe Advisory Council for the Institute of Advanced LegalStudies and is honorary President of the UK EnvironmentalLaw Association. Since 2004 he has worked as an advisor to

Principal speakers at the Symposium onEnvironmental Adjudication in the 21st Century

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the United Nations Environment Programme (UNEP) on judi-cial training and is currently a member of their InternationalAdvisory Council on Environmental Justice. In 2004, he was afounder member and first Secretary General of the EU Forumof Judges for the Environment (EUFJE).

In his free time, he enjoys golf and tennis. He is a keen ama-teur musician, playing the viola, as well as singing in the BachChoir (with whom he sang the Britten War Requiem at theWellington Arts Festival in 1994).

Professor Gitanjali Nain Gill joined the School of Law,Northumbria University in 2011. Previously Professor Gill wasemployed at the Faculty of Law, Delhi University, India’s lead-ing university. She has been awarded fellowships by UNITAR,the British Council, Cardiff University and also a BritishAcademy Research Award that supported her fieldwork andresearch into the innovative National Green Tribunal of India.Her project focused on the National Green Tribunal as oneelement of a reformist approach to environmental govern-ment and explores its working and effectiveness. She is widely published on environmental law in India and has articles in the Environmental Law Journal, Environmental LawReview, Transnational Environmental Law, Northern Ireland LegalQuarterly, Public Law and chapters in several books. In January2017, her research findings and conclusions were published inher book Environmental Justice in India: The National GreenTribunal (Routledge, Earthscan). Her research agenda will con-tinue to focus on India and will also include comparative workwithin China.

Professor Tracy Hester teaches environmental law andemerging technology courses at the University of HoustonLaw Centre. His research focuses on the innovative applicationof environmental laws to emerging technologies and risks, suchas climate engineering, nanotechnologies, genetic modification,advanced renewable power projects, and on novel complianceand liability issues. Prior to joining the University of HoustonLaw Centre, Professor Hester served as a partner in BracewellLLP for 16 years and led the Houston office’s environmentalgroup. Professor Hester co-directs the Environment, Energy & Natural Resource Centre’s Speaker Series, which annuallydraws top speakers on energy and environmental topics tothe University of Houston campus. He also organises andassists in the preparation of workshops and symposia on cur-rent energy and environmental topics. Professor Hester wasinducted into the American College of Environmental Lawyersin 2015, elected a member of the American Law Institute in2004, and named the Top Environmental Lawyer in Houston in 2011 by Best Lawyers of America. He was also elected tothe Council of the American Bar Association’s Section onEnvironment, Energy and Resources (SEER) in 2011, and hecurrently co-chairs SEER’s new Law Professors Committee.

His Honour Judge David Kirkpatrick LLB (Hons) (Auck) isJudge of the Environment Court of New Zealand. JudgeKirkpatrick had, prior to his appointment to the court inFebruary 2014, been a barrister sole since July 2004. He specialised in administrative and public law generally, andresource management law in particular. He appeared regu-larly before consent authorities, the Environment Court, and the High Court. He also appeared before the Court ofAppeal, the Privy Council, and the Supreme Court. From 1994to 2004, Judge Kirkpatrick was a partner in the ‘local govern-ment 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 publicadministration, the regulation of public utilities and resourcemanagement. He has also acted for a wide range of corporateclients, incorporated societies and individuals in those fields. In 2008 and 2009 he acted as counsel assisting the RoyalCommission on Auckland Governance. Judge Kirkpatrick haspresented numerous conference and seminar papers relatingto resource management and local government law, and is acontributing author of the chapter ‘Land use and subdivision –resource consent procedures, designations and appeals’ inDerek Nolan (ed) Environmental and Resource ManagementLaw (LexisNexis), now in its fourth edition.

Justice Stephen Kós was appointed to the High Court ofNew Zealand in April 2011, to the Court of Appeal of New Zealand in September 2015 and, in July 2016, he wasappointed President of the Court of Appeal of New Zealand.

He graduated LLB (Hons) from Victoria University in 1981and LLM from Cambridge University in 1985. He became apartner in Perry Wylie Pope & Page in 1985, and in RussellMcVeagh in 1988. He joined the independent bar in 2005, andwas appointed Queen’s Counsel in 2007.

His principal fields of practice were commercial and envi-ronmental litigation. In the latter field, he led for the ferry companies in the Fast Ferry Wash cases, and for the applicantsin the Transpower North Island Grid Upgrade and theContact Energy Hauauru Ma Raki wind farm inquiries. He wasformerly Pro-Chancellor of Massey University and Chair ofthe New Zealand Markets Disciplinary Tribunal.

His Honour Principal Environment Judge Laurence

Newhook LLB (hons) (Auck), AAMINZ has been thePrincipal Judge of the New Zealand Environment Court since2011, and a judge of the court since 2001. Prior to that he wasa partner at Brookfields Lawyers and had over 30 years ofadvocacy experience to that point, with particular emphasison environmental matters, land, property, and maritime laws.Judge Newhook has presented at many national and interna-tional conferences on the themes of environmental adjudica-tion and the use of technology in adjudicative settings, and haswritten multiple papers on the subjects.

His Honour is a consulting editor of the New ZealandResource Management Bulletin and edits the Annual Review byMembers of the New Zealand Environment Court. JudgeNewhook has hosted international delegations to his courtfrom many parts of the world; he chaired and presented at theInternational Forum for Environment Judges, Oslo, Norway,June 2016; and chaired and addressed plenary sessions atIUCN Academy of Environmental Law Colloquia and otherinternational conferences. With Associate Professor CeriWarnock, Faculty of Law, University of Otago, he has estab-lished a website to facilitate interaction between environ-mental adjudicators around the world, and organised theinternational symposium on environmental adjudication in the 21st century in Auckland in April 2017. For further infor-mation, see https://environmental-adjudication.org.

The Honourable Justice Samson Okong’o is the PresidingJudge of the Land and Environment Court of Kenya. JusticeOkong’o was educated at the University of Nairobi and practised in commercial, land and environmental law for 19years before being appointed to the bench. He is a com-mercial arbitrator and a member of the Chartered Institute of Arbitrators Kenya Branch.

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The Honourable Justice Brian J Preston SC is the Chief Judgeof the Land and Environment Court of New South Wales.Prior to being appointed in November 2005, he was SeniorCounsel practising primarily in New South Wales in environ-mental, planning, administrative and property law. He holds aBA and LLB (first class honours) from Macquarie University,practised as a solicitor from 1982 to 1987 and then at the barfrom 1987 to 2005. He was appointed Senior Counsel in1999.

Justice Preston has lectured in post-graduate environ-mental law for over 23 years, principally at the University ofSydney, but also at other universities in Australia and over-seas. He established two law courses: environmental disputeresolution and biodiversity law. He is currently an AdjunctProfessor at the University of Sydney.

Justice Preston is the author of Australia’s first book onenvironmental litigation and the subjects of his writingsinclude: sustainable development, biodiversity, climate change,heritage, environmental impact assessment, environmentalcrime, the courts and the environment, public interest litiga-tion, and administrative law and environmental law. He hasbeen involved in a number of international environmental con-sultancies and capacity-building programmes, including for thejudiciaries in China, Kenya, Indonesia, Sri Lanka, Thailand, andTrinidad and Tobago.

Justice Preston is an official member of the JudicialCommission of New South Wales. He was the recipient of acommendation in the 2010 Australian Institute of JudicialAdministration – awarded for excellence in court administra-tion – for his work in implementing the international frame-work for court excellence in the Land and Environment Courtof New South Wales. He was also the recipient in 2010 of an award by the Asian Environment Compliance andEnforcement Network in recognition of his outstanding lead-ership and commitment in promoting effective environmentaladjudication in Asia.

His Honour Judge Michael E Rackemann is a Judge of thePlanning and Environment Court in Queensland, Australia, and since 2009 he has been the Senior Listings Judge for thecourt. He has also been a Judge of the District Court sinceJanuary 2004. He holds a Bachelor of Laws (hons) degreefrom the University of Queensland. Prior to his appointment,Judge Rackemann was Convenor of the Bar Association ofQueensland Planning and Environment Subcommittee and aMember of the Queensland Environmental Law Association’sIntegrated Planning Act Subcommittee. He was admitted as a

barrister of the Supreme Court of Queensland in 1990 hav-ing previously been a clerk to Judge Row of the QueenslandDistrict Court, and an articled clerk and solicitor of the lawfirm Morris Fletcher & Cross. His Honour has been a memberof various committees and associations including the NationalEnvironmental Law Association, the Queensland Environ-mental Law Association, District Court Planning Committee,District Court Conferences and Judicial Education Com-mittee, District Court Salaries and Entitlements Committee,the District Court Civil Procedure Committee and the RulesCommittee.

Associate Professor Ceri Warnock LLB (hons) (Cardiff),

LLM (Auck), MSt (Oxon) is an Associate Professor in theFaculty of Law, University of Otago. Her primary research concerns environmental constitutionalism and explores in particular the impact of modern governmental ordering ontheories for environmental adjudication. She was the recipientof the 2014 New Zealand Law Foundation InternationalResearch Fellowship – Te Manatu a Ture o Aotearoa Te KarahipiRangahau A Taiao for her work into legitimacy and specialistenvironment courts and tribunals. Ceri course manages andteaches 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 atKing’s College London, tutored at Hertford College, Universityof Oxford and prior to joining the Faculty of Law at Otago in2006, practised as a barrister in England and Wales.

Associate Justice Michael D Wilson was appointed to theHawaii Supreme Court on 17 April 2014, after serving as aCircuit Court Judge of the First Circuit since 10 May 2000. As a Circuit Court Judge, he presided over the adult drugcourt, adult mental health court and the felony criminal trialcourt. Prior to his appointment as a Circuit Court Judge,Justice Wilson was the director of the Department of Landand Natural Resources, Chair of the Board of Land andNatural Resources, Chair of the State Water Commission and a Trustee of the Kahoolawe Island Reserve Commission.He was awarded a lifetime membership in the WesternAssociation 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 practised civiland criminal trial and appellate law. Justice Wilson received hislaw degree from Antioch School of Law in Washington, D.C.and a bachelor’s degree from the University of Wisconsin-Madison.

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Foreword by Principal EnvironmentJudge Laurie Newhook of theEnvironment Court of New Zealand

The papers in this issue of the Journal were presented at the international symposium‘Environmental Adjudication in the 21st Century’, held in Auckland, New Zealand in April 2017. The symposium was organised by ‘Environmental–Adjudication.Org’, aresearch group formed to discuss and debate the challenges of adjudicating for the envi-ronment, based at the University of Otago, and comprised of academics, judges and envi-ronmental law practitioners from around the world. The principals of Environmental-Adjudication.Org, alongside myself, are Associate Professor Ceri Warnock of theUniversity of Otago, Professor Emeritus George (Rock) Pring of the University of Denver,Colorado, and Catherine (Kitty) Pring. Initially established with a grant from the RoyalSociety of New Zealand, the group held a judges’ forum at the IUCNAEL Colloquium inOslo, Norway in June 2016, and have established a judicial forum at http://environmental-adjudication.org, providing for the dissemination of information, including research intoenvironmental adjudication, mutual knowledge-sharing amongst members of environmentcourts and tribunals around the world, and the organisation of training, symposia and con-ferences. The Auckland Symposium was attended by 200 people, and brought togetherrepresentatives of over 30 jurisdictions engaged in specialist environmental adjudication.Participants were privileged to hear presentations from members of the judiciary and academics from around the world, with the keynote address being given by LordCarnwath of the UK Supreme Court. Associate Professor Warnock was invited to sum-marise the proceedings and her closing comments are included below.

Summary of the Proceedings by Associate Professor Ceri WarnockAfter hearing 12 superb presentations from members of the judiciary and academics from around the world, I have been asked to draw the threads together and provide someconclusions. I am not entirely sure that I can do that but if I might be bold, three corethemes appear to underlie the excellent presentations that we heard.

First, adjudicating over the environment creates very particular challenges for adjudi-cators. Environmental adjudicators are often required to make predictive decisions aboutthe future as opposed to fact-finding in relation to the past, they are required to address normative conflicts, allocate risk-burdens, and undertake polycentric decision-making.Evidence is expert-opinion heavy and complex. Adjudicators are concerned with a widerange of actors and those impacted upon, so transcending traditional bi-party litigation,and, as Professor Hester reminds us, they may have to give legal meaning to complex eco-logical and socio-cultural ontologies, so straining traditional interpretative methodology.Further, if adjudicators ‘get it wrong’, this can have widespread, irreversible and catastrophicconsequences, as Dean Antolini warns.1

Secondly, these challenges are creating tensions. National legal culture is important but we are being forced to rethink the fundamental traditions and core principles that ourlegal systems are built upon. For example, specialist environment courts and tribunals con-stitute a shift away from traditional legal-political institutions – both in terms of their formand interactional nature – and this forces us to rethink purist or qualitative approaches tothe separation of powers. Rather than mere dispute resolution, might specialist environ-mental adjudication better be conceptualised as part of new environmental governance?Further, these challenges are making us think again about the rule of law, the content ordesiderata of which is an essentially contested concept, as Justice Preston and ProfessorBoer2 remind us. How might core rule of law desiderata correlate or co-exist with environmental law principles? Environmental problems are providing the context for revisionist thinking. Other critical questions raised during this symposium include:

n Is judicial method still fit for purpose or are new epistemic communities better placedto address these challenges, as Dr Gill suggests?

n What is the appropriate role for the judiciary in this context? Does ‘activism’ en-danger legitimacy as Judge Rackemann warns?

n Or faced with the momentous implications of climate change, should the judiciary actto protect core rights, as Justice Wilson opines?

58 (2017) 29 ELM : ENVIRONMENTAL ADJUDICATION IN THE 21ST CENTURY : FOREWORD

1 Professor Antolini presented researchon enforcement that will be included in her forthcoming book concerningenvironmental law in Hawai‘i.

2 Professor Boer’s paper discussed theIUCN World Declaration on the Envi-ronmental Rule of Law (see: https://www.iucn.org/sites/dev/files/content/documents/world_declaration_on_the_environmental_rule_of_law_final_2017-3-17.pdf ) and drew on his workto be published as Ben Boer, ‘Environ-mental principles and the right to aquality environment’, in Ludwig Krämerand Emma Lees (eds) Edward ElgarEncyclopaedia on Environmental Law(forthcoming).

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The final point (and possibly here I can draw some conclusions) is that environmentalproblem-solving is by its very nature iterative, and adjudication is playing a critical role.Citizens bring real problems to courts to be resolved with the help of legal and technicalexpertise. In this context we can see a deliberative community striving for solutions and,as Justices Okongo’o, Asenjo and Bengtsson remind us, those solutions will be formedagainst a backdrop and impacted by national legal culture, social conditions and presentpreoccupations. In this reality, we cannot draw on metaphors from an artificial legal world.We have to create institutions, procedures and remedies that respond to real world problems and – as Lord Carnwath cautions – we have to be pragmatic in doing so.

In New Zealand, we have been thinking about specialist adjudication in planning andenvironmental law since at least 1953 (and possibly as far back as 1926), and we are stillfinding our way to solutions. But as Judges Newhook, Kirkpatrick and Hassan suggest, we need to think creatively and we need to ‘be smart’. Their Honours’ paper sends astrong message: effectiveness and inclusiveness can be two sides of the same coin – atheme pre-empted and given additional content by Justice Kos’ paper. Moreover, creating ‘win-win’ solutions – crafting the best procedures, substantive approaches and remedies(and here I think of Justice Okong’o’s paper on remedies in particular) – requires in-put from us all. Only by including the executive, the judiciary, the professions and theimpacted can we craft smart solutions befitting environmental adjudication in the 21stcentury.

Accordingly, it is appropriate to end with a quote from our co-founders of‘Environmental-Adjudication.Org’, Professor Rock Pring and Kitty Pring (and it is a quotetaken from their presentation which can be found on the http://environmental-adjudica-tion.org website): ‘we hope this symposium inspires a continuing discussion, an exchange ofexpertise and a sharing of strategies, solutions and sagacity’ to ensure that environmentaladjudication becomes more effective, efficient and just in the decades to come.

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E nga iwi I hui hui pei, nau mai haere mai, ki tenei hui, tenakoutou, tena koutou, tena tatou katoa. To all peoples heretoday welcome, welcome to this gathering; greetings to youall.

This is a nation of many peoples but we all dependupon and must respect the land. That verity is summed upin a whakatauki (or proverb): whatu ngarongaro te tangata,toitu te whenua. People will perish, but the land is perma-nent.

The pleasant task of welcoming distinguished speakersand delegates falls to me. The organisers of this symposiumhave gathered a group of environment jurists and otherexperts of the highest standing. We have much to learnfrom them over the course of the programme.

It was said last night that our environmental legislation –some quarter of a century old now – was cutting edge inits heyday. The underpinning philosophy is more obscurenow as competing administrations have remodelled it.Initially a crisp Le Corbusier dwelling, it now has some curious gothic additions. The front door tends to stick. Thelift leading upstairs does not work as well as it used to.

Topics to be addressed over the next two days includeensuring equal access to justice, interdisciplinary analysis,the maintenance of impartial justice and the rule of law, andenvironmental statutory interpretation and legislativereform. Others more versed in daily practice in this field –and perhaps less constrained than I must be – will talkmore about the Resource Management Act 1991 (NZ). Mycontribution today is modest in scope and purpose.

In their keynote address at the 2016 Colloquium inOslo, Rock and Kitty Pring identified ten major challengesfor environment judges in the next decade. Number fouron their list was access to environmental justice. Theyreferred to the ‘three pillars’ of the environmental rule oflaw, all being access rights: peoples’ rights of access to infor-mation, access to public participation and access to justicein environmental matters.

The focus of their immediate comments was restric-tions on standing. Happily, that has been less of an issue inNew Zealand than other jurisdictions perhaps. At leasttechnically, if not practically – which is another issue.Vigilance is essential, and recent reforms have begun to create quasi-standing barriers. Their remarks resonate withan address I gave last year, when I was asked to give theTony Hearn QC Memorial Lecture for the ResourceManagement Law Association.

My address was called ‘Davids and Goliaths: PublicParticipation in the Planning Process’.1 Tony Hearn QC wasthe first barrister at the New Zealand Planning Bar to takesilk, in 1981. The Resource Management Law Associationsponsors an annual lecture in his memory. The lecturer isusually a notable expert in the field of planning law. In 2016,by some mishap, they invited me instead. I never pretend-ed to specialise in environmental law. I was a commercialsilk who had a bit of luck in environmental cases.

The theme of my lecture – Davids and Goliaths – wasthat good environmental decision-making required robustevaluative processes. That normally depended on effectivepublic participation. And effective public participationdepended on a reasonable equality of arms. So the focus ofmy lecture was on properly resourcing public participationin environment cases.

It is a reality – one I saw myself many times when act-ing for major infrastructure providers applying for consentsfor projects with a significant environmental impact – thatmembers of the public with the most immediate connec-tion to the environment are often outgunned in the con-sent hearing process. I said I had luck as counsel. But as theysay, you make your own luck. The well-resourced achievemore luck than their opponents.

The overall point I made in 2016 was that a fundamen-tal inequality of arms simply made for bad decision-makingand lingering resentment. I demonstrated that by referenceto a case I did in which I had successfully defended fastinter-island ferries from enforcement action after theirwake caused coastal erosion in the Marlborough Sounds, at the top of the South Island.2 The result in that case was,events showed, wrong. In part, we achieved that because ofinadequate opposing evidence. The community simmeredwith resentment thereafter until somewhat spurious safe-ty-based speed restrictions killed fast ferries off.

What public resources can community groups look toin this country?

I looked first at the Environmental Legal AssistanceFund. It has a total annual budget of NZD600,000 (ex-cluding GST). About 14 cents per head of population.3

The maximum amount per group per application for anyone case is NZD50,000.

60 (2017) 29 ELM : PUBLIC PARTICIPATION IN ENVIRONMENTAL ADJUDICATION : KÓS


* Held 11 April 2017.

1 Stephen Kós ‘Davids and Goliaths: Public Participation in the PlanningProcess’ Tony Hearn QC Memorial Lecture (3 March 2016)www.courtsofnz.govt.nz/speechpapers/HJK.pdf.

2 Marlborough District Council v New Zealand Rail Ltd [1995] NZRMA 357(PT).

3 ibid at [42].

Public participation in environmental adjudication:some further reflectionsOpening Address at the Environmental Adjudication Symposium Auckland*

The Hon Justice Stephen Kós President, Court of Appeal of New Zealand

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This contrasts with Australia and two Canadian prov-inces that have Environmental Defenders’ Offices. Fundinglevels are typically greater than in this country.4

There is much to be said for the New Zealand LegalAssistance Fund, and the Principal Environment CourtJudge has said so in a perceptive lecture.5 As I said last year, it is not for a sitting judge to comment on the ade-quacy of such executive provision. But the obvious may berecorded: sums of less than NZD50,000 will have limitedeffect in achieving any sort of equality of arms in a majorinfrastructure project where applicant legal and expert witness hearing costs can easily reach NZD2–3 million.

What other assistance might the public glean in a majorhearing?

I discussed the role played by counsel assisting in major infrastructure project enquiries, conducted by theEnvironment Court or more commonly now by Boards ofInquiry. I said that the appointment of such counsel shouldbe encouraged and both the Environment Court andBoards of Inquiry had that appointment power in theirpowers to regulate their own processes. But the appoint-ment of counsel assisting was erratic.

Other techniques used by hearings panels, the Environ-ment Court and Boards of Inquiry – such as ‘friends of submitters’ (a planner to help guide submitters), processadvisers and amicae curiae (usually confined to declaratoryproceedings) – were worthy but ultimately unsatisfactory.

Counsel assisting, on the other hand, would ensuregreater equality of arms. They could ask questions thatneeded to be asked and that members of the public couldnot effectively ask. They would ensure that the applicant’sproposal was properly and robustly tested, while allowingthe Board not to be dragged into the fray – a real riskwhen a forensic vacuum emerges. I also took the view thatequality of arms was not just about legal representationand not just about cross-examination or close question-ing by the Board itself. It also required some equality ofexchange in the evidence called. So, tentatively, I called forcounsel assisting to be able to call evidence of their own.

In reflecting on what I might say today, it occurred to methat my earlier focus had been very much on resourcing. Butthere is another issue worth debating at least briefly today,and that is risk. In particular, the risk of exposure to costsand the like. And there I want to suggest a small innovation– one that lies in the hands of the environment judgesthemselves.

Economic risk for participants in environmental adjudication

There is an increasing trend for community groups (some-times issue-specific groups, general environmental groupsand Maori) to take an enlarged role in environmental protection litigation – and for local government to take areduced role. Theoretically, the Attorney General is at

liberty to intervene in the public interest, but that is anexceptionally rare event.

This means that public interest groups are exposed toadverse costs orders as the applicants for enforcement orabatement orders (including interim orders) and as appel-lants before the Environment Court and High Court. There is good reason to believe that risk is a disincentiveto public participation.

Undertakings as to damages

It is unusual for the Environment Court to require under-takings as to damages from public interest groups, althoughnot unknown. The leading case is one I appeared in wherethe Forest and Bird Protection Society was made to stumpup NZD80,000 to obtain interim orders to halt earth-works on a coastal subdivision.6 More typically, theEnvironment Court in Save Happy Valley Coalition Inc v Solid Energy New Zealand accepted that such undertakingsmay not be required when an applicant seeks to preservea public interest via interim enforcement orders.7 In thatcase the court accepted the applicant was seeking to preserve the habitat of an indigenous and endangered animal (a giant native snail) in a context where its onlyknown habitat was largely destroyed.

Security for costs

The second aspect of economic risk is security for costs,ordered against an applicant where there is reason tobelieve it would be unable to pay costs if unsuccessful.

The Environment Court’s ability to make such an award has varied since the court’s inception. In 1996 theEnvironment Court was afforded the same powers as aDistrict Court including, under what is now rule 5.48 of theDistrict Courts Rules 2014, the power to order security forcosts. That power was removed in 2003 but reinstated in2009 in the Resource Management (Simplifying andStreamlining) Amendment Act 2009. The relevant SelectCommittee said this would avoid frivolous, vexatious andanti-competitive submitters and litigants, but that theEnvironment Court would continue requiring security forcosts in few instances only.8

Prevailing practice is opposed to such orders beingmade against public interest groups – especially wherethere is a record of responsible previous participation. The degree to which the public interest would be servedby the proceedings is certainly relevant, as is the extent towhich the applicant has an established history of respon-sible involvement in planning issues.9 In Mahanga E Tu Inc v Hawkes Bay Regional Council, an impecunious appellant

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4 Ranging between NZD0.13 and 0.64 per head of population; see Kós (n 1) at [47].

5 Environment Judge Newhook, paper for delivery to Environmental LegalAssistance Fund Annual Workshop (July 2015).

6 See for example Royal Forest and Bird Protection Society of New ZealandInc v Kapiti Coast District Council HC Wellington CIV-2007-485-635, 30 July 2007.

7 Save Happy Valley Coalition Inc v Solid Energy NZ Ltd EnvC Christchurch,C141/06 (20 October 2006).

8 Resource Management (Simplifying and Streamlining) Amendment Bill(18–2) (commentary) at pages 3 and 7–8.

9 See eg Stanimiroff v Auckland City Council EnvC Auckland A131/98 (16 November 1998).


community group was not ordered to pay security forcosts, the Environment Court noting resource manage-ment litigation inherently carried a high degree of publicinterest (unlike civil litigation which tended to engage private interests).10 The court stated that, before making an order for security for costs, it would need material‘which clearly demonstrated that proceedings had little orno realistic prospect of success, and were being pursuedfor private benefit, with little or no element of public in-terest in promoting the purposes of the ResourceManagement Act’.

Costs after the event

The third aspect of economic risk is costs ordered after theevent.

Both the Environment Court and the High Court havepower to award costs on a very broad discretionarybasis.11 Plainly, the threat of an adverse costs order can actas a disincentive to an appeal, enforcement action or judi-cial review proceedings. Yet, in New Zealand at least, costsawards against community groups have usually – but notalways – been fairly modest.

Three examples will suffice.In Peninsula Watchdog Group v Waikato Regional Council,

the consent applicant claimed to have incurred costs in anappeal to the Planning Tribunal of over NZD400,000.12

It sought an award of NZD85,836.37 from the appellantcommunity group. The Tribunal noted the appeal wasbrought to pursue what was thought to be the public inter-est. A fair and reasonable amount for the group to pay tothe applicant was NZD20,000. The group appealed theorder. Ultimately, the group failed in their appeal. Salmon Jmade no order for costs in the High Court.13 He noted the issues were of importance to all litigants involved inresource management matters.

In Protect Piha Heritage Society v Auckland RegionalCouncil, the successful applicant and Council both soughtcosts against an unsuccessful community group.14The appli-cant had incurred costs of NZD87,630 and sought a con-tribution of ‘at least’ half to two-thirds.15 It received onlyNZD10,000. The Council claimed to have incurred costs of NZD85,179.77 and sought an order in the range ofone-third to a half. It received only NZD5,000, on the basisthe group did have an arguable case with respect to thesubstantive issues.

On the other hand, in 2009 in Pope v Auckland CityCouncil, a successful developer sought costs against the Gulf District Plan Association Inc.16 The judge found theAssociation failed to act responsibly on appeal, and failed

to participate in meaningful negotiations. The appellantclaimed to have incurred costs totalling NZD40,450. TheAssociation was ordered to pay 50 per cent of that: anaward of NZD20,000. It is one of the largest awards as apercentage of costs actually incurred by the successfulparty.

The perspective of at least one public interest groupwith whom I have communicated on the topic is that risksof adverse costs awards are significant in appealing aresource consent decision and greater again in takingenforcement action.17 The latter course is particularly riskyfor public interest groups.

And, of course, the fundamental problem is that costsare fixed, on a largely discretionary basis, only after theevent. A generous attitude to standing avails public partici-pation little if the invitation turns out to have hidden andunpredictable cost consequences.18 It is like exercising your democratic right to take your car to the garage. Therepair bill can prove a nasty shock.

A modest innovation?

It seems to me that there is a modest innovation here worthy of consideration.

In trusts litigation a party may seek a pre-emptive19 pro-tective costs order either to ensure that their own costsare paid by the trust fund or to ensure they are not liableto pay costs to any other party. I discussed the principles ina case called Woodward v Smith.20 Protective costs ordersare more commonly made where a question of construc-tion of a trust deed or some aspect of the trust’s adminis-tration is in issue, as opposed to a hostile claim by a bene-ficiary against trustees or other beneficiaries. In the lattercase, costs typically follow the event.

Protective costs orders in public law cases are not un-common in the United Kingdom, but they are most un-usual in New Zealand. I have been able to find only oneexample in New Zealand, and it involved an amalgamationof public law and trust issues (the sale of a community trust electricity enterprise).21 In New Zealand they havenot been used in environmental litigation.22 In Australiathey have been, and there are several cases concerning theconcept in that context.23

In R (Cornerhouse Research) v Secretary of State for Tradeand Industry, Lord Phillips MR declared that a protectivecosts order could be made at any stage if the court wassatisfied that:24

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10 See Mahanga E Tu Inc v Hawkes Bay Regional Council [2014] NZEnvC 83,(2014) 18 ELRNZ 419.

11 Resource Management Act s 285; and High Court Rules 2016 Part 14.12 Peninsula Watchdog Group v Waikato Regional Council [1996] NZRMA

218 (Planning Tribunal).13 Peninsula Watchdog Group v Coeur Gold NZ Ltd [1997] NZRMA 501

(HC).14 Protect Piha Heritage Society v Auckland Regional Council NZEnvC

Auckland A072/09 (26 August 2009).15 ibid at [9].16 Pope v Auckland City Council NZEnvC Auckland A031/09 (20 April 2009).

17 Personal communication Sally Gepp, in-house counsel, New ZealandForest & Bird Protection Society (30 March 2017).

18 R (Cornerhouse Research) v Secretary of State for Trade and Industry [2005]EWCA Civ 192, [2005] 1 WLR 2600 at [31].

19 ‘Pre-emptive costs orders’ are also variously referred to as ‘protective’ or ‘prospective’ costs orders, all conveniently falling under the sameacronym ‘PCO’.

20 Woodward v Smith [2014] NZHC 407, [2014] 3 NZLR 525.21 Rodley v Cuddon HC Blenheim CP3/99 (29 March 1999).22 See however EDS v King Salmon [2014] NZSC 167 at [19] to [22] which

appears to anticipate that this might occur.23 See eg Oshlack v Richmond River Council [1998] HCA 11, (1998) 195

CLR 72 (HCA).24 R (Cornerhouse Research) v Secretary of State for Trade and Industry,

Note 18 above, at [74].


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(a) the issues raised were of general public importance,(b) the public interest requires that those issues should be

resolved,(c) the applicant has no private interest in the outcome of

the case,25

(d) having regard to the financial resources of the applicantand the respondent, and the amount of costs likely tobe involved, it is fair and just to make the order, and

(e) if the order is not made the applicant will probably dis-continue proceedings and would be acting reasonablyin doing so.

The fact that the applicant’s legal advisers were acting pro bono would be an enhancing consideration also.

Similar considerations could be applied in an environ-ment case where a public interest group (or indeed indi-vidual) was raising on appeal or on an enforcement appli-cation, or in a judicial review, a point of genuine publicrather than private interest and could substantiate theneed to be protected from an adverse costs order. I wouldsuggest two further considerations to those laid down byLord Phillips that:

(a) the applicant’s case is a seriously arguable one; and(b) the applicant complies with court directions during the

course of the proceeding.

Subject to those further considerations, however, it seemsto me that there is much to be said for allowing a public

interest litigant to seek to address the issue of costs pre-emptively. Indeed it appears the Environment Court hassuch jurisdiction. The court has a broad and unfetteredpower to make costs orders.26 The costs regime underwhich the United Kingdom courts make protective costsorders does not expressly empower them to make suchawards.27 Likewise here in New Zealand.28 The making of aprotective costs order is inherent in, and incidental to, thestatutory discretion afforded.29 Consequently, given thepresence of a broad and unfettered discretion to awardcosts under our resource management regime, I see noth-ing that would inhibit the Environment Court from makinga protective costs order.

I hope that counsel, and the Environment Court in NewZealand, give this innovation – which is hardly an innovationin cognate jurisdictions – due consideration.

Conclusion

With that modest proposition stated for consideration, Iwelcome you warmly to this splendidly timely symposiumon comparative environment adjudication. I congratulatethe organisers, in particular Judge Laurie Newhook andAssociate Professor Ceri Warnock. And I congratulate youfor your perspicacity in attending.

Nga mihi, mo to manaakitanga mai. Thank you for yourkind attention to my remarks. I hope the symposium bringsboth pleasure and wisdom.

25 This element has attracted criticism, and some revision in later cases; see eg R (Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749,[2009] 1 WLR 1436 at [23].

26 Resource Management Act 1991, s 285; as discussed in Goldfinch vAuckland City Council [1998] NZRMA 97 (HC).

27 See Senior Courts Act (UK) 1981 s 51; see also Civil Procedure Rules(UK) 1998 r 44.2.

28 See District Courts Rules 2014, r 14.1; see also its identical counterpartin High Court Rules 2016, r 14.1.

29 Notably there is no presumption (rebuttable or otherwise) that costsare to follow the event in the Environment Court; see Mahanga E Tu Incv Hawkes Bay Regional Council [2011] NZEnvC 21, [2011] NZRMA 414at [14].


Rock and Kitty Pring (who are sadly missed at this confer-ence) have done us all a great service. For some years theyhave been charting the development of specialist environ-mental courts and tribunals (‘ECTs’) round the world. Their latest study, recently published by the United NationsEnvironment Programme,1 records the ‘explosion’ since2000 in the number of ECTs in 44 countries, and offers a‘road-map’ for policy-makers and others wishing to take upthe challenge. In addition, their paper to last year’s Osloconference of the IUCN offered a daunting list of ten chal-lenges for environmental judges in the next decade, start-ing with what they call the ‘basic’ but ‘almost impossiblycomplex concept’ of ‘sustainable development’.2 I am surewe will be looking in more detail at some of these difficultissues over the next two days.

In this opening paper I thought it might be a good ideato look behind the theories, and the statistics, and theheadline points, and to go back to basics. I shall be lookingat some of the examples of specialist jurisdictions (ECTs)listed in the recent Pring study, and the lessons they draw.But I shall focus in particular on comparisons between ourown fragmented system in the UK, which remains an unrepentant example of what Ceri Warnock flatteringlycalls ‘adjudicatory pluralism’;3 and other much more inte-grated systems such as in New Zealand, or the Land andEnvironment Court of New South Wales (‘NSWLEC’).4

What is going on at the coalface of environmental judging?What sort of environmental cases are we talking about?What sort of issues and challenges do they raise for judges– specialist or generalist, and how are they tackled in practice? And what are the advantages or disadvantages of different approaches?

First the statistics. The Prings claim to have identifiedover 1,200 ECTs ‘now operating worldwide at national andstate/provincial level’.5 As I am sure they would accept, thebare figures need to be treated with some care. More thana third come from China, where they identify 456 ECs, as well as the Division of Environment and Resources,established in the Supreme Peoples’ Court in June 2014, to provide guidance to the lower courts. An interview in

October 2014 with the President of that Division (GuoXuelin) in ‘China Dialogue’6 shows how important thattop-down guidance could be in raising the profile of thelower ECTs and giving them teeth. He records that beforethat development, of 50,000 environmental complaints inthe Yangste River Basin industrial belt, only 85 had beenresolved through the courts, and almost all local courtscomplained of a lack of cases to hear. That is consistent with independent studies. A review of criminal cases in theQinzen District Environmental Court showed that of only103 cases dealt with in 2010, 58 related to fires started bynegligence, and 37 to illegal logging.

Equally important to the guidance now available fromthe Supreme Peoples’ Court may be the EnvironmentalProtection Act 2015, which opened the way to actions byprivate citizens and NGOs. James Thornton, Director ofClientEarth, who had been asked to advise the ChineseGovernment on the role of NGOs, described the Act as ‘areal game changer where citizens can sue Chinese com-panies in Chinese courts’.7 By the end of 2015 he wasaware of 36 environmental enforcement actions with moreon the way.8 As we will see from Dr Gill’s paper, this top-down direction from the highest court has some parallelswith the role of Indian Supreme Court in paving the wayto the work of the NGT.

For me, reading the Pring study has a special resonance.I have been writing about this subject for nearly 30 yearsand pressing for the establishment of a specialist environ-mental jurisdiction in my own country. As long ago as 1989,in a report for the UK Government on the enforcement of planning control, I floated the idea of a new form of specialist tribunal. I spoke of the ‘fragmented nature’ of thevarious courts and agencies dealing with environmentalprotection, civil and criminal, and suggested that they mightbe combined in a single jurisdiction.9 That modest idea was taken up and developed by a formidable champion, inthe person of Lord Woolf LCJ in his maiden speech to theHouse of Lords and in a lecture in 1992.10 But it gained little support in government. To this day, the basic structureremains as fragmented as ever. But arguably, at least for the

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1 George Pring and Catherine Pring Environmental Courts and Tribunals A Guide for Policy Makers (UNEP 2016) (‘the Pring study’).

2 George Pring and Catherine Pring ‘The challenges facing environmentaljudges in the next decade’ (IUCN AEL 14th Annual Colloquium, Oslo 21June 2016).

3 Ceri Warnock ‘Reconceptualising specialist environmental courts and tribunals’ Legal Studies (in press) (2017).

4 Established in 1980, and claimed by its website to be ‘first specialist envi-ronmental superior court in the world’: see http://www.lec.justice.nsw.gov.au/Pages/about/about.aspx.

5 Pring and Pring (n 2).

6 Bao Xiadong et al ‘China’s top level environmental tribunal strengthenslower courts’ China Dialogue 24 October 2014) available at https://www.chinadialogue.net/article/show/single/en/7420-China-s-top-level-environmental-tribunal-strengthens-lower-courts.

7 James Thornton ‘Can we catch up? How the UK is falling behind on environmental law’ (2015) ELM, 193, 197.

8 ibid.9 Enforcing Planning Control Report by Robert Carnwath QC for UK

Department of Environment (HMSO 1989) at 61.10 Lord Woolf CJ ‘Are the judiciary environmentally myopic?’ (1992) 4(1)

JEL 1–14.

Keynote address

Judging the environment – back to basicsLord Robert Carnwath of Notting Hill CVO Justice of the Supreme Court of the United Kingdom

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most part, it works. It may be useful to ask why we haveresisted major change, and what, if anything, we have lost incomparison with countries which have long established andsuccessful environmental courts.

In looking at those issues I have been much assisted by perhaps the most comprehensive study of differentECTs round the world, including New Zealand, Australiaand Sweden, conducted by Professor Malcolm Grant forthe UK Government in 2000.11 He proposed a number ofpossible models for the UK, but none was taken up by government.

There have been more limited studies, notably byProfessor Richard Macrory in 200312 and 2011.13 The lastwas commissioned by myself when, as the first SeniorPresident of Tribunals, I was concerned in the reform of the UK system of specialist tribunals. That involved the crea-tion of a new two-tier structure divided into specialistchambers.14 It brought together a number of previous tribunal jurisdictions, ranging over such diverse subjects associal security, tax, immigration, and land – but none for theenvironment. I had hoped to use the Macrory Report topersuade government of the merits of bringing togethervarious court and governmental jurisdictions relating to theenvironment within the same structure.

In the end all we managed to achieve was a modest‘environmental’ subdivision of the so-called GeneralRegulatory Chamber (‘GRC’) of the First-tier Tribunal (or‘FTT (Environment)’ for short). The GRC was itself a resid-ual chamber for a variety of smaller tribunal jurisdictionswhich did not readily fit into the larger groupings. Animportant feature of the new tribunal model is the exis-tence of a specialist appellate system in the Upper Tribunal(in this case the Administrative Appeals Chamber). ThePresidents of the Upper Tribunal chambers are all HighCourt judges, sitting with specialists in the particular topic.The First-tier Chamber President can also sit when re-quired in the appellate Upper Tribunal, for example in a test case on some important aspect of the First-tier’s work.This assists the development of consistent practice withinthe Chamber. I will come back to the GRC’s work on envi-ronmental matters.

Against this background, I feel a little embarrassed tofind the UK even meriting a listing in the Pring study, along-side other much more mature and wide-ranging environ-mental jurisdictions, such as New Zealand. I should perhapsbe grateful to them at least for according us the honour of what must be the oldest (and probably smallest) ECT in the study.15 (Can you guess?) That is apparently theSwainmote – otherwise known as the New ForestVerderers’ court, established in the 11th century, but stilloperating – now under the New Forest Act 1949. TheSwainmote was set up at the time of the creation of the

New Forest by the Norman kings after 1066. Its role wasto administer the Forest Law, designed to protect the deerin the forest, and the woods and herbage that pro-vided their food and cover. It is fair to say that it said moreabout the interest of the Norman kings in hunting, than in environmental conservation in the modern sense. Arecent study of the court tells us that the so-called laws of‘venison and vert’ resulted in ‘extreme punishments, such asblinding, having a hand cut off or even the death penalty’.16

I am not sure what lessons the Prings would like us to draw from this example. Not, I think, as a guide to modern sentencing practice. For that they cite some moreenlightened examples. For example, the Court of theEnvironment in the Amazonas Region of Brazil,17 whereJudge Carim Antonio has established a ‘night school forenvironmental law violators’. Participants, we are told, areturned from transgressors into ecologists, ‘learning thebasics of environmental law and the very role of the envi-ronmental protection organs of government’; and the levelof recidivism is almost zero. In the same vein Judge BrianPreston has written of the success of the NSW Land andEnvironment Court in developing innovative approaches to its criminal jurisdiction, including:

use of restorative justice as a holistic solution toenvironmental crime that seeks to understand and address the dynamics of criminal behaviour, its cause and itsconsequences.18

In the UK, even the most developed proposals for an en-vironmental court have tended to steer clear of criminaljurisdiction. In some areas, notably planning, we have ahybrid system. Enforcement begins with an enforcementnotice issue by the local planning authority requiring thebreach to be remedied.19 There is a right of appeal to theSecretary of State (in practice, to a planning inspector – seebelow), the possible grounds of appeal including issues offact and law, and that planning permission should be grant-ed retrospectively. There is a ‘stop notice’ procedure to prevent further activity pending the decision on appeal.20

Once the enforcement notice is confirmed, failure to comply is a criminal offence punishable by the criminalcourts. They cannot go behind the notice to look at its factual or planning merits. That system has the advantage of separating specialist consideration of the policy andtechnical issues, from that of criminality which is left to the general courts. When I was preparing my report onenforcement in 1989, I found a consensus that the enforce-ment notice system worked well for most cases, and I recommended its retention. I did, however, recommend a new general power for the authority to apply to the

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11 M Grant Environmental Court Final Project (DETR 2000).12 Macrory and Woods Modernising Environmental Justice – Regulation and

the Role of an Environmental Tribunal (UCL 2003).13 Macrory Consistency and Effectiveness – Strengthening the new Environ-

mental Tribunal (UCL 2011)14 Pursuant to Tribunals, Courts and Enforcement Act 2007.15 The Pring study (n 1) at 87; see also Warnock, (n 3).

16 New Forest Commoner ‘Forest Laws, Courts and Officials’ (20 January2014) available at http://newforestcommoner.co.uk/2014/01/20/forest-law-courts-and-officials/. It is said that the more draconian penalties wererepealed in 1217.

17 The Pring study (n 1) 23.18 Brian Preston ‘Characteristics of successful environmental courts and

tribunals’ (2014) 26 JEL 365.19 For further details of enforcement in planning law see Robert Duxbury

Telling and Duxbury’s Planning Law and Procedure (15th ed) (OUP, 2012)ch 12.

20 Town and Country Planning Act 1990 (UK) s183(1).


county court for an injunction to restrain or prevent plan-ning infringements. Breach of an injunction can lead tocommittal for contempt. That has proved very effective incases of serious or repeated abuse of planning control.21

Malcolm Grant’s proposals for a new environmentalcourt did not include criminal jurisdiction. He drew a dis-tinction between the ‘remedial objectives’ of civil enforce-ment, and the primarily punitive objective of criminal sanctions. Thus, in his words:

Unauthorised activity in connection with waste disposal is a major area of dangerous, deliberate and sometimessystematic criminal behaviour. Enforcement agencies relyheavily upon successful criminal proceedings to reassurethe public that they mean business, and to draw to theattention of individuals and firms the extent of the powersthat the courts have.22

In other words, taking such prosecutions out of the localcriminal courts may give the public and the press thewrong impression that they are not real crimes.

Instead, consistency in sentencing policy is achieved bynational sentencing guidelines issued by the judicially ledSentencing Council.23These have real teeth. In March 2017,it was reported that Thames Water has been fined a record£20 million in the Aylesbury Crown Court after pumpingnearly 1.5 billion litres of untreated sewage into the RiverThames. The judge castigated the company for failures rightup the management chain of command: ‘it was inconceiv-able that all the individual managers made the same deci-sions to run pumps at half levels’.24 Arguably, such wordscoming from a senior judge in the criminal court may have an impact on the defendants and the public which aspecialist court or tribunal might not be able to match.

The allocation of criminal jurisdiction to specialist courtsraises some interesting issues, which we may wish to comeback to during this conference. It is, however, something of a diversion from the story of the Swainmote, which,though a fascinating historical relic, is not of great modernrelevance to the subject of my talk. The Prings’ other ex-amples of ECTs from the UK are of more contemporaryinterest. They are identified as the ‘Planning Court’, and the ‘First-Tier Tribunal (Environment)’.

The latter is the environmental division of the GeneralRegulatory Chamber, which, as already noted, was estab-lished in 2010 as part of the reform of the tribunal sys-tem.25 It is made up of legally qualified tribunal ‘judges’ andnon-legal ‘members’ with a range of specialist expertise,who sit part-time when required, under the general direc-tion of the Chamber President. For example, one aspect of their work covers appeals from designation of nitratevulnerable zones under the EU Nitrates Directive,26 for

which the panel will normally include a tribunal judge sit-ting with a hydrologist member. More recent appeals have included such diverse subjects as alleged breaches ofclimate change agreements,27 marine licensing decisions,28

‘wheelie bin’ penalties,29 and designation of high-risk reser-voirs.30 There are signs that its work is gaining recognition

For the moment, however, the most significant area of‘environmental’ work in the General Regulatory Chamberis probably in its information rights division (rather than theenvironment division). That deals with appeals under theFreedom of Information Act 2000, but also the Europeanenvironmental information regulations. (Its most notoriouscase, which reached the Supreme Court in 2015, was overthe right of newspapers to see Prince Charles’ campaigningletters to ministers on mainly environmental subjects.)31

In his 2011 report, Richard Macrory made a power-ful case for extending the jurisdiction of the FTT(Environment) to a much wider range of statutory appealsin relation to permitting decisions and compliance noticesin the environmental field.32 He examined over 60 piecesof legislation ranging from water pollution to emis-sions trading. He found a bewildering mixture of routes ofappeal, often in the same legislation, the distinction reflect-ing nothing more logical than historical accident. He citedfor example one recent piece of legislation – the REACHEnforcement Regulations 2008 (regulation of chemicals) –which in a single schedule included appeals to four dif-ferent bodies: the Secretary of State, the EmploymentTribunal, the Magistrates’ Court, and the High Court. Theyshould, he thought, be brought under a single appeals body:

Such a body can develop an expert understanding of thecomplexities of contemporary environmental legislationand policy and can provide a consistency of interpretationacross the board where appropriate. Challenging conceptssuch as the precautionary principle now permeate manyareas of environmental law as do provisions of EuropeanUnion and international environmental law, and it is noteasy to develop expertise or familiarity where appeals arescattered across too many different fora …33

I strongly endorsed those sentiments and still do. The new tribunal structure provides an ideal framework withinwhich to produce a much more coherent model for per-mitting and enforcement appeals in the environmentalsphere. At the time of his report there was no political will for such a major change. But there are signs that themessage is gradually getting through and beginning to influ-ence departmental and legislative thinking in the allocationof new appeal rights. So its jurisdiction may develop.

The ‘Planning Court’ is not really an ECT in any normalsense. It is in truth simply the result of a recent remodellingof part of the Administrative Division of the High Court.



21 Now see Town and Country Planning Act 1990 (UK) s 187B and, forexample, see Slough Borough Council v Prashar [2002] EWCA Civ 671.

22 Grant (n 11) para 13.14.6.23 For a recent appraisal of this system see Neil Parpworth ‘The impact of

the Environmental Offences Sentencing Guideline: an early assessment’(2017) JPEL 11.

24 Thames Water Utilities Ltd (unreported oral judgment).25 Pursuant to Tribunals, Courts and Enforcement Act 2007.26 Directive 91/676/EEC concerning the protection of waters against

pollution caused by nitrates from agricultural sources as implemented by the Nitrate Pollution Prevention Regulations 2015, SI 2015/668.

27 Pursuant to Climate Change Agreements (Administration) Regulations2012 (SI 2012 no 1976).

28 Pursuant to Marine Licensing (Notice Appeals) Regulations 2011, SI2011/963.

29 Pursuant to Environmental Protection Act 1990.30 Pursuant to Reservoirs Act 1975.31 R (on the application of Evans) and another v AG [2015] UKSC 21.32 Macrory (n 13).33 Macrory (n 13) para 14.


It was formed principally for reasons of political expedi-ency, to speed up the handling of legal challenges to signif-icant planning decisions, particularly relating to infrastruc-ture projects of national importance. Its main advantage is that of hands-on case management by a selected groupof High Court judges, led by a judge with substantial ex-perience of conducting planning cases in practice and onthe bench (Holgate J).

The Planning Court has no merits jurisdiction. For thatcomparison, we have to look to our Planning Inspectorate,which is probably our closest equivalent to the merits juris-diction of the New Zealand Environment Court (NZEnvC)or that of the NSWLEC. The first system of planningappeals to an independent panel in New Zealand was setup in 1953.34 The idea was that the panel would have technical expertise and knowledge of local planning andadministration, but with a legal chairman to ensure ‘justiceas between the people and the authority’ and that it ‘wouldtravel to all parts of the country, look at planning schemes,and hear evidence on the spot’.35 That panel was trans-formed into the Planning Tribunal in 1977,36 and to its pres-ent form as an Environmental Court under the ResourceManagement Act 1991 (RMA).

That 1991 Act was a remarkably ambitious and forward-looking piece of environmental legislation. Grantcomments that it ‘gain(ed) notoriety as the largest singleitem of new legislation ever enacted by the New ZealandParliament’.37 Arnold J of the Supreme Court of NewZealand has described the lengthy law reform process thatpreceded it,38 beginning in 1988, when that great environ-mentalist Geoffrey Palmer MP was the responsible minister.As Arnold J explained, the RMA set out to replace provi-sions from various statutes that had become ‘fragmented,overlapping, inconsistent and complicated’; in their placethe RMA

… attempted to introduce a coherent, integrated andstructured scheme. It identified a specific overall objective(sustainable management of natural and physicalresources) and established structures and processesdesigned to promote that objective.39

Section 5 of the RMA states in clear terms the underlyingpurpose of the Act ‘to promote the sustainable manage-ment of natural and physical resources’. ‘Sustainable man-agement’ is then defined with some precision.40 The broad

purpose of the Act is also reflected in the jurisdiction of theNZEnvC which replaced the former Planning Tribunal.41

The Act brings together a broad range of statutory con-trols relating to planning and the environment.42 The courthas a correspondingly wide-ranging jurisdiction on both lawand merits, at the level not only of individual consent deci-sions, but also of certain categories of plans and policies. 43

In the UK we have had no such process of integration,substantive or procedural. Our environmental laws remainas fragmented as New Zealand laws seem to have beenbefore 1991. Planning and environmental laws have devel-oped in separate compartments. Our first comprehensiveenvironmental legislation, the Environmental Protection Act1990, was much less ambitious than New Zealand’s RMA.Its principal sources lay in public health legislation datingback to the great Public Health Act 1875. It had nothing todo with planning control, which was and is governed by aseparate statutory code. The Town and Country PlanningAct 1990, although enacted in the same year, was simply a consolidation of legislation going back to the Act of the same name in 1947. It was only after our accession to the European Union, that we were forced by EuropeanDirectives to build some bridges (sometimes rather shaky)between the two systems.44 The most important probablywas the integration into the planning system from 1985 ofthe European rules for environmental impact assessment.45

It was a welcome development and one which, I am confi-dent, will survive ‘Brexit’.

Relationships between government and the courts havebeen similarly fragmented. Under our Town and CountryPlanning Act 1947, the minister was ultimately responsiblefor both approval of development plans prepared by localplanning authorities, and for determining appeals againsttheir individual planning decisions. The only court involve-ment in either case was by judicial review or its equivalentin the High Court. The appeals were heard by specialistinspectors. They held local inquiries or more informal hearings, visited the site in the company of the parties, andthen reported to the minister for decision. Over the yearsthe actual decision-making on appeals was increasinglydevolved to the planning inspectors themselves, except inparticular cases of national importance which could becalled in for ministerial decision. In due course, from 1992,their separate status was formalised by the establishmentof the Planning Inspectorate as an Executive Agency, underindependent leadership. The appeals still lie nominally tothe Secretary of State, but in practice nearly all decisionsare delegated to planning inspectors.46The panel of inspec-tors includes some 300 salaried or contract inspectors, andembraces a wide range of professional disciplines, includinglawyers, surveyors, planners, and other more specialised



34 Pursuant to Town and Country Planning Act 1953.35 See https://www.environmentcourt.govt.nz/about/history/; and also J

Bollard ‘Politics and planning: the independence of the EnvironmentCourt’ Resource Management Bulletin (August 2008) 149; LaurieNewhook ‘The constitution, work, powers and practices in trial and pre-trial work of the Environment Court of New Zealand’ (InternationalForum of Environment Judges, IUCN AEL Colloquium, Oslo, June 2016).

36 Pursuant to Town and Country Planning Act 1977.37 Grant (n 11) para 4.3.3.38 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd

[2014] NZSC 38 paras 8–10.39 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd

[2014] NZSC 38 para 9.40 In summary: managing the use of such resources, on the one hand, to

provide for the social, economic and other needs of existing people andcommunities; and on the other sustaining their potential to meet the reasonably foreseeable needs of future generations, safeguarding ‘the life-supporting capacity of air, water, soil, and ecosystems’, and avoiding,remedying, or mitigating the adverse effects of activities on the environ-ment (RMA s 5(2)).

41 RMA, s 247.42 RMA pt 11.43 Ceri Warnock and Ole Pedersen, ‘Environmental adjudication: mapping

the spectrum and identifying a fulcrum’ (2017) PL (in press).44 See eg my discussion of the treatment in planning decisions of the EU

Waste Framework Directive: Robert Carnwath ‘Environmental litigation– a way through the maze’ (1999) 11 JEL 5–7.

45 EU Directive 85/337/EEC.46 Town and Country Planning Act 1990 (UK) s 78.


skills. The great majority of their work consists of planningappeals of various kinds. In addition, they make decisions onvarious forms of appeal to the relevant Secretary of Stateunder environmental and other related legislation.47

They also conduct public examinations of local devel-opment plans on behalf of the Secretary of State. The pur-pose is not only to consider objections from the public butalso to ensure that the plan conforms to national policy. For example, national policy requires that local authoritiesshould maintain a five-year plan for housing supply.48 Thelocal plan may be rejected if it fails to show sufficient deliv-erable sites. There is also a statutory requirement for theplan to be prepared with a view to ‘contributing to theachievement of sustainable development’.49 Sustainabledevelopment as such is not defined by the Act, as in NewZealand’s RMA, but regard is to be had to advice in guid-ance issued by the Secretary of State.50

In respect of the policing of the development plan sys-tem the inspectorate seems to perform a similar functionto the NZEnvC, save that in our system ultimate respon-sibility is retained (at least nominally) by the Secretary ofState. The Principal Judge of the NZEnvC, Judge Newhook,noted that his court was apparently one of the very fewcourts in the world that receives appeals about substantiveissues in the preparation of local planning instruments.51 Heemphasised, however, that it has no involvement in themaking of the more ‘senior’ instruments such as nationalpolicy statements.52 Nor does it have a free hand to makepolicy.53 As he put it, it is required to make ‘value judge-ments’, informed by the evidence, by directions in seniorinstruments and the RMA itself. He attached particularimportance to the role of the court in simply improving thequality of plan drafting, ‘by bringing internal consistency andclarity of wording, removing unlawful content, and ensuringadherence to the policy direction of senior instruments’.54

The role of the planning inspector in relation to develop-ment plans is much the same.

In practice, the system works well and has a high degreeof public confidence. The inspectors are seen as genuinelyindependent from local and central government, as indeedthey are. They operate in effect as itinerant one-person tribunals under central guidance from the inspectorate. Therelative autonomy they are allowed in working methods,usually working from home, helps to attract high qualityapplicants, often former employees of larger public or pri-vate organisations. The successful evolution of the inspec-torate system is probably one reason why there has been

little public pressure for the creation of a general land andenvironmental court. The inspectorate may not be an ECTwithin the Prings’ definition, but it has much in commonwith some of their examples.

The Planning Court is perhaps more problematic. Thecloser comparison would be with the judicial review juris-diction of the NWSLEC. But the judges are not planning or environmental specialists in the same sense as the judgesof that court are. They are High Court judges, usually withadministrative law experience, who are assigned for limitedperiods to deal with planning cases, but the rest of the timeare engaged in the ordinary civil and criminal work of theQueen’s Bench Division.

There has been some progress in speeding up decisionsand on access to justice in the UK context. Standing israrely a problem. Costs used to be a serious impediment.However, under pressure from the Aarhus ConventionCommittee, rules have been introduced capping liability for costs in environmental cases within the scope of theConvention.55 On the substantive side, on the other hand,there is little opportunity to develop a body of authori-tative environmental jurisprudence, such as is the hallmarkof the NSWLEC.56 It is difficult to envisage our planningcourt emulating Judge Preston’s masterly and comprehen-sive exposition of the principles of ecologically sustainabledevelopment in the Telstra case.57 As Eloise Scotfordexplained:

The court continued its innovative path for identifyinglegally relevant ESD principles, building on NSW legislativedevelopments, but embracing an ESD agenda of its own,inspired by extensive international, national and academicsources to move its case law on.58

In the UK context, the arguments tend to come down torelatively narrow issues about interpretation of policy oradequacy of reasons. This may not have been helped by arecent decision of my court that interpretation of policy isin principle a matter of law for the courts.59 This approachhas arguably led to an excessively legalistic approach to theanalysis of planning decisions in the courts, and someinconsistencies between different judges. This in turn hasinfected the approach of parties at planning inquiries.

Legalistic contestation also seems to have been theunhappy fate of the National Planning Policy Framework. It was grandly launched by the government in 2012, withthe aim of ‘replacing over 1,000 pages of national policywith around 50, written simply and clearly’,60 thus ‘allowing



47 For their jurisdiction see https://www.gov.uk/government/organisations/planning-inspectorate.

48 Department for Communities and Local Government National PlanningPolicy Framework 2012, (March 2012) para 47.

49 Planning and Compulsory Purchase Act 2004 s 39(2).50 Planning and Compulsory Purchase Act 2004 s 39(3).51 Newhook (n 35) para 60.52 There is separate provision for such plans to be subject to consideration

by a Board of Inquiry: RMA s 47.53 See also discussion of criticisms of the court’s power to determine issues

of policy and ‘political questions’ in Warnock (n 3).54 Newhook (n 35) para 66. He gives the example of the 2006 decisions

on a plan relating to geothermal energy developments: Geotherm GroupLtd v Waikato Regional Council Decisions A47/06, EnvC Auckland 13 April2006 and A151/06, EnvC Auckland, 19 November 2006.

55 Rules cap the costs that a court could order an unsuccessful claimant topay to other parties at £5,000 for individuals and £10,000 for organisa-tions. Defendants’ liability for claimants’ costs were similarly capped, at£35,000 (Civil Procedure Rules (‘the CPR’) pt 45 s VII, related parts ofthe CPR, and Practice Directions (the Environmental Costs ProtectionRegime)). Note, however, recent proposed changes to remove theselimits: Civil Procedure (Amendment) Rules 2017 (SI 2017/95).

56 See Eloise Scotford Environmental Principles and the Evolution ofEnvironmental Law (Bloomsbury 2017) 233.

57 Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 150.58 ibid 233.59 Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; 2012 SLT 739.60 Hon Eric Pickles ‘Delivering on the government’s long term economic

plan’ (Written Statement to Parliament, 26 March 2015) (available athttps://www.gov.uk/government/speeches/housing-and-planning).


people and communities back into planning’.61 Unhappilythat goal seems easier said than done. We are currentlyconsidering a case in the Supreme Court, where the inter-pretation of one phrase in the Framework (‘policies for thesupply of housing’) had been subject to consideration inseven High Court cases in less than a year with differingresults, which the Court of Appeal had attempted withperhaps mixed success to resolve.62 Counsel painted thepicture of advocates turning up at inquiries with bundles ofconflicting High Court decisions, in order to clear the wayfor consideration of the planning issues (which is what theinquiry is supposed to be about).

Malcolm Grant proposed the incorporation of the planning inspectorate into the lower tier of a new two-tierenvironmental court, with an appellate tier equivalent tothe High Court.63 That essentially is the same model as wehave introduced for other specialist tribunals under the tribunal reforms. I tried to revive that idea as part of the tribunal reforms, but found little support. It still makessense. There is already a Lands Chamber in the UpperTribunal, which deals, for example, with disputes over compensation for compulsory acquisition. The ChamberPresident is a High Court judge (Holgate J), who happensalso to be presiding judge of the Planning Court. Its juris-diction could readily be expanded to include judicial reviewof planning and other environmental appeals from theinspectorate.

However, it cannot be assumed that a different modelwould necessarily lead to a major difference in approach.Comparing the NWLEC, Malcolm Grant commented thatthe court ‘has not been able to act as informally as it mayhave been envisaged that it should, and as many wouldlike’.64 He attributed this partly to the difficulty for judgesat this level of seniority being able to ‘shrug off the habitsthat attach to comparable judicial work elsewhere’; but alsoto the expectations of clients and their counsel, in caseswhere:

millions of dollars can hang on a planning or environmentaldispute, and clients want high quality legal representation.Hence the increasingly legalistic nature of an already tech-nically complex planning system.65

However, Michael Grant also points to two distinctive features of the NSWLEC’s powers under the heading ‘integration of remedies’. The first is the obligation of thecourt to deal with the case as a whole: to grant

all remedies to which any of the parties appears to beentitled in respect of a legal or equitable claim properlybrought forward by that party in the matter, so that, as far as possible, all matters in controversy between theparties may be completely and finally determined and all

multiplicity of proceedings concerning any of those mattersmay be avoided.66

Secondly, on judicial review, it is not required simply toquash a decision or action for procedural failure, butinstead it may specify what steps need to be taken and simply suspend its operation until that is done.67 Theseseem to me admirable measures that could be introducedwithin our system, without requiring a new form of court.

So far I have been largely considering specialist consentregimes, permitting activities. Environmental enforcement,civil and criminal, still remains largely with the ordinarycourts in the UK. There is still a role of course for the traditional common law remedies, such as public nuisance,which in the 19th century played such a major part in forc-ing industry to take responsibility for controlling its effectson environmental conditions.68 But such actions are rare in modern times. There is usually a strong costs dis-incentive for such actions by individuals. The emphasis islikely to be more on legal enforcement action by publicregulatory authorities under statutory regimes, or judicialreview of authorities for failure to take remedial action. Of the former, the statutory nuisance procedure69 beforethe local magistrates court, dating from the Public HealthAct 1875, can be surprisingly effective as substitute for civilaction.

Some years ago, at the Bar, I found myself before theOxford justices, defending the Austin Rover company whohad a problem with minute paint particles spraying the areafrom their Cowley works, and causing problems for resi-dents’ washing.70 The statutory defence of best practicablemeans would have been difficult to establish before any tribunal. The local authority decided to proceed in the magistrates’ courts rather than the High Court, wisely (as itproved) trusting the common sense of the local lay justicesto see through our elaborate technical evidence. In anyevent, being Oxford justices, they were intellectually well upto the task.

A striking example of judicial review against publicauthorities was the recent challenge by the campaigningNGO ClientEarth to the government’s failure to bringNO2 pollution levels in certain major urban areas withinthe mandatory limits set by European Directives. TheSupreme Court had ordered the government to producea revised plan within a period of nine months, and gave liberty to apply to the Administrative Court for conse-quential orders.71 The resulting plan was challenged andfound wanting and the court laid down a tight programmefor its improvement.72 Even if the court had been empow-ered like the NSWLEC to spell out precisely what needed



61 Department for Communities and Local Government National PlanningPolicy Framework 2012 (March 2012) ii.

62 The decision has now been issued: Suffolk Coastal District Council vHopkins Homes Ltd and another; Richborough Estates Partnership LLP andanother v Cheshire East Borough Council [2017] UKSC 37.

63 Grant (n 11) 8–9.64 ibid paras 13, 15 and see ch 13 in general.65 ibid para 5.18.1.

66 ibid para 5.18.2 citing Land and Environment Court Act (1979) (NSW)s 22.

67 Land and Environment Court Act 1979 (NSW) s 25B.68 For a detailed account see Ben Pontin Nuisance Law and Environmental

Protection: a study of nuisance injunctions in practice (Lawtext Publishing2013).

69 Environmental Protection Act 1990 (UK) ss 79–85.70 Unreported. (Although an appeal was lodged, the case was settled

before reaching court.)71 R (on the application of ClientEarth) v Secretary of State for the

Environment, Food and Rural Affairs [2015] UKSC 28.72 ClientEarth (No 2) v Secretary of State [2016] EWHC 2740 (Admin).


to be done, it might not have relished being drawn sodirectly into the political controversy about solutions. Inthose circumstances, I am not convinced that the avail-ability of a more specialised jurisdiction to deal with suchcases would have offered significant advantages.

That brings me finally to a radically different kind of ECT,such as one finds, for example, in India in the NationalGreen Tribunal. In the jurisdictions we have been consider-ing, the court, specialist or not, is operating within a wellestablished regulatory system set up by Parliament, and forthe most part competently and effectively administered bygovernment agencies, national and local. Court orders,where necessary, are generally respected or enforced. Thecourt has a residual role, concerned as much with protect-ing citizens against undue interference with the free useand development of their property, as with protecting theirenvironment.

The Indian experience of course is quite another story.Legislative or administrative controls are often wholly miss-ing or inadequately enforced.73 The NGT represents theculmination of an extraordinary period of direct interven-tion by the Supreme Court, beginning from the mid-1980s,to make up for failures by government to provide effectiveprotection of the living conditions of its citizens and theirenvironment. The source of that jurisdiction was found, notin carefully worked out legislation, but in the broad protec-tion given by the Constitution itself to the right to life.74

This was interpreted as implying the right to a clean andhealthy environment in which to live, and with it most ofthe basic principles of sustainable development as we knowthem.75 The courts have not been content with issuing simple orders, but have laid down detailed programmes ofwhat is to be done, and (by ‘continuing mandamus’) exer-cised continuing supervision sometimes over many years.76

The National Green Tribunal was set up by statute, with aview to removing environmental cases to a more suit-able level of the hierarchy and enabling it to operate fromdifferent locations across the country.77

The NGT has no criminal jurisdiction, but its civil jurisdiction is very wide. It extends to any case involving ‘a substantial question relating to the environment’, andwhere either there is a violation of a statutory duty or environmental obligation likely to affect the community, or where the environmental consequences relate to a specific activity or a point of source.78 I will not antici-pate the paper to be given by Professor Gill who will be

speaking about her authoritative, readable and excellentlyresearched account of the NGT’s early years.79 I will giveone example that illustrates the scale both of the ambitionand of the problems.

Air pollution in Delhi has been a serious health concernfor many years, in spite of a succession of orders by theSupreme Court. They included, for example, orders toenforce conversion of all buses from diesel to compressednatural gas. The cause has now been taken up by the NGT.A petition case was filed against the government in 2014by a young environmentalist lawyer, Kauslik v Union ofIndia,80 to require it to identify and curb the sources of rising air pollution in the city. The case was taken by thePrincipal Bench under its President Justice SwatanterKumar, a former Supreme Court justice, and heard withremarkable expedition.

In a decision in November 2014, the Tribunal assertedthe constitutional and statutory responsibility of all authorities and ministries for the provision of clean air, and strongly criticised their failure to take action. It set outa ten-point action plan to address the problem, includingsuch measures as banning 15-year-old vehicles, banning polluting diesel trucks from entering the city, implementinga dust management plan and so on. The plan was refinedand expanded at further hearings in January and April2015. Dr Gill comments that in spite of these diverse directions issued by the NGT to improve the city’s air quality, ‘implementation remains a serious cause for con-cern’.81 In a table based on local newspaper reports, Dr Gillshows that of the ten action points, one had been stayedby the Supreme Court, and of the others all but one had been either only partially implemented or not imple-mented at all.82

This is not to diminish the great achievements of theIndian courts, and now the NGT, in raising awareness anda sense of environmental responsibility in the government,local and national, and the public. That was much in evi-dence at a major conference held in Delhi in March 2017,organised by the NGT and attended by the President, ministers and senior justices from the Supreme Court.83

However, it is important simply to recognise the massivescale of the challenges they face in helping to build up, andenforce, effective systems for environmental protection.Those challenges are quite different in scale and kind to theissues face by specialised courts in the context of muchmore developed regulatory systems such as the UK orNew Zealand.

I end with the Prings’ wise advice at the end of theirstudy, in a chapter headed ‘Next Steps on the Road toCreating an Effective ECT’: ‘if it ain’t broke don’t fix it’.84

This is their first step, which may seem surprising in view ofwhat has gone before. But it makes good sense. The rapidand widespread development of environmental courts and



73 For a comprehensive account see Gitanjali Nain Gill, Environmental Justicein India: The National Green Tribunal (Routledge 2016).

74 Constitution of India 1950 Article 21.75 See for example Subhas Kumar v State of Bihar (AIR 1991 SC 420)

where the Supreme Court found that the right to environment is a fundamental right of every citizen of India and is included in the ‘right tolife’ guaranteed under Article 21 of the Constitution of India.

76 At the ‘World Conference on Environment’, National Green Tribunal,Delhi, India (March 2017) I was informed by one observer that, 20 yearson, the orders for the clearing of the area round the Taj Mahal (M.C.Mehta v Union of India, WP 13381/1984 Judgment 30.12.96) are still sub-ject to review by the Supreme Court, even to the extent of prescribingthe appropriate distance from the monument for public toilets.

77 National Green Tribunal Act 2010 (India).78 ibid s 14(1) and sch 1.

79 Gill (n 73).80 Application 21 of 2014. Gill (n 73) 89.81 Gill (n 73) 91.82 ibid 92 (table 3.1).83 ’World Conference on Environment’, National Green Tribunal, Delhi,

India (March 2017)84 The Pring study (n 1) 64.




tribunals round the world is a welcome recognition of the urgency of environmental issues for the well-being ofcurrent and future generations. But there are many dif-ferent models. Their development reflects not only the varied needs of different societies but (as often as not) thechanging realities and priorities of political life. For example,if in 2000 at the time of the Grant report there had beena government minister in the UK Government with thestanding and commitment of Geoffrey Palmer, his recom-mendations might well have been carried into legislation.People might now be looking to the UK, rather than to theother side of the world, for inspiration in the creation ofECTs.

ECTs are in any event no substitute for a truly in-dependent judiciary, supported by effective regulatory andenforcement systems. It is significant that in recent months

the three most important and innovative judgments on climate change have come not from specialist ECTs butfrom the ordinary courts, and not necessarily at a particu-larly high level. The Dutch Urgenda case was decided by TheHague District Court.85 Although an appeal was lodged bygovernment, there seems as yet no sign of it being activelypursued. The Leghari case was decided in the Lahore HighCourt, admittedly in what they call their ‘green bench’.86

The Juliana case was decided by an ordinary judge of theOregon District Court.87 This shows how difficult it is topredict which cases in which courts will set the trends forothers to follow. It underlines the importance of judges atall levels, and in all courts – not just specialist ECTs – gain-ing awareness of the basic principles of environmental law,so that when a case comes their way they are equipped todeal with it.

85 Urgenda Foundation v Netherlands (24 June 2015) ECLI:NL:RBDHA:2015:7196 available at http://uitspraken.rechtspraak.

86 Ashgar Leghari v Federation of Pakistan (W.P. No. 25501/2015), availableat https://elaw.org/pk_Leghari.

87 Juliana v United States, F. Supp. 3d, 2016 WL 6661146 (D. Or. Nov. 10,2016).


72 (2017) 29 ELM : THE ROLE OF ENVIRONMENTAL COURTS AND TRIBUNALS IN PROMOTING THE RULE OF LAW : PRESTON


Introduction

On 25 September 2015, the United Nations GeneralAssembly adopted an outcome document, ‘Transformingour World: the 2030 Agenda for Sustainable Development’,containing 17 Sustainable Development Goals and 169 targets to achieve these goals. Goal 16 is:

Promote peaceful and inclusive societies for sustainabledevelopment, provide access to justice for all and buildeffective, accountable and inclusive institutions at all levels.

Amongst the targets for achieving this goal are:

16.3 Promote the rule of law at the national and inter-national levels and ensure equal access to justice for all.

16.6 Develop effective, accountable and transparent institutions at all levels.

16.7 Ensure responsive, inclusive, participatory and representative decision-making at all levels.

16.10 Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements.

This goal and these targets include the three pillars ofaccess to information, public participation and access tojustice in environmental matters encapsulated in Principle10 of the Rio Declaration on Environment and Develop-ment issued at the United Nations Conference on Environ-ment and Development in Rio de Janeiro on 3–14 June1992. Principle 10 states:

Environmental issues are best handled with the participa-tion of all concerned citizens, at the relevant level. At thenational level, each individual shall have appropriate accessto information concerning the environment that is held by public authorities, including information on hazardousmaterials and activities in their communities, and theopportunity to participate in decision-making processes.States shall facilitate and encourage public awareness andparticipation by making information widely available. Effect-ive access to judicial and administrative proceedings, in-cluding redress and remedy, shall be provided.

The Governing Council of the United Nations Environ-ment Programme adopted, at its meeting in Bali, Indonesiaon 26 February 2010, Guidelines for the Development of National Legislation on Access to Information, PublicParticipation and Access to Justice in EnvironmentalMatters (hence the colloquial name ‘the Bali Guidelines’).These Guidelines provide general guidance on promotingthe effective implementation of the three pillars of Principle10. There are seven guidelines to promote access to infor-mation, seven guidelines to promote public participation

and 12 guidelines to promote access to justice in environ-mental matters.

Judicial institutions play a vital role in achieving thesegoals of promoting the rule of law and ensuring equalaccess to justice for all. Environmental courts and tribunals(ECTs) may be better placed than traditional courts to play this role in environmental matters. This paper exploreswhat the rule of law involves in general1 and considers theways in which ECTs promote the rule of law and access tojustice in environmental matters.

The rule of lawSupport for the rule of law has grown over time, but hasaccelerated in recent decades to a point where there isapparent unanimity.2 The rule of law stands as the pre-eminent legitimating political ideal in the world today.3

Peculiarly, however, there is no agreement as to what therule of law precisely means. There is a core of meaning onwhich most would agree but an extended penumbra ofmeaning where agreement is absent.

Formulations of the rule of law can be grouped into twobasic categories: formal versions and substantive versions.Each category can, in turn, be subdivided into three distinctforms.

Formal versions of the rule of law focus on the propersources and form of legality. The three forms are rule bylaw, formal legality and legality with democracy. Substantiveversions incorporate the formal requirements of formalversions of the rule of law but add requirements about thecontent of the law. These content requirements includeindividual human rights, rights of dignity and/or justice andsocial welfare rights.

In each category, the formulations can be seen toprogress from simpler to more complex accounts or whatTamanaha describes as ‘thinner to thicker’ accounts. Eachsubsequent formulation incorporates the main aspects ofthe preceding formulations, making them progressivelycumulative.4 Furthermore, substantive formulations are

1 The discussion on the rule of law draws heavily on Brian J Preston ‘Theenduring importance of the rule of law in times of change’ (2012) 86Australian Law Journal 175, published by Thomson Reuters. Extractsreproduced with permission of Thomson Reuters (Professional)Australia Limited, legal.thomsonreuters.com.au. For all subscription in-quiries please phone, from Australia: 1300 304 195, from overseas: +612 8587 7980 or online at legal.thomsonreuters.com.au/search]legal.thomsonreuters.com.au/search. The official PDF version of that articlecan also be purchased separately from Thomson Reuters.

2 Brian Z Tamanaha On the Rule of Law: History, Politics, Theory (CambridgeUniversity Press, 2004) 1–3.

3 ibid 4.4 ibid 91.

The role of environmental courts and tribunals in promoting the rule of law and ensuring equal access tojustice for allThe Hon. Justice B J Preston Chief Judge, Land and Environment Court of New South Wales

1-Preston_ELM Article template 03/10/2017 13:28 Page 72

cumulative upon formal formulations, incorporating andadding to their aspects. Tamanaha tabulates this categorisa-tion of the alternative rule of law formulations as above.5

Support for the various formulations of the rule of lawis stronger for the formal versions over the substantive versions and strongest for the first two forms of the formalversion (rule by law and formal legality) but weakens witheach cumulative formulation. A central reason is that formalversions of the rule of law have no content requirements,while substantive versions have increasing content require-ments as one moves from thinner to thicker accounts. Thislack of content requirement makes formal versions politi-cally neutral. As Fuller notes, formal legality is ‘indifferenttowards the substantive aims of law and is ready to servea variety of such aims with equal efficacy’.6 This indifferenceor neutrality of formal versions of the rule of law enablesthe rule of law to be universally supported, a point wellmade by Summers:

A relatively formal theory is itself more or less politicallyneutral, and because it is so confined, it is more likely tocommand support on its own terms from right, left andcenter in politics than is a substantive theory which notonly incorporates the rule of law formally conceived butalso incorporates much more controversial substantivecontent.7

The increasing substantive content of the rule of law inmore complex or thicker formulations also obscures ratherthan illuminates the meaning and lessens the usefulness ofthe rule of law as a concept. Spigelman notes that the labelof rule of law ‘becomes progressively less useful as its scopeextends’.8

I propose to discuss the three formal versions of therule of law as these attract greater support and are moreuseful. In particular, I will focus on formal legality and exam-ine the ways in which ECTs promote this version of therule of law.

Rule by law

At its most basic, the rule of law postulates that law is themeans by which government conducts its affairs. The ruleof law requires that ‘the government shall be ruled by the

law and subject to it’.9 This means ‘all government actionmust have formulation in law, must be authorised by law’.10

Put another way, ‘all authority is subject to, and constrainedby, law’.11

This first and most basic of the formal versions of therule of law has been described as ‘rule by law’. It is thebroadest and oldest of the ideas of the rule of law. The root of the idea is the restraint of government tyranny.Restraining the tyranny of the sovereign has been a peren-nial struggle. The Magna Carta, originally signed in 1215, was the renowned action by nobles to use law to restrainKing John and thereby subordinate the sovereign to law.12

This understanding of the rule of law, as a restraint of government tyranny, predated the emergence of the ideaof individual liberty, when the emphasis of the rule of lawshifted to formal legality.13

The idea of rule of law, of a government limited by law,involves two components. First, the government must abideby the currently valid law. The government may change thelaw, by Parliament enacting statutes or the executive exer-cising delegation to make subordinate legal rules, but untilthe law is changed, the law must be complied with.14

Secondly, even when the government wishes to change thelaw, it is not entirely free to change it in any way it desiresbecause there are certain restraints on the law-makingpower.15 These restraints are to be found in constitutional,statutory and common law.

Courts uphold the rule by law in their supervisory jurisdiction by judicial review to ensure that executive andlegislative action is authorised by law. ECTs that are superi-or courts of record with this supervisory jurisdiction canensure that government action and decisions on environ-mental matters are authorised by law.

The rule by law is a necessary aspect of the rule of law but it is insufficient in itself.16 Tamanaha observes, ‘ruleby law carries scant connotation of legal limitations on government, which is the sine qua non of the rule of lawtradition’.17

It is necessary, therefore, to progress in our examina-tion to the second formal version of the rule of law, termedformal legality.

THE ROLE OF ENVIRONMENTAL COURTS AND TRIBUNALS IN PROMOTING THE RULE OF LAW : PRESTON : (2017) 29 ELM 73


5 ibid.6 Lon L Fuller The Morality of Law (Yale University Press, revised ed, 1969)

153.7 Robert S Summers ‘A Formal Theory of the Rule of Law’ (1993) 6 Ratio

Juris 127, 136.8 James J Spigelman ‘The Rule of Law in the Asian Region’ in T D Castle

(ed) Speeches of a Chief Justice: James Spigelman 1998–2008 (CS2NPublishing 2008) 54.

9 Joseph Raz The Authority of Law (Clarendon Press 1979) 212.10 ibid.11 A M Gleeson ‘Courts and the rule of law’, a paper delivered to the Rule

of Law Series, Melbourne University, 7 November 2001, 1.12 Tamanaha (n 2) 25–26.13 ibid 115.14 ibid.15 ibid 117–118.16 Spigelman (n 9) 54.17 Tamanaha (n 2) 22.

Thinner to Thicker

FORMAL VERSIONS: 1. Rule by law 2. Formal legality 3. Democracy + legality – law as instrument of – general, prospective, clear, – consent determines content

government action certain of law

SUBSTANTIVE VERSIONS: 4. Individual rights 5. Right of dignity and/or justice 6. Social welfare – property, contract, – substantive equality, welfare,

privacy, autonomy preservation of community


Formal legality

Formal legality involves a number of principles which fallinto three groups: first, there are principles requiring thatthe law should conform to standards designed to enablethe law to guide effectively the conduct of the governmentand the governed; secondly, there are principles designedto ensure that the legal machinery of enforcing the lawdoes not deprive the law of its ability to guide conduct; andthirdly, there are principles designed to ensure that the lawsand legal machinery actually achieve or realise the rule oflaw.

Standards of laws

In order for both the government and the governed to beruled by law, the law must conform to certain standards sothat the government and the governed are aware andunderstand what they can and cannot do, how they can do it and what the sanctions are if they do not comply.These standards or, to use Fuller’s term, the desiderata areas follows.

GeneralityThe law must be general, both in statement and intent, andnot be used as a way of harming particular individuals.18

The law should apply, without exception, to everyonewhose conduct falls within the prescribed conditions ofapplication. Rousseau described this requirement of gener-ality as being that ‘the law considers all subjects collectivelyand all actions in the abstract; it does not consider any individual man or any specific action’.19 Hayek asserts thatthis attribute of generality mandates another requirementof the rule of law, of the separation of powers between thelegislature and the judiciary, for only in this manner can thelaw be set out in abstract terms in advance of its applica-tion to any particular individual.20

EqualityThe law must apply to everyone equally without makingarbitrary distinctions among people.21 Put simply, everyoneis equal before the law, including government officials.22 Anexception to the principle of equality before the law iswhere objective differences justify differentiation.23

Public accessibilityLaws need to be publicly promulgated, adequately publi-cised and readily available. If law is to guide people, theymust be able to find out what it is.24

ProspectivityLaws ordinarily need to be prospective, not retrospective.A person cannot be guided by a retrospective law: it doesnot exist at the time of action.25 Whilst there can be someoccasional retrospective enactments, these cannot be per-vasive or characteristic features of the system, otherwisethey cannot serve to organise social behaviour by pro-viding a basis for legitimate expectations.26 Penal laws, inparticular, should not be retrospective to the disadvantageof persons to whom they apply.27 Dicey’s first aspect of therule of law is centred upon the notion that there can be nopunishment without a pre-existing law.28

ClarityThe meaning of the law must be clear as to what it enjoinsor forbids.29 ‘An ambiguous, vague, obscure or impreciselaw is likely to mislead or confuse at least some of thosewho decide to be guided by it’.30

Certainty and predictabilityLaws should be certain and predictable:

Certainty requires that those who are subject to the lawshould be able to predict reliably what legal rules will befound to govern their conduct and how those rules will beinterpreted and applied. Predictability is a necessary aspectof the foreknowledge that enables freedom of action.31

Not contradictory or requiring of the impossibleLaws should not be contradictory, such as, at the sametime, both commanding and forbidding an action to bedone. Contradictions can arise within a single statute, a self-contradictory law, or between statutes passed at differenttimes.32 Equally, law should not command the impossible.As Rawls notes:

the actions which the rules of law require and forbidshould be of a kind which men can reasonably be expectedto do and to avoid. A system of rules addressed to rationalpersons to organise their conduct concerns itself with whatthey can and cannot do. It must not impose a duty to dowhat cannot be done.33

StabilityLaws should be relatively stable. Raz states that:

[Laws] should not be changed too often. If they arefrequently changed people will find it difficult to find outwhat the law is at any given moment and will constantly bein fear that the law has been changed since they last learntwhat it was. But more important still is the fact that people



18 John Rawls A Theory of Justice (Harvard University Press, revised ed,1999) 209; Fuller (n 6) 46.

19 Jean-Jacques Rousseau The Social Contract (Penguin Books, 1968) 82,quoted in Tamanaha (n 2) 66.

20 Friedrich A Hayek The Constitution of Liberty (University of Chicago Press,1960) 210–212.

21 ibid 209–210.22 Albert V Dicey An Introduction to the Study of the Law of the Constitution

(Macmillan, 9th ed, 1945) 188; see also H W Arndt ‘The origins of Dicey’sconcept of the “Rule of Law’’ ’ (1957) 31 Australian Law Journal 117.

23 Tom Bingham The Rule of Law (Penguin Books, 2011) 55, 57–58.24 ibid 37–40; Raz (n 9) 214; Fuller (n 6) 51; Rawls (n 18) 209; Gleeson

(n 11) 2.

25 Raz (n 9) 214; Fuller (n 5) 54.26 Rawls (n 18) 209.27 ibid.28 Dicey (n 22) 208; Tamanaha (n 2) 63.29 Rawls (n 18) 209; Fuller (n 6) 63; Bingham (n 23) 37–38.30 Raz (n 8) 214.31 Tamanaha (n 2) 66; see also Hayek (n 20) 208; Bingham (n 23) 37–39;

Spigelman (n 8) 54.32 Fuller (n 6) 65–70.33 Rawls (n 18) 208; see also Fuller (n 6) 70–79.


need to know the law not only for short-term decisions(where to park one’s car, how much alcohol is allowedduty free, etc) but also for long-term planning. Knowledgeof at least the general outlines and sometimes even ofdetails of tax law and company law are often important forbusiness plans which will bear fruit only years later. Stabilityis essential if people are to be guided by law in their long-term decisions.34

These comments apply with equal cogency to environ-mental and planning laws. Relative stability or constancy inthe law is necessary for developers, investors, residents andthe community to be guided in their short-term and long-term decision-making.

Desiderata for subordinate legal rules and orders

Raz adds another principle concerning the making of sub-ordinate legal rules and particular legal orders: ‘The makingof particular laws (particular legal orders) should be guided by open, stable, clear, and general rules’.35 Raz intro-duces this principle because, increasingly, the executive gov-ernment uses delegated law-making powers to make par-ticular legal regulations or to make particular legal orders inorder to introduce flexibility into the law. However, suchregulations and orders can be ephemeral and have thepotential to run counter to the basic idea of the rule of law.This difficulty can be overcome if the process of makingsubordinate legal rules and orders is guided by open, stable, clear, and general rules so as not to undermine thestandards of the primary statutes under which those sub-ordinate legal rules and orders are made.36

Collectively, these standards of laws are the desiderataof a system for subjecting human conduct to the gover-nance of the law. I now turn to the legal machinery ofenforcing the law.

Machinery to enforce the law

In addition to the standards of the laws, there is a need fororganisational and institutional structures and machinery toenforce the laws. These include: an independent and im-partial judiciary; adjudicative procedures that are fair ; con-straints on arbitrary exercise of power; judicial review ofadministrative action; judicial decision-making being bound-ed by legal rules; courts being easily accessible; the lawbeing enforced; and the discretion of crime preventingagencies not being allowed to pervert the law.

Independent and impartial judiciary

An essential component of a system governed by law is the existence of an independent and impartial judiciarycharged with the duty of applying the law to cases broughtbefore it and whose judgment in those cases is final andconclusive.37

Independence requires separation of the judiciary fromother branches of government, being the executive and thelegislature. There must be separation between executiveand judicial functions.38 The legislature cannot confer uponthe judiciary, executive or administrative functions incom-patible with the essential and defining characteristics ofcourts and the courts’ place in a national integrated judi-cial system.39The legislature cannot confer judicial functionsupon the executive.40 The legislature is constrained inremoving or confining the judiciary’s supervisory juris-diction over executive conduct.41 There must also be a separation of legislative and judicial functions. The judiciarycannot engage in legislative rule-making.42

Independence not only requires independence fromgovernment but also independence from all influencesexternal to the court which might lead it to decide casesotherwise than on the legal and factual merits. LordBingham states that the principle of independence:

calls for decision-makers to be independent of local gov-ernment, vested interests of any kind, public and parlia-mentary opinion, the media, political parties and pressuregroups, and their own colleagues, particularly those seniorto them. In short, they must be independent of anybodyand anything which might lead them to decide issuescoming before them on anything other than the legal andfactual merits of the case as, in the exercise of their ownjudgment, they consider them to be.43

This statement of the principle of independence is par-ticularly apposite to a specialist environmental court or tribunal which deals with environmental and planning dis-putes where there is high potential for significant externalpressures.

Closely related to the principle of independence is therequirement that a judicial decision-maker be impartial. Thisrequires that there be no conflict of interest and no actualor apprehended bias.44 A decision-maker can, of course,not be a judge in his or her own cause.45 It also requiresjudicial decision-makers to alert themselves to, and to neutralise as far as practicable, personal predilections orprejudices or any extraneous considerations that mightpervert their judgment.46

In order to demonstrate that the judicial decision hasbeen reached independently, impartially and with fidelity to the law, the judicial decision-maker needs to providereasons for the decision. The reasoning for judicial decision-making is ‘inextricably interwoven with judicial independ-ence’.47



34 Raz (n 9) 214–215; see also Fuller (n 6) 79–91.35 ibid 215.36 ibid 216.37 ibid 216–217; Rawls (n 18) 210; Bingham (n 23) 91–92; Marilyn Warren

‘Does judicial independence matter?’ (2011) 85 Australian Law Journal481, 481.

38 Gleeson (n 11) 2.39 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; South

Australia v Totani (2010) 242 CLR 1; Wainohu v New South Wales (2011)278 ALR 1.

40 Elizabeth Southwood ‘Extending the Kable Doctrine: South Australia vTotani’ (2011) 22 Public Law Review 83, 95.

41 Kirk v Industrial Court (NSW) (2009) 239 CLR 531.42 Peter Cane ‘Merits review and judicial review – the AAT as Trojan horse’

(2000) 28 Federal Law Review 213, 237.43 Bingham (n 23) 92.44 ibid 93; Warren (n 37) 482; Steven Rares ‘What is a quality judiciary?’

(2011) 20 Journal of Judicial Administration 133, 137–138.45 Rawls (n 18) 210.46 Bingham (n 23) 93.47 Warren (n 37) 482.


The independence and impartiality of the judiciary canbe enabled by institutional arrangements and rules con-cerning: selection of judges for appointment based uponappropriate legal qualifications; long-term tenure and security of tenure; procedural and substantive protectionagainst removal of judges; the means of fixing and review-ing reasonable remuneration and other conditions of service; and sufficient resources to maintain a functioningcourt system. Such institutional arrangements and rules are intended to guarantee that judges will be free fromextraneous pressures and be independent from all author-ity except that of the law.48

In addition to an independent and impartial judiciary,there is the need for an independent legal profession, ‘fear-less in its representation of those who cannot representthemselves, however unpopular or distasteful their casemay be’.49 The judiciary and legal profession are ‘inter-related in a symbiotic manner’.50 A strong and independentlegal profession contributes to a strong and independentjudiciary.

Fair adjudicative procedures

The adjudicative procedures used to determine casesshould be fair. This requires procedural fairness or the prin-ciples of natural justice be observed.51 The principles ofnatural justice are manifold but include the absence of bias (impartiality) and an open and fair hearing. These prin-ciples are guarantees of impartiality and objectivity.52 Theyare intended to preserve the integrity of the judicial pro-cess.53 ‘Procedural fairness effected by impartiality and thenatural justice hearing rule lies at the heart of the judicialprocess’.54

The hearing should also be open to the public. Theopen-court principle provides a visible assurance of inde-pendence and impartiality. It is also an essential aspect ofthe characteristics of all courts.55

Fairness requires giving both sides, not just one side, a fair opportunity to present their case. This applies equal-ly to criminal matters as it does to civil matters. The prosecutor or claimant should be given a fair oppor-tunity to present their case as should the defendant torebut it.56

Fairness requires equality of arms: ‘a trial is not fair if theprocedural dice are loaded in favour of one side or theother, if … there is no equality of arms’.57

Ordinarily, there should be provisions for conductingorderly trials and hearings,58 rules of evidence that guar-antee rational procedures of enquiry,59 and a system ofadversarial trial,60 including cross-examination of adversewitnesses.61

Constraints on arbitrary exercise of power

A core attribute of the rule of law is that the law mustoperate to constrain the arbitrary exercise of power, bothpublic and private.62 Arbitrariness, in the sense of unbound-ed discretion, is the antithesis of the rule of law.63 A formerLord Chief Justice of England, Lord Hewart, criticised vari-ous legislative provisions, including in town planning andrating legislation, which conferred excessive and unchal-lengeable discretions on ministers and government officialsas undermining the rule of law.64

The exercise of discretionary powers should be pur-suant to legal rules that possess the qualities of generality,equality, certainty and the other desiderata to which I haveearlier referred, as well as being subject to judicial oversight(which I will discuss next).65

Judicial review of legislative and administrative action

To ensure conformity to the rule of law, courts should havesupervisory jurisdiction to review both parliamentary andsubordinate legislation and rules and executive action.66

As Justice Brennan has pointed out:

[j]udicial review is neither more nor less than theenforcement of the rule of law over executive action; it isthe means by which executive action is prevented fromexceeding the powers and functions assigned to theexecutive by law and the interests of the individual areprotected accordingly.67

Rules have been developed to identify the kinds of un-lawfulness in respect of which the courts will intervene injudicial review. They include that government authoritiesand officials exercise powers conferred on them by the legislature, fairly, in good faith, for the purpose for which thepowers were conferred, without exceeding the limits of



48 Raz (n 9) 217; Tamanaha (n 2) 124; Tom Ginsberg ‘The politics of courtsin democratization’ in James J Heckman, Robert L Nelson, LeeCabatingan (eds) Global Perspectives on the Rule of Law (Routledge 2010)176; Rares (n 44) 135–136; Robert French ‘The State of the AustralianJudicature’ (2010) 84 Australian Law Journal 310, 317–318.

49 Bingham (n 23) 92–93.50 Spigelman (n 8) 55.51 Raz (n 9) 217.52 H L A Hart The Concept of Law (Oxford University Press, 2nd ed 1994)

160, 206.53 Rawls (n 18) 209–210.54 South Australia v Totani (2010) 242 CLR 1, 43 [62]; see also International

Finance Trust Co Ltd v The New South Wales Crime Commission (2009) 240CLR 319, 379–381 [141]–[145].

55 South Australia v Totani (2010) 242 CLR 1, 43 [62]; Russell v Russell (1976)134 CLR 495, 505, 520, 532; James Spigelman ‘Seen to be done: the principle of open justice’ (Part 1) (2000) 74 Australian Law Journal 290,294–295; (Part 2) (2000) 74 Australian Law Journal 378, 378.

56 Bingham (n 23) 90.

57 ibid.58 Rawls (n 18) 210.59 ibid.60 Forge v Australian Securities and Investments Commission (2006) 228 CLR

45, 76 [64].61 Fuller (n 6) 81.62 Spigelman (n 8) 53.63 Tamanaha (n 2) 64, 67; Bingham (n 23) 48.64 Lord Hewart of Bury The New Despotism (Ernest Benn 1929) 13; see

Bingham (n 22) 48–49.65 Hayek (n 20) 212–217; Bingham (n 23) 50.66 Raz (n 9) 217; Gleeson (n 11) 5.67 The Church of Scientology Inc v Woodward (1982) 154 CLR 25, 70 citing

Louis L Jaffe and Edith G Henderson ‘Judicial review and the rule of law:historical origins’ (1956) 72 Law Quarterly Review 345; Bernard Schwartzand H William R Wade Legal Control of Government: Administrative Law inBritain and the United States (Clarendon Press 1972) Ch 9.


such powers, considering relevant matters and ignoringirrelevant matters, and not manifestly unreasonably.68

Central to all grounds of judicial review is the sole focuson the lawfulness and not the merits of administrativeaction. In the often quoted words of Justice Brennan:

The duty and jurisdiction of the court to review admini-strative action do not go beyond the declaration and en-forcing of the law which determines the limits and governsthe exercise of the repository’s power … The merits ofadministrative action, to the extent that they can be distin-guished from legality, are for the repository of the relevantpower and, subject to political control, for the repositoryalone.69

This demarcation between the legality and the merits ofadministrative action is fundamental to a system of gover-nance based on the rule of law.70 It preserves the separa-tion of powers and the balance between the branches ofgovernment.

The demarcation between legality and merits ‘does notinvolve a bright-line test. The boundary is porous and illdefined’.71 Yet the legitimacy of judicial review depends oncourts policing that boundary, ensuring that judicial inter-ference with administrative decisions and conduct onlyoccurs in respect of the legality and not the merits of suchdecisions and conduct.72

Tatel observes that:

judicial review performs a quasi-constitutional role: itprevents the rule of administrative policy judgment fromsupplanting the rule of law. On the flip side, these rulesalso restrict the courts. The basic administrative law frame-work narrows and focuses judicial review, obliging usjudges to assess not the merits of agency policy but ratherthe agency’s compliance with a discrete set of fairly well-defined and policy-neutral requirements.73

The rule of law, and judicial review of legislative and administrative action, are assumed and adopted by theAustralian Constitution.74 As a consequence, the legis-lature’s capacity to remove or confine the supervisory jurisdiction of federal or State supreme courts to reviewlegislative and administrative action is constrained by thelimits imposed by the Constitution.75

Judicial decision-making bounded by legal rules

The rule of law is not only enforced by courts; it also controls the operation of courts themselves.76 Just as un-bridled administrative discretion runs counter to the rule of law, so too does unbridled judicial discretion. The rule oflaw requires that ‘no discretion should be unconstrained soas to be potentially arbitrary. No discretion may be legallyunfettered’.77

The constraining of judicial discretion accords with the precept that there should be ‘rule by law, not men’,including judges. To live under the rule of law is to be notsubject to the unpredictable vagaries of other indivi-duals, whether they be legislatures, government officials or judges. Rule by law is preferable to unrestrained rule by another person, even by a wise person, out of con-cern for the potential abuse that exists in the power torule.78

Various rules have emerged to direct the exercise ofjudicial discretions. These include: judges should find, in-terpret correctly and apply the appropriate legal rule;79

judicial decisions should be made according to legal standards, rather than undirected considerations such asfairness or policy;80 and judges should observe fidelity to the law, that is the inherited, enacted and judge-made law, and not create what they perceive to be better law according to some subjective or personal pref-erence.81

Similar cases should be treated similarly except whereobjective differences justify differentiation.82 The principlethat like decisions be given in like cases limits the discretionof judges.83

One mechanism for ensuring fidelity to the law byjudges is the appellate system. As Gleeson notes:

[t]he appellate system is a powerful instrument for ensur-ing adherence to the principle of legality by the judiciary.The possibility of appellate review means that, even in thatsmall minority of cases where judges might be called uponto break new legal ground, or in areas where they areinvested with substantial discretion, judges must conformto a legal discipline by which their powers are circum-scribed. Only a relatively small number of cases go onappeal, and all but a few appeals are finally disposed of byan intermediate appeal court. But the very existence of theappeal system, and of an ultimate court of appeal, is apowerful influence for judicial conformity to law.84



68 Spigelman (n 8) 55; Bingham (n 23) 60–65.69 Attorney General (NSW) v Quin (1990) 170 CLR 1, 35–36.70 James J Spigelman ‘The integrity branch of government’ (2004) 78

Australian Law Journal 724, 730.71 ibid 732; see also Cane (n 42) 220.72 Brian J Preston ‘Judicial Review of Illegality and Irrationality of

Administrative Decisions in Australia’ (2006) 28 Australian Bar Review 17,18.

73 David S Tatel ‘The administrative process and the rule of environmentallaw’ (2010) 34 Harvard Environmental Law Review 1, 3.

74 As to judicial review of legislative action, see Australian Communist Partyv Commonwealth (1951) 83 CLR 1, 193, 205, 271; as to judicial review ofadministrative action, see Kirk v Industrial Commission (NSW) (2009) 239CLR 531, 566 [55], 580–581 [96]–[100].

75 Kirk v Industrial Commission (NSW) (2010) 239 CLR 531; James JSpigelman ‘The centrality of jurisdictional error’ (2010) 21 Public LawReview 77; John Basten ‘The supervisory jurisdiction of the supremecourts’ (2011) 85 Australian Law Journal 273.

76 Gleeson (n 11) 7.77 Bingham (n 23) 54.78 Tamanaha (n 2) 122.79 Rawls (n 18) 206–207; Roscoe Pound An Introduction to the Philosophy

of Law (1954) 48; Brian J Preston ‘The art of judging environmental disputes’ (2008) 12 Southern Cross University Law Review 103, 103–105,107–108.

80 Gleeson (n 11) 2.81 Owen Dixon ‘Concerning judicial method’ in Jesting Pilate (William S

Hein, 2nd ed, 1997) 157–158; Murray Gleeson ‘Judicial legitimacy’ (2000)20 Australian Bar Review 4, 11.

82 Rawls (n 18) 208–209.83 ibid 209.84 Gleeson (n 11) 7.


Courts should be easily accessible

As courts have a central position in ensuring the rule oflaw, it follows that accessibility of the courts is of centralimportance.85 There are multiple ways of ensuring accessi-bility of the courts.

First, citizens must have rights to access the courts toenforce claims of right and accusations of guilt and to pre-vent the law from being ignored or violated.86 In particular,citizens should be able to challenge decisions and actionconcerning access to information, public participation andaccess to justice in environmental matters. The law shouldensure that the public have access to ‘a court of law orother independent and impartial body’ to challenge anydecision, act or omission by public authorities relating torequests for access to environmental information or topublic participation in decision-making in environmentalmatters, or to challenge any decision, act or omission bypublic authorities or private actors that affects the environ-ment or allegedly violates the substantive or procedurallegal norms of the state related to the environment.87

Second, there should be liberal rules for standing tobring proceedings. There should be ‘broad interpretation ofstanding in proceedings concerned with environmentalmatters with a view to achieving effective access to jus-tice’.88 Courts can facilitate standing by a liberal interpreta-tion of standing provisions89 and adopting court rules ofprocedure that include a broad standing provision.90

Third, review by courts should be timely. There shouldbe ‘effective procedures for timely review by courts of lawor other independent and impartial bodies, or administra-tive procedures, of issues relating to the implementationand enforcement of laws and decisions pertaining to theenvironment’.91 Courts need to adopt effective and effi-cient case management of their caseload to ensure thetimely hearing and disposal of pending cases. Courts needto set time standards for case processing and measure theirperformance in achieving these time standards.92 Proceed-ings should also be ‘fair, open, transparent and equitable’.93

Fourth, review procedures should be affordable.Governments and courts ‘should ensure that the access ofmembers of the public concerned to review proceduresrelating to the environment is not prohibitively expensiveand should consider the establishment of appropriate assis-tance mechanisms to review or reduce financial and otherbarriers to access to justice’.94 Courts need to ensure thatcourt fees and charges do not impede access to the courtfor those litigants with less financial means. Courts alsoneed to review their practices and procedures and managetheir caseload with the intention of reducing the significantcosts of litigation in the court.

Fifth, there should be redressability. There should be ‘a framework for prompt, adequate and effective remediesin cases relating to the environment, such as interim andfinal injunctive relief ’.95 Remedies should include ‘the use of compensation and restitution and other appropriatemeasures’.96 Courts should have jurisdiction to grant awide range of remedies, in civil and in criminal matters, andbe creative in the selection of the remedies that are avail-able so as to address appropriately the wrongdoing and itsconsequences, including environmental harm.97

Adequate redress and remedy are fundamental to theachievement of environmental justice. If rights cannot beupheld, duties cannot be enforced or wrongs cannot beremedied, justice is left undone. The court must also bewilling to grant the appropriate remedies. The grant of aremedy is usually at the discretion of the court. This is nec-essary to achieve justice in the individual circumstances ofthe case. However, inappropriate or too frequent exerciseof the discretion to withhold relief can undermine the ruleof law and the statutory purpose and scheme, and may notsecure equal justice.

Sixth, court and administrative decisions and ordersshould be enforceable. Governments ‘should ensure thetimely and effective enforcement of decisions in environ-mental matters taken by courts of law, and by administra-tive and other relevant bodies’.98 Courts need to fashiontheir orders so that they are capable of being enforced.They also need to have the power to enforce their orders,including the power of punishment for contempt for failureto comply with the court’s orders.

Seventh, there should be adequate information aboutthe availability of and procedures for a court review.Governments and courts ‘should provide adequate infor-mation to the public about the procedures operated bycourts of law and other relevant bodies in relation to environmental issues’.99 Courts need to be proactive in



85 Raz (n 9) 17.86 Gleeson (n 11) 2.87 UNEP Guidelines for the Development of National Legislation on

Access to Information, Public Participation and Access to Justice inEnvironmental Matters (UNEP Guidelines) Guidelines 15, 16 and 17 .

88 ibid Guideline 18.89 An example is the decision of the Supreme Court of the Philippines in

Minors Oposa v Secretary of the Department of Environment and NaturalResources 33 ILM 173 (1994) in which the Supreme Court held that aclass of minors represented by their parents had standing to file a classsuit on behalf of themselves, others of their generation and for the suc-ceeding generations.

90 An example is the Rules of Procedure of Environmental Cases adoptedby the Supreme Court of the Philippines which include a broad stand-ing provision: ‘Any Filipino citizen in representation of others, includingminors or generations yet unborn, may file an action to enforce rights orobligations under environmental laws’.

91 UNEP Guidelines, Guideline 19.92 For example, the Land and Environment Court of NSW measures the

effectiveness and efficiency of the court by reference to the output indi-cators of backlog indicator, time standards for finalisation of cases, timestandards for delivery of judgments, clearance rate and attendance indi-cator: see Land and Environment Court of NSW Annual Review 2015,39–50.

93 UNEP Guidelines, Guideline 19.

94 ibid Guideline 20.95 ibid Guideline 21.96 ibid.97 Examples include the creative use of continuing mandamus by courts in

India and the Philippines to compel public authorities to perform theirpublic duties, with the courts retaining jurisdiction over the matter to en-sure continued compliance. In India, the remedy of continuing mandamushas been used to ensure that public authorities regulate tanneries on theGanges River. In the Philippines, the remedy of continuing mandamus hasbeen used to ensure that public authorities clean up the pollution inManila Bay. These courts have also established advisory bodies ofexperts to assist in monitoring compliance with the court’s orders.

98 UNEP Guidelines, Guideline 22.99 ibid Guideline 23.


publicising their court practices and procedures and thesubstantive and procedural laws relevant to the proceed-ings in the court.100 Courts also need to publish reviews,on an annual basis, of their performance.101

Eighth, court decisions should be publicly available andaccessible.102 Courts should publish electronically theirdecisions on publically accessible websites at no cost.Accessibility can be improved by publishing summaries ofnotable decisions, such as in publicly available newslettersand specific webpages on topics of interest to courtusers.103

Ninth, judicial officers and other legal professionalsshould have up-to-date knowledge of environmental law.Governments ‘should, on a regular basis, promote appro-priate capacity-building programmes in environmental law for judicial officers, other legal professionals and otherrelevant stakeholders’.104 Courts can improve their knowl-edge capacity by having experts within the court,105 ap-pointing judicial officers and other members with knowl-edge and experience in environmental and planning lawand providing continuing professional development tomaintain and improve knowledge and expertise.106

Tenth, alternative dispute resolution mechanisms shouldbe available and utilised where these are appropriate.107

Courts can provide and promote the use of alternative dispute resolution services. The availability of alternativedispute resolution mechanisms allows the tailoring ofmechanisms to the nature of the dispute and the needs ofthe parties to that dispute.108

Eleventh, there needs to be accessibility to the court inpractice. This involves ensuring geographical accessibility,

language accessibility, access for persons with disabilities,access to help and information and access for unrepre-sented litigants.

Geographical accessibility concerns ensuring parties andtheir legal representatives and witnesses are able to accessthe court in geographical terms. To overcome geographicalaccessibility problems courts can adopt a number of meas-ures, including conducting interlocutory and final hearingsby means of telephone or by an ‘online court’, enablingcommunication between the court and parties and theirlegal representatives by email, conducting final hearings onthe site of the dispute, and sitting in courthouses or othervenues proximate to the parties and the site of the dispute.

Language accessibility concerns ensuring parties andtheir witnesses are able to participate in and understandcourt hearings in a language that they understand. Courtscan provide interpreters to assist parties and their witness-es. Courts can also provide information about the courtand its processes in a variety of languages. Access for per-sons with disabilities aims to ensure that all members of the community have equal access to the court’s services,regardless of their disability. Courts should make specialarrangements for parties and witnesses with specialneeds.109

Courts should provide access to help and informationabout the court and its organisation, resources and ser-vices, the court’s practices and procedures, its forms andfees, court lists and judgments, publications and other information. The provision of such help and informationfacilitates access to justice and allows the people who usethe court to understand it and make better use of it.Courts should also make special efforts to assist unrep-resented litigants through the court’s website and its published information and by the court’s staff. Some courtsprovide a special process advisor to assist unrepresentedlitigants. The Environment Court of New Zealand assigns a process advisor to unrepresented litigants and groups to guide them through relevant court procedures. TheLand and Environment Court of NSW provides a helpdeskservice, particularly to assist unrepresented litigants inneighbour disputes about trees.

Twelfth, there needs to be simple and understandablecourt practices and procedures that promote access to justice. The originating process to commence proceedingsin the court and the forms to make applications in pro-ceedings should not be technical or complicated or requirelegal expertise to complete them. The court and the rulesof court should provide instruction as to the type of origi-nating process or form required and its content and on themeans of lodgment.

A court needs to promote access to justice by remov-ing or lowering barriers to public participation and publicinterest litigation. The court’s rules of practice and pro-cedure should facilitate, not impede, access to justice, such



100 For example, the Land and Environment Court of NSW has an exten-sive website which provides information to the public on the court, the types of cases which it deals with, the different dispute resolutionprocesses available, its practice and procedure and its decisions.

101 For example, the Land and Environment Court of NSW publishes anannual review that reports on the court’s performance in achieving theobjectives of court administration of equity, effectiveness and efficiency.

102 UNEP Guidelines, Guideline 24.103 For example, the Land and Environment Court of NSW publishes a

judicial newsletter, on a quarterly basis, which summarises key decisionsin the court, relevant decisions in other courts in Australia and overseasand recent legislation. The court also has specific webpages on its website on topics of interest such as heritage, biodiversity, water andmining, which include relevant cases, legislation and other governmentinformation.

104 UNEP Guidelines, Guideline 25.105 For example, the Land and Environment Court of NSW and the

Environment Court of New Zealand have commissioners with specialknowledge and experience in relevant environmental and planning disciplines.

106 For example, the Land and Environment Court of NSW has adoptedand implements a continuing professional development policy toenhance professional expertise, facilitate development of professionalknowledge and skills and promote the pursuit of juristic excellence: seeLand and Environment Court of NSW Annual Review 2015, 56–59.

107 UNEP Guidelines, Guideline 26.108 For example, the Land and Environment Court of NSW provides a

form of multi-door courthouse that provides a range of dispute reso-lution options at different stages in proceedings, including conciliation,mediation, early neutral evaluation, administrative merits review, litiga-tion and reference to an external referee: see B J Preston ‘The Land and Environment Court of New South Wales: moving towards a multi-door courthouse – Part 1’ (2008) 19 Alternative Dispute ResolutionJournal 72; B J Preston ‘The Land and Environment Court of New SouthWales: moving towards a multi-door courthouse – Part 2’ (2008) 19Alternative Dispute Resolution Journal 144.

109 For example, the Land and Environment Court of NSW has a dis-ability strategic plan to ensure access for persons with disabilities. The court’s website contains special webpages outlining the disabilityservices provided by the court. The court’s website also has a facility forthe information to be read aloud for blind people.


as in public interest litigation, not requiring an undertakingfor damages as a prerequisite for granting interlocutoryinjunctive relief, not requiring the giving of security for costsof the proceedings, and not ordering an unsuccessful public interest plaintiff to pay the defendant’s cost of theproceedings.110

Courts need to prevent, or deal with quickly, proceed-ings that prevent or stifle public participation and publicinterest litigation, such as strategic litigation against publicparticipation (SLAPP) suits.111

Finally, the court needs to be responsive to the needs of court users. Access to justice is facilitated by the courttaking a more user-orientated approach. The justice systemshould be more responsive to the needs and expectationsof people who come into contact with the system. Theprinciple of user orientation implies that special stepsshould be taken to ensure that the court takes specificmeasures both to assist people to understand the way theinstitution works and to improve the facilities and servicesavailable to members of the public. These steps requiresensitivity to the needs of particular groups. Measuresadopted by courts for ensuring accessibility (discussedabove) make the court more responsive to the needs and expectations of people who come into contact withthe court. Courts can also consult with court users and the community to assist the court to be responsive to theneeds of users.112

Enforcement of the law

The existence of laws that meet the required standards,and of institutional arrangements and machinery to enforcethe law, are necessary components of the rule of law. Butthey will be insufficient unless there is actual enforcementof the law.113 Enforcement can be by the executive as wellas by citizens. There is, of course, a discretion as to whetherto enforce the law. However, a miscarriage of that discre-tion can subvert the rule of law. Raz makes the point, inrelation to criminal enforcement, that the actions of thepolice and prosecuting authorities can subvert the law:

The prosecution should not be allowed, for example, todecide not to prosecute for commission of certain crimesor for crimes committed by certain classes of offenders.The police should not be allowed to allocate its resourcesso as to avoid all effort to prevent or detect certain crimesor prosecute certain classes of criminals.114

Raz’s comments resonate in the field of environmental law. Ministers and governmental agencies in New South

Wales, from time to time, have not allocated resources toand have elected not to prosecute at all or to prosecuteonly certain persons for the commission of certainoffences under national parks and wildlife legislation andnative vegetation legislation. Sometimes, citizens have been forced to take civil enforcement actions in theabsence of action by the relevant government agencies. An example is Corkill v Forestry Commission of NSW,115

where an environmental activist took action to enforce the provisions of the National Parks and Wildlife Act 1974, prohibiting the taking or killing of protected en-dangered fauna, against the Forestry Commission whichwas breaching those provisions in the conduct of loggingoperations.

Realisation of the rule of law

The realisation of the rule of law depends on congruencebetween action and the law116 or between what may betermed ‘law in action’ and ‘law on the books’.117 Unlessthere is congruence, ‘the rules contained in law will notprovide a clear signal about what is permitted and what is proscribed. Persons will never acquire the requisitedegree of security and predictability in their dealings withothers’.118

Congruence is also required for legitimacy. Legitimacyinvolves reasoned deference to authority. Levi and Epperlysuggest that:

When legitimacy exists, rule of law can create a virtuouscircle of increasing levels of voluntary compliance … Theexpectation that others, including government officials andelites, should obey the law, followed by the observa-tion that they are indeed obeying the law, increases the willingness of the populace to comply. Wide-scalecompliance with the law then enhances the ability ofgovernment to provide law and other public goods thatrule of law facilitates. Rule of law institutions are onlyeffective to the extent that the general public believes inthe value of being law-abiding and the powerful of thesociety believe they, too, are subject to the law. Ifofficeholders and the privileged act as if they are above thelaw, the rule of law becomes fragile or non-existent. Andthe virtuous circle is ruptured.119

Hayek makes a similar point: ‘[The rule of law] will be effective only in so far as the legislature feels bound by it. In a democracy this means that it will not prevail unless it forms part of the moral tradition of the community, acommon ideal shared and unquestionably accepted by themajority’.120



110 See, for example, r 4.2 of the Land and Environment Court Rules 2007.111 See, eg, George W Pring and Penelope Canan SLAPPs: Getting Sued for

Speaking Out (Temple University Press 1996); George W Pring,‘’SLAPPs’: Strategic Lawsuits Against Public Participation’ (1989) 7 PaceEnvtl L Rev 1; Judith Preston ‘Participation from the deep freeze: “chill-ing” by SLAPP suits’ (2014) 31 Environmental and Planning Law Journal47.

112 For example, the Land and Environment Court of NSW has a CourtUsers Group to maintain communication with, and feedback from,court users as to the practice and procedure, administration and per-formance of the court.

113 Spigelman (n 8) 54.114 Raz (n 9) 218.

115 (1991) 73 LGRA 126.116 Fuller (n 6) 81.117 Spigelman (n 8) 54.118 ibid.119 Margaret Levi and Brad Epperly ‘Principled Principals in the Founding

Moments of the Rule of Law’ in James J Heckman, Robert L Nelson andLee Cabatingan (eds) Global Perspectives on the Rule of Law (Routledge2010) 192.

120 Hayek (n 20) 206.




Formal legality and democracy

The third and last formal version of the rule of law addsdemocracy to formal legality. Like formal legality, democ-racy does not say anything about what must be the con-tent of law. Rather, it is a decision procedure that specifieshow to determine the content of law.121

One of the fundamental ideals of Western politicalthought is the notion of political liberty: that freedom is tolive under laws of one’s own making.122 Political liberty,therefore, provides the justification for adding democracyto formal legality. Tamanaha explains this justification:

According to philosopher Jurgen Habermas, who has pro-vided the most sophisticated account of the link betweenformal legality and democracy, ‘the modern legal order candraw its legitimacy only from the idea of self-determina-tion: citizens should always be able to understand them-selves also as authors of the law to which they are subjectas addressees.’ Law obtains its authority from the consentof the governed. Judges, government officials, and citizensmust follow and apply the law as enacted by the people(through their representatives). Under this reasoning,formal legality, especially its requirements of certainty andequality of application, takes its authority from and servesdemocracy. Without formal legality democracy can be

circumvented (because government officials can undercutthe law); without democracy formal legality loses itslegitimacy (because the content of the law has not beendetermined by legitimate means).123

Conclusion

The paper has sought to unpack what is involved in achiev-ing the goals of promoting the rule of law and ensuringequal access to justice for all in environmental matters. The institutional structure of the court system and of indi-vidual courts and tribunals in that system; the substantiveand procedural laws that create rights of access to thecourts; the practice and procedure of the courts; theadministration of the courts and management of the case-load; and the decisions and orders of the courts will allinfluence the extent to which courts achieve these goals.The legislature, executive and judiciary need to evaluateand improve these institutional and system features to better promote the rule of law and access to justice inenvironmental matters. ECTs should, in the pursuit of courtexcellence, evaluate and improve their court admini-stration, case management, practice and procedure anddecisions and orders to do their part in promoting the ruleof law and access to justice.

121 Tamanaha (n 2) 99.122 ibid. 123 ibid.


Introduction

This paper traces and evaluates how, by an Act of theIndian Parliament, a symbiotic relationship has been created between legal and scientific experts operating asjoint decision-makers and adjudicators of environmentalconflicts within the context of the National Green Tribunal(NGT) India. The robust application of environmental principles, particularly a ‘strong precautionary principle’, has promoted a response that tackles serious threats tohuman health or to the environment. The NGT decisions,through expansive rationale and innovative judgments,extend beyond the ‘courtroom door’, thereby resulting inexternal social and economic consequences.

The involvement of experts and expert knowledge inpolicy and decision-making commands a place in academicdiscourse.1 The importance of experts is recognisedbecause:

[e]xperts define the regime of truth; they tell us what theworld looks like, identify and quantify relevant variables,provide statistical measurements and risk analyses, andsolve the equations that indicate the path towards in-creasing the aggregate level of well-being … [experts]define the system.2

Consequently, scientific expertise may provide appropriatesolutions to technical or complicated environmental prob-lems. Nevertheless, the relationship between science andpolitics is problematic and subject to widespread debate.3

This paper does not address the challenging issues withinthe sociology of knowledge that include the multiple rolesof the expert vis-à-vis policy creation and its promotion;the relationship of science and policy has generated a body

of lively and disparate opinion and literature that is beyondthe scope of this paper. Nor does the paper consider therelationship or functionality of expert witnesses introducedto the courtroom to promote the cases of litigants. Theauthor accepts that there may be several alternative orcompeting scientifically-based solutions to a problem,rather than a solitary solution: ‘the solution’. These solutionsmay be advanced to the court by retained expert wit-nesses or scientifically-based evidence may be generatedwithin the court by in-house scientific experts. This paperconsiders the NGT’s efforts to reach decisions by central-ising scientific experts, as full court members, within thedecision-making process, thereby promoting a collective,symbiotic, interdisciplinary bench that seeks to harmoniselegal norms with scientific knowledge

The National Green Tribunal: jurisdiction and powers

The NGT India is a creation of a statute; its jurisdiction,powers and procedures are construed and applied accord-ing to the language of the National Green Tribunal Act2010 (‘the NGT Act’). The NGT is empowered to decidecases relating to environmental protection and the conser-vation of forests and other natural resources (including the enforcement of any legal right relating to the environ-ment) and to give relief and compensation for damages topersons and property. The NGT has wide original, appellateand special jurisdiction in relation to environmental mat-ters. The original jurisdiction4 is exercised in civil cases inrelation to a substantial question relating to the environ-ment.5 This includes the enforcement of any legal rightrelating to the environment and such questions that ariseout of the implementation of the enactments specified inSchedule I to the Act.6 The subject matter of an originalapplication should therefore be a civil case and relate to asubstantial question concerning the environment. Theappellate jurisdiction is controlled under section 16 of theNGT Act. The Tribunal is the appellate authority competent

82 (2017) 29 ELM : NATIONAL GREEN TRIBUNAL, INDIA : GILL


1 Buchanan, A and Keohane, R O (2003) ‘The legitimacy of global gover-nance institutions’ 20(4) Ethics and International Affairs 405–438; Steffek,J (2003) ‘The legitimation of international environmental governance’9(2) European Journal of International Relations 249–276; Kronsell, A andBackstrand, K (2010) ‘Rationalities and forms of governance: a frame-work for analysing the legitimacy of new modes of governance’ in K Backstrand, J Khan, A Kronsell and E Lovbrand (eds) EnvironmentalPolitics and Deliberative Democracy (Edward Elgar) 28–43; Jasanoff, S(2011) ‘Quality control and peer review in advisory science’ in J Lentschand P Weingart (eds) The Politics of Scientific Advice (CUP) 19–35.

2 Lawrence, J (2014) ‘The structural logic of expert participation in WTOdecision-making processes’ in M Ambrus, K Arts, E Hey and H Raulus(eds) The Role of ‘Experts’ in International and European Decision-MakingProcesses (CUP) 173–193, 186.

3 Limoges, C (1993) ‘Expert knowledge and decision-making in contro-versy contexts’ 2(4) Public Understanding in Science 417–426; Oreskes, Nand Conway, E (2010) Merchants of Doubt: How a Handful of ScientistsObscured the Truth on Issues from Tobacco Smoke to Global Warming(Bloomsbury); Sprujit, P, Knol, AB, Vasileiadou, E, Devilee, J, Lebret, E andPetersen, AC (2014) ‘Roles of scientists as policy advisers on complexissues: a literature review’ 40 Environmental Science and Policy 16–25.

4 National Green Tribunal Act 2010 (India) (‘NGT Act’) s 14.5 NGT Act s 2(m) classifies ‘substantial question relating to environment’

under two heads: first, where there is a direct violation of a statutoryduty or environmental obligation which is likely to affect the com-munity; and, second, where the environmental consequences relate to aspecific activity or a point of source.

6 The enactments in NGT Act Sch 1 include the Water (Prevention andControl of Pollution) Act 1974; the Water (Prevention and Control ofPollution) Cess Act 1977; the Forests (Conservation) Act 1980; the Air(Prevention and Control of Pollution) Act 1981; the Environment(Protection) Act 1986; the Public Liability Insurance Act 1981; and theBiological Diversity Act 2002.

The National Green Tribunal, India: decision-making, scientific expertise and uncertaintyDr Gitanjali Nain Gill Professor in Law, Northumbria Law School, Northumbria University, UK

2-Gill_ELM Article template 03/10/2017 14:04 Page 82

to decide questions of law and fact against orders and deci-sions passed by authorities under the enactments specifiedin Schedule I. The power is of a wide and overriding natureand may be exercised ex debito justitiae (that is, in the interests of justice). An aggrieved person has the right to approach the Tribunal under its original or appellatejurisdiction, and it is important to note that the ‘aggrievedperson’ in environmental matters has been given a liberaland flexible interpretation. In environmental matters, thedamage is not necessarily confined to the local area, as the effects of environmental degradation might have far-reaching consequences going beyond the immediate local-ity. Therefore, an aggrieved person need not be a residentof the local area: any person – whether a resident of thatarea or not and whether personally, directly or otherwiseaggrieved – may approach the Tribunal.7 Section 15 of theNGT Act provides the Tribunal with special jurisdiction toorder relief and compensation to victims of pollution andother environmental damage arising under the enactmentsspecified in Schedule I, for restitution of damaged propertyand for restitution of the environment in such areas as the Tribunal may think fit. Thus, the dimensions and areas in which the NGT may exercise jurisdiction are broadlybased.

The National Green Tribunal and scientific expertise

Epistemic community

A unique feature of the NGT’s adjudicative process in-volves judges working alongside scientific experts withenvironmental knowledge as joint decision-makers of equalstanding. The benefit of this multi-faceted, multi-skilled body produces a coherent and effective institutional mech-anism to apply complex laws and principles in a uniformand consistent manner while simultaneously reshaping theapproach to solve the environmental problem at its sourcerather than being limited to predetermined remedies.8

The combination of legal, scientific and technical expertisehas a dynamic impact on the content and development ofenvironmental policies and law.

Experts are ‘central’, not ‘marginal’, to the NGT’s norma-tive structure. For the current purpose, the terms ‘expert’and ‘expertise’ do not include judicial members, but refer to the technical members exercising specialised scientificknowledge, including environmental sciences, environmen-tal studies, environmental engineering, technology, ecology,forestry, plant sciences, soil sciences, zoology and relatedcategories. Experienced scientists, practising ecologists andnatural resource managers are considered experts.9 Thus,

scientific expertise and its input into decision-making arevital to the character, decisions and working practices ofthe NGT.

A scientific consensus that applies regulations and promotes scientific input focusing upon environmental sustainability and human welfare creates the ‘epistemiccommunity’. The ‘community’ is comprised of neutral scien-tific experts as active contributors within a decision-makinglegal forum: the NGT. The engagement of the NGT’s scientific experts in the decision-making process is akin to Peter Haas’s10 theoretical concept of ‘epistemic com-munities’ operating within an environmental regime. PeterHaas describes distinctive features of ‘epistemic communi-ties’ as:

[n]etworks … often transnational – of knowledge-basedexperts with an authoritative claim to policy relevantknowledge within their domain of expertise. Theirmembers share knowledge about the causation of …phenomena … and a common set of normative beliefsabout what actions will benefit human welfare in such adomain. Members are experts with professional trainingwho enjoy social authority based on their reputation forimpartial expertise.11

The ‘epistemic qualities’ of the NGT experts, as competentindividuals recognised as national and international expertsin different environmental areas, promote independencefrom any party line, organisational bias or corporate asso-ciation. The NGT benches include scientists with expertisein environmental sciences, environmental engineering, envi-ronmental governance, environmental safeguards, industrialand urban environmental management, urban environmen-tal pollution, environmental law and policy, and forestry. Thestatus of NGT experts as ‘nationally and internationallyrecognised specialists’ can be judged by external indicators,including previous appointments to high-level committees,representing India in environmental issues, drafting andnegotiating multilateral environmental agreements, peer-reviewed publications and recognition through profes-sional awards.12 The NGT constitutes an interdisciplinarydecision-making body with the expert members workingalongside legally qualified judges.

Use of scientific expertise

The NGT experts apply a scientific problem-solving ap-proach to the decision-making process that subsequentlyfilters through to improve environmental management.13

The use of scientific expertise manifests in three ways.

NATIONAL GREEN TRIBUNAL, INDIA : GILL : (2017) 29 ELM 83


7 Amit Maru v MoEF Judgment 1 October 2014; Goa Foundation v Union ofIndia Judgment 18 July 2013; Vimal Bhai v Ministry of Environment andForests Judgment 14 December 2011; and Betty C Alvares v State of GoaJudgment 14 February 2014.

8 Gill, GN (2016) ‘Environmental justice in India: the National GreenTribunal and expert members’ 5(1) Transnational Environmental Law175–205.

9 Drescher, M, Perera, AH, Johnson, CJ, Buse, LJ, Drew, CA and Burgman,MA (2013) ‘Towards rigorous use of expert knowledge in ecologicalresearch’ 4(7) ECOSPHERE 1–26.

10 Haas, PM (2014) ‘Ideas, experts and governance’ in M Ambrus, K Arts, E Hey and H Raulus (eds) The Role of ‘Experts’ in International andEuropean Decision-Making Processes (CUP) 19–43; Haas, PM (2007)‘Epistemic communities’ in D Bodansky, J Brunee and E Hey (eds), OxfordHandbook of International Environmental Law (OUP) 791–806.

11 Haas, PM (2016) Epistemic Communities, Constructivism, and InternationalEnvironmental Policy (Routledge) para 2.1.

12 www. greentribunal.gov.in.13 Gill, GN (2017) Environmental Justice in India: The National Green Tribunal

(Routledge, UK).


Compliance assessment within statutory environmental parameters

This includes cases where procedural technicalities havebeen ignored, short-circuited or mis-stated to circumventthe law for extra-legal economic benefit. The NGT scien-tific experts play a crucial role in the application of cumu-lative environmental impact assessments (CEIAs) to strikethe balance between developmental interest and environ-mental protection. The ability to incorporate cumulativeeffects analysis into the development of alternatives for anEIA can minimise negative cumulative effects, promoteresource sustainability and make room for future develop-ment. In India, there have been serious failures regardingCEIA studies, rendering this crucial process meaningless.This resulted in the violation of the September 2006 EIANotification, wherein Form 1 asks for a CEIA. On occa-sions, the Ministry of Environment and Forests (MoEF)Environmental Appraisal Committee has taken a ‘casualapproach’ and granted EC for projects without performingdue diligence.14 For example, in Prafulla Samantray v Unionof India15 (the POSCO case), the issue before the NGTwas opposition to the proposed POSCO project, involvingthe construction of an integrated steel plant with a serviceseaport at Paradip in the Jagatsinhpur district of the stateof Orissa. The government of Orissa agreed to facilitate theproject and assist the POSCO multinational steel company,based in South Korea, to obtain a no objection certificateand environmental clearance in the minimum time. ThePOSCO port was to be located at the mouth of an estuary, one of the most dynamic and fragile coastal eco-systems in the state. The construction of the proposedplant and port threatened the area’s unique biodiversityand anticipated the dislocation and displacement of thelong-standing forest-dwelling communities. The NGT allow-ed the matter in favour of the petitioners and observed:

We have kept in mind the need for industrial develop-ment, employment opportunities created by such projectsthat involve huge foreign investment, that any develop-ment should be within the parameters of environmentaland ecological concerns and satisfying the principles ofsustainable development and precautionary measures. Anexamination of the entire scheme revealed that a projectof this magnitude particularly in partnership with a foreigncountry has been dealt with casually, without there beingany comprehensive scientific data regarding the possibleenvironmental impacts. No meticulous scientific study was made on every aspect of the matter leaving lingeringand threatening environmental and ecological doubtsunanswered.16

Accordingly, the NGT suspended the approval granted toPOSCO and directed the MoEF to conduct a fresh review.Factors were to include the siting of the project, presentpollution levels, impact on surrounding wetlands and man-groves and their biodiversity, risk assessment with respect

to the proposed port project, impact of source of waterrequirements under competing scenarios, and evaluation ofthe zero-discharge proposal. The Tribunal required a com-prehensive and integrated EIA based on at least one fullyear of baseline data, especially considering the magnitudeof the project and its likely impact on various environmen-tal attributes in the ecologically sensitive area. The initialclearance was set aside as ‘arbitrary and illegal’ and ‘vitiatedin the eyes of law’.17

Policy creation

This innovative NGT development moves traditional, singleissue, legal dispute ‘adjudication’ between disputing partiesbeyond the ‘courtroom door’ in its implicit and sometimesexplicit creation of scientifically justified policy that seeks toensure minimal damage to the environment and protectsociety’s wider interests. The scientific experts apply con-structive interpretation to expand the scope of rules andregulations if the activity is injurious to public health andenvironment. Such an interpretation serves the publicinterest in contrast to the private or individual interest. Forexample, in Asim Sarode v Maharashtra Pollution ControlBoard,18 the NGT identified the absence of notified stan-dards for used tyre disposal. Open tyre burning is toxic andmutagenic and emissions include pollutants such as particu-lates, carbon monoxide, sulphur oxides, oxides of nitrogenand volatile organic compounds. Depending on the lengthand degree of exposure, the adverse health impacts includeirritation of the skin, eyes, and mucous membranes, respira-tory effects, central nervous system depression, and cancer.Stock-piled used tyres can also be a health hazard as theybecome breeding grounds for diseases and can even catchfire. Accordingly, the NGT directed the regulatory agenciesto urgently develop regulations dealing systematically withthe issue based on the ‘life cycle approach’, considering the pollution potential, data on tyre generation, technologyoptions, techno-economic viability and the social implica-tions based on the principles of sustainable developmentand the precautionary principle.

Again, in Haat Supreme Wastech Limited v State ofHaryana,19 the NGT expanded the scope of rules relatingto bio-medical waste treatment plants. The Bio-MedicalWaste (Management and Handling) Rules 1998 are silentabout whether the establishment and operation of a treat-ment plant requires environmental clearance. Bio-medicalwaste by its very nature is hazardous. A medical wasteincinerator may release into the air a wide variety of pollu-tants including dioxins, furans, metals (including lead, mer-cury, cadmium), particulate matter, acid gases, etc. Thesehave serious adverse consequences for safety, public healthand the environment. The Tribunal directed that it is manda-tory to obtain environmental clearance for the treatmentplants. This requirement, when properly carried out, wouldhelp to ensure an appropriate analysis of the suitability of



14 T Muruganandan v MoEF Judgment 11 November 2014; Samata v Unionof India Judgment 13 December 2013.

15 Judgment 30 March 2012.16 Prafulla Samantray v Union of India, ibid para 7.

17 Prafulla Samantray v Union of India, ibid para 6.9; also see Krishi VigyanArogya Sanstha v MoEF Judgment 20 September 2011.

18 Judgment 6 September 2014.19 Judgment 28 November 2013.


the location and its surroundings, the impact on publichealth, and a more stringent observation of parametersand standards by the project proponent.

Evolving challenges

India’s response to the cross-sectoral nature of complexenvironment issues, incorporating economic developmentpolicies, is an ongoing challenge. Unsustainable use of natural resources not only undermines the resilience ofecosystems, it also has both direct and indirect implicationsfor health and living standards. Pre-planning for environ-mental issues through policy interventions and financialcommitments at the project-planning stage of develop-ment projects is an important way to minimise adverseenvironmental impacts. In Narmada Khand Swabhiman Sewav Madhya Pradesh,20 the experts suggested the introductionof policy change to integrate aspects of biodiversity pro-tection and commercial activities in the Biosphere Reserves(BRs), critically assessing sustainability, accompanied by a setof related quantitative, qualitative or descriptive attributesby preparing a landscape plan based on the principle ofprecaution and sustainable development. ‘Biospherereserve’ is a UNESCO international designation for repre-sentative parts of natural and cultural landscapes extendingover large areas of terrestrial or coastal/marine ecosystemsor a combination thereof. BRs are not declared or notifiedunder any Ministry of Environment and Forest law and thusno legal issues are involved. In this case, an application wasled by a social-activist organisation against mining activitiesin the sensitive Achanakmar-Amarkantak BR. The organi-sation contended that mining would cause irreparabledamage to the ecology, flora and fauna, besides pollutingthe river Narmada that originates there. The NGT ob-served that mining and other related industries negativelyimpact, directly and indirectly, on biodiversity and commu-nities, though they can make a significant contribution tosustainable development when environmental, social andcorporate governance issues are effectively managed.Preparation of a detailed landscape plan was required, followed by a detailed EIA study to ensure ecologicalintegrity is maintained.

The NGT’s scientific experts and the use of their knowl-edge within a judicially controlled forum offers an intern-alised, accountability-focused approach, whereby a diverseset of actors, such as governmental and local authorities,companies and multinational corporations, are restrainedfrom compromising human welfare and the ecology.

Scientific expertise and uncertainty

The NGT experts are mandated to participate in the passing of orders, decisions and awards in conformity withsustainable development, and the precautionary and pol-luter pays principles.21 The three principles underpin India’senvironmental jurisprudence, yet each recognised principlecarries with it the possibility of challenges and differing

interpretation. In terms of implementation, the precaution-ary principle is preferred over the polluter pays principle.The polluter pays principle is difficult and complex, mainlydue to the problem of identification of the polluters andapportioning their responsibilities. Further, the monetarycompensation may not fully make up for ecological loss orloss of resources such as ground water, top soil, biodiver-sity and, therefore, in reality to some degree the polluternever pays the real cost of the pollution, even if some resti-tution or compensation is possible.22

Since its initial formulation, the concept of precautionhas faced the challenge of establishing a consensual inter-pretation of core meaning and the means for predict-able and effective implementation.23 Principle 15 of the RioDeclaration and the Wingspread Statement24 are usuallyconsidered as standard examples of the principle but withsome differences. For instance, Principle 15 provides foraction to regulate risks of serious and irreversible damageunder conditions of scientific uncertainty (weak versioncharacterised by high epistemic threshold of evidence andpreference to risk management), whereas the WingspreadStatement extends the scope of the principle to threats ofharm to human health or the environment, and removesthe qualifier of severity of harm being considered (strongversion with low epistemic threshold of evidence and tendtowards risk prevention).25 Another difference is about thelegal status of the principle: the Rio Declaration employs‘precautionary approach’ whereas the Wingspread State-ment mentions ‘precautionary principle’.26 Though the precautionary principle’s international legal status is anopen question, at the domestic level national and culturaldifferences influence its meaning, interpretation and usage.Factors like ‘attitudes to risk management, the role of science and scientists in decision-making processes, open-ness of decision-making processes, nation’s economyincluding level of “development” and nature of “naturalenvironment” affect the application of the precautionaryprinciple’.27



20 Judgment 1 October 2014.21 NGT Act, s 20; M.P. Patil v Union of India Judgment 13 March 2014.

22 See Gill (n 13).23 Bodansky, D ‘Scientific uncertainty and the precautionary principle’ 33(7)

Environment 4–44; Dovers, Stephen R and Handmer, John W (1999)‘Ignorance, sustainability, and the precautionary principle: towards an analytical framework’ in R Harding and E Fisher (eds) Perspectives on thePrecautionary Principle (Federation Press); Fisher, E (2002) ‘Precaution,precaution everywhere: developing a “common understanding” of theprecautionary principle in the European Community’ 9(1) MaastrichtJournal of European and Comparative Law 7.

24 http://sehn.org/wingspread-conference-on-the-precautionary-principle/.25 Garnett, K and Parsons, DJ (2016) ‘Multi-case review of the application

of precautionary principle in European Union law and case law’ RiskAnalysis 1-15; Sandin P (1999) ‘Dimensions of the precautionary prin-ciple’ Human and Ecological Risk Assessment. An International Journal5(5) 889–907; EC Communication from the Commission on thePrecautionary Principle (2000) Brussels: Commission of the EuropeanCommunities; SEHN (1998), Wingspread Consensus Statement on thePrecautionary Principle; Sachs, N (2011) ‘Rescuing the strong precau-tionary principle from its critics’ University of Illinois Law Review1285–1338.

26 Ahteensuu, M (2007) ‘Rationale for taking precautions: normative choices and commitments in the implementation of the precautionaryprinciple’. Risk & Rationalities (Conference Proceedings), Queens’College, Cambridge, UK.

27 Harding, R and Fisher, E (eds) (1999) Perspectives on the PrecautionaryPrinciple (Federation Press) page 14.


In the Indian context, the principle involves three condi-tions:28

(1) State government and statutory authorities must anti-cipate, prevent and attack the causes of environmentaldegradation;

(2) Where there are threats of serious and irreversibledamage, lack of scientific certainty should not be usedas a reason for postponing measures to prevent envi-ronmental degradation;

(3) The ‘onus of proof ’ is on the actor or developer/indus-trialist to show the actions are environmentally benign.

The precautionary principle acts as an environmental safeguard to achieve sustainable development. The NGTdeclared the precautionary principle an integral part ofnational environmental law:

The applicability of [the] precautionary principle is a statu-tory command to the Tribunal while deciding or settlingdisputes arising out of the substantial questions relating toenvironment. Thus, any violation or even an apprehendedviolation of this principle would be actionable by any per-son before the Tribunal. Inaction in the facts and circum-stances of a given case could itself be a violation of theprecautionary principle, and therefore bring it within the ambit of jurisdiction of the Tribunal, as defined underthe NGT Act.29

Within the NGT, the precautionary principle is regarded asa determinative norm that allows the experts and judgesto examine the probability of environmental degradationand resulting harm that may occur from a proposal. Theapplication of the precautionary principle in the NGTinvolves well-crafted scientific knowledge supporting pre-vention and prohibition of harm, and a commitment todealing with risks. For the expert members, the applicationof the precautionary principle in decision-making is basedupon the following processes and principles:30

(1) Precautionary measures should not be based on spec-ulative, hypothetical or educated guesses or academicconsiderations;

(2) A ‘strong’ version of the principle is evident in the NGTdecisions. To activate precautions, actions are based onscientific information and analysis of possible risks tohuman health and environment, albeit tentative, incon-clusive or in dispute;

(3) The tentative, inconclusive or disputed scientific infor-mation creates uncertainty in relation to gaps in dataand/or poor data, ignorance, faulty models, scientificinconsistency and disagreement on the nature of risk;

(4) Lower epistemic threshold of evidence is required forthe application of the principle, though one finds differ-ent standards of proof and informal scientific levels ofcertainty;

(5) The availability of merits review to the NGT promotesjudicial application of the principle. As a merits court,the NGT becomes the primary decision-maker andcan undertake in-depth scrutiny which involves notonly law, but also the technical evaluation underpinninga decision;

(6) Adoption of a variety of procedures, including in-vestigative and stakeholder consultation processeshelps in the application of the principle. The on-spotsite inspection by the expert members helps to com-pare and contrast contradictory claims, positions andreports filed by the parties. The stakeholder consulta-tive process is applicable to cases of wider ramificationinvolving major issues like river cleaning or air pollution;

(7) The strong application of the principle leads to differ-ent directions/regulatory actions including prohibition,restriction, warning requirements, phase out or extrascientific information; and

(8) More importantly, depending on experts’ epistemicqualities and input, the degree of precaution reflects a proactive approach to improve environmental man-agement through policy prescription and creation.

The principle in India mandates well-judged usage in favourof observing, preventing and mitigating potential threats.Indeed, modern risk factors become more complex, far-reaching and adversely affect public health and environ-ment. It is employed as a tool within Indian environmentaljurisprudence for making better health and environmentaldecisions.

The influential role of the precautionary principle isbased upon the crucial link between life and a healthy envi-ronment as enshrined in Article 21 of the Constitution ofIndia31 and its subsequent recognition in the preamble ofthe NGT Act. A proper and healthy environment enablespeople to enjoy a quality life that is a consequence of theright guaranteed under Article 21.32 Having regard to theright to life under Article 21, the most vital necessities,namely air, water and soil, cannot be misused or polluted toreduce the quality of life of others. Risk of harm to the envi-ronment or to human health is decided in the public inter-est. This principle is thus invoked and followed by expertand judicial members as a normative commitment. It there-by directs them to offer scientifically based structural solu-tions and policies that respond creatively to weak, ineffec-tive regulation and even in the absence of regulation.



28 MC Mehta v Union of India (2004) 12 SCC 118; Research Foundation forScience v Union of India (2005) 13 SCC 186; Karnataka Industrial AreaDevelopment Board v C Kenchappa (2006) 6 SCC 371; AP Pollution ControlBoard I v Professor MV Nayadu (1999) 2 SCC 718; AP Pollution ControlBoard II v Prof MV Nayadu (2001) 2 SCC 62; TN Godavarman Thirumalpadv Union of India (2002) 10 SCC 606; Tirupur Dyeing Factory Association vNoyal River Ayacutdars Protection (2009) 9 SCC 737; MC Mehta v Unionof India (2009) 6 SCC 142; In re Delhi Transport Department (1998) 9SCC 250.

29 Goa Foundation v Union of India Judgment 18 July 2013 at para 42.30 See Gill (n 13) at 122–127.

31 Article 21 of the Constitution of India states: ‘no person shall bedeprived of his life or personal liberty except according to procedureestablished by law’. See Articles 48 A and 51A (g) Constitution of India;Virender Gaur v State of Haryana (1995) 2 SCC 577; MunicipalCorporation of Greater Mumbai v Kohinoor 34 CTNL Infrastructure (2014)4 SCC 538; In re Noise Pollution AIR 2005 SC 3136; Intellectual Forum,Tirupathi v State of AP (2006) 3 SCC 549.

32 Vardhman Kaushik v Union of India Judgment 10 November 2016; Courton its Own Motion v State of Himachal Pradesh Judgment 4 February2014; M/S Sterlite Industries Ltd v Tamil Nadu Pollution Control BoardJudgment 8 August 2013.




Conclusion

The engagement of the NGT’s scientific experts in thedecision-making process as ‘constructive science scholars’has contributed to the development of environmentaljurisprudence. That environmental jurisprudence not onlyencompasses legal doctrines but also science-based knowl-edge, resulting in the solution of domain-specific problems.The experts formulate policies and may assist regulatory

agencies to implement these policies, thereby exercisingboth a problem-solving and a policy-creation function. Thus,the jurisdiction and activities of the NGT through the exercise of a ‘strong’ precautionary principle, supported by the extensive reach of Article 21 of the Constitution ofIndia, result in a dynamic decision-making process whereinenvironment, health and public interest are given due consideration.


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Introduction

Since at least the 1990s there has been a global explosionin environmental law. It has blossomed in scope, content,reach, status and significance. An even more recent phe-nomenon is the creation and proliferation of specialist en-vironmental courts and tribunals (‘ECTs’). This reflects agrowing appreciation of the particular nature and characterof environmental disputes and the special challenges andopportunities they present to those seeking to achieve effi-cient, effective and beneficial dispute resolution. The casefor specialist ECTs is strong.1

The first challenge confronting any ECT is to ascertainits proper role and function. ECTs are not all alike. Thereare a myriad of models operating across a diverse range of legal, economic, environmental and social contexts. Theprimary determinant of the proper role and function of any ECT is the legislation or other authority by which it isconstituted and by which jurisdiction is conferred upon it.The particular context in which an ECT operates will alsobe influential.

This paper is directed at ECTs which are judicial orquasi-judicial bodies established in systems which, whilstpermitting judicial review of decisions of government agencies, otherwise respect the separation of powers andwhere the ECT’s role is not as regulator or formulator ofgovernment policy, but as a decision-maker in litigation, typically of an administrative character, including by way ofmerits review.

There is a developing consensus surrounding ‘best practices’ for ECTs. The work of Professor George (‘Rock’)Pring and his wife Catherine (‘Kitty’) Pring has been influ-ential in that regard. The very first of the ‘best practices’ is,of course, independence. As the Prings observe in theirmost recent work:2

ECT independence from political intervention or pressuresin decision-making is critically important to assure the ruleof law. Independent decision-making insulated fromgovernment and other outside pressures also generatespublic credibility, confidence and greater willingness tobring cases to the forum …

Environmental litigation does not occur in a vacuum, buttypically arises in the context of a dynamic controversywhere someone wants to do, stop or change something.

That ‘something’ often involves existing or proposed devel-opment which poses a range of potential economic, en-vironmental and social consequences. Such disputes areprone to excite diverse and divergent interests, includingmonetary, political, governmental and public interest, toname but a few. Perhaps the most important role and func-tion that independent ECTs provide is that they ensurethat disputes concerning the environment can be broughtto a forum which is clean from the taint of possible corrup-tion, undue influence or other extraneous considerations.

The subject matter of this paper relates to how an independent ECT of the kind described, once established,should approach its task. The focus is not on matters ofpractice and procedure, but rather upon the ethos orphilosophical perspective taken by the particular ECT. Inthat context, it is important to bear in mind the purposefor which independent ECTs are set up, namely to insulatethem from external influences so as to enable them tomake decisions, according to law, without fear, favour oraffection.

Impartiality and objectivity

The first thing which is expected of any independent courtor tribunal is impartiality. Impartiality can have two aspects.First is impartiality to a dispute. Every litigant, whether in an environmental dispute or a civil or other dispute ex-pects impartiality of that kind. The second aspect concernswhether the ECT demonstrates and is perceived todemonstrate impartial objectivity, or whether it con-sciously or unconsciously pursues a biased ‘agenda’. It is the second of those aspects with which this paper is concerned.

The diversity of competing interest in this field meansthat ECTs can be pulled in different directions. Some wantECTs to be de facto statutory regulators or governmentagencies, whilst others look to ECTs for protection againstthe excesses of such bodies. Some want ECTs to be envi-ronmental advocates and activists, in light of the impor-tance of environmental protection and the broader signi-ficance beyond the parties of environmental litigation –others would wish an ECT to cut through so-called ‘green tape’, whilst others look to ECTs to provide a moreneutral forum.

The growth of ECTs across the globe is occurring at atime of ever-increasing emphasis on, and debate about,development and environmental issues. If ECTs are part ofa response to such issues, then to what extent should theirjudges or members seek to exercise their jurisdiction in away which actively seeks to be an agent for change forwhat they perceive to be the good of society, rather than

1 George Pring and Catherine Pring Greening Justice: Creating and ImprovingEnvironmental Courts and Tribunals (World Resources Institute 2009);George Pring and Catherine Pring Environmental Courts and Tribunals: A Guide for Policy Makers (UNEP 2016).

2 Environmental Courts and Tribunals, Note 1 above, at 45.

How green is my ECT? The challenge of impartialobjectivityMichael Rackemann DCJ Judge of the Planning and Environmental Court and District Court of Queensland

3-Rackemann_ELM Article template 03/10/2017 14:08 Page 88

simply doing justice according to law? In short, should ECTsengage in ‘cause judging’.

The concept of ‘cause judging’ is related to the conceptof ‘cause lawyering’. Traditionally, a lawyer’s role involves theapplication of their professional skill and expertise, on acase-by-case basis, in order to give objective advice to theirclients in relation to the client’s case and, should it becomenecessary, to litigate the client’s case to the best of thelawyer’s ability, subject to the overriding obligation to thecourt. The lawyer’s personal opinions or moral judgmentsare irrelevant. Cause lawyers, on the other hand, make theirvalues regarding what is morally good and just the goal oftheir advocacy, rather than allowing the goals of the latterto be dictated by interests of their client.3 Their primaryloyalty is neither to their client nor the legal process, butrather to their cause. The client’s case is a vehicle throughwhich the cause lawyer uses his or her legal skills to pursueideals that transcend the client’s service.

Cause judging is a logical extension of cause lawyering.Judges who engage in cause judging often have a vision ofwhat they regard as positive transformation and feel a deepmoral responsibility to take advantage of any opportunitypresented to them as a judge, to promote their cause. Indoing so, they do not necessarily see themselves as over-reaching activists, as opposed to reformists taking advan-tage of legitimate opportunities to develop the law.4

The temptation to engage in cause judging can be quite strong for an ECT. The members of such courts andtribunals often have a genuine interest in, and passion for,environmental law, an understanding of the gravity of theissues at hand and a natural desire to be a force for good.Further, the scope for cause judging in environmental jurisdictions is substantial. The issues are often of a kindwhich excite interest, including from those who passion-ately believe that their point of view is not only correct, but also for the public good. It is a field in which courts andtribunals, although guided by statutory documents, retain adegree of discretion, particularly in merits review. This pro-vides scope for those who would wish for any discretion tobe exercised in a way which furthers the cause which isclose to their hearts.

Cautions from the High Court

It should be noted, that environmental lawyers are notunique in believing in the importance of their particulararea of concern nor are ECTs the only specialist courts andtribunals which need to guard against overenthusiasm. TheHigh Court of Australia, Australia’s highest court, cautionedagainst the overenthusiasm of specialist courts and tri-bunals generally in Kirk v Industrial Relations Commission ofNew South Wales.5 Those risks, it was said, include:

n becoming overenthusiastic about vindicating the pur-poses for which the specialist court or tribunal was set

up and exulting that purpose above all other consider-ations;

n pursuing the purpose for which the court or tribunalwas set up in too absolute a way;

n becoming preoccupied;n developing distorted positions.

Another risk is that excessive zeal can lead to a temptationto disrespect jurisdictional limits and the separation ofpowers. India, for example, is a country noted for judicialactivism. In her recent book Environmental Justice in India:The National Green Tribunal, Dr Gill observes that theSupreme Court of India ‘moved from being exclusively anadjudicator to embracing the role of policy maker and,thereafter, superior administrator’.6 The National GreenTribunal, a relatively recently formed ECT in India, has followed in those footsteps. Dr Gill’s book recounts thatthe NGT, which has attracted controversy for its robustand activist approach, has controversially claimed (on thebasis of implication) a judicial review jurisdiction notexpressly conferred upon it.7 Further, it takes up matterson its own motion, in response to things such as news-paper reports.8 It also makes wide-ranging orders whichappear to intrude significantly on policy and other mattersmore conventionally the domain of executive government.It should be acknowledged that the NGT operates in itsown particular context and that the environmental chal-lenges which confront it in a populous emerging economyare far greater than typically confront ECTs in Australia andNew Zealand. Further, Dr Gill formed a positive view ofthe NGT in that context. One can nevertheless understandthe controversy which it has attracted.

More recently, the now former Chief Justice of the HighCourt cautioned against the dangers of ‘cause lawyering’.9

As French CJ observed, the practice of the law is to be pur-sued within the framework of the rule of law in a rep-resentative democracy. To honour the rule of law and towork within it means that we may have to accept, at leastpro tem, its limitations and imperfections. In litigation, theadvocate seeks justice not according to his or her own con-cepts or the clients’, but justice according to law. Criticaljudgment and legal skill is needed more than passion.Further, ‘serving their ethical political commitments throughtheir work constitutes cause lawyers as essentially politicalactors – albeit ones whose work involves doing the law’,which is susceptible to creating tensions with their profes-sional obligations.10 These difficulties and tensions are onlymagnified in the case of ‘cause judging’, because of thesworn duty of a judge to do equal justice according to lawwithout fear, favour or affection and the legitimate publicexpectation of a judge’s impartiality, in the broadest sense.

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3 See J Hansford ‘Cause judging’ (2014) 27 Georgetown Journal of LegalEthics 1.

4 ibid 19, 20.5 (2010) 239 CLR 531 per Heydon J at 589.

6 Gitanjali Nain Gill Environmental Justice in India: The National Green Tribunal(Routledge 2016) at 55.

7 ibid at 107.8 ibid at 106 to 107.9 Robert French ‘Lawyers, Causes and Passions’ [2015] 44 Bar News:

The Journal of the New South Wales Bar Association 44 (also available atwww.hcourt.gov.au/assets/publications/speeches/current…/frenchcj25June2015.pdf).

10 ibid at 47.


Passion

It would be wrong to suggest that ECT judges or tribunalmembers should be disinterested in the environment orother than passionate about environmental law. There is,however, a distinction between a genuine interest in, andpassion for environmental law and its proper application onthe one hand and unrestrained environmental advocacy orenvironmentalism on the other. Courts and tribunals aretraditionally concerned with the former rather than the latter.

Passion for the advancement of a particular cause can, ifindulged in the execution of a judicial office, be unhelpful.As even the supporters of ‘cause judging’ acknowledge,11

there is some difficulty with a judge being, and being seento be, impartial when they unashamedly look to use theiroffice as a vehicle to promote a cause being moral, social,political or, in this case, environmental, in nature.

Risks

Activist courts which indulge in cause judging have theirsupporters and are often, at least initially, cheered on bythose who believe that such courts or tribunals are fightingthe good fight. Such courts and tribunals, however, riskunderestimating the value of impartial objectivity, if not alsodisrespecting the rule of law and undermining public confi-dence in and the sustainability of the court or tribunal itself,to the potential ultimate detriment of the environment. Itmust be remembered that an ECT will only be effective, ona sustained basis, if it persists, is entrusted with sufficientjurisdiction, performs its proper function, and makes deci-sions which are respected and followed.

Whilst ECTs are typically of relatively recent origin,Australia and New Zealand have examples which are oflong standing by international standards. The Planning and Environment Court of Queensland, for example, hasremained constitutionally unaltered over its half-century oflife. It has not, however, escaped scrutiny or review.

The longstanding ECTs with which the author is familiarhave similarly been subject to regular review. That is notunexpected in a field which excites diverse and divergentinterest. The stability and longevity of a number of ECTs inAustralia and New Zealand owes much to the confidencewhich they have earned from the broad range of stake-holders representing those diverse and divergent interests.That confidence is underpinned by, most importantly,impartial objectivity. So, for example, the Planning andEnvironment Court of Queensland is not, and is not per-ceived to be, ‘pro’ or ‘anti’ development or ‘pro’ or ‘anti’green or ‘pro’ or ‘anti’ any sectional, political or other in-terest. It is respected as the independent, neutral andobjective decision-maker. It would be a matter of concernif the position were otherwise.

The importance of independent ECTs has already beennoted. The existence of an independent ECT with thepower to publicly scrutinise, alter or overturn the decisionof government agencies has a positive effect not just in

achieving justice between the parties, but also on the qual-ity and robustness of the application and decision-makingprocess more generally. Participants in an applicationassessment process do not have to tolerate or accept whatthey believe to be wrong, poor or even corrupt decision-making. Decision-makers, in turn, know that their decisionsare potentially subject to rigorous and transparent reviewby a court or tribunal that is above sectional or politicalinterest and that not only enjoys constitutional independ-ence, but demonstrates impartial objectivity. Further, prin-cipled decision-making provides guidance in relation to theproper approach to the formulation and assessment ofother applications. Fidelity to the role achieves much andshould not be underestimated. ‘Cause judging’ has thepotential to compromise, if not corrupt, the exercise ofthat function and to undermine public confidence in, andthe justification for, the court or tribunal and thereby toimperil its future.

Further, adventurous ECTs risk losing respect for theirdecisions. In her book, Dr Gill exemplifies and examinesone case where, in response to reported air quality con-cerns in Delhi, the NGT issued directions requiring gov-ernment authorities to adopt an action plan including,amongst other things, measures banning vehicles 15 yearsor older, banning diesel trucks from entering Delhi and banning footpath parking. It subsequently gave furtherdirections requiring, amongst other things, the introductionof a cap on the number of vehicles to be registered, theprovision of incentives for carpooling and the imposition of higher registration fees and charges, including the im-position of congestion charges. Perhaps unsurprisingly, DrGill reports that a number of the NGT’s directions werevariously stayed by the Supreme Court, only partiallyimplemented or not implemented at all.12

Whilst there are arguments in favour of ‘cause judging’and whilst the context within which ECTs operate inAustralia and New Zealand is different to the contextwhich may apply elsewhere, there is merit in the tradi-tional self-limiting judicial approach in which jurisdiction isexercised without fear, favour or affection to arrive at adetermination based on established principle in order todo justice according to law.

Interpreting and developing the law

None of the above is to ignore or deny the legitimate and,indeed, necessary role of judges in developing the law within appropriate bounds. As has been observed:13

The entrusting by the legislature to the judiciary ofresponsibility for developing the law within broadly statedguidelines is commonplace and has become more so overrecent decades. It reflects the complexity of our societyand the infinite variety of individual circumstances.

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11 ibid.

12 Gill, Note 6 above, at 92, Table 3-1.13 Chief Justice French ‘Judicial activism – the boundaries of the judicial role’.

Law Asia Conference Ho Chi Minh City 10 November 2009 (availableat www.hcourt.gov.au/assets/publications/…justices/frenchcj/frenchcj10Nov09.pdf).


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The environmental field is one in which judges or tribunalmembers are often charged with the exercise of a dis-cretion by reference to sometimes numerous, complex,lengthy and poorly drafted statutory instruments. Judgesand tribunal members will be faced with the task of making or developing the law with respect to the properconstruction of relevant statutory instruments, the range of relevant considerations otherwise, and the properapproach to the exercise of discretion by reference tothose considerations. The cause judge will see that as alegitimate opportunity to advance his or her cause. The traditional judge, on the other hand, will be guided by prin-ciple and by matters such as the express purpose of thestatute which provides for the exercise of discretion. In thisregard, former Chief Justice French has said:

… interpretation is legitimate when it is principled andinvokes criteria which, whether developed by courts ordecreed by statute or both, are broadly understood by thelegislature, the executive and the judiciary. And to thatextent they represent another example of a necessary,legitimate and generally accepted authority to the judgesto determine what the law is by determining what itmeans.

There can be a similar difference of approach when itcomes to developing the law in relation to the exercise ofa particular discretion. The cause judge will seize upon whathe or she regards as a legitimate opportunity to furthertheir cause in the formulation of principles to guide the discretion, whilst the traditional judge will be guided by aprincipled and objective analysis of the context in whichthe discretion falls to be considered.

There are circumstances in which each type of judgemight ultimately come to a similar position, because theparticular passion of the cause judge coincides with theproper application and development of the law on a prin-cipled basis. For example, both kinds of judge might, in theQueensland context, develop the law in relation to theexercise of a discretion in a way they consider optimisesthe pursuit of ecological sustainability, including by applica-tion of the precautionary principle. The traditional judge,however, will do so because that is consistent with the ex-press purpose of the governing legislation in Queensland.That approach is likely to lead to widespread acceptanceand respect because it can be demonstrated to be sup-portive of a principle enshrined in statute.

While there is a distinction between cause judging and the more traditional approach, there is, it should beacknowledged, some overlap of proverbial grey at the inter-face of the black and the white. Nevertheless, it is impor-tant to recognise the different philosophical starting points.

Striking the ecological sustainability balance

A further illustration of the difference in approach can beseen in the sometimes difficult task of considering the bal-ance inherent in ecological sustainability as it applies to aparticular proposal which comes before an ECT. Ecologicalsustainability involves a balance which integrates diverseconsiderations which may be summarised as relating to

ecological, economic and social wellbeing. A cause judgewho is ‘green’ might, when faced with striking a balance,routinely give priority to the ecological considerations,whilst an ‘anti-green’ or ‘pro-development’ cause judgemight routinely prioritise economic considerations. ThePlanning and Environment Court adopts a differentapproach.

The ecological, economic and social balance at the heartof ecological sustainability is rarely achieved entirely withinthe boundaries of a particular site, considered in isolation.It is a balance typically struck across a broader area (local,city-wide, regional, state, national, international or global). Its pursuit on a given plane of relevance may require, forexample, one parcel of land within a broader area to beintensively developed, for economic wellbeing, whilstanother is entirely preserved for ecological reasons. A usualfirst step in considering whether a particular proposal pro-motes or impedes ecological sustainability is an objectiveevaluation of the role which the site plays, or is intended toplay, in promoting ecological sustainability at a relevantlevel, or levels of influence. That involves both an examina-tion (including by reference to expert evidence) of the relevant values of the site and consequences of develop-ment or potential development, and a consideration of thestatutory instruments which, in the context of Queensland,provide strategic guidance in relation to how ecologicalsustainability is sought to be achieved at various levels. That process informs how the balance is to be struck in aparticular case. In some cases that involves giving greaterpriority to the ecological values of the site, while in othersit involves giving priority to economic opportunities. It mayinvolve a balance which integrates the diverse values andopportunities in a different way. The result is, however, the subject of an objective, principled and impartial ap-proach, rather than a pro or anti ‘green’ or pro or ‘anti-development’ bias at an institutional level.

Conclusion

The case for specialist and independent ECTs is strong, asis evidenced by the proliferation of such bodies. A primarydeterminant for the proper role and function of ECTs isthe legislative or other authority by which jurisdiction isconferred. The particular context within which the ECToperates will also be influential. Otherwise, however, ECTscan be pulled in different directions by diverse and diver-gent interests and it falls to the judges and members ofeach ECT to determine the proper approach to the exer-cise of jurisdiction. The allure of an activist or ‘cause judging’approach can be strong. Nevertheless, there are risks tosuch an approach and there is merit in the traditional self-limiting judicial approach of doing justice according to law,irrespective of the personal beliefs, values or passions ofthe decision-maker. ECTs which adopt a different approachrisk underestimating the value of the independent, impar-tial and objective decision-maker in the broader schemefor the appropriate protection of the environment, andundermining public confidence in and the sustainability ofthe institution itself, to the potential ultimate detriment ofthe environment.


Environmental courts and tribunals (ECTs) have dramatic-ally surged in growth since 2010. According to the UNEnvironment Programme, by 2016 44 nations had estab-lished over 1,200 of these specialised bodies, and another20 countries had begun work on creating ECTs. Employinginternational goals for the environmental rule of law in theUnited Nations’ Agenda for Sustainable Development as afoundational ethos, ECTs have been accepted by jurisdic-tions as an important tool to buttress sustainable develop-ment through fast, effective, inexpensive, and technicallysophisticated environmental adjudication. And given theirrising acceptance and deployment, ECTs will likely keepgrowing in importance and become increasingly visible andvaluable platforms to solve ecological disputes and pro-mote creative environmental legal thought.

This boom in ECTs highlights shortfalls in the ways that conventional judicial and administrative bodies handleenvironmental and land use claims. In particular, ECTs seekto cure the delay, expense, and daunting technical barriersto complex litigation by creating specialised fora with the expertise, resources, and mandates to effectively andspeedily resolve environmental and land use disputes atlower cost and with greater transparency. Beyond beingfaster, cheaper, and more sophisticated, however, many ofthe ECTs carry a broader goal: to expressly seek the pro-motion of sustainable development through their deci-sions, and to incorporate ecological considerations in theirjudicial analysis. By ‘greening’ judicial review (particularly in regard to disputes that involve climate change claims)these ECTs arguably could provide an important and newadditional ecological element to judicial analysis and court

decision-making. Some judges have embraced this mandateenthusiastically, and they have advocated the incorporationof ecologically-driven legal principles such as the precau-tionary principle or in dubio propria natura as rules for deci-sions in future cases under domestic laws.2

One way to explore whether the expanding use ofECTs has fundamentally changed the nature of judicialreview – for better or worse – is to focus on a key aspectof daily judicial craft: the interpretation of statutory text.This foundational task occupies the majority of judicialopinions in environmental disputes, and it lies at the heartof routine judicial operations. If ECTs parse environmentalstatutory text differently than a general jurisdiction courtbecause of their ecological mandate or substantive expert-ise, the degree of that variation – and the way that it affectsthe quality, acceptance, and legitimacy of judicial review byenvironmental specialist courts – merits much deeperscrutiny.

The rise of ECTs and their underlyingmandates

As described exhaustively by other scholars,3 ECTs havebecome a fast-growing and increasingly important branchof the judicial and tribunal systems of nations on a globalscale. By sheer number, scope, and docket size, ECTs arepoised to evolve into a driving force to create ground-setting precedents and develop legal theories that willshape future environmental case law on both a domesticand international level.

This article looks beyond that familiar story. In par-ticular, behind the impressive numbers about the growthand impact of ECTs, their legal foundations deserve sepa-rate scrutiny. Each ECT was created by the legislature orjudiciary with the specific intent that it would operate dif-ferently from traditional courts and tribunals in importantways. Beyond providing ECTs with resources, expertise,

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1 Tracy Hester is an Instructional Professor at the University of HoustonLaw Center. He is a member of the American College of EnvironmentalLawyers, an elected member of the American Law Institute, and servedseveral years on the governing Council of the American Bar Association’sSection on Environment, Energy & Resources. He previously ledBracewell LLP’s environmental section in its Houston office for 16 yearsprior to joining the University of Houston Law Center faculty. He hasreceived numerous professional honors, including designation as the topenvironmental lawyer in Houston for 2011 by Best Lawyers in America.His full biography is available at www.law.uh.edu/faculty/thester.

This research was supported in part by a summer research grant in2017 by the University of Houston Law Center. In addition, I receivedinvaluable feedback during presentations at the Vermont Law School’s2016 Environmental Law Colloquium, the Workshop on EnvironmentalAdjudication in the 21st Century hosted by the Environment Court ofNew Zealand in Auckland on 11 April 2017, and the 14th AnnualColloquium of the IUCN Academy of Environmental Law in Oslo in June2016. Many thanks as well to Judge Meredith Davis, Professor Joel Mintz,Professor Ceri Warnock, and many others for their invaluable assistanceand helpful comments on earlier drafts of this article. The EnvironmentalLaw Institute also hosted a working session that provided the initialnucleus of this article while I was ELI’s Visiting Scholar in 2015. Any mis-takes and errors, of course, are solely my own.

2 In particular, the International Union of Conservation Naturalists’ WorldEnvironment Law Congress recently helped establish the Global JudicialInstitute for the Environment. The Institute includes as members judgesand tribunal members from ECTs throughout the world, and it seeks to‘support the role of courts and tribunals in applying and enforcing envi-ronmental laws and in promoting the environmental rule of law and the fair distribution of environmental benefits and burdens’:https://www.iucn.org/sites/dev/files/content/documents/2016/elp_2016_judges_establish_the_global_judicial_institute_for_the_environment_1.pdf.

3 See, for example, G Pring and C Pring, United Nations EnvironmentProgramme, Environmental Courts and Tribunals: a guide for policy makers(2016); R. Percival ‘The “greening” of the global judiciary’. J Land Use &Envt’l L (2017, forthcoming) available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2923249.

Green statutory interpretation by environmentalcourts and tribunalsTracy D Hester1 University of Houston Law Center

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and increased flexibility to create procedural rules and handle their own dockets, the underlying organic statutesand orders for these bodies sometimes give them expressdirection to consider cases in ways that vary from tradi-tional judicial review. In addition, the structure of many ofthese courts and tribunals – which can include the place-ment of non-legal experts on the bench as co-equal partners in decision-making with judges or legal officers –reflects a desire to depart from the traditional craft inreviewing environmental claims.

To mark out how far the mandate of ECTs varies froma traditional court, this article will explore the statutory orjudicial mandates for three notable ECTs: India’s NationalGreen Tribunal, New Zealand’s Environment Court, andVermont’s Environmental Court. These three courts do noteven remotely cover the gamut of types of ECTs thatdeserve exploration, and this type of assessment can – andshould – be expanded in the future to include other lead-ing bodies in Australia, Kenya, Thailand, China, Chile, Hawai‘i,Switzerland, and many others.

The National Green Tribunal of India

The National Green Tribunal (NGT) is the primary forumin India to resolve claims that involve substantial damage tonatural resources or violations of environmental statutes.The NGT hears cases related to seven major environ-mental laws, and it does not have any criminal jurisdiction.The Tribunal, however, does have the same powers andprocedural devices as a civil court, which would include theability to impose sanctions for contempt, issue injunctions,summon parties and witnesses, and conduct discovery.Appeals from the NGT go directly to India’s SupremeCourt, and its members include benches evenly dividedbetween former Supreme Court justices or High Courtjustices and expert members with scientific or technicalexpertise.4

The federal Indian Parliament established the Tribunalwith the passage of the National Green Tribunal Act in2010. The NGT Act provides for the jurisdiction and powers of the Tribunal, but some of its provisions alsoshape the type and degree of judicial review by the Tribunalthat affect its approach to statutory interpretation. Afternoting that the NGT Act aims to carry out India’s commit-ments under various international treaties and public inter-national law principles, the statute specifies which cases theTribunal will hear and the avenues to appeal decisions fromthe Tribunal. After laying out these uncontroversial lines ofauthority, the NGT Act adds two new layers that compelthe Tribunal’s judges and experts to depart from tradi-tional statutory interpretive approaches that focus solelyon textual parsing and determinations of legislative intent.

First, section 20 of the NGT Act provides that:

[t]he Tribunal shall, while passing any order or decision oraward, apply the principles of sustainable development, theprecautionary principle and the polluter pays principle.

These principles, therefore, should apply to any action bythe Tribunal, including its analysis of statutory language. Tothe extent that a strictly textual assessment of languagewould lead to an interpretation at odds with these threeenvironmental principles, section 20 directs the Tribunal toselect instead an interpretation that would respect sustain-ability, precaution and polluter liability.

Second, outside the Tribunal’s application of substan-tive legal principles to reach verdicts, the NGT Act alsoaddresses the types of procedural rules and evidentiarystandards that the Tribunal can use. Under section 19(1),the statute exempts the NGT from the strictures of theCode of Civil Procedure and instead allows the Tribunal to select its own procedures ‘guided by the principles ofnatural justice’.

Other provisions of the NGT Act may affect the methods that the Tribunal uses to analyse statutes, butthose influences are neither clear nor explicit. For example,the NGT Act incorporates by reference the definition ofany term in several other Indian statutes (as long as theNGT Act does not have its own definition of the term). Inaddition to these definitions, the NGT Act also explicitlylists the standards and requirements of several underlyingorganic statutes that set out environmental permitting andauthorisation systems.

This statutory guidance on how to conduct inter-pretations has led the NGT to follow several approachesthat vary from a strict textualist interpretative approach.First, the NGT has frequently adopted a liberal construc-tion of statutory text because it classifies environmentallaws as social welfare statutes that require a broad inter-pretation to promote their purposes.5 Second, the Tribunalhas noted that the environmental and ecological harmsalleged in complaints risk irreversible and broad damage,and as a result the NGT has granted requests for broadrelief and remedies.6 It should be noted, however, that the NGT has not taken a similarly broad and purposivereading of the NGT Act’s jurisdictional provisions.7

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4 Pring (n 2) at 34–36.

5 See, for example, Ardent Steel Ltd v Ministry of Environment and Forests,2014 All (I) NGT Reporter (Delhi) at 16–19; Haat Supreme Wastech PvtLtd v State of Haryana, 2013 All (I) NGT Reporter (2) (Delhi) 140;Choudhury v Union of India, 2016 All (EZB) NGT Reporter (Kolkata) at13 (‘[w]hen construing statues enacted in the national interest, we havenecessarily to take the broad factual situations contemplated by the Act and interpret its provisions so as to advance and not to thwart the particular national interest whose advancement is proposed by thelegislation. Traditional norms of statutory interpretation must yield tobroader notions of the national interest’) (citing U.P. Avas Vikas);Biodiversity Management Committee v Western Coalfields, Ltd, 2015 All(CZB) NGT Reporter (Bhopal) at 16–30 (using principle of purposiveconstruction and international legal guidance under the Convention forBiological Diversity to find that coal is not a ‘biological resource’).

6 Saldhana v India, 2013 All (SZ) NGT Reporter (Chennai) at 241 (usingprinciple of sustainability to interpret statutory provision).

7 See, for example, Baregard v State of Maharashtra, 2015 All (WZ) NGTReporter (Pune) 12–13, 15; Bhargav v Ministry of Environment and Forests,2013 All (Central) NGT Reporter (Bhopal) at 33–37 (finding actiontime-barred despite broad purpose and reading of NGT Act’s statutoryterms). But see The Braj Foundation v State of Uttar Pradesh, 2014 All(WZ) NGT Reporter (Delhi) at 20–22 (interpreting statutory grantbroadly to find that tribunal had power to issue necessary orders).


The Environment Court of New ZealandThe Environment Court of New Zealand is the nationalcourt that determines disputes under the ResourceManagement Act 1991 (RMA) – a holistic Act that providesfor the management of land, air and water in New Zealand– and various other environmental statutes. It consists of abench with nine judges and 14 technical expert commis-sioners who are permanently located in three registries.8

Pursuant to its grant under the RMA, the EnvironmentCourt has broad powers to review most of the funda-mental issues arising under the RMA such as appeals ofregional and district plans, applications for resource con-sent, enforcement proceedings, abatement notices, anddeclarations to determine the legal status of environmentalactivities and instruments.9 Appeals from the EnvironmentCourt are to the generalist superior courts, on points oflaw only.10 Like the NGT, the Environment Court has wideabilities to specify its own general rules of procedure andapproach to evidence.11

The RMA expressly directs the Environment Court topromote the principle of sustainable management in all ofits judicial functions and determinations, which wouldinclude statutory interpretation.12 While the EnvironmentCourt initially displayed some initial reluctance to inter-pret the statutory mandate of sustainable management as a substantive standard to review specific applications,13

the court later energetically incorporated sustainabilitymanagement goals in its statutory analyses.14

The court’s approach has now grown into an ‘overallbroad judgment’ test when it exercises its policy-making,

planning, and consent-granting functions.15 Notably, theEnvironment Court initially adhered to the traditionallyconservative approach to statutory interpretation by cabining the scope of section 5’s sustainable managementdictate to issues where an ‘absence of express statutoryguidance for the particular discretion’ allowed the court to rely on broader statements of purpose to resolve theambiguity.16 After the New Zealand Parliament amendedthe RMA to override the court’s interpretation, theEnvironment Court has increasingly recognised the pri-mary role played by the sustainable management principlein statutory interpretation.17 As a result, the court now willtypically seek to harmonise the plain textual interpretationof statutory language with the ‘dual requirements of section5’ of the RMA.18

As a result, this interpretive approach does not ex-pressly require judges on the Environment Court to adopta radically new path for statutory interpretation. Essentially,the court will seek to harmonise the reading of the plaintext of the statute, the effect of any more specific statu-tory directives that the New Zealand Parliament may have given in a subsequent law that underlies the dispute,and then – if needed – the role of a contextual interest insustainable management provided by section 5 of theRMA. Under this approach, section 5 provides an impor-tant imperative as part of the context and purpose sur-rounding statutory text, but the judges on the court havenot used that directive to adopt any fundamentally new ordifferent approaches to statutory interpretation.19

Vermont’s Environmental CourtVermont’s Environmental Court is a specialised environ-mental trial court20 with full power to hear cases within



8 The Environment Court has permanent registries in Wellington,Auckland and Christchurch. The judges, however, travel to other loca-tions as needed to hear matters, and they seek to convene as close aspossible to the site of the dispute. Environment Court of New Zealand,Jurisdiction, at www.environmentcourt.govt.nz/about/jurisdiction (verified28 July 2017).

9 ibid; B Birdsong ‘Adjudicating sustainability: New Zealand’s EnvironmentCourt’ 29 Ecology L. Q. 1, 4 (2002); R Pring and C Pring (n 2) at 22–23.

10 Resource Management Act of 1991 at § 299(1).11 ibid at §§ 269(1), 276(1) to (2).12 ibid at § 5; TV3 Network Services, Ltd v Waikato District Council, [1998]

NZLR 360, 364–65 (‘[Part II of the RMA] requires Courts and practi-tioners to approach the new machinery provisions, and the resolution ofcases, with the hortatory statutory objectives of sustainable manage-ment] firmly in view’); New Zealand Rail Ltd v Marlborough District Council[1994] NZRMA 70, at 86 (‘[Section 5 of the RMA] expresses in ordi-nary words of wide meaning the overall purpose and principles of theAct. It is not part of the Act which should be subjected to strict rulesand principles of statutory construction which aim to extract a preciseand unique meaning from the words used. There is a deliberate open-ness about the language, its meanings and its connotations which I thinkis intended to allow the application of policy in a general and broad way.Indeed, it is for that purpose that [the Environment Court], with specialexpertise and skills, is established and appointed to oversee and pro-mote the objectives and policies and the principles under the Act’).

New Zealand also has a more general statute that addresses statu-tory interpretation. This law, however, does not expressly address theRMA or the use of sustainable management principles in statutory inter-pretation, and it permits the interpretation of statutory text ‘in the lightof its purpose’ in a fashion that would allow incorporation of sustainablemanagement goals: Interpretation Act 1999 at § 5(1). See also BeachRoad Preservation Society v Whangarei District Council [2001] NZRMA176 (HC) (finding that the Interpretation Act 1999 applies to Plan rulesvia section 76 of the RMA).

13 D Grinlinton ‘Sustainability in New Zealand Environmental Law andPolicy’ in Salmon and Grinlinton (eds) Environmental Law in New Zealandat ¶¶ 4.3-4.4 (Thomson Reuters, Wellington 2015); Batchelor v TaurangaDistrict Council [1992] NZRMA 266 (PT) at 268–69.

14 Grinlinton (n 5) at ¶ 4.3.

15 Salmon and Grinlinton (n 5) at ¶ 4.3.1, pp 116–17. In addition to theEnvironment Court, New Zealand’s other judicial bodies have alsoadopted a similar approach to interpreting the RMA and other statutes.See, for example, Environmental Defence Society Inc v The New ZealandSalmon Co Ltd [2014] NZSC 38, [2014] NZLR 593 (interpreting RMAsection 5).

16 Batchelor v Tauranga Dist. Council (n 5) at 268–69; Birdsong (n 5) at 40 to41.

17 New Zealand Suncern Construction v Auckland City Council [1996]NZRMA 411, 425; Hall v McDrury, [1996] NZRMA 1, 9; Falkner vGisborne Dist. Council, [1995] NZRMA 462, 478; Te Runanga o Taumarerev Northland Regional Council [1995] NZRMA 37; Minister of Conservationv Kapiti Coast Dist. Council [1994] NZRMA 385, 393.

18 Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112 at[25]; Commerce Commission v Fonterra Co-operative Group Ltd [2007] 3NZLR 767 at ¶ 22. Note, however, the continuing controversy of thisapproach post Environmental Defence Society Incorporated v MarlboroughDistrict Council [2014] NZSC 38.

19 While the Environment Court benches may also include non-legal technical expert Commissioners, the judges will have the leading role inresolving legal questions such as statutory interpretations: Birdsong (n 5)at p 67 n306 (‘[i]t is difficult to say how inclusion of non judicial com-missioners on Environment Court panels might have affected statutoryinterpretation. However, several provisions of the RMA suggest thatEnvironment Court judges would have primacy over commissioners onissues of law’). Note, however, G Ruka and C Iorns Magallanes‘Environmental law or palm-tree justice?’ [2009] NZLJ 185 (criticising therole of the two Expert Commissioners in ‘outvoting’ the judge in aninterpretative exercise in one case).

20 Vermont reformed its trial court system in 2010 to make all trial courtsinto divisions of a single Superior Court. As a result, the EnvironmentalCourt is now officially named the Environmental Division of the SuperiorCourt: M Wright ‘The Vermont Environmental Court’ 3:1 J. of CourtInnovation 201, at 201 n 1 (2010). To avoid confusion, I will refer to thecourt by its former name.


its defined jurisdictional areas. The court hears four types of cases: (1) the enforcement of Vermont’s state environ-mental laws; (2) appeals from decisions of Vermont’sAgency of Natural Resources; (3) appeals of municipalplanning and zoning decisions; and (4) appeals from deci-sions by regional district environmental commissions anddistrict coordinators under Act 250 (Vermont’s state land-use law).21 Like the NGT and New Zealand’s EnvironmentCourt, Vermont’s Environmental Court has flexible proce-dural rules tailored for its environmental docket, but thoserules are set by the Vermont Supreme Court rather thanthe Environmental Court itself.22

The Vermont Legislature established the EnvironmentalCourt in 2010 to promote consistent environmental en-forcement,23 and the statutory basis for the EnvironmentalCourt has since grown to give it jurisdiction for de novoreview of a wide array of environmental permitting, authorisation and enforcement actions.24 This statutoryauthorisation, however, does not contain any directive orguidance on the substantive environmental goals that the Environmental Court should seek outside of the specific statutory issues presented by an immediate con-troversy. The Legislature instead noted that the creation of a specialist environmental court would promote effi-ciency, speed, and consistency in environmental decisions.25

As a result, while the Environment Court has proven sensitive to the environmental contexts and purposesunderlying a particular enforcement matter or permit dis-pute, it has not sought to pursue a larger interpretive goal such as sustainable management or a constitutionalright to a clean and healthy environment.26 Instead, it hashewn to traditional approaches to statutory interpretationwithout recourse to larger environmental principles or legislative directions.

Statutory interpretative approaches byECTs

As a basis for comparison, general statutory interpretationby US courts tends to rely on unclear conceptual basesand parameters. On the environmental front, however, several features stand out. First, virtually all federal and statejudiciaries launch their interpretation of statutes from atextual starting point. US courts begin with a close focus onthe language of the statute at issue, and they only turn tocontextual or external aspects of a statute when its plainmeaning fails to answer the question at issue. As a result,the courts typically will not focus on the environmental orecological subject matter of a statute if the statutory textitself clearly communicates the legislative intent underlyingthe statute, and they typically will not avoid overt clear andplain statutory meaning even if that interpretation risksunfavorable ecological consequences.

Second, federal and state statutory interpretive doc-trines in the United States do not offer any specific canonsor precepts for environmental statutes. While some com-mentators have urged the courts to adopt an explicit environmental dimension in their interpretation of statutes,they have not yet taken up the call. And third, general principles of international or common law that might urgea more environmentally driven model of interpretation –such as the need for sustainability or the precautionaryprinciple – have not influenced or driven interpretations offederal or state statutes unless the statute itself invokesthose legal concepts.

By contrast, the approaches taken by the NationalGreen Tribunal, New Zealand’s Environment Court, andVermont’s Environmental Court offer key differences in their statutory interpretations. The NGT and NewZealand’s Environment Court, for example, have shownmuch greater willingness to refer to public internationalcustomary international environmental law principles (suchas the precautionary principle) to support interpretationsof statutes. In general, these courts will seek to harmonisetheir interpretations of domestic statutes with interna-tional obligations under these customary principles. By contrast, the incorporation by reference of international orforeign legal precepts as a tool to interpret domesticstatutes has proven controversial in the United States,27

and the Vermont Environmental Court does not appear tohave had the opportunity to rely on such principles in itsstatutory interpretations.

In addition, the New Zealand Environment Court andthe NGT will often refer to their organic statutes as asource of authority for them to explicitly account for environmental factors in their interpretations of statutorylanguage. For example, the NGT frequently refers to thesustainability goals laid out in the NGT Act, and the New Zealand Environment Court often highlights the sustainable management goals provided under section 5 of

GREEN STATUTORY INTERPRETATION BY ENVIRONMENTAL COURTS AND TRIBUNALS : HESTER : (2017) 29 ELM 95


21 ibid at 203–204.22 R Pring and C Pring (n 2) at 46-47.23 Uniform Environmental Law Enforcement Act, Vt. Stat. Ann. Tit. 10, ch.

201 (2017).24 10 V.A.C. § 8504(h); In re Entergy Nuclear Vermont Yankee Discharge Permit

No. 3-1199, 2009 VT 124, 989 A.2d 563, 584 (Vt. 2009). See alsoV.R.E.C.P. 5(g) (special rules of procedure for Environmental Court).

25 10 V.A.C. § 8501 (‘Purpose’).26 See, for example, In re The Snyder Taft Corners LLC JO, Vt. Sup. Ct. Envt’l

Div. Unit, No 15-2-15, at p 6 (Jan. 27, 2016) (‘[w]hen interpreting a provision of a statute, our primary objective is to effectuate the intent ofthe Legislature. In doing so, we adhere to familiar principles of statutoryinterpretation. We begin with the plain meaning of the statute, and if theplain language of the statute resolves the conflict without doing violenceto the legislative scheme, we look no further’) (citations omitted); In reMartin & Perry, LLC Final Plat Application, Vt. Envt’l Ct., No. 222-10-08, atp 3 (Jan. 22, 2010) (invoking the last antecedent canon to interpret challenged statutory language); In re Irish Construction Application, Vt. Ent’lCourt, No. 44-3-08, at p 4 (Nov. 2, 2009) (‘… a municipal ordinance isconstrued in the same fashion as a statute, by according effect to its plainand ordinary meaning, trying to give effect to every word, sentence,clause, and section title’); In re Appeal of McCarthy, Vt. Envt’l Court, No.99-5-02, at 2 (July 3, 2002) (‘[t]he Court must interpret the ZoningRegulations using the rules for statutory construction, including the obli-gation to give effect if possible to all portions of the regulations, and toavoid interpreting any portion as surplusage. The effort is to discern theintent of the legislative body and to give effect to that intent …Moreover, as zoning regulations are in derogation of common law prop-erty rights, any ambiguity must be resolved in favor of the propertyowner’).

27 Justice Stephen Breyer The Court and the World: American Law and theNew Global Realities at 236–39 (Vintage Books 2016) (‘[t]he accept-ability of referring to foreign court decisions has become the subject ofconsiderable debate in political, judicial, and scholarly forums’).




the RMA. By contrast, the Vermont Environmental Court’senacting statute does not set out any substantive envi-ronmental legal standard or goal that should drive its interpretations. The Vermont legislature instead sought topromote consistency and efficiency in resolving environ-mental trial dockets through a unified decision-makingbody with technical expertise. While those qualitiesundoubtedly affect the content and quality of theEnvironmental Court’s decisions, the statute does not give it supplemental express authority to pursue environ-mental goals or principles.

Last, the NGT and the New Zealand EnvironmentCourt have developed expertise with technical non-legalexperts who join the judges in panel deliberations. Theseinternal constitutional arrangements have had a significantimpact on how those courts have interpreted their powersto impose remedies by, for example, responding creativelyto the imposition of conditions in order to minimise theadverse environmental effects of activities. In contrast, the Vermont Environmental Court has notably found itselflimited in its ability to add or impose any additional con-ditions to environmental permits unless the underlyingadministrative record supported those changes.

Conclusions and future directions

Although environmental courts and tribunals have begunto proliferate widely throughout the global judiciaries, the rationale for creating them remains partially unsettled.ECTs undeniably offer some of the advantages that specialisation can bring: greater technical expertise, oppor-tunities for creative and flexible docket management, speedand cost advantages, more uniform decisions, and (in somecases) an opportunity to have non-legal experts join in the deliberative process. These advantages, however, are procedural at heart. They provide the same judicialservices, albeit in a targeted and specialised form.

One potential substantive rationale for ECTs – theopportunity to inject environmental or sustainability goalsinto the judicial deliberative process itself – remains lessclear. India and New Zealand have expressly included suchgoals for the NTG and the Environment Court in the Acts that created each adjudicative body, and those ECTshave relied on those principles when they parse statutorylanguage. These goals, however, tend to arise as a con-textual factor that allows clarification of unclear statutorylanguage rather than as a substantive interpretive principlethat alters the statutory analysis itself. By contrast, theVermont Environmental Court does not have a similardirective in its statutory authorisation, and its statutoryinterpretations accordingly have not sought to incorporatesuch substantive environmental principles to guide its statu-tory parsing.

Given the early stages of development for ECTs and the murky rationales currently supporting their creation,several other issues will likely arise in the near future thatECTs, their appellate supervisors (if any), or their respec-tive legislatures will need to address. For example, if an ECT adopts an overtly ‘green’ approach to statutory inter-

pretation and its decision remains subject to appeal by ageneralist supreme court or appellate body, how will general jurisdiction courts review those rulings? The tech-nical expertise and special mandate for ECTs wouldarguably support a more deferential standard of review, but so far appellate courts in India, New Zealand andVermont have exercised de novo review of their ECT’s legalconclusions.28

Beyond the question of generalist appellate review,ECTs may face challenges from other quarters. Notably,most ECTs share qualities with administrative courts and review tribunals that have wrestled with similar issuesfor decades under administrative legal frameworks andstatutes. If ECTs possess judicial powers and characteristics,however, these administrative practices and precedentshave limited relevance or applicability. And if ECTs share anessential judicial character with other generalist courts, an attempt by the domestic legislature to dictate that anECT should use a different type of statutory analysis (evenif this approach was desirably ‘green’) potentially could violate separation of powers limitations applicable to thatlegislature. For example, it remains uncertain how muchpower the US Congress possesses to dictate the methodsand maxims that a federal court must use to interpret federal statutes.29

Last, this article has focused on how ECTs interpretstatutes. To the extent their statutes give them the powerto interpret their respective constitutions as needed toresolve environmental claims, the environmental preceptsunderlying their creation may apply in different fashions.Constitutional interpretation, while similar in many respectsto statutory interpretation, offers fundamentally differentquestions and invokes wholly separate and inherent judicial powers. They may provide an opportunity for an environmental court or tribunal to wrestle overtly withnormative goals and dimensions that would promote envi-ronmental values, including aspirations shared by otherfields of law such as human rights law and animal welfarelaws.

28 For example, in Agency of Natural Resources v Weston 2003 Vt. 58, 830A.2d 92 (Vt. 2003), the Vermont Supreme Court noted that it shouldaccord deference to the Environmental Court’s interpretation of a landuse permit, but it nonetheless relied on normal rules of statutory con-struction to construe the land use permit’s terms: 830 A.2d at 97. Seealso In re Appeal of Albert 2008 Vt. 30, 33 at ¶ 6 (2008) (‘[b]ecause theEnvironmental Court is part of the judicial branch, there is no separa-tion-of-powers imperative for deferential review here. Moreover, what-ever deference the Environmental Court is owed in the area of sub-stantive environmental law does not apply to its construction of statutesgoverning general principles of law such as party standing’).

29 N Rosencranz ‘Federal Rules of Statutory Construction’ 115 Harv. L. Rev.2085 (2002); L Jellum ‘“Which is to be master” the Judiciary or theLegislature? When statutory directives violate separation of powers’ 56UCLA L. Rev. 837 (2009). See also A Scalia and B Garner, Reading Law:The Interpretation of Legal Texts at 244–45 (2012) (‘[s]ome interpretiveprescriptions contained in a statute might run afoul of the Constitution– for example, a prescription that legislative history must be consideredor (at least arguably under the Due Process Clause) that the rule of lenity does not apply’); A Gluck ‘The States as Laboratories of StatutoryInterpretation: Methodological Consensus and the New ModifiedTextualism’ 119 Yale L. J. 1750, 1827–29 (2010) (judicial rejections of legislative codes of construction in Texas and Connecticut).


Introduction

Something extraordinary is about to happen. Either peoplewill reduce carbon emissions or the planet will be damagedso that it will grow less agriculture, provide less fresh water,produce vastly more diseases and kill unprecedented mil-lions of people with storms, waves of heat and famine. Thisis so as we head toward a world population projected togrow from 7.4 billion to 11.2 billion by the year 2100.1 Thecatastrophic future the Paris Agreement2 is intended tosave us from will arrive by the time the earth warms twodegrees above its preindustrial temperature – a ceiling weare already rapidly approaching.3 Thus, climate change is asocial issue with an unprecedented ‘solution horizon’. Wemust attain a solution before we reach the horizon of twodegrees. Humanity’s quest to achieve orderly mitigation of and adaptation to climate change is dependent upon the just application of the environmental rule of law – thelegal framework that protects and sustains the environ-ment upon which life depends. Environmental courts andtribunals are proving to be critical to the world judiciary’sjust application of the environmental rule of law to issuesof climate change.4 To further equip the men and womenjudges who must contend with application of the environ-mental rule of law,5 Justice Antonio Benjamin of theSupreme Court of Brazil, in collaboration with the WorldCommission on Environmental Law of the InternationalUnion for the Conservation of Nature (WCEL/IUCN), theUnited Nations Environment Programme (UN Environ-ment) and the Organization of American States (OAS), has led the establishment of the Global Judicial Institute onthe Environment.6 Through the empowering framework of

environmental courts and the Global Judicial Institute onthe Environment judges will be trained to apply the envi-ronmental rule of law in the anthropocene era of climatechange. This paper posits that both institutions fortify theworld judiciary as it performs its duty to protect humanityand the earth – within the solution horizon – throughresponsible, resilient application of the environmental ruleof law.

Humanity notices climate change: the big picture

The need for participation of judicial institutions to addressthe importance of climate change is apparent. Humanity is demanding solutions. Large-scale demonstrations havebecome commonplace. The largest single gathering in his-tory to protest climate change was the People’s ClimateMarch, 21 September 2014, when an estimated 311,000participants marched on the United Nations in New YorkCity.7 At the same time, marches were conducted through-out the world including Berlin, London, New Delhi, Rio andAmsterdam. During the 2015 United Nations Conferenceof the Parties in Paris (COP 21), more than 600,000 people marched in 175 countries.8 On 29 April 2017, climate change marchers marched in Washington, D.C.9

Consistent with the views of the many marchers, agrowing number of humanity’s iconic representativesdeclare climate change to be the preeminent problem facing humanity. China’s President Xi Jinping highlighted climate change in his address to the United Nations inGeneva on 18 January 2017: ‘We should make our worldclean and beautiful by pursuing green and low-carbon dev-elopment… Industrialization has created material wealthnever seen before, but it has also inflicted irreparable dam-age to the world’.10 At the Paris climate summit in 2014,then-President of the United States Barack Obama definedclimate change as the ‘one issue that will define the con-tours of this century more dramatically than any other’.11

CLIMATE CHANGE: THE ROLE OF THE JUDICIARY : WILSON : (2017) 29 ELM 97


1 UN Dept. of Economic and Social Affairs, World Population Prospects:The 2015 Revision, ESA/P/WP.241, https://esa.un.org/unpd/wpp/publications/files/key_findings_wpp_2015.pdf.

2 Paris Agreement, UN Framework Convention on Climate Change(UNFCCC) Conference of the Parties 21, 30 November to 12December 2015: http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf.

3 Eric Holthaus ‘Our planet just reached a terrifying milestone Slate (12March 2016) http://www.slate.com/blogs/future_tense/2016/03/01/february_2016_s_shocking_global_warming_temperature_record.html; see also Global Temperature, NASA, https://climate.nasa.gov/vital-signs/global-temperature/.

4 See George Pring and Catherine Pring Greening justice: creating andimproving environmental courts and tribunals (World Resources Institute2009); George Pring and Catherine Pring Environmental courts and tribu-nals: a guide for policy makers (UNEP, 2016) (available at https://wedocs.unep.org/bitstream/handle/20.500.11822/10001/environmental-courts-tribunals.pdf?sequence=1&isAllowed=y).

5 See IUCN World Declaration on the Environmental Rule of Law available at http://web.unep.org/environmentalgovernance/erl/iucn-world-declaration-environmental-rule-law.

6 See ‘Charter of the Global Judicial Institute for the Environment’ availableat: https://www.iucn.org/sites/dev/files/content/documents/charter-of-the-global-judicial-institute-rio-de-janeiro-29-april-2016-.pdf.

7 Lisa W Forderaro ‘Taking a call for climate change to the streets’ NY Times(21 September 2014) https://www.nytimes.com/2014/09/22/nyregion/new-york-city-climate-change-march.html.

8 Claire Phipps, Adam Vaughan and Oliver Milman ‘Global climate march2015: hundreds of thousands march around the world – as it happened’The Guardian (30 November 2015) https://www.theguardian.com/environment/live/2015/nov/29/global-peoples-climate-change-march-2015-day-of-action-live.

9 People’s Climate Movement, https://peoplesclimate.org/.10 Tom Phillips ‘China’s Xi Jinping says Paris climate deal must not be

allowed to fail’ The Guardian (18 January 2017) https://www.theguardian.com/world/2017/jan/19/chinas-xi-jinping-says-world-must-implement-paris-climate-deal.

11 ’Remarks by the President at U.N. Climate Change Summit’ ObamaWhite House Archives (23 September 2014) https://obamawhitehouse.archives.gov/the-press-office/2014/09/23/remarks-president-un-climate-change-summit.

Climate change: the role of the judiciaryMichael D Wilson Associate Justice, Supreme Court of Hawai‘i

5-Wilson_ELM Article template 03/10/2017 14:19 Page 97

Pope Francis’s message to 1.2 billion Catholics in his June2015 encyclical on the environment described climatechange as ‘one of the principal challenges facing humanityin our day’.12 It represents a rupture of the relationshipbetween humanity and the earth that ‘is sin’.13 One of the world’s most renowned scientists, Stephen Hawking,describes ‘runaway’ human-caused climate change as thegreatest threat facing the world: ‘A rise in ocean temp-erature would melt the ice-caps, and cause a release oflarge amounts of carbon dioxide from the ocean floor. Both effects could make our climate like that of Venus, with a temperature of 250 degrees.’14 E.O. Wilson,Professor Emeritus, Entomology Department, HarvardUniversity, offers a similar view of ‘human-forced climatechange’ – ‘the great, wrathful demon that threatens all ourlives’.15

Underlying the pre-eminent attention paid to climatechange by famed leaders from the political, economic, sci-entific and religious sectors is the immediacy of its peril.Thomas Lovejoy, the climate change scientist known as thefounder of climate change biology and the originator of theterm ‘biodiversity’, warns that at two degrees global warm-ing ‘there undoubtedly will be massive extinctions andwidespread ecosystem collapse … A 2-degree world willbe one without coral reefs’.16 Substantial portions of thegreat barrier reef are now dying due to global warming andacidification of the ocean caused by increasing levels of carbon. 17 The loss of coral reefs is alarming for Hawai‘i,where I live, because coral supports the near shore oceanecosystem of fish and protects recreational and residentialdevelopment from the impacts of the ocean.18 With thearrival of two degrees of warming, climate change will notonly bring massive die-off of earth’s plant and animalspecies – increases in infectious diseases such as cholera,malaria, dengue fever, Lyme disease, bird flu, ebola andtuberculosis will also occur.19

An obvious consequence of the collapse of ecosystemswill be social unrest. The President of the World Bank, Jim Yong Kim, has noted ‘fights over water and food aregoing to be the most significant direct impacts of climate

change in the next five to ten years. There’s just no ques-tion about it’.20

No one can predict the future with certainty. Yet a formidable consensus of the world scientific communityhas provided convincing evidence to world leaders of thesevere consequences of maintaining the instant level ofgreenhouse/carbon emissions. The most reliable projec-tions of future climate impacts are those generated fromglobal climate change models that simulate the Earth system and human interventions on key natural processes.The Intergovernmental Panel on Climate Change (IPCC)was established to review current scientific knowledgeabout climate change and provide regular reports to theworld community. The IPPC’s conclusions are ‘conservative’in that they represent published, peer-reviewed science andwhat has been established as reliable scientific knowledgeto date. The major conclusions of the most recent IPCCcomprehensive review are therefore sobering and warrantclose consideration:

Warming of the climate system is unequivocal, and sincethe 1950s, many of the observed changes are unprece-dented over decades to millennia. The atmosphere andocean have warmed, the amounts of snow and ice havediminished, sea level has risen, and the concentrations ofgreenhouse gases have increased.

Over the last two decades, the Greenland and Antarcticice sheets have been losing mass, glaciers have continuedto shrink almost worldwide, and Arctic sea ice andNorthern Hemisphere spring snow cover have continuedto decrease in extent.

The rate of sea level rise since the mid-19th century hasbeen larger than the mean rate during the previous twomillennia

The atmospheric concentrations of carbon dioxide,methane, and nitrous oxide have increased to levelsunprecedented in at least the last 800,000 years. Carbondioxide concentrations have increased by 40% since pre-industrial times, primarily from fossil fuel emissions andsecondarily from net land use change emissions. The oceanhas absorbed about 30% of the emitted anthropogeniccarbon dioxide, causing ocean acidification.

Human influence on the climate system is clear … Thisevidence for human influence has grown since AR4.21 It isextremely likely that human influence has been thedominant cause of the observed warming since the mid-20th century.

Continued emissions of greenhouse gases will causefurther warming and changes in all components of theclimate system. Limiting climate change will requiresubstantial and sustained reductions of greenhouse gasemissions.22

98 (2017) 29 ELM : CLIMATE CHANGE: THE ROLE OF THE JUDICIARY : WILSON


12 Enciclica Laudato Si http://w2.vatican.va/content/dam/francesco/pdf/encyclicals/documents/papa-francesco_20150524_enciclica-laudato-si_en.pdf.

13 ibid.14 Emily Atkin ‘The media is ignoring the most important part of Stephen

Hawking’s comments on Trump’ ThinkProgress (31 May 2016) https://thinkprogress.org/the-media-is-ignoring-the-most-important-part-of-stephen-hawkings-comments-on-trump-d97a5fdbf55.

15 Edward O Wilson ‘The global solution to extinction’ NY Times (12 March2016) https://www.nytimes.com/2016/03/13/opinion/sunday/the-global-solution-to-extinction.html.

16 Thomas E Lovejoy ‘The climate change endgame’ NY Times (21 January2013) http://www.nytimes.com/2013/01/22/opinion/global/the-climate-change-endgame.html.

17 Brian Clark Howard ‘Corals are dying on the Great Barrier Reef ’National Geographic (21 March 2016) http://news.nationalgeographic.com/2016/03/160321-coral-bleaching-great-barrier-reef-climate-change/.

18 ’State of Hawai‘i Coral Reef Program’ Dept. of Land and Nat. Resources, http://dlnr.hawaii.gov/coralreefs/.

19 Xiaoxu Wu et al. ‘Impact of climate change on human infectious diseases:empirical evidence and human adaptation’ 86 Envt. Int’l 14-23 (January2016) available at http://www.sciencedirect.com/science/article/pii/S0160412015300489.

20 Larry Elliott ‘Climate change will “lead to battles for food”, says head ofWorld Bank’ The Guardian (3 April 2014) https://www.theguardian.com/environment/2014/apr/03/climate-change-battle-food-head-world-bank.

21 IPCC Fourth Assessment Report: Climate Change 2007 (AR4).22 ’IPCC, 2013: Summary for Policymakers’ in Stocker, TF, D. Qin, G-K

Plattner, M Tignor, SK Allen, J Boschung, A Nauels, Y Xia, V Bex and PMMidgley (eds) Climate Change 2013: The Physical Science Basis.Contribution of Working Group I to the Fifth Assessment Report of theIntergovernmental Panel on Climate Change [(Cambridge University Press,Cambridge, United Kingdom and New York, NY, USA).


These IPCC conclusions are unqualified, they have beenformally accepted by the world’s national governments,23

and thus they can be considered, both scientifically andpolitically, as ‘known facts’. They cannot be dismissed orignored if one is committed to an evidence-basedapproach to public policy and the environmental rule oflaw. They are the scientific authority upon which the leaders of all but two countries in the world agreed toreduce carbon emissions at the 2015 Conference of theParties in Paris.

Environmental rule of law evolves fromprinciple to precedent

The capacity of judicial institutions to contend with theimpending consequences of climate change within theframework of environmental law is proving to be strongand resilient. Contemporary principles have arisen empow-ering judges to address the rapid onset of climate changethrough evolved environmental rules of law. Intergenera-tional equity, public trust, the precautionary principle, theprevention principle, the right to a clean and healthy environment, polluter pays and the doctrine of ‘danger creation’ are the propitious progeny of many foundationallegal devices – including Principle 1 of the 1992 RioDeclaration,24 Sustainable Development Climate ActionGoal 13 of the 2015 United Nations Sustainable Develop-ment Summit and, most recently, the intended nationallydetermined contributions to carbon mitigation decidedamong 197 countries at COP21 in Paris in December2015.

The hegemony of contemporary environmental law hasbeen applied by judges who command an understanding of emerging environmental science and the social con-sequences of large-scale industrial pollution of land, air andwater. Climate change was identified by the Lahore HighCourt of the Federation of Pakistan as ‘a defining challengeof our time’ which has ‘resulted in heavy floods anddroughts, raising serious concerns regarding water andfood security’ and representing ‘a clarion call for the pro-tection of fundamental rights of the citizens of Pakistan’.25

In response to the claim of an ‘agriculturalist’ that the government was not fulfilling its duty to prepare a national

climate change policy, Judge Syed Mansoor Ali Shahordered the convening of government ministries to pre-pare such a policy.26 Intergenerational equity was recog-nised by the Supreme Court of the Philippines to grantstanding to children who represented the interests offuture generations in protected forests that were the sub-ject of large-scale illegal deforestation.27 The constitutionalright to a healthy environment was recognised by theSupreme Court of India as early as 1991.28 The right of the sacred rivers Ganga and Yamuna to legal protection as‘legal persons/living persons’ was recently established bythe High Court of the state of Uttarakhand in India.29 Thecourt found the rivers to ‘have spiritual and physical suste-nance. They support and assist both the life and naturalresources and health and well-being of the entire commu-nity. Rivers Ganga and Yamuna are breathing, living and sustaining the communities from mountains to sea’.30 Thecourt’s decision was grounded upon Articles 48-A and51A(g) of the Constitution of India, which provide that the state ‘shall endeavor to protect and improve the envi-ronment and to safeguard the forests and wild life of thecountry’ and that citizens of India have the duty ‘to protectand improve the natural environment including forests,lakes, rivers and wild life, and to have compassion for livingcreatures’, respectively. A public trust facsimile was identi-fied in the responsible public officials:

The Director NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand are hereby declared persons in loco parentis as the human face to protect, conserve andpreserve Rivers Ganga and Yamuna and their tributaries.These Officers are bound to uphold the status of RiversGanges and Yamuna and also to promote the health andwell being of these rivers.31



23 The Intergovernmental Panel on Climate Change (IPCC) was estab-lished by the United Nations Environment Programme (UNEP) and theWorld Meteorological Organization (WMO) in 1988 to provide theworld with a clear scientific view on the current state of knowledge inclimate change and its potential environmental and socio-economicimpacts. In the same year, the UN General Assembly endorsed theaction by WMO and UNEP in jointly establishing the IPCC. Membershipof the IPCC is open to all member countries of the United Nations(UN) and WMO. Currently 195 countries are members of the IPCC.See IPCC ‘Organization’ http://www.ipcc.ch/organization/organization.shtml.

24 ’Human beings are at the centre of concerns for sustainable develop-ment. They are entitled to a healthy and productive life in harmony withnature’. United Nations Conference on Environment and Development(3-14 June 1992) Rio Declaration on Environment and Development,Principle I, U.N. Doc. A/CONF.I51/26.

25 Ashgar Leghari v Federation of Pakistan (W.P. No 25501/2015) available athttps://elaw.org/pk_Leghari.

26 ibid.27 Oposa v Factoran, G.R. No 101083 30 July 1993 available at http://hr

library.umn.edu/research/Philippines/Oposa%20v%20Factoran,%20GR%20No.%20101083,%20July%2030,%201993,%20on%20the%20State’s%20Responsibility%20To%20Protect%20the%20Right%20To%20Live%20in%20a%20Healthy%20Environment.pdf.

28 ’Right to live is a fundamental right under Art. 21 of the Constitution andit includes the right of enjoyment of pollution free water and air for fullenjoyment of life. If anything endangers or impairs that quality of life inderogation of laws, a citizen has right to have recourse to Art. 32 of theConstitution for removing the pollution of water or air which may bedetrimental to the quality of life’. Subhas Kumar V. State of Bihar (AIR1991 SC 420) available at http://www.globalhealthrights.org/wp-content/uploads/2013/10/Kumar-India-1991.pdf.

29 Mohd. Salim v State of Uttarakhand, Writ Petition (PIL) No 126 of 2014,decided on 20.03.2017, available at https://www.nonhumanrightsproject.org/content/uploads/WPPIL-126-14.pdf. The Whanganui river in NewZealand was likewise recently granted legal personhood status in recog-nition of the local Maori tribe’s belief that the river is an ancestor. See TeAwa Tupua (Whanganui River Claims) Settlement Act 2017 (NZ). In thewords of the tribe’s lead negotiator, treating the river as a person ‘is notan anti-development, or anti-economic use of the river but [means] tobegin with the view that it is a living being, and then consider its futurefrom that central belief ’; see Eleanor Ainge Roy ‘New Zealand rivergranted same legal rights as human being’ The Guardian (16 March 2017)https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being.

30 ibid.31 ibid.


Environmental courts and the GlobalJudicial Institute on the Environmentcapacity build judges for decision-making in a time of increasing threats from climate change

It is beyond cavil that the evolution of the environmentalrule of law from emerging legal instruments to acceptedjudicial precedent will accelerate as the severity of carbon-induced global warming grows. The grave consequences ofglobal warming of two degrees deemed unacceptable by197 countries at COP 21 are fast approaching. At the present rate of carbon emission, global temperatures arepredicted to rise by up to 4°C by 2100.32 One of theworld’s most acclaimed environmental jurists, JusticeAntonio Benjamin, has described climate change as ‘the single most important legal issue facing judges globally’.33

Effective application of evolving environmental law andunderstanding of concomitant science is the gravamen of aworld judiciary equipped to achieve just decision-making as global warming threatens the well-being of humanity. The compelling guide for policymakers on environmentalcourts and tribunals written by the Prings and published byUNEP is a paean to the extraordinary capacity of environ-mental courts to prepare judges for the rigours of applyingthe environmental rule of law as society seeks to contendwith global warming and climate change.34 Two of theworld’s three largest carbon emitters, China and India, have developed extensive environmental court systems tosupply judges with specialised knowledge of environmentallaw and related science. The country with the secondlargest carbon footprint, the United States, has only oneenvironmental court with broad statewide criminal andcivil jurisdiction encompassing regulation of land, air andwater – Hawai‘i.35 The handful of other environmentalcourts in the United States are of limited civil or municipaljurisdiction.36

The strong support for environmental courts expressedby UNEP is especially apt for the United States. Climatechange has been the subject of a divided United StatesSupreme Court, with a majority recognising in 2007 thatthe federal government had abdicated its responsibility by failing to regulate greenhouse gases,37 but a different

majority in 2016 indefinitely halting implementation of thegovernment’s efforts to reduce carbon emissions fromexisting power plants.38 Climate change litigation in theUnited States recently brought judicial attention to theissue of intergenerational equity in Juliana v. United States, in which a group of children argue that the United States is causing them ongoing harm by failing to act on climatechange.39 The District Court of Oregon, in confirming that the youth plaintiffs in Juliana had standing to sue thefederal government, cited Urgenda Foundation v State of the Netherlands,40 another climate change standing caseindicative of evolving precedent due to the danger posedby global warming.

In Urgenda, the Hague District Court found that, due tothe alleged failure of the Dutch government to complywith its carbon mitigation responsibilities under the COP21 agreement, the Urgenda Foundation had standing toassert claims on behalf of Dutch citizens. The court’s decision was grounded upon recognition that the alleged



32 Damian Carrington ‘Planet likely to warm by 4C by 2100, scientists warn’The Guardian (31 December 2013) https://www.theguardian.com/environment/2013/dec/31/planet-will-warm-4c-2100-climate.

33 Antonio Benjamin, Oral presentation to the WCEL Steering Committee(13 February 2017) Brasilia, Brazil (see https://www.iucn.org/news/world-commission-environmental-law/201704/steering-committee-charts-course-next-4-years).

34 Pring and Pring Environmental courts and tribunals: a guide for policy makers Note 4 above.

35 Hawai‘i Rev. Stat. (HRS) tit. 32, §§ 604A-1-604A-3.36 The state of Vermont established the nation’s first environmental court

in 1990, but it does not have criminal jurisdiction. Compare Vt. Stat. Ann.tit. 4, §§ 1001–04 with HRS tit. 32, §§ 604A-1-604A-3.

37 See Massachusetts v. EPA 549 U.S. 497, 534 (2007). In Mass. v. EPA, theU.S. Supreme Court heard a challenge brought by states, local govern-ments, and environmental organisations to the Environmental ProtectionAgency (EPA)’s decision to deny a petition for rulemaking to regulategreenhouse gas emissions from motor vehicles under the federal CleanAir Act. Ibid at 504. The court first rejected the EPA’s argument that thegeneralised and widespread harm caused by greenhouse gas emissionsmade standing an ‘insuperable jurisdictional obstacle’. Ibid at 517. The

court concluded that the ‘risk of catastrophic harm’ from climate change-induced sea level rise on Massachusetts ‘though remote, is neverthelessreal’ and ‘would be reduced to some extent’ if EPA were to regulategreenhouse gas emissions as petitioners desired. Ibid at 526. Afterupholding petitioners’ standing to bring the suit, the court concludedthat EPA had a statutory obligation to consider whether greenhousegases caused or contributed to climate change. Ibid at 534 (‘EPA hasoffered no reasoned explanation for its failure to decide whether green-house gases cause or contributed to climate change’).

38 See West Virginia v. EPA 136 S.Ct. 1000 (2016). The EPA’s most ambitiousattempt to regulate greenhouse gas emissions under President Obamawas the Clean Power Plan, a Clean Air Act regulation to reduce green-house gas emissions from existing coal- and natural gas-fired powerplants. Several states sued the EPA, arguing the regulation exceeded theagency’s authority. After the DC Circuit denied petitioners’ motion tostay implementation of the regulation pending the outcome of the liti-gation, they appealed to the U.S. Supreme Court, which granted the stay.West Virginia v. EPA 136 S.Ct. 1000 (2016). This stay was unprecedented;the court had never previously granted an interlocutory stay of a generally applicable regulation while initial judicial review was still pend-ing at a lower court. Adam Liptak and Coral Davenport ‘Supreme Courtdeals blow to Obama’s efforts to regulate coal emissions’ NY Times(9 February 2016) https://www.nytimes.com/2016/02/10/us/politics/supreme-court-blocks-obama-epa-coal-emissions-regulations.html.

39 Juliana v. United States, __ F. Supp. 3d __, 2016 WL 6661146 (D. Or. Nov.10, 2016). Our Children’s Trust, an organisation which advocates forUnited States youth, helped organise a group of young people between8 and 19 years old (along with noted climate scientist Dr James Hansen)to file this suit in the federal District Court of Oregon. The childrenallege that the federal government knew that greenhouse gas emissionswere destabilising the climate system and that the government’s failureto act on climate change ‘violate[s] their substantive due process rightsto life, liberty, and property’, and that the government has ‘violated theirobligation to hold certain natural resources in trust for the people andfor future generations’. Ibid at *1. In November, the court issued anorder denying defendants’ and intervenors’ motion to dismiss. Ibid. Thecourt noted that the lawsuit was ‘not about proving that climate changeis happening or that human activity is driving it. For the purposes of thismotion, those facts are undisputed’. Ibid at *2. Rather, the court recog-nised that the questions before it were whether the U.S. governmentwas responsible for some of the harms caused by climate change, andwhether the youth plaintiffs had standing to challenge the government’spolicies in court. Ibid. The court concluded that the plaintiffs did havestanding because ‘EPA’s action/inaction with respect to the regulation ofgreenhouse gases allegedly results in the numerous instances of emis-sions that purportedly cause or will cause the plaintiffs harm’, allowingthe case to proceed to trial. Ibid at *10.

40 Urgenda Foundation v State of the NetherlandsThe Hague District Court,Chamber for Commercial Affairs, Case No C/09/456689/HA ZA13–1396 (24 June 2015) http://deeplink.rechtspraak.n1/uitspraak?id=ECLI:NL:RBDHA:2015:7196.


failure of the government was a violation of a public trustresponsibility to protect its citizens from the imminent danger caused by carbon-caused warming of the atmos-phere. The ‘danger creation’ analysis has been criticised as adeviation from the traditional requirement of tort law thatcausation be established between the defendant’s act andthe damage suffered. Under this analysis, Urgenda’s claimshould fail because there is no direct causal connectionbetween Dutch emissions and the global problem beingcreated primarily by countries with much larger carbonemissions. However, the Hague District Court recognisedthat climate change is a problem that eludes traditional tortanalysis because of its large-scale, generalised impacts:

It is an established fact that climate change is occurringpartly due to the Dutch greenhouse gas emissions. It is alsoan established fact that the negative consequences arecurrently being experienced in the Netherlands, such asheavy precipitation, and that adaptation measures arealready being taken to make the Netherlands “climate-proof”. Moreover, it is established that if the globalemissions, partly caused by the Netherlands, do notdecrease substantially, hazardous climate change willprobably occur. In the opinion of the court, the possibilityof damages for those whose interests Urgenda represents,including current and future generations of Dutchnationals, is so great and concrete that given its duty ofcare, the State must make an adequate contribution,greater than its current contribution, to prevent hazardousclimate change.41

Clearly, precedent is evolving rapidly as the world judiciarymeets its constitutional, statutory, common law and civil-code42 duties to protect humanity within its jurisdictionfrom the devastation of a world warmed to two degrees.Pivotal issues of causation, imminence of danger, sufficiencyof evidence of damage, proper remediation, scale of injury,and valuation of cost of carbon emissions vs benefits of carbon emission confront the men and women judges who persevere to achieve a just application of the envi-ronmental rule of law to cases involving the most seriousenvironmental crisis ever encountered by the world judi-ciary. Environmental courts offer a veritable prescription for an arena of enlightened decision-making on such issues.This is so because the environmental court judge receivestraining in fast-evolving areas of relevant science and envi-ronmental law and thereafter remains as a decision-makerto amass the insight and experience that accompanies justdecisions on cases with complex technical/scientific issues.

Likewise, the Global Judicial Institute on the Environ-ment (GJIE)43 is a forum vital to strengthening the vanguard

of judges who must decide the plight of those who resortto the courts for relief from global warming. Led by judgesfor judges, its mandate is to equip judges whose interest is the environment.44 Regardless of jurisdiction or court-assignment, judges who wish to capacity build for decisionsinvolving the environment are eligible for membership.45

The mission of the GJIE is to ‘support the role of courtsand tribunals in applying and enforcing environmental lawsand in promoting the environmental rule of law and the fairdistribution of environmental benefits and burdens’.46 Tofulfil its mission GJIE has established specific objectivesincluding:

(a) Provide research, analysis, and publications on environmental adjudication, environmental dispute resolution, court practices and procedures, court administration, legal claims and actions, judicial remedies, and environmental justice, including access to environmental information, public participation in environmental decision-making, and access to justice;

(b) Strengthen the capacity of judges in administration and resolution of cases and disputes related to the environment;

(c) Provide a forum for convening international, regional, national, and subnational judges, court officials, and judicial institutions, to create partnerships for col-laboration and information exchange on environ-mental law issues[.]47

Any judge tasked with applying the environmental rule oflaw will have the GJIE as a resource. It will be a repositoryfor decisions of judicial colleagues who are decision-makerson the frontline of global warming litigation. It will be a collaborative centre to facilitate global communicationbetween judges and support those whose independencemay be threatened in response to the just application ofthe environmental rule of law.

Conclusion

The world’s judiciary is embedded in humanity’s struggle to prevent the earth from reaching the two degrees of



41 ibid.42 For example, the constitutional court of Colombia recognised the

critical role of wetlands in water security and climate change mitigation.Law 1450 of 2011 Colombian National Development Plan (Decision C-035/16) (2016) General Secretariat of the Organization of AmericanStates (OAS) ‘Climate change: a comparative overview of the rightsbased approach in the Americas’. Available at http://www.oas.org/en/sedi/dsd/docs/climate_change.pdf.

43 GJIE was formally established at the International Union for theConservation of Nature World (IUCN) Environmental Law Congress in Rio de Janeiro on 29 April 2016. Thereafter, it was approved by theIUCN World Congress in Honolulu in September 2016.

44 The Charter for the GJIE outlines two categories of judicial members,institutional and individual. Individual membership is open to the follow-ing:

(1) Individuals currently serving as judges or in a capacity as judicial decision-makers on specialised environmental courts or tribunals; or

(2) Individuals currently serving as judges or in a capacity as judicial decision-makers on other courts or tribunals, with an expressed interest or expertise in environmental matters.

Charter of the Global Judicial Institute for the Environment, available athttp://iucnael2016.no/wp-content/uploads/2016/06/Char ter-of-the-Global-Judicial-Institute-Rio-de-Janeiro-29-April-2016-v2.pdf.

45 Institutional membership in the GJIE includes the following:Institutional Membership is open to any international, regional, nation-al, and subnational courts and tribunals, and to judicial institutions, suchas judicial institutes, schools, associations, academies, and other similarorganizations that are directed by judges and are composed of or provide services to judges and judiciaries. The Institute particularlyencourages the participation of courts, tribunals, and institutions ofjudges that include within their jurisdiction the consideration of envi-ronmental, land use, or natural resources issues.

ibid.46 ibid.47 ibid.


global warming identified by 197 countries as catastrophicfor the human race. Within the parameters of the environ-mental rule of law, judges strive to protect the earth and itspeople from the impending consequences of human-induced carbon emitted at the present rate. Their decisionsmust be based on command of rapidly developing scienceand complete understanding of accelerating change in judicial precedent. The endeavour to reach a solution that

avoids two degrees of warming is time-limited to no morethan the year 2100, at present levels of emission. The menand women who are tasked as judges with the duty todecide the manner in which the environmental rule law isapplied to the most important social issue yet facinghumanity will be greatly empowered by the instruction,support and collaboration of environmental courts and theGlobal Judicial Institute on the Environment.




Introduction

The Environment and Land Court in Kenya is one of thenewest and most advanced specialist environment courtsin the world. This article outlines the historical evolution ofthe court, briefly explains its constitution, powers and juris-diction, and highlights the important jurisprudence emerg-ing from the court. It focuses in particular on some of thedifficulties that the court has faced over the initial period ofits existence and some of the continuing challenges. It con-cludes that the court has been well received by the Kenyanpeople, and is delivering on its constitutional mandate, butissues of resourcing and delineating the exact jurisdictionallimits of the court remain.

Historical evolution

Kenya was a British colony until 1963 when it gained inde-pendence. Under the Judicature Act of 1967, the sources ofKenyan law are: the Constitution of Kenya, all written lawswhich includes selected Acts of Parliament of the UnitedKingdom, common law and the doctrines of equity, andAfrican customary law.1 Environmental adjudication inKenya has a long history. At independence and severalyears thereafter, Kenya did not have a comprehensive legislative framework for environmental regulation.2 Peoplewho had grievances of an environmental character had toresort to the common law of torts which provided causesof action for nuisance, trespass and negligence for redress.There were also several sectoral pieces of legislation whichprovided criminal sanctions for sector-based environmentalviolations in areas such as water, public health, agriculture,mining, forestry, wildlife and factories. The plethora of lawsand regulations on environmental management and pro-tection posed several challenges. It was not possible for thecountry to have a coordinated approach to environmentalregulation and management. The legal framework at thetime also placed the duty of enforcing environmental obligations on state employees who were reluctant to discharge that duty. Coupled with the challenges posed bythe legal framework, the courts at the time did not helpmatters. They adopted a very restrictive approach to thequestion of standing.

In 1999, Kenya enacted a modern framework en-vironmental law: the Environmental Management and

Co-ordination Act, No 8 of 1999 (EMCA),3 which sets outthe principles of environmental conservation, managementand administration. This statute was intended to mitigatethe deficiencies that I have highlighted above. EMCA(which was amended in 2015) established the NationalEnvironmental Management Authority (NEMA)4 as theprincipal government agency for environmental matters.NEMA exercises general supervision and co-ordinationover all matters relating to the environment and is man-dated to promote the integration of environmental con-siderations into development policies, programmes andprojects.5 EMCA confers on every person in Kenya a rightto a clean and healthy environment and gives standing toany person alleging contravention of a right to a clean andhealthy environment to apply to court for redress. It alsoimposes a duty on every person in Kenya to safeguard andenhance the environment.6

EMCA established the National Environmental Com-plaints Committee (the NECC)7 and the National Environ-mental Tribunal (the NET)8 to deal with disputes. TheNECC undertakes investigation of complaints against anyperson or NEMA in relation to the condition of the envi-ronment in Kenya while the NET hears and determinesappeals against administrative decisions of NEMA and itscommittees. The enactment of EMCA was hailed as a turn-ing point for Kenya in environmental protection and con-servation. It was a bold step towards the promotion andprotection of environmental rights in Kenya.

In 2010, Kenya promulgated a new constitution: the Constitution of Kenya 2010 (the Constitution). TheConstitution opened a new chapter in environmental protection and conservation in Kenya. The Constitutionelevated the status of a ‘right to a clean and healthy envi-ronment’ to a fundamental right.9 The rule on legal stand-ing was also relaxed.10 The Constitution placed obligationson the government to: ensure sustainable exploitation andconservation of the environment and natural resources;encourage public participation in the management andconservation of the environment; establish systems of environmental impact assessment, environmental audit and

ENVIRONMENTAL ADJUDICATION IN KENYA : OKONG’O : (2017) 29 ELM 103


1 Judicature Act (Chapter 8 Laws of Kenya) s 3.2 Introduction to Kenya Law Reports (Environment and Land), KLR (E&L)

1.

3 Environmental Management and Co-ordination Act, Chapter 387 Lawsof Kenya (EMCA).

4 EMCA s 7.5 ibid ss 9(1) and (2).6 ibid s 3(1).7 ibid s 31.8 ibid s 1259 The Constitution Article 42.10 ibid Articles 22 and 70.

Environmental adjudication in Kenya: a reflection on the early years of the Environment andLand Court of KenyaHonourable Justice Samson Okong’o Presiding Judge, Environment and Land Court of Kenya

6-Okongo_ELM Article template 03/10/2017 14:27 Page 103

monitoring of the environment; and eliminate processesand activities that are likely to endanger the environment.11

The Constitution also made provision for the establishmentof the Environment and Land Court (the ELC) to hear anddetermine all disputes relating to environment and land.12

The ELC – which has the same status as the High Court –has original and appellate jurisdiction in environmental andland disputes and also hears appeals from the NET.

In exercising its jurisdiction under EMCA, the ELC isenjoined to be guided by the principles of environmentallaw, namely: the principle of public participation; culturaland social principles applied by Kenyan communities in themanagement of the environment and natural resources; the principle of international co-operation in the manage-ment of shared resources; the principle of intergenerationaland intragenerational equity; the polluter pays principle; andthe precautionary principle.13

The hierarchy of courts in Kenya

Prior to the promulgation of the Constitution, the Kenyanjudiciary had the magistrates’ courts and the tribunals atthe lower end of its hierarchy, the High Court in the middle and the Court of Appeal at the top as the last courtof recourse. The Constitution made provision for theestablishment of two new courts, namely, the Employ-ment and Labour Relations Court (the ELRC)14 and theEnvironment and Land Court, and directly established theSupreme Court.15 In terms of hierarchy, the magistrates’courts and the tribunals are still at the lower end, the HighCourt, the ELRC and the ELC are in the middle, followedby the Court of Appeal and the Supreme Court at the top.The High Court, the ELRC and the ELC are of equal statusand together with the Court of Appeal and the SupremeCourt, are superior courts.16 All these courts have separ-ate and distinct jurisdictions, which are set out in theConstitution and relevant statutes.

The policy considerations that informed the decision to establish theEnvironment and Land Court

Land as a key factor of production occupies a special placein the hearts of Kenyans. In Kenya, land remains the singlemost politically explosive issue. From colonial times to thepresent, various commissions have been set up to look into the land question.17 The land question goes back to the colonial era. During this period, many people who were residing in agriculturally endowed parts of thecountry were displaced and dispossessed of their land bythe colonialists. The objective of the colonialists was to

entrench a dominant settler economy while subjugating theAfrican economy through administrative and legal mecha-nisms.18 After independence, Kenyans had the opportunityto purchase land previously owned by the colonialists. Thenew government was also given power to allocate publicland for development. The latter opened doors for whatcame to be known in Kenya as ‘land grabbing’. Due to the chequered history of land tenure in Kenya, land hasbecome a source of unending conflicts in the country. Lackof sound policies on land management and administrationhas led to perennial squatter problems, human wildlife con-flicts, deforestation, land degradation, destruction of marineecosystems, unplanned developments, encroachments onriparian land, road reserves and infrastructural way-leavesjust to name a few.

Prior to the enactment of the new land laws in 2012 following the promulgation of the Constitution of Kenya2010, Kenya had a very complex legal and institutionalframework regulating land.19 There were numerous piecesof legislation regulating land use and tenure. This gave riseto a complex land management and administrative system.

As I have already mentioned, land is an emotive sub-ject in Kenya and disputes over the same in most cases lead to a breakdown of law and order. Such disputes areusually acrimonious, complex and time-consuming toresolve. When an opportunity presented itself to Kenyansto review the 1963 Independence Constitution, landreform was high on the agenda. One area that was iden-tified for reform was land legislation and land dispute resolution mechanisms. It was felt that there was a need to find a way of resolving land disputes expeditiously. This is how the idea of setting up a court that deals mainly with environment and land disputes was mooted.

On the legislation front, the Constitution of Kenya 2010created a new legal framework aimed at reforming the law regulating land registration, ownership, use and admin-istration. Article 68 of the Constitution required Parliamentto revise, consolidate and rationalise existing land laws.Parliament was required to enact legislation that wouldconsolidate all the land laws then in existence. Pursuant tothe provisions of Article 68 of the Constitution, Parliamentenacted the following statutes: the Environment and LandCourt Act 2011, the Land Act 2012, the Land RegistrationAct 2012, the National Land Commission Act 2012, andthe Community Land Act 2016.

Land use and tenure have a correlation with environ-mental sustainability. Under Article 10 of the Constitution,sustainable development is one of our national values.Article 60(1) of the Constitution provides that ‘Land inKenya shall be held, used and managed in a manner that isequitable, efficient, productive and sustainable …’. Kenya isa signatory to several conventions and treaties on environ-mental protection and conservation.20 The United NationsEnvironment Programme has its seat in Kenya. In order to enhance environmental protection and conservation,

104 (2017) 29 ELM : ENVIRONMENTAL ADJUDICATION IN KENYA : OKONG’O


11 ibid Article 69.12 ibid Article 162(2)(b).13 EMCA s 3(5).14 See Constitution Article 162(2)(a).15 See ibid Article 163(1).16 ibid Article 162(1).17 See Patricia Kamere Mbote ‘The land question in Kenya: legal and

ethical dimensions’ in Institutions and the Human Condition (Nairobi:Strathmore University and Law Africa, 2009).

18 ibid.19 See: a review of the New Land Laws of Kenya by Herman Omiti (last

revised July 2012).20 See, Kenya Law Treaties and Agreements database.


there has been a trend globally for countries to establishspecialised environmental courts and tribunals.21 Kenya didnot want to be left behind. It was felt that the establishmentof the Environment and Land Court could act as a watch-dog over Kenya’s commitment to sustainable developmentand the environmental rule of law. This explains how ‘the environment’ found its way to the court which wasconceptualised to deal mainly with land disputes.

The constitution and jurisdiction of theEnvironment and Land Court

The ELC was formally established by the Environment andLand Court Act, No 19 of 2011 (the ELC Act).22 The ELCis comprised of a Presiding Judge, who is elected by thejudges of the court, and such number of judges as may bedetermined by the Kenyan Judicial Service Commission.23

The administration arm of the court is headed by aRegistrar appointed by the Judicial Service Commission.Until recently – when 19 additional judges were appointedto the court – there were only 15 judges. The recentappointments brought the total number of ELC judges to34. The judges sit in 22 court stations across the country.

The Constitution empowered Parliament to establish a court with the ‘status of the High Court’ to hear anddetermine disputes relating to the environment and theuse and occupation of, and title to, land and to determineits jurisdiction and functions.24The words ‘status of the HighCourt’ have been judicially interpreted in our courts. In thecase of Malindi Law Society v The Chief Justice and Others,heard by the Malindi High Court,25 the court stated thatthe word ‘courts with the status of the High Court’ inArticle 162(2) of the Constitution meant:

… a court of the same standing as the High Court and thepersons or judges appointed to those courts as persons of the same social or professional standing as personsappointed to the High Court.

However, being of the same status as the High Court doesnot necessarily mean that the ELC can be treated as theHigh Court and vice versa on the question of jurisdiction,as we will see later in this article. Further, the preciseparameters of the ELC’s jurisdiction has remained con-tentious. In Samuel Kamau Macharia & Another v KenyaCommercial Bank & Others,26 the Kenyan Court of Appealstated that:

A court’s jurisdiction flows from either the constitution orlegislation or both. Thus a court of law can only exercisejurisdiction conferred by the constitution or other writtenlaw. It cannot arrogate to itself jurisdiction exceeding thatwhich is conferred upon it by law.

Thus the jurisdiction of the ELC flows from the Consti-tution and the ELC Act. The Constitution restricts the juris-diction of the ELC to disputes concerning the environmentand the use and occupation of, and the title to land.27

Section 13 of the ELC Act gives the court original andappellate jurisdiction over all disputes relating to the envi-ronment and the use and occupation of, and the title toland. Section 13(2) of the ELC Act, confers upon the courtjurisdiction to hear and determine disputes relating to:

(a) environment planning and protection, climate issues,land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other naturalresources

(b) compulsory acquisition of land(c) land administration and management(d) public, private and community land, contracts, choses

in action or other instruments granting enforceableinterests in land

(e) any other dispute relating to environment and land.

Moreover, under s 13(3) of the ELC Act, the court hasjurisdiction to hear and determine:

… applications for redress of a denial, violation, or infringe-ment of, or threat to, rights or fundamental freedomrelating to a clean and healthy environment under Articles42, 69 and 70 of the Constitution.

Section 13(4) of the ELC Act confers upon the courtappellate jurisdiction over the decisions of subordinatecourts and local tribunals in respect of matters falling underits jurisdiction, and s 13(7) of the Act sets out the relief thatthe Court can grant which includes:

(a) injunctions(b) prerogative orders(c) award of damages(d) compensation(e) specific performance(f) restitution(g) declaration(h) costs.

Emerging jurisdictional questions

The ELC is a new court. It was established in 2011. It wasnot until October 2012, however, that the pioneer judgesof the court were appointed. Since its establishment, sev-eral questions have arisen concerning its jurisdiction.Conclusive answers are yet to be found to all these ques-tions at the time of writing. The following are some of theissues which have arisen:

(a) whether the ELC has jurisdiction to entertain mattersfalling within the jurisdiction of the High Court and vice versa

(b) whether the ELC has supervisory jurisdiction over themagistrates’ courts and tribunals28



21 See Munyao Sila J ‘The jurisdiction question in environmental law issues’:paper presented at NEMA and ELC Conference at Pangoni Hotel on 12June 2014.

22 The Environment and Land Court Act, Chapter 12A Laws of Kenya (theELC Act).

23 ELC Act s 5.24 Constitution Article 162(2)(b) and (3).25 Malindi High Court, Petition No 3 of 2016.26 [2012] eKLR.

27 Constitution Article 162(2)(b).28 See Nairobi ELC JR. No 85 of 2016, Kellico Limited v The National Land

Commission & four others [2016] eKLR.


(c) whether the ELC can entertain applications for judicialreview

(d) whether the ELC has criminal jurisdiction(e) whether the ELC has jurisdiction to interpret the

Constitution29

(f) whether the magistrates’ courts have jurisdiction tohear and determine disputes falling under the jurisdic-tion of the ELC30

(g) whether the ELC has jurisdiction on matters whichraise cross-cutting issues.31

Jurisdictional conflicts

As a new court, ELC was bound to encounter teethingproblems. Soon after its establishment, the ELC faced manychallenges. First and foremost – and although the ELC is one of the superior courts – it was for all intents and purposes treated as a division or branch of the High Court. The court lacked a distinct and separate identity. The thinking at the time was that judges sitting in the ELCand the High Court could be moved from one court tothe other. The other main challenge concerned its jurisdic-tion. The parameters of the jurisdiction of the ELC werenot settled. Connected to this issue of jurisdiction was the position of the magistrates’ courts in the structure of the ELC. There was no consensus as to whether themagistrates’ courts had power to preside over environ-ment and land disputes falling within their pecuniary juris-diction and this created uncertainty and conflict. The othermain challenge was a shortage of judges.

These challenges led to legislative amendments. In 2015, the Kenyan Parliament passed the Statute Law(Miscellaneous Amendments) Act32 and the Magistrates’Courts Act33 which introduced various amendments to the ELC Act. The amendments empowered the ChiefJustice on the recommendation of the Judicial ServiceCommission to transfer judges from the High Court andthe ELRC to the ELC and vice versa,34 and gave the magistrates’ courts jurisdiction to hear and determine en-vironment and land disputes falling within their pecuniaryjurisdiction.35

It was expected that the magistrates’ courts would takesome burden off the ELC, thereby mitigating the effect ofthe inadequate number of judges. The second approach to alleviate the problem was to empower the Chief Justiceto transfer judges from the High Court and the ELRC tothe ELC and vice versa. This move was aimed at increasingthe number of ELC judges through transfer rather thanrecruitment.

Objections to the amendments

The new provisions were challenged in the High Court onthe ground of unconstitutionality in the case of Malindi LawSociety v The Attorney General and the Chief Justice of theRepublic of Kenya & Others.36 In a judgment delivered by a three-judge bench of the High Court on 11 November2016, the court found the new provisions unconstitutionaland quashed the same. The court held that judges, onceappointed to any of the superior courts, must remain inthose courts and cannot be moved by the Chief Justicefrom one court to the other. The court held further thatno other court apart from the ELC could preside over theenvironment and land disputes. This decision caused uproar.It was considered a threat to a right of access to justice.Thousands of cases which were at various stages of deter-mination at the magistrates’ courts countrywide suddenlycame to a halt. Hundreds of litigants started moving theircases, however minor, from the magistrates’ courts to theELC, which had only 15 judges. The situation at the ELCturned from bad to worse. The decision was appealed tothe Court of Appeal and the orders of the High Courtwere stayed pending the hearing and determination of theappeal.37

Prior to this decision of the High Court, the Court ofAppeal in Karisa Chengo & Others v Republic38 held that the High Court, the ELC and the ELRC were of equal status but separate and distinct as concerns their juris-diction. In Karisa Chengo, the Court of Appeal found in particular that:

n The qualifications for the appointment of the HighCourt judges, ELC judges and ELRC judges and theirjurisdiction as set out in the Constitution and thestatutes that established the two latter courts are different.

n The High Court cannot deal with matters falling underthe jurisdiction of the ELC and ELRC and vice versa.

n The ELC and ELRC are not ‘the High Court’ and viceversa.

n Equality in the status of the three courts is not synony-mous with jurisdiction.

n ELC and ELRC were intended to be autonomous, distinct and independent of the High Court.

n Judges appointed to the ELC and ELRC do not havejurisdiction to sit in courts other than the court inwhich they were specifically appointed.

n The law envisaged that ELC and ELRC judges shouldbe different from the judges of the High Court interms of experience and qualifications.

n It was not the intention of the drafters of theConstitution or Parliament that a judge appointed to aspecific court can be moved around or deployed by the Chief Justice to sit in other courts of the samestatus.



29 See Mohamed Said v Nandi County Council Eldoret ELC Petition No 2 of2013, [2013] eKLR.

30 n 26.31 [2016] eKLR.32 Act No 25 of 2015.33 Act No 26 of 2015.34 ELC Act s 7(3).35 ibid s 26(3) and (4) and Magistrates’ Courts Act s 9.

36 Malindi High Court, Petition No 3 of 2016.37 See Court of Appeal at Nairobi, Civil Application No 65 of 2016, The

Law Society of Kenya-Nairobi v Malindi Law Society & six Others.38 [2015] eKLR.


n The Chief Justice could only transfer judges within thecourts in which they were appointed.

n The Chief Justice has no power to deploy judges to sitand preside over matters reserved for the courts inwhich they were not appointed.

The decision of the Court of Appeal in this case wasappealed to the Supreme Court of Kenya. In May 2017, the Supreme Court confirmed the decision of the Courtof Appeal and held that the ELC has no jurisdiction todetermine disputes falling with the jurisdiction of the HighCourt and vice versa.39

The jurisdiction of the ELC in disputes raising cross-cutting issues

There has been an ongoing debate between the ELC, theHigh Court and the ELRC on how to deal with disputesthat raise mixed issues, which can be dealt with by eithercourt. No consensus has been reached so far. At themoment, the matter is left to the discretion of the judgebefore whom the dispute is presented to decide whetherhe or she has jurisdiction to deal with the same. There havebeen a number of decisions on the issue. I will only men-tion a few. In the case of Tasmac Ltd v Roberto Marci &Others,40 the ELC was faced with a dispute which raisedissues touching on company law and land law. The court,while acknowledging that part of the dispute could be handled by the High Court and the other part by the ELC,held that it had jurisdiction to hear the matter since the suitcould not be severed.

In the case of Suzanne Achieng Butler & Others v RedhillHeights Investments Ltd & Another,41 the High Court wasfaced with a similar situation. The dispute concerned analleged breach of contract and title to land. The court in thiscase developed a test to be applied when faced with a dispute raising mixed issues. It referred to it as the ‘pre-dominant purpose test’. The court stated that:

When faced with a controversy whether a particular caseis a dispute about land (which should be litigated at theELC) or not, the Courts utilize the Pre-dominant PurposeTest: In a transaction involving both a sale of land andother services or goods, jurisdiction lies at the ELC if thetransaction is predominantly for land, but the High Courthas jurisdiction if the transaction is predominantly for theprovision of goods, construction, or works. The Courtmust first determine whether the pre-dominant purposeof the transaction is the sale of land or construction.Whether the High Court or the ELC has jurisdiction hingeson the pre-dominant purpose of the transaction, that is,whether the contract primarily concerns the sale of landor, in this case, the construction of a townhouse.Ordinarily, the pleadings give the Court sufficient glimpseto examine the transaction to determine whether sale ofland or other services was the predominant purpose of thecontract. This test accords with what other Courts havedone and therefore lends predictability to the issue.

Whether the ELC can entertain constitutional petitions, supervise the magistrates’ courts and tribunals and grant remedies of judicial review

The ELC was established to hear and determine all dis-putes relating to the environment and the use and occu-pation of, and title to, land. The court has both original and appellate jurisdiction. Neither the Constitution nor theAct has placed any limitation or restriction on the ELC onmatters falling within its jurisdiction. It follows, therefore,that the ELC has jurisdiction to entertain all disputes fallingwithin its jurisdiction brought in whatever form. There are anumber of occasions when the jurisdiction of the ELC toentertain constitutional petitions42 and applications for judicial review43 has been challenged despite the existenceof section 13(3) of the Act, which expressly gives the courtjurisdiction to hear and determine applications for redressof denial, violation or infringement of, or threat to, rights orfundamental freedoms relating to a clean and healthy envi-ronment under Articles 42, 69 and 70 of the Constitution,and section 13(7) of the Act, which gives the court powerto grant prerogative orders. In all these occasions, the juris-diction of the court to deal with such disputes has beenupheld.

Jurisdiction of the ELC in relation to criminal cases

As I have stated earlier, the jurisdiction of the ELC flowsfrom the Constitution and the ELC Act. Neither theConstitution nor the Act has explicitly conferred juris-diction on the ELC to preside over criminal cases. The caseof Karisa Chengo,44 referred to above, concerned the juris-diction of the ELC to hear and determine criminal appealsfrom the magistrates’ courts. The Court of Appeal held that the ELC has no such jurisdiction. The decision of theCourt of Appeal here was upheld by the Supreme Courtof Kenya. Some have argued that since the ELC is a specialised court established to deal exclusively with disputes relating to the environment and land, it would be best suited to determining criminal cases relating toenvironment and land.45

Jurisprudence emerging from the ELC

The ELC will celebrate its fifth year of existence inNovember 2017. In Kenya, cases take a while to beresolved. The normal lifespan of a case in the superiorcourt is between three and ten years. The conclusion ofenvironment and land cases is usually delayed by inter-locutory proceedings. Several initiatives have been put inplace to reduce the waiting period. A big percentage of the



39 Republic v Karisa Chengo & Others, Petition No 5 of 2015 [2017] eKLR.40 [2013] eKLR.41 [2016] eKLR.

42 Mohamed Said v Nandi County Council, Eldoret ELC Petition No 2 of2013, [2013] eKLR.

43 Nairobi ELC JR. No 85 of 2016, Kellico Limited v The National LandCommission & four others [2016] eKLR.

44 [2015] eKLR; section 9 of the Magistrates’ Courts Act.45 See the paper by Munyao Sila J n 21 above.


cases that were filed in the ELC upon its establishment arestill pending determination. Most of the decisions that haveemerged from the court as of now concern applicationsfor interim relief. Because of these factors, I would describethe jurisprudence coming out of the ELC as evolvingjurisprudence.

I wish also to point out that, at this stage, the court is not handling as many environmental cases as was expected. Most of the cases coming to the ELC concernland. Several factors have contributed to this state of affairswhich I will not go into due to the limited scope of thispaper. The main contributing factor is lack of interest on the part of the public on issues concerning environmentalconservation. This is occasioned by minimal educationalefforts and the public nature of the responsibility.

As ELC has exclusive jurisdiction on environment andland disputes, it is expected to develop rich jurisprudencein that area to enable Kenyans to realise the rights to aclean and healthy environment conferred by Article 42 ofthe Constitution, and social economic rights such as a rightto clean and safe water, and a right to reasonable standardsof sanitation which are conferred by Article 43 of theConstitution. The court is also expected to give meaning to environmental obligations and duties imposed on thegovernment and the public under the Constitution andEMCA. In reviewing the jurisprudence coming from thecourt, I will focus on: access to justice, capacity to sue,implementation of environmental obligations arising frominternational law, application of the principles of environ-mental law, and the forms of remedies being awarded bythe court, in no particular order.

In the case of Fadhila S. Ali & Others v National HousingCorporation & Another,46 the plaintiffs brought an action tostop the first defendant from carrying out certain con-struction works which the plaintiffs contended wouldinfringe their right to a clean and healthy environment. Theplaintiffs obtained an ex parte injunction restraining the firstdefendant from continuing with the construction workspending the hearing of the application inter partes. Order40 of the Kenyan Civil Procedure Rules empowers thecourt to grant interim relief pending the hearing of a suit.When granting such relief, the court has power to order anapplicant to furnish security or to provide an undertakingto the court that he will meet any damage that the respon-dent may suffer should it turn out at the trial that suchorder should not have been given.

When the application for an injunction came up forhearing inter partes, the first defendant urged the court toorder the plaintiffs to give an undertaking. The courtdeclined to make that order and held that the plaintiffs hadsufficient interest to justify their seeking to enforce therights conferred by the Constitution and EMCA, andshould not be prevented from doing so by requiring a condition for provision of undertaking as to damages.Requiring an undertaking (or other security contemplatedunder Order 40 of the Civil Procedure Rules) would unduly hamper the right of access to justice; if the injunc-tion was refused because the plaintiffs could not give an

undertaking as to damages, they would be compelled topotentially suffer an unclean and unhealthy environment for the period of trial before their rights could be enforcedby a final order. Such scenario, the court said, would renderthe constitutional protection under the Bill of Rights illusory and of no meaningful effect.

In the case of Republic v Lake Victoria Water ServicesBoard & Another,47 the applicants filed an application forjudicial review of a water supply and sanitation projectwhich entailed the abstraction of large quantities of waterfrom a river located in the area where the applicantsresided. The water would be pumped in large pipes to atown in the neighbourhood whose residents suffered acutewater shortage. The applicants contended that the projectwould reduce the quantity of water in the river which they used for domestic purposes and that the project wasbeing undertaken illegally in breach of the Constitution and EMCA. The applicants contended that there was nopublic participation before the commencement of theproject and that an Environmental Impact Assessment(EIA) had not been undertaken by the respondents. Thecourt made a finding that the project was being under-taken illegally, in that an EIA had not been undertaken.Further, the court acknowledged the exercise of its juris-diction was to be guided by (among other things) the prin-ciple of sustainable development. The court stated that forsustainable development to be realised there was a needto balance economic development and environmental sustainability and the project would, the court found, be beneficial to the public if undertaken in a lawful manner.Instead of permanently stopping the project, the court gavethe respondents time to carry out the EIA and to complywith other provisions of the law and stopped the projectuntil the respondents had fully complied.

In the case of The County Government of Migori v TheRegistered Trustees of Catholic Diocese of Homa Bay &Others,48 the petitioner brought a constitutional petition tochallenge irregular allocation of public land. The respon-dents challenged the petition on, among other grounds, thepetitioner’s lack of standing to bring the action. In its ruling,the court stated that Article 22(1) of the Constitution givesevery person a right to institute court proceedings claim-ing that a right or fundamental freedom in the Bill of Rightshas been denied violated, infringed or is threatened. Thecourt pointed out that sub-section (2) of the same Articleallows in addition to such person who acts in its own interest, a person acting on behalf of another who cannotact in its own name, a person acting as a member of or inthe interest of a group or class of persons, a person whoacts in the public interest or an association acting in theinterest of one or more of its members to institute suchproceedings for the enforcement of Bill of Rights. The courtconcluded that the Constitution has given legal standingnot only to a person who has direct interest in the right orwhose fundamental freedom is said to be denied, violated,infringed or threatened, but also to other persons who may be acting in the interest of others or in the general



46 [2012] eKLR.47 [2013] eKLR.48 [2015] eKLR.


public interest. Thus, the hitherto strict rule of locus standihad been relaxed by the Bill of Rights to give the publicenhanced access to justice.

Another case of particular interest is the case ofFriends of Lake Turkana Trust v The AG & Others.49 This casearose out of a memorandum of understanding which theGovernment of Kenya entered into with the Governmentof Ethiopia for the purchase of electricity from the Gibe IIIdam, as well as the grid connection between Ethiopia andKenya. The Gibe III dam is being built on the River Omothat flows from Ethiopia into Lake Turkana in Kenya. The petitioner’s case was that the Government of Kenyahad violated the constitutional rights of the communitiesaround Lake Turkana by entering into the memorandum of understanding with Ethiopia – whose effect wouldendanger the environment around Lake Turkana – withouthaving conducted an environmental impact assessment. The government’s response was that it had no control overthe construction of the Gibe III dam which was beingundertaken by the Government of Ethiopia within the territory of Ethiopia, outside the jurisdiction of the court.The government argued that although the construction ofGibe III dam could pose environmental challenges for LakeTurkana, the court was not the proper forum for their resolution as it had no jurisdiction to rule on the actions ofthe Government of Ethiopia.

The court held that the parties before it were all Kenyanentities and that the subject matter concerned alleged violation of the petitioners’ fundamental rights under theConstitution of Kenya. The court held that the fact that thealleged violations arose in a trans-boundary context didnot, on its own, operate to limit access to the court’s juris-diction. The court granted the petitioners an order of man-damus directed at the Government of Kenya to make avail-able information on the power purchase agreements it hadentered into with the Government of Ethiopia. The courtalso made an order directing the Government of Kenya totake steps to ensure that natural resources around LakeTurkana are sustainably managed, utilised and conserved inany engagement it enters with the government of Ethiopia.As concerns the obligation to undertake an environmentalimpact assessment study of the project, the court statedthat this would involve the Government of Ethiopia andKenyan courts were not the appropriate forum to deter-mine what obligations existed in this regard.

In the case of Patrick Kamotho Githinji & Others v ResjosEnterprises Ltd. & Others,50 the petitioners moved the courtto stop the construction of a road next to their residenceon the grounds that the works were being undertaken illegally without an EIA having been undertaken, and in amanner which was not environmentally friendly. The peti-tioners accused the respondents of indiscriminately cuttingdown trees which were providing shade and fresh air tothe residents. The respondents were also accused of failingto arrest the dust generated from the construction site,which was said to have caused ailments of various kinds in the petitioners. In its ruling, the court accepted the

petitioners’ claim that the respondents had indeed violatedtheir right to clean and healthy environment. The courtagreed with the respondent’s contention that the peti-tioners had not submitted scientific proof that the allegedailments were as a result of the road project. Nevertheless,the court held that in the circumstances of the case, it wasappropriate to apply the precautionary principle, which italso referred to as ‘in dubio pro natura’. The court statedthat, in cases of doubt, matters should be resolved in a waymost likely to favour the protection and conservation ofthe environment. In its final order, the court stopped theconstruction of the road until the EIA was undertaken andthe petitioners’ concerns addressed to the satisfaction ofthe court.

As I have already mentioned, the court is new and hasa long way to go in developing jurisprudence in the manyareas within its jurisdiction. The cases highlighted above areonly intended to show the trend the court is taking in theareas covered.

Milestones, challenges and the future

At the beginning of this paper I set out the policy consid-erations that informed the establishment of the ELC. TheELC is the only court in East and Central Africa specialisingin land and environmental disputes. We have received delegations from China and Sierra Leone who came tostudy how the court works. The court has enhanced accessto justice in its area of specialisation. It has reduced theperiod which land and environment cases used to takebefore being heard. Following the establishment of thecourt, the number of public interest litigation on environ-mental issues has increased. The creation of the court hastherefore enhanced the environmental rule of law.

With regard to challenges, I have already mentioned a number of them. Kenya has a population of about 45 million people. The number of ELC judges currently standsat 34, thus there is a serious shortage of judges in thecourt. The judges currently presiding over the court cannotcope with the workload. About 65 per cent of all civil casesin the Kenyan courts concern land. I am of the view thatwe should reconsider the jurisdiction of the court. It is a bitwide. I think that disputes concerning title to land should be taken back to the High Court. The other challenge con-cerns lack of expertise and experience, both at the benchand the bar, particularly in relation to environmental law. Ibelieve that the court would do well with more trainingand capacity building. The court has also encountered infra-structural challenges which I believe to some extent hasimpeded its expansion. Last but not least is what I woulddescribe as ‘institutional tough wars’ pitting the ELC andother superior courts against each other. As a young court,the ELC has had to fight for its space among the superiorcourts and the issue of the jurisdiction of the ELC is stillfluid. It is my hope that the Supreme Court will conclusive-ly lay these issues to rest soon. Despite these challenges,and in conclusion, I can say with confidence that the futurelooks bright for the court. The court has been well receivedby the Kenyan people and despite the difficulties explainedin this paper, it is delivering on its constitutional mandate.



49 [2014] eKLR.50 [2016] eKLR.


Introduction

This paper traces the rapid development of environ-mental justice in Chile over the last two decades, culminat-ing in the establishment of specialist environmental courts.It outlines the powers of the Environmental Courts ofChile, highlights the particular progress they have madetowards developing a coherent approach to environmentaljustice in Chile, and ends by reflecting upon remaining challenges.

Background

By the end of the 17-year-long civic and military dictator-ship (1973–1990), Chile lacked any specialised adjudicativeframework focused on the resolution of environmentalconflicts between private agents, or between them and thestate. A partial mechanism for obtaining what we wouldnow call environmental justice was given by the generallyapplicable acción de nulidad de Derecho Público, an admini-strative law remedy for the annulment of administrativedecisions, filed before ordinary courts of general jurisdic-tion, and subject to the ordinary civil procedure.

The 1980 Chilean Constitution introduced two impor-tant and interrelated legal changes that were to have a significant impact on the development of the incipientChilean Environmental Law. The first of these changes was the establishment, as part of fundamental constitu-tional rights, of ‘the right to live in a contamination-freeenvironment’.1 The second relevant change was the estab-lishment of a constitutional emergency claim called recursode protección, derived from the classic remedy of habeascorpus, and aimed at guaranteeing the legitimate exercise of substantive constitutional rights and guarantees. Thisexpedited remedy included, according to the original textof the 1980 Constitution, the aforementioned right to live in a contamination-free environment, protecting itwhen its exercise ‘was affected by an arbitrary and illegalaction that could be attributed to a specific authority orperson’.2

Since the 1980s, private citizens and entities have fre-quently used the environmental recurso de protección tochallenge the decisions of public authorities before Courtsof Appeals and the Supreme Court. The decisions of theSupreme Court gave rise to an important and growingbody of environmental jurisprudence, which started toshape an embryonic ‘environmental judicial review of

administrative actions’, which in turn had an importantimpact on the decisions of public administrative agencies.3

Once democracy returned, Chile started a gradualprocess of introducing, within its political and legal in-stitutional structure, an environmental dimension to publicpolicies. This dimension, connected to the policies, instru-ments, and institutions of environmental management, hasan irreplaceable role to play in a country like Chile, charac-terised by its great ecosystemic diversity and an economybased on the exploitation and export of renewable andnon-renewable natural resources with little to no valueadded. The Chilean institutional structure did not, however,exhibit a specific institutional arrangement concerned withthe environmental aspect of the development process. A great number of public institutions and legal norms ofdiverse hierarchies,4 and of a sectoral nature, were incon-sistent with a modern and integrated conception of theenvironment developed since the 1972 United NationsConference on the Human Environment.

Towards the beginning of the first democratically elected government, in 1990, then President Patricio Aylwincreated the Comisión Nacional del Medio Ambiente(CONAMA), an inter-sectoral administrative agency incharge of preparing and obtaining the legislative approval ofa bill focused specifically on environmental matters. Thepurpose was to generate a novel legal framework for envi-ronmental management instruments – particularly (thoughnot exclusively) a system for the assessment of environ-mental impact of public and private investment projectscalled Sistema de Evaluación de Impacto Ambiental (‘SEIA’),and a system of responsibility for environmental torts – aswell as to develop an institutional design for an integratedenvironmental policy, which could overcome the stronglysectoral and fragmented character of the Chilean environ-mental institutional architecture up to that point.

This effort, directed by the Executive Secretariat of the CONAMA, which I headed, was successful and led to the publication, in March 1994, of Law No 19.300, thatestablished the general bases for the environment.5 As aconsequence, an integrated approach to environmentalpolicy was initiated, through a diverse set of instruments for

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1 Chilean Constitution. Article 19, number 8.2 Chilean Constitution (original 1980 text) Article 20(2).

3 Rafael Asenjo ‘Innovative Environmental Litigation in Chile: the Case ofChanaral’ Georgetown International Environmental Law Review II(2) Fall1989 at 99.

4 CONAMA (1992) Repertorio de la Legislacion Ambiental vigente en Chile.Vols I and II.

5 Law No 19.300. Ley de Bases del Medio Ambiente, Comisión Nacional del Medio Ambiente (CONAMA), March 1994. See also the President’s‘Mensaje’ and the presentations made by the Executive Secretary ofCONAMA and the President of the Republic at the PromulgationCeremony that took place in La Moneda, on 1 March 1994.

Environmental Justice in Chile: three years after theestablishment of the Environmental Court of SantiagoRafael Asenjo Chief Justice of the Environmental Court of Santiago, Chile

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environmental management such as SEIA. The latter in-cluded mechanisms for citizens’ participation for the firsttime in Chilean history, as well as norms regulating, interalia, environmental quality, emissions, management, and preventive and decontamination plans.6

The system of liability for environmental torts containedin Law No 19.300 kept as applicable the general system ofnegligence-based liability, although it maintained three casesof pre-existing strict liability, related to nuclear security, agricultural protection, and marine pollution. One steptowards the ‘moderation’ of the ‘negligence-based liability’was taken with the creation of a legal presumption of liability in the case of proven non-compliance with the environmental legislation and regulations.7 Law No 19.300 generated a specialised regime for administrative judicialreview, subject to the rules and timing of general civil pro-cedure. Unfortunately, no data is available to show howmany times this specialised mechanism has been used.

Evaluation and reform of CONAMA’s management

Between 1994 and 2010, a series of personnel changes inPresiding Ministers and Executive Directors of CONAMA,the resulting changes in policy orientation, as well as the difficulties inherent in inter-sectoral coordination (which is not common within public administration but is never-theless necessary to adequately tackle environmental chal-lenges) made it clear that without a wider public commit-ment it would not be possible to succeed in an integrativeenvironmental policy – unless the partially developed co-ordination model was substantially modified.

Despite some outstanding achievements (such as theinstallation and early consolidation of a widely recognisedsystem for project assessment) it is necessary to acknowl-edge that some fundamental goals (such as: the review andsystematisation of the diverse sectoral and environmentallegal norms; the enactment of general norms regardingimportant issues such as territorial planning, biodiversityconservation or land use; and the necessary coordinationto adequately and efficiently monitor legal enforcementand compliance) made it necessary to substantially modifythe institutional framework for inter-sectoral environ-mental policy. Regarding access to justice, the conclusionsof the Environmental Performance Review that OECDconducted in 20058 should be noted. According to thisreview, the Chilean judicial system did not have the capacity to adequately deal with a significant amount ofenvironmental matters, in terms of evidence gathering,environmental damage estimation, and determination ofcompensation. Moreover, it was noted that there is noOmbudsman nor an independent institution that can act as a last resort mechanism to guarantee the protection ofcitizens’ rights.9

This review led to the discussion and later enactment of Law No 20.417, promulgated in January, 2010 by thenPresident Michelle Bachelet. This bill dissolved CONAMAand, as a result, generated the Ministry of Environment, incharge of the political and normative direction of nationalenvironmental policy, the Servicio de Evaluación Ambiental,exclusively in charge of administering the system for theassessment of environmental impact of projects and activi-ties, and the Superintendencia del Medio Ambiente, adminis-trative agency in charge of overseeing enforcement andsanctioning environmental non-compliance, particularly inconnection to environmental management instruments.

The Chilean Congress reviewed the powers and sanc-tioning functions of the latter (which included, for the firsttime in Chile: the authority to temporarily or definitivelyclose establishments; to impose fines of up to $5 millionper individual infraction; to revoke the environmental qual-ification decision (or ‘RCA’) an authorisation to build and operate that puts an end to the SEIA process), anddeliberated over the measures needed to control adminis-trative discretion in applying sanctions for environmentalnon-compliance. Since the purpose was to generate a judicial review mechanism that was independent of theExecutive Power and that could constitute a guaranteeboth for regulators and the regulated, the sponsors of the idea – representing the interests of business sectorsand non-governmental organisations – generated aMemorandum of Understanding that was agreed upon bythe Executive and the Senate. Under said memorandum,the Executive agreed to send, within the year following thepromulgation of Law No 20.417, a draft bill to create anEnvironmental Court that could decide claims filed againstthe Superintendencia’s most burdensome sanctions.10

The establishment of Environmental Courts

In October 2009, the Executive introduced a draft bill toCongress, creating the Environmental Court. This tribunalwas to have an autonomous, independent, and specialisedcharacter, and would have a mixed composition of lawyersand scientific or technical experts in environmental mattersas decision-makers. The court’s jurisdiction focused on: thejudicial review of the decisions of public authorities withenvironmental powers; the authorisation for certain sanc-tioning measures of the Superintendencia; the control in law of quality and emission norms and of preventive anddecontamination plans; and the substantive decision overclaims for reparation of environmental damage – with theexception of the determination of the compensation foractual damages, which was left to the decision of civilcourts.

In June 2012, Law No 20.600, establishing the Environ-mental Courts, was promulgated. This piece of legislationgave rise to three courts, rather than one (as was orig-inally proposed), with their jurisdiction distributed territori-ally from North to South. These courts are specialised and

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6 Ina Ruthernberg ‘Una década de gestión ambiental en Chile’Environment Department Papers, World Bank, July 2001.

7 Law No 19.300, Article 52.8 OECD Environmental Performance Review – Chile, 2005.9 ibid chapter 7, section 1.3.

10 See the ‘Mensaje’ of the President of the Republic, that introduces thedraft bill creating the Environmental Court, in Historia de la Ley No.20.600, (2012) Library of the National Congress, Chile, 6-7.


autonomous, which marks an important contrast with ordinary and specialised tribunals that are, nevertheless,part of the hierarchical structure of the judicial power inChile. Judges serving in the environmental courts are subject to strict requirements of exclusive dedication,incompatible with any other position (remunerated ornot), as well as to special inabilities and incompatibilities,applicable since they apply for the position until two yearsafter they leave office. Their term lasts six years, and theirdesignation constitutes a highly complex matter, since itinvolves the participation, after a public contest held by the Servicio Civil Sistema de Alta Dirección Pública, of thethree powers of state: the Supreme Court, the Executive(that makes the designation decision), and the LegislativePower, which must approve the Executive’s proposal by a majority vote of three-fifths of the members of theSenate.11

The Environmental Court of Santiago: the Chilean model

In March 2013, the Environmental Court of Santiago, thefirst one established in Chile, initiated its adjudicative func-tions. This court’s jurisdiction covers, to this day, the centraland northern regions of the country, which make up totwo-thirds of the Chilean territory, after it transferred, twoyears ago, the jurisdiction in the southern region to theEnvironmental Court of Valdivia.

Institutional characteristics

According to Law No 20.600, environmental courts ‘arespecialised adjudicative organs, subject to the directive, corrective, and economic supervision of the SupremeCourt, and their functions are to solve the environmentalcontroversies that fall within their jurisdiction, and to handle all the other issues that the law subjects to theirdecision’.12

Specialised adjudicative organs. These courts are speciali-sed organs, and are not part of the hierarchical structure ofthe judicial power. They are empowered to decide on thelegality of public decisions about environmental manage-ment instruments, as defined in Law No 19.300, admini-strative actions and norms related to them, and the deter-mination of environmental damage.

Independence from the Executive. In order to fulfil theiradjudicative and review functions, particularly those of nullity and impugnation, in an efficient manner, environ-mental courts are independent of the hierarchy of anystate power, and have no formal relation with any publicinstitution, particularly those with environmental policy andadministrative powers. Nevertheless, environmental courtsdo have a direct and special relationship with the Ministryof Finance for the purpose of securing, each year, their global funding through the Ley de Presupuestos del Sector

Público, which legally fixes the budget for the Chilean public sector.13

Specialisation through mixed composition. Each Environ-mental Court is made up of three titular justices (ministros).Two of them must be lawyers, with at least ten years’proven record on environmental or administrative law, and the third justice must be a scientific or technical expertspecialising in environmental issues. There are also two substitute justices, one a lawyer and the other a scientific ortechnical expert. The purpose of this mixed composition isto integrate legal analysis with a technical and specialisedperspective, in order to approach the complexity of theenvironmental issues at stake with sufficient rigour, as wellas to guarantee sufficiently justified legal and technical decisions, non-discrimination, and legal certainty for theparties.

Specialisation in jurisdiction. Environmental Courts havethe power to decide on, mostly, claims ‘of impugnation orreview of administrative actions and norms, so that thecourts’ jurisdiction has the nature of administrative judicialreview, focused solely on the examination of the legality ofthe administrative action or norm’.14 In general terms, thecourts decide on:

n claims regarding the illegality of state action, par-ticularly of the Ministry of the Environment, theSuperintendencia del Medio Ambiente, the Servicio deEvaluación Ambiental, the Committee of Ministers, andof all state organs with environmental powers;

n claims demanding reparation for environmental harm,although the determination of the actual compensationis left to ordinary courts with general jurisdiction in civilmatters;

n requests for provisional measures and suspensions, aswell as the authorisation of particularly burdensomesanctioning decisions adopted by the Superintendenciadel Medio Ambiente.

Hierarchical level of the courts and impugnation mechanismsagainst their decisions. Law No 20.600 grants the courts thetreatment of Ilustre (or superior status) and their justicesare ministros (ministers), just like the treatment accorded to the Courts of Appeal and their members. Although envi-ronmental courts decide issues as the only instance courts,because there are no second instance courts, in terms ofthe impugnation mechanisms that are applicable againsttheir decisions, they are quite similar to Courts of Appeal.In fact, final decisions, in matters of law not of facts, are onlyreviewable by the Supreme Court through formal and sub-stantive cassation.15

Functioning. In the three years in which theEnvironmental Court of Santiago has been operating, 185 cases have been filed. Of such cases, 114 are cases ofreclamaciones (claims of illegality), 29 are cases of repara-tion for environmental harm, and 42 are requests and consultations presented by the Superintendencia. The court,



11 This extremely high quorum is the same that is required to approve aconstitutional reform.

12 Law No 20.600, creating Environmental Courts, Article 1. Chilean DiarioOficial, 28 June 2012.

13 ibid Artícle 16.14 Jorge Bermudez, Fundamentos de Derecho Ambiental, Ediciones

Universitarias de Valparaíso, 2014, at 526.15 ibid at 523.


up to this date, has decided on all the requests and con-sultations filed. With regards to reclamaciones, 32 rulingshave been made, so that a total of 52 cases have beendecided, along with 27 cases that have ended for other reasons. Seventy-nine of these cases have thus ended. Inthe case of claims for environmental harm, four rulings havebeen made, two cases have ended in settlements, and eighthave ended for other reasons. Thus, 14 of these claims havebeen resolved.

Of the 36 reclamaciones and claims ruled, 17 have beenimpugned through cassation before the Supreme Court. Inseven cases, cassation has been denied, and in four it hasbeen declared abandoned, confirming the court´s decisionin a total of 11 cases ruled upon (79 per cent of them). Inthree cases, cassation has been granted, reversing thecourt´s decision (21 per cent of the cases ruled upon). Thefact that the final rulings of a novel, specialised, autonomousand independent court have had this degree of supportfrom Chile’s highest judicial authority, confirms that we aredealing with a ‘mature’ institution in terms of the exerciseof its recently granted adjudicative functions.

Contributions of the Environmental Court’s performance16

Expanding the access to environmental justice. Access toenvironmental justice is a strong demand in our societies,and is perfectly well expressed in Principle 10 of the RioDeclaration of 1992. In the Pan-European context, thisdemand has been enshrined in the Aarhus Agreementsince 2001. In Latin America and the Caribbean, however,this is still an aspiration. Today, after three years of intenseenvironmental adjudicative work, Chile offers a successfulexample in the Latin American and global contexts.

The establishment, in 2013, of the Environmental Courtof Santiago is undoubtedly a step forward for all the actorsinvolved in environmental issues. It is also a guarantee of aspecialised adjudication of environmental controversies. Inthis context, it should be noted that a clear expression ofthe expansion of access to environmental justice has beenthe extensive and purposive interpretation of standingmade by this court, both in issues of tortious liability andadministrative judicial review.

Nowadays, the limits and difficulties in claiming repara-tion for environmental harm, or the demand for full compliance with environmental regulations by projectdevelopers and affected stakeholders, find a much clearerresponse, both in terms of standing and substantive admis-sibility, as well as impugnation mechanisms, in our legislation.In this respect, the ‘order’ created by the court has alsobeen an important expression of certainty in access toenvironmental justice.

The technical and scientific contribution to adjudicativedecisions in environmental matters. I should also highlight theincorporation of technical and scientific contributions tothe decision of environmental conflicts. The Environmental

Court of Santiago, through its mixed composition, cancount on highly qualified scientific experts in environ-mental matters fulfilling the role of justices. In these initialyears, legally trained ministers and court officials have beenable to witness and learn from deep scientific analysis ofsuch complex issues as mineral concentration and biologi-cal effects on land quality,17 or what the mass balance ofdiverse ice bodies means and how this can be affected bya particular project.18

Standardisation of criteria and adequate justification ofadministrative action. It is also important to note that,through its decision-making, the court has made a system-atic effort to standardise criteria regarding different legalinstitutions, such as: (i) invalidation in environmental issuesand its relationship to the impugnation mechanisms of LawNo 19.300; (ii) provisory measures of the Superintendencia,as a key aspect of its work in protecting the environmentand human health; and (iii) due consideration of citizens’observations, giving substantive legal and practical contentto the right to informed participation.

Further, the court has demanded adequate justifica-tion of their decisions from public institutions in charge ofsanctioning environmental non-compliance, thus securingdue process and the adequate justification of the state’ssanctioning powers. Generally speaking, the court hasheightened the standard of justificatory criteria in the decisions of administrative organs. This has included differ-ent matters, such as project evaluation, the exercise ofsanctioning powers, and the modification of general envi-ronmental norms, as happened in the attempt to derogatethe quality standard on large particulate matter, which wasrejected by the Environmental Court,19 a decision laterstrongly ratified by the Supreme Court.20

Some challenges for the future

Facing the difficulties generated by the lack of substantive andprocedural rules. The current environmental policy model inChile is structured on the basis of environmental manage-ment instruments, and not on the basis of the environ-mental elements or components. As a consequence of thismodel, our country presents a significant regulatory deficitwith regards to environmental components. Unlike thecase in most Latin American and OECD countries, Chiledoes not have statutes specifically focused on land, water,air, or biodiversity, does not possess a system for environ-mental management or planning of its territory, and stillshowcases various unmanaged liabilities. It should not besurprising, then, that the jurisdiction granted to theEnvironmental Court is subject to the same limitations, andconcentrates on environmental management instrumentsrather than on environmental components.

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16 Based generally on the Chief Justice´s 2015 Public Annual Report deliv-ered at the Environmental Court on 29 March 2015. (www.tribunalambiental.cl).

17 Judgment of 26 January 2015 in Case D-9-2014 Agricola Huertos deCatemu SA and others v Compañía Minera Catemu Ltda, points 42 to 48.

18 Judgment of 20 March 2015 in Case D-2-2013, Ruben Cruz and others vCompañía Minera Nevada SpA (Pascua Lama Project), point 199.

19 Judgment of 16 December 2014 in Case R-22-2014, Fernando Dougnacand others v the Ministry of Environment, points 39, 41 and 50.

20 Judgment of Supreme Court 30 September 2015 ratifying the EC’s judg-ment of 16 December 2014.




The Environmental Impact Assessment System –Sistema de evaluación de impacto ambiental (SEIA) – is, by far, the most important legally defined environmentalmanagement instrument. As a consequence, most environ-mental management in Chile is done through the SEIA. Ofcourse, SEIA is a very important tool, but in terms of reachit does not wholly cover the complete, integrated, andmodern management of the Chilean natural and environ-mental patrimony.

The court has faced some difficulties in performing its adjudicative functions whenever it has faced the lack ofsubstantive rules, for example regarding the use of bio-diversity and natural resources, determining the para-meters and establishing when ‘contamination’ occurs, anddeciding when strong indicia of environmental damageexist. This has been particularly evident in cases where thesupposedly affected component has been land.

Regarding procedural aspects, the court faces rules thatare inconsistent with the flexibility and agility required bythe adequate resolution of environmental conflicts. Wehave also faced difficulties involved in applying proceduresfrom classical legal institutions that are inconsistent with thecharacteristics of environmental legal processes. In thisaspect, the issues that the court has faced when applyingthe default rules of legally determined evidentiary weight ina process characterised by a more flexible evaluation ofevidence have been significant. The court has made effortsin determining the applicability and form of application ofthese rules, but as long as our country fails to update itsgeneral rules of civil procedure, this task remains incom-plete. For example, in environmental damage cases our Act 20.600 has set forth the rule of free incorporation andfair criticism of evidence.21 This means that judges canaccept any type of evidence (and evaluate that evidenceusing logic and by applying judicial knowledge and experi-ence to assess its soundness) and there is no need to applythe default rules of the Code of Civil Procedure (CPC). TheSupreme Court has ratified this approach. But in the caseof illegality claims against the administration (65 per cent ofour cases) there is no such rule, so the environment courtsmust apply the CPC rules that are much more restrictive.

Facing inequality and imbalance between the parties. Insuch a grossly unequal country as Chile, which has one of

the worst inequality levels in the OECD, as measured bythe ‘Gini index’,22 it is obvious that environmental conflictsdo not generally involve equal parties. Because of this, it is not possible to apply the logic of commutative justice to the decision of environmental conflicts. Moreover, it isclear that in many cases a material difference between theparties, so to speak, has been important. In such cases, parties’ interests are unequally represented for exclusivelyeconomic reasons, which generates on some occasions,defective presentations and defences by counsel, delayingthe beginning or simply affecting the procedural success ofthe case. All of this constitutes a big challenge for the court.

An example is provided by the classical conception ofevidentiary onus. In environmental matters, the personclaiming environmental damage is not always in the bestposition to prove it, an issue that can become a majorobstacle in establishing both legal proof and reparation.Also, the procedural difficulties already mentioned make afluid advancement of cases harder, all of which in the endaffects the proper fulfilment of the adjudicative functions ofthe court regarding environmental conflicts.

Facing lack of jurisdiction in important environmental con-flicts. Finally, it is also important to point out that the courthas faced the impossibility of determining certain relevantconflicts because it simply lacks legal jurisdiction to do so.In this sense, we have not been able to decide on substan-tive grounds damages for oil spillage, unfortunately verycommon on our seas. Moreover, the court has not beenable to deeply engage with issues involving biodiversity,given the current legal deficit existing in this matter.

As long as the institutional model is built on the basis of environmental management instruments, and not on the basis of environmental components, the court, as wellas the Superintendencia, is doomed to review and deciderelatively limited environmental conflicts. Even though they do have the technical and scientific expertise, theEnvironmental Courts are left out of deciding significantenvironmental conflicts affecting our country and citizenry.Limiting jurisdiction in this way frustrates the underlyingpurpose of the Environmental Courts. The answer, then, is to move towards a gradual increase in jurisdiction, tran-scending issues of pollution, to include matters moredirectly related to biodiversity, land, air and water.

21 The Environmental Court has undertaken a systemic interpretation ofAct 20.600 and, using general legal principles, has decided to follow onereference to the fair criticism rule, related to the repeal action (Act20.600 Article 26(4)) as the general rule for approaching legal evidence,avoiding the outdated limitations imposed by the Code of CivilProcedure, passed in 1893.

22 Daniel Matamala Poderosos Caballero. El peso del dinero en la política chilena (2015) at 25 ff.


1 Introduction

The ‘land and environment courts’ in Sweden have an old,established pedigree, as they have their roots in the systemof water courts that were introduced in 1919. In this article I will give a short overview of how this adjudicatorysystem has evolved, how the modern courts are organised,and the different procedures that apply depending on the kind of case at hand. It is important to note at the outset, that a Swedish land and environment court can be regarded as a mix of authority, being akin to both anadministrative court and a civil court. As the majority ofcases at the land and environment courts are appeal cases from administrative authorities, a certain focus of this article will be the courts’ practice in administrativecases. I also will give some glimpses of my experiences fromworking as a judge in a land and environment court. Oneconclusion that can be drawn from my article is that thechoice we have made in Sweden – of dealing with envi-ronmental problems in specialist courts – has some greatadvantages, but the environmental adjudicatory system as awhole is complex, expensive and in some respects ratherinefficient.

1.1 Some historical notes

Through the Water Act of 1918, five regional water courtswere established in Sweden. These courts were originallywhat may be classified as ‘exploitation courts’. The overrid-ing interest in creating a system with specialised courts wasto facilitate the building of hydro power stations and topromote industrialisation and economic growth in Sweden.The water courts were regarded as a ‘one-stop shop’where the applicant could, through one set of proceedings,get permission to build and operate, get access to land andthe courts would also rule on any economic compensationfor the land acquired as well as the economic impacts onland use in the surrounding area (if the operation affectedthis negatively). Cases on land drainage in order to createland areas for agriculture production or for building pur-poses, for example, could also be dealt with by the watercourts.

At this time, the environmental impact of such opera-tions in principle was not considered but the rapid urbani-sation and industrialisation in the late 19th century andearly 20th century put pressure on a parallel developmentof legislation to address mainly city planning and the (some-times very bad) sanitary problems in the growing urbanareas.

Subsequent alterations to the water legislation1 slowlygave room for environmental considerations. It is worthmentioning that in the 1940s special provisions on man-agement of sewage water were added to the Water Act.Those provisions were later lifted out of the Water Act andbecame components of the Environment Protection Act1969, internationally one of the first integrated environ-mental laws, covering in principle all kinds of disturbancesfrom industries.2

Moreover, the Environmental Code 1999 introduced anew approach, with the first section of the Code statingthat its overall objective was to promote sustainable development.3 To a large extent, the purpose of theEnvironmental Code was to strengthen the position ofenvironmental law during a period when environmentalconcerns were very high on the political agenda.

Up to this time the structure for appealing decisionsfrom authorities had been very diverse, depending onwhich kind of disturbances were alleged and which legisla-tion was triggered. Judgments from the water courts couldbe challenged at a division of the Court of Appeal inStockholm, Svea hovrätt,4 and at the Supreme Court in the final instance. Decisions from local authorities could bechallenged at the County Administrative Board and then, ifunder the former Environment Protection Act, before theNational Licensing Board in the final instance. Decisionsfrom that authority in the first instance could be challengedbefore the government. Decisions from local authoritiesunder, inter alia, the Health Protection Act, the Act onChemical Products, the Nature Conservation Act and the Waste Management Act could be challenged at the

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1 A new Water Act was introduced in 1983.2 The Environment Protection Act (1969:387) introduced a thorough

regime requiring permits for certain activities that could be harmful tothe environment. A National Licensing Board was established, respon-sible for issuing permits for larger industries, while activities with lessenvironmental impact needed a permit from the county administrativeboard (governmental authorities at the regional level) or a notificationprocedure at the local authority. The Environment Protection Act alsocontained rules on the supervision of activities.

3 The Environmental Code (1998:808) was a merger of 15 Acts relatingto environmental issues, inter alia the Water Act, the Nature ProtectionAct, the Environment Protection Act and the Health Protection Act. TheCode contains general principles of consideration, and in separate sections, inter alia, provisions on environmental quality norms, environ-mental impact assessments, nature protection, flora and fauna, environ-mentally harmful operations and health protection, polluted areas, wateroperations, chemicals and waste management.

4 The division was called Vattenöverdomstolen (the Water Court ofAppeal). A similar solution has been chosen for the present structureand the division in the Appeals Court now responsible for environmen-tal cases is called Mark-och miljööverdomstolen (the Land andEnvironment Court of Appeal).

Specialised courts for environmental matters – the Swedish solutionAnders Bengtsson Senior Judge, Land and Environment Court, Växjö, Sweden

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County Administrative Board and then at the administra-tive courts.5

With the introduction of the Environmental Code, the water courts were reorganised into environmentalcourts. By establishing these courts, cases from several linesof appeal were gathered into one organisation. Some caseswere directed from the administrative court system andsome cases from the property courts.6 The NationalLicensing Board was dissolved and the environmentalcourts took over its role regarding permits and appealcases. By this reform the government in principle lost itsrole as a decision-making body for the appeal of environ-mental matters.

The establishment of environmental courts in Swedendid not go unchallenged but it was the right time for suchan initiative, and it was highlighted as one of the moreessential parts of the reforms that introduced theEnvironmental Code.7 As will be elaborated in the nextsection, there has been a discussion whether or not tokeep this system, but the position of the environmentalcourts has been strengthened and confirmed by subse-quent reforms.

In May 2011, the environmental courts evolved intoland and environment courts. Through this reform, casesunder the Planning and Buildings Act (building cases fromthe administrative courts and planning cases from the government) and property cases (as the system of prop-erty courts was dissolved) were directed to the land andenvironment courts.

At the end of 2015, the Swedish Water Supply andSewage Tribunal was dismantled and their cases (in totalaround 400 new cases a year) are now allocated to theland and environment courts.8

2 The structure of Swedish environmental courts and administrative authorities

2.1 The allocation of environmental matters incourt

Since the system of specialised courts was introduced,there have from time to time been discussions whether ornot to keep such a system. Historically the existence of thewater courts had been questioned, and discussion arose in particular when the Water Act of 1918 was replaced by the 1983 Water Act.9 Opponents argued that issuingpermits was a task for administrative authorities and not for the courts. However, the system functioned well andcompensation issues were regarded as tasks for the courts.As it was convenient and efficient for the water courts tohear these matters together, no changes occurred at thetime.

In 1994, a governmental bill was introduced with theobjective of gathering different acts on environmental law(the Water Act was not included) into one environmentalcode.10 One suggestion was that licensing environmentallyharmful operations should be handled by the existingNational Licensing Board and the county administrativeboards. Appeal decisions from authorities would be allo-cated to the system of administrative courts.

The subsequently elected social-democratic govern-ment withdrew that bill and after a new inquiry (whereone of the main objectives was to include the Water Actwithin the Environmental Code) it presented a new bill in 1997.11 One ingredient in the package – aimed at underlining the status given to environmental law – was tocreate a system of specialised environmental courts.Despite some objections from the Council of Legislation,the water courts evolved into environmental courtsthrough this process. Some politicians were concerned that the water courts’ reputation as ‘exploitation courts’ still lingered and there was a fear that the ‘walls were con-taminated by the old exploitation culture’.12 Advantagesincluded the fact that specialised institutional infrastructurealready existed: the tight time schedule made it practicallyimpossible to build a totally new organisation of courts, torecruit personnel, and move archives etc. Even if adminis-trative cases formed the majority of cases, the fact that thebody would also have to hear civil disputes was decisive.Handling such disputes in the hierarchy of administrativecourts was regarded as out of the question.

The role of the environmental courts in issuing permitsfor water operations and environmentally harmful opera-tions has continually been called into question.13 So farthere has been no change, as the organisation is regardedas effective and meets the high expectations placed onquality decision-making and legal certainty.

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5 If a decision in first instance was based on or referred under a numberof different statutes (eg the Health Protection Act and the EnvironmentProtection Act, which was not uncommon), the appeal was held by thecounty administrative board, but if the decision from that authority waschallenged, the appeal was split so one part was referred to the admin-istrative courts and one to the National Licensing Board. Often the sameproblem was considered in a similar way by these institutions.

6 The court system in Sweden has two major lines: the general courts,which comprises district courts (48), courts of appeal (6) and theSupreme Court, and the administrative courts (12), administrative courtsof appeal (4) and the Supreme Administrative Court. Property court wasthe name under which some district courts since 1969, appointed by agovernmental ordinance, settled different kinds of land disputes. The firststep of directing cases from the property courts to the environmentalcourts covered some cases, for example compensation for environmen-tal damage.

7 A study from 2009, updated in 2016, shows that throughout the worldthere now are many different solutions with ‘green benches’ withincourts, different kinds of tribunals, and some environment courts: seeGeorge Pring and Catherine Pring Greening Justice: Creating and ImprovingEnvironmental Courts and Tribunals (World Resources Institute 2009);George Pring and Catherine Pring Environmental Courts and Tribunals: A Guide for Policy Makers (UNEP 2016).

8 The Tribunal adjudicated disputes relating to water supply and sewerageunder the Public Water Supply and Wastewater Systems Act (2006:412)and the Swedish Water Supply and Sewage Tribunal Act (1976:839).Even before this reform, the decisions of the Tribunal could be chal-lenged at the Land and Environment Court of Appeal.

9 Prop 1981/82:130 p 68ff.10 Prop 1994/95:10 pp 226, 332.11 Prop 1997/98:45 Part 1 p 461, Part 2 p 225.12 Prop 1997/98:45 Part 1 pp 484–486.13 See eg prop. 2009/10:215 p 94f and SOU 2015:43 p 363f.


2.2 The Swedish system of courts and authorities with environmental tasks

The majority of cases relating to health and environmentare allocated to the five land and environment courts(LECs).14 Judgments and decisions by these courts may beappealed to Svea hovrätt – the Land and EnvironmentCourt of Appeal, a division of the Court of Appeal inStockholm – that already had the role of a national appealscourt in the system of water courts.

Decisions by municipality councils or authorities are,with a few exceptions, first appealed within the administra-tion, to the county administrative board before they can bechallenged at the LEC. Decisions from the county adminis-trative boards (either in the first instance or on appeal) anddecisions from other governmental authorities can be chal-lenged directly before the LEC. The Land and EnvironmentCourt of Appeal is the final instance for most cases onappeal from an authority. That court may also decide judg-ments in property cases under the Planning and BuildingsAct and those cases may be appealed further to theSupreme Court. Cases that have started in an LEC (eg permit cases and litigation cases) may – via the Court ofAppeal – also be challenged at the Supreme Court as the final instance. Leave to appeal is required in all casesappealed to the Land and Environment Court of Appeal, aswell as to the Supreme Court. Governmental decisionsmade under the Environmental Code15 or other legislation

can be challenged by (concerned) private persons andNGOs at the Supreme Administrative Court by seekingjudicial review (legality control).16

Even if the aim of the Environmental Code and otherlegislative initiatives was to streamline the organisation,there are still examples of different substantive rules anddifferent remedies that apply at both first instance andappeal decisions. The administrative courts are responsiblefor the appeal procedure governed by some environmen-tally focused legislation that falls outside the EnvironmentalCode, for example decisions related to workers’ environ-ment, cultural heritage, foodstuffs, hunting, fishing andforestry. Sometimes the procedures between the adminis-trative courts and LECs are parallel, while in other cases adecision made under one statute will prove decisive for asubsequent decision made under another. The situation cansometimes be seen as rather confusing and the differentprocedures, time consuming.17

Below I have tried to visualise the (sometimes com-plicated) pattern of bodies involved in environmental deci-sion-making: authorities, the government, local governmentassemblies vested with decision-making powers and thecourts.



14 LECs are situated in the cities of Växjö, Vänersborg, Nacka, Östersundand Umeå.

15 Eg appeal decisions on protecting a land area as a nature reserve. Otherissues can be raised directly to the government by reference or by thegovernment’s own initiative. Under the Environmental Code this can bedecisions on permissibility for major operations, where the subsequentpermit with conditions is issued by the ordinary permits body. Anotherexample is when an operation in a significant way affects a Natura 2000area and the permits body finds that the effects are such that there is aneed for weighing the interest of preservation against important publicinterest of exploitation.

16 Judicial Review of Certain Government Decisions Act (2006:304).17 See eg the parallel procedures under the Environmental Code and the

Minerals Act (1991:45) and also regarding infrastructure projects underthe Act (1995:1649) on Building of Railroads or the Roads Act (1971:948). A report from the Swedish construction industry’s organisation forresearch and development (SBUF November 2016) criticises the com-plexity of the planning and permit processes for infrastructure projects(available at www.sbuf.se). Also the permit processes for the miningindustry have been analysed: see eg Report 2016:13 from the SwedishAgency for Growth Policy Analysis (available at www.tillvaxtanalys.se).


3 The Land and Environment Courts

3.1 Constitution

The LEC in Växjö is divided into two sections with a totalof 11 legally trained judges, including two senior judges, 11technical judges, 15 drafting law clerks and 11 secretaries.The court in Vänersborg is of similar size, the court inNacka is a bit larger, while the courts in Östersund andUmeå are smaller. In the settling of cases, judges adjudi-cate alongside technical judges and specially appointedmembers of court.

After nomination from the Judges Proposals Board, thejudges are appointed by the government as judges in the specific district court and subsequently assigned by thepresident at the respective district court to work at theLEC. In general the judges appointed to the LEC stay therepermanently. In Växjö five of the legally trained judges havetheir background in administrative courts and five in general courts. Among the judges there is no specialisation,so each judge takes all kinds of cases.

All LECs have employed technical judges. After nomina-tion by the Judges Proposals Board, the technical judges are appointed by the government for service in the wholecountry but they are based at one particular court. In practice they only serve at other courts in exceptionalcases due to the need for special competence or for otherreasons. Regulations to protect the impartiality and inde-pendence of the court exist (addressing disqualification and possibilities for sideline jobs) and the technical judgeshave to comply with the same restrictions as the legallytrained judges.

The technical judges have technical or scientific training,and experience in the issues that the court handles (envi-ronment, planning and building, or property cases).18 InVäxjö, three of the technical judges are land surveyors, twoare architects, two are water engineers, two are specialistsin biology and one in chemistry. Depending on what prob-lems the case involves, more than one technical advisormay participate in the judgment.19

The ‘specially appointed members’ are regarded asexpert members and provide expertise within the sectorthat the case concerns: for example, operations connectedto industry, municipalities or agricultural economy. They arenot employees of the court, but work per assignment inmajor cases (mostly permits cases and litigation cases).20

The specially appointed members are nominated, inter alia,by the Swedish Environmental Protection Agency, theSwedish Association of Local Authorities and Regions andthe Confederation of Swedish Enterprises. They are thenappointed by the Judges Proposals Board for three years ata time.21

The specially appointed members contribute theirknowledge and experience from working in different sec-tors of society but they are not representatives of thenominating organisation. As they are not employed by the LEC, they also serve as ‘an eye of the public’, reflectingpublic interest.

In the Land and Environment Court of Appeal there are20 legally trained judges (including two senior judges ofappeal/head of division and five senior judges), 13 technicaljudges, three acting associate judges, three junior judges, 18 reporting clerks and nine secretaries, in total around 70 employees. As has been mentioned, the Appeals Courtis a division of the general Appeals Court, Svea hovrätt. Inthat court there is a system with rotation between the different divisions of the court. In general and with a fewexceptions, the legally trained judges move to a new divi-sion every four years.22 The Appeals Court does not havea system of specially appointed members.

In the Supreme Court only legally trained judges areinvolved and in principle the justices have no specialisationregarding the allocation of cases. However, there is somespecialisation in the sense that environmental cases, forexample, are assigned to and prepared by certain judgesand/or drafting law clerks.

3.2 Roles and cooperation between members

At the LEC, judgments are drafted through close coopera-tion between a legally trained judge and a technical judgeand, if assigned to the case, the specially appointed members. As a main rule, though, the specially appointedmembers do not participate in the preparations precedingthe hearing. Instead they are assigned to the particular case,once it is sufficiently ready to be presented to the court, orin connection to a main hearing.

During the preparation of the case and when writingthe judgment, the legally trained judge has a main focus onthe legal issues and the technical judge and the speciallyappointed members on the technical aspects. The role of



18 Act (2010:921) on Land and Environment Courts 2:2. In practice thismeans that the technical judges in general are a bit over 50 years of agewhen they get their appointment. The legally trained judges on the otherhand more often are around 40 years of age when they get their firstappointment.

19 A system with technical judges also exists in Finland, which is almost theonly reminiscence of the earlier similar systems of water courts inSweden and Finland.

20 The general courts and the administrative courts apply a system with‘layman judges’ (akin to magistrates). The main purpose is to have a trans-parent system, giving citizens control and influence over judicial opera-tions. When the environmental courts were created, they were givenwhat was regarded as the best components from the earlier systems.The water courts as well as the property courts had a system with tech-nical judges but instead of specially appointed members they had laymanjudges. The National Licensing Board had employed engineers with asimilar role to the technical judges and had also a system with speciallyappointed members.

21 The solution to have technical judges in the courts has only briefly beendiscussed in the legislation procedure, see prop 1997/98:45 Part 1 p 467and prop 2009/10:215 pp 125–126 and has so far not been evaluatedas regards their actual contribution, e.g. to the quality of the judgments.The experiences from within the water courts, the property courts, andthe former national permits board were, however, very positive and sois the current view from the LEC.

22 Involving the Land and Environment Court of Appeal in the practice ofrotation has some negative effects and has been criticised, see section3.4 below. The system is an established practice in appeal courts andmotivated by the idea that any judge can and shall be able to judge allkinds of cases and to avoid the developing of separate practicesbetween the different divisions. In a system with collegial decision-making (here three legally trained judges and one technical judge) thecolleagues will not establish very close links, as may occur if you worktogether for several years. One advantage in the long run is that theknowledge of environmental law will spread to numerous judges at thecourt.


the court and the tasks for the judges assigned, though, differ depending on the character of the case, as explainedbelow. However, the LEC in most civil cases is rather passive and concentrates on minimising uncertainties. Inappeal cases and applications for permits under theEnvironmental Code (first instance cases), the LEC must be more active and investigate the case ex officio.

One overarching requirement during the preparation ofcases is to work with efficiency and employ procedures toavoid delay. In Växjö the main rule is that the technical judgehas this responsibility for cases concerning applications forpermits under the Environmental Code (first instance),while the legally trained judge administers civil cases, andthe drafting law clerk is concerned with progressing appealcases. The cooperation between the members of the courtis open and rather informal but they respect each other’scompetence.

Most appeal cases at the LEC are prepared by draftinglaw clerks (communication of documents to the partiesetc). Depending on how experienced the clerk is, the legally trained judge and the technical judge may still haveto be involved in the different steps for preparing the case– making decisions for directions or interlocutory applica-tions such as: ‘Is the request for extension of time justified?’,‘Is there a need for the court to inspect the site?’ etc. Whenthe case preparations are complete, the drafting law clerkdelivers a draft for the court’s judgment addressing all thedirections for the case.

The technical judge has the main responsibility fordetermining whether the available technical surveys aresufficient or not, in order for the LEC to draw the correctconclusions on the health or environmental effects. Thetechnical problems that may occur in our cases can beextremely diverse. This means that in this system, the tech-nical judges have a more generalist rather than specialistrole. The chairman (the legally trained judge) and the technical judge discuss and determine whether anyrequests for additional information fall within what the lawrequires and are relevant for the particular case.23 In theend it is for the chairman to determine the framework ofthe process.

When settling a case, the judge, technical judge and specially appointed members have equal votes. If the tech-nical judge and special member do not agree, the chairmanhas the casting vote. The one outvoted then writes a dis-senting opinion, which will be attached to the judgment. It is worth noting that cases concerned with proceduralmatters are often only decided by a single legally trainedjudge.

Fundamentally, the composition of the court, with technical expertise on the bench, makes it possible for

the court to take a more active role in the adjudication of the cases brought to them. Swedish courts com-monly take a proactive role in administrative cases, and also in cases where technically complicated issues are atstake.

3.3 Procedure and jurisdiction

The LECs now have quite a wide range of cases under theirjurisdiction24 and the court applies different proceduralrules depending on what kind of case it handles. Somerules or factors are common to all kinds of cases, such asno requirements for parties to be represented by a lawyer.Another basic rule is that court hearings and the docu-ments in the case files are public.

The LECs have agreed on mutual ‘turnaround schedule’for certain kinds of cases.25 Nevertheless, the total time-frame – from when the case was opened until the matteris concluded with a final decision having legal force – canbe considerable, particularly if there have been appeals and remission to a lower level for renewed consideration.The costs for society can be quite substantial.26 Over time,numerous initiatives to speed up procedures and reducethe number of appeals have been explored or taken, particularly regarding planning and building cases.27

The role for the courts in administrative matters hasbeen discussed and questioned, particularly whether it isreasonable to have a full review of the cases in everyinstance, or whether a legality review would be sufficient, at least in the higher instances. Allowing a full review, theobligation for the courts to ex officio investigate the case,and the economic risks being limited to parties’ own costs,might prompt parties to take advantage of the system bysaving substantial parts of their ammunition for hearings ata higher level, avoiding disclosing arguments or investing incostly surveys. If successful at first instance, the party canavoid costs and save time. If the application fails, the partycan appeal with minimal economic risks. Of course, there issome risk in adopting this tactic, as appeals to the Land and



23 For example, some newly appointed technical judges, especially thosewho previously worked as consultants, sometimes have a tendency anda will to improve the technical solutions described by the applicant in permit cases, instead of putting the questions relevant to determinethe legality and appropriateness (the requirements according to theEnvironmental Code) of the solution chosen and applied for. Where todraw the line between what is relevant and what is not can be a ratherdelicate determination and may have vital consequences for the process,the parties and the environment.

24 At the LEC in Växjö in 2016, 115 permit case files were opened, 26 caseson civil disputes (under the Environmental Code), 127 applications on imposition of conditional fines, 606 appealed cases under theEnvironmental Code, 729 under the Plan and Buildings Act, and 259property cases. In total, 2092 cases were opened in Växjö and 6894 forthe whole country. Nationwide, 6564 judgments were delivered with2047 from Växjö. In 2016 around 600 cases (including 195 to Växjö)were transferred to the LEC from the Water Supply and SewageTribunal, following that authority being dismantled on 31 December2015.

25 For example, 75 per cent of cases on appealed decisions under theEnvironmental Code shall be concluded within six months from whenthey were opened.

26 The average court costs (first instance) for a decision in a permit casewas in 2005 calculated at €8000, while the cost for an appealed case(first court instance) was calculated at €3500 (see SOU (StatensOffentliga Utredningar) – Swedish Government Official Reports)2005:59 p 318). These costs include salaries, administration, and costs forpremises, the work of the national courts’ administration etc.

27 For example, the legislature has investigated the effects of introducingcourt fees, rules on preclusion and more restrictive criteria on whoshould have the right to challenge decisions: see SOU 2014:14. Onereform already implemented is that, from 1 June 2016, municipality deci-sions on land planning are challenged directly at the LEC and not asbefore, via the county administrative board.


Environment Court of Appeal and the Supreme Courthave to be granted leave.28

3.4 Openness, transparency, information anddigital communication

Digital documentsMore and more of the documents and working materialsare now in digital form, helping to speed up processes. Inappeal cases, the files from the lower instance often aresent to the court in digital form. Communication in mostcases, especially to administrative authorities and profes-sional actors, is digital and judgments are also sent out byemail. Still, the regulations regarding the court archivesrequire paper files and any digital documents have to beprinted out before they are filed.

OpennessOpenness and transparency are fundamental for all publicactivities in Sweden, an ideal that has its roots in theFreedom of the Press Act 1766, and is now a part of theSwedish Constitution. The main rule – ‘Principle of PublicAccess to Official Records’ – establishes that all documentsand hearings are public, although this rule can be restrictedby specific legislative provisions. For example, the PublicAccess to Information and Secrecy Act29 protects, inter alia,interests connected to the national defence or commercialsecrets (a narrow exemption), allowing parts of a hearingto take place behind closed doors (in camera). Documentsin the court file may also be protected for such reasons.

Documents delivered to the court (as well as to allauthorities or other public bodies) are recorded in openregisters, which are vital for research, for ensuring citizens’trust and confidence, and guarding against corruption orother misuse of powers. The record sheet must containdetails of all documents in the file, information added orally, eg by telephone, and other information relating tothe handling of the case.

At the Växjö LEC we have maybe a handful of requestsfrom operators/applicants each year to keep documentssecret. If the court finds sufficient reasons for the request,the document will be marked with a warning that it maycontain secret information and noting the relevant provi-sions in the Public Access to Information and Secrecy Act.If, subsequently, a request comes from a party or memberof the public, the court will decide whether there are reasons to disclose. If the document is to be disclosed, thecourt can decide to disclose only parts of the document,or to disclose the document or parts of it with a reser-vation, connected with a criminal liability, not to disclose it to others. A decision to disclose documents cannot bechallenged (unlike denials of other requests). As far as I

know, in Växjö since 1999 only part of one hearing hasbeen held behind closed doors, covering the security func-tions at a nuclear power plant. There are specific rules onaccess to documents held by the court for parties in casesat the LEC, giving the parties a stronger position than thirdparties, but not an unconditional right to access.30

Information in environmental casesThe national rules on openness are completed by require-ments in the Aarhus Convention, and the EU Directive onAccess to Information in environmental cases, and theDirective on Industrial Emissions (IED). The Water Act andthe Environment Protection Act of 1969 already containedrules requiring permit bodies to publicly announce applica-tions for permits under these acts. Similar regulations areincorporated in the Environmental Code. The Code estab-lishes that, in first instance cases, the applicant has to paythe costs of public notice, and in appeal cases on permitsunder the Environmental Code the court has to pay suchcosts. The announcement serves two interests: it gives thepublic information about developments generally, and italerts them to the possibility of giving their opinion on the application. Also, notice is given when the court hasapproved an Environmental Impact Assessment, when thecourt has given judgment, or at any other time the courtfinds it is needed. New practices are developing and thecourt’s external website now gives information on upcom-ing court hearings and posts judgments.

3.5 LEC as the ‘civil court’

Civil cases traditionally fall under the jurisdiction of ordi-nary district courts but disputes with environmental ties(damages and compensation, cases on compulsory pur-chase etc) are handled by the LEC (first instance cases). Asa general rule, these cases are decided after a substantivehearing and the procedure is regulated by the generalCode of Judicial Procedure.31 The loser pays principle is applicable but in cases on or similar to compulsory purchase, the exploiter in the first court instance has to pay reasonable litigation costs for the opposite parties, irrespective of the outcome.

The Environmental Code allows private persons toinstitute proceedings for a prohibition of environmentallyharmful operations or to impose protective or other pre-cautionary measures on such operations. Such an actionmay only be taken against a party conducting an environ-mental operation without a permit. As in regular civil disputes, the litigant has to pay a court fee (around €300)and also, according to the loser pays principle, risks paying



28 In 2016 the Land and Environment Court of Appeal conducted a surveyregarding the frequency of leave to appeal from the LEC. In cases underthe Environmental Code, first instance cases (permit cases), around 40per cent of the appeals were granted leave to appeal by the AppealsCourt. In cases appealed from authorities via the LEC, around 20 percent were granted leave to appeal, whereof in total the court altered theoutcome, fully or in part, in around 75 per cent of the cases.

29 SFS 2009:400.

30 See Court Matters Act section 22 and decision from the Land andEnvironment Court of Appeal M 2203-17 (2 May 2017), on the right fora windmill company to get access to documents on protected birds inthe vicinity of the location for a planned windmill park.

31 A short view of the procedure is: once the application is registered, thecase is randomly allocated to a judge and the applicant is ordered to paythe court fee (€280); the defendant is served with the summons anddelivers his/her plea; preparatory hearing/further written communica-tion, delivering of statements of evidence etc; main hearing; the courtdeliberates in camera and delivers its judgment in public.


the opposite party’s costs, although such cases are veryrare (at my court there have only been two in 15 years).In practice, the disturbed neighbour tries to get the super-visory authority to act, and if that is not successful, anappeal of the authorities’ decision, allows for a cost-freescrutiny before the LEC.

3.6 LEC as the ‘authority’

Applications for permits under the Environmental Code forwaterworks operations,32 as well as for major environmen-tally harmful operations,33 are handled by the LEC as firstinstance cases.34The court acts a little like an administrativeauthority,35 and this includes a strong obligation for thecourt to examine the case ex officio, to guide the partiesin the process, and, if needed, to order the applicant toobtain the opinion of governmental authorities specialisedin certain scientific areas (as the Swedish EnvironmentalProtection Agency or the Geological Survey of Sweden,SGU). In a hearing, all interested persons are able to makesubmissions (not just the ‘parties’), although they are notentitled to make formal claims or motions. Based on theprecautionary principle, the burden of proof is alwaysplaced on the applicant to show that the operation fulfilsthe requirements of the Environmental Code.

In respect of environmentally harmful operations, theoperator has to pay an annual fee to the county adminis-trative board. Procedures regarding water operations differsomewhat, as the court’s ruling may include the right to getaccess to land and also a decision on compensation for lossof land etc. In those cases, the applicant has to pay a court

fee (€200–€40,000, depending on the size of the proj-ect).36 In water operations cases, those regarded as oppos-ing parties have the right to get their reasonable litigationcosts covered by the applicant. If the operator loses anappeal to the Appeals Court, they will also have to pay theopposite parties’ costs.37

In all permit cases, the operator has to pay the costs incourt inter alia for service by publication, costs for anappointed keeper of documents38 and for premises forcourt hearings, if it is not convenient to have the hearing(cost-free) in a court house or premises owned by thestate or a municipality.39

A judgment to approve an application for a permitunder the Swedish Environmental Code establishes thatthe operation is permissible regarding its location anddefines the operation that is covered – the kind of opera-tion, the volume of production etc. It can also contain conditions – based on the general principles that theEnvironmental Code requires in the specific case – that theoperator has to comply with, relating to emissions to air,water, waste management etc. If the operation is regardedas permissible in principle, but the technical surveys fail togive sufficient information to finalise all the conditions, thecourt may order the applicant to present new surveys aftera certain probationary period. This often occurs when theapplication relates to establishing a new operation and, forexample, the treatment of waste water has to be adjustedover an initial period. The court can impose interim condi-tions and the case remains open until all the conditions arefinalised.

Once the permit decision has legal force, the operatoris protected against further demands from the supervisoryauthority or claims by third parties, as long as the operationcomplies with the requirements in the permit. The possi-bility of the authority enforcing stricter conditions or re-stricting the operation in other ways is limited by the law.40

3.7 LEC as the ‘administrative court’

On the numbers, the majority of cases filed at the LECrelate to appeal decisions from authorities. These cases mayrefer amongst other things to issues of health protection,nature conservation, environmental protection, sanitation,contaminated areas, waste treatment, building, planningmatters, cases over property registrations, boundary dis-putes etc. Appeal decisions from authorities are traditional-ly handled within the system of administrative courts andthe LEC apply similar, but not identical, procedural rules inthese cases.41



32 As a general rule, water operations need a permit unless it is obviousthat no public or private interests are affected. By a governmental ordi-nance, some types of operations are exempted, but they instead requirea notification procedure at the county administrative board.

33 Governmental ordinance states whether an operation requires a permitissued by the LEC (major industrial plants etc, ‘A-listed’ operations), apermit from an independent permits-board, situated at 12 of the 21county administrative boards (‘B-listed’ operations) or a notification pro-cedure at the supervisory authority at the local level (‘C-listed’ opera-tions). In certain cases the Government decides on the permissibility ofthe operation.

34 A short view of the procedure includes: application and EnvironmentalImpact Assessment (EIA) delivered to LEC; registration and the case israndomly allocated to a judge; in water case, the court decides on acourt fee (€150–€45,000); application is sent to certain authorities fortheir opinion on whether they regard the application as complete or not;the applicant is, if required, ordered to complete the application. Whenapproved, the application is announced in local papers. A copy of the fileis sent to an appointed keeper of documents; the file is sent to authori-ties and ‘concerned’ parties for (any) written statements; the applicantgives his/her opinion on the statements – if needed, new surveys may bedelivered; main hearing, and if required, site visit; the court deliberates incamera and delivers its judgment within two months, which is announcedpublicly if the judgment contains a ruling related to an EIA.

35 The process in first instance cases at the LEC is regulated by the Act onLand and Environment Courts and the Code of Judicial Procedure. Inthese cases, the courts also apply certain procedural provisions stated inthe Environmental Code, giving the procedure some administrative influences on the importance of written material and the requirementfor the court to ex officio examine the case. In her opinion in the caseDjurgården Lilla Värtan, C–263/08, Advocate General Eleanor Sharpstonstated that: ‘In the present case, it is clear that the miljödomstolen per-formed non-judicial functions. Consequently, the decision it took in thecourse of the planning procedure, with which the present case is con-cerned, forms part of “the environmental decision-making procedures”referred to in Article 6 of Directive 85/337, as amended’.

36 The Ordinance (1998:940) on Costs for Examination and Supervisionunder the Environmental Code.

37 Environmental Code 25:2.38 In permit cases, the court appoints a keeper of a copy of the courts’ file,

in the vicinity of the operation (often an official at the municipality). This system enables the public to get access and copies of documents,without having to visit the court.

39 Environmental Code 25:8.40 See Environmental Code 24, 26, section 9.41 From 1999 the LECs applied the same procedural rules as the adminis-

trative courts, the Administrative Court Procedure Act (1971:291), butsince 2011 they have applied the Court Matters Act (1996:242).


On appeal, the operator always has the burden of proofto show that the operation fulfils the requirements underthe Environmental Code – irrespective of whether thedecision was challenged by the operator or by an oppos-ing party. As a starting point, though, the party complainingagainst an operation, has to show the probability of thealleged disturbance or risk of disturbances.

A decision from a supervisory authority to issue anorder combined with a conditional fine may be appealed to the LEC. If the order is in force and the addressee doesnot comply, the authority may apply to the LEC to get the fine imposed. Applications for the imposition of condi-tional fines were originally handled within the ordinarycourts system and the general prosecutor was the appli-cant. Such cases are nowadays mainly dealt with by theadministrative courts or, as regards cases under theEnvironmental Code and the Planning and Buildings Act,the LEC. These cases are treated as administrative casesbut with special regulations to assure the legal rights of theaddressee (given their quasi-criminal nature).

One initial observation is that, unlike the detailed sub-stantive law, administrative procedures are rather brieflydrawn in the Swedish legislation. This means that the legis-lator deliberately left considerable space for the judge tocustomise the procedure to fit the circumstances of theindividual case. The judge may seek guidance from theCode of Judicial Procedure, statements in preparatoryworks, court practice, deliberations in the literature, andalso in general principles of law. Generally, cases are decided on the papers but an oral hearing is held if a partyasks for it, or the court otherwise finds it necessary.42

A hearing then is regarded as a complement to the writtenmaterial.43

Once again, the procedure is governed by the ‘ex officioprinciple’.44 The full extent of this responsibility may vary,inter alia, depending on the nature of the case and theclaims of the parties. In short it means that the court mustinvestigate the case and ask questions in order to clarifyuncertainties in the statements and claims of the parties,and may refer questions to authorities specialised in certainareas, such as the Swedish Agency for Marine and WaterManagement, if the court wants an opinion eg on theeffects on water and fisheries by the building of a hydropower station. This principle also means that the court isnot bound by the reasons the parties include in theirclaims. As long as they are covered by the claims, the courtcan base its judgment on other causes of action. The

court by a reformatory process can alter, annul or confirmthe contested decision. It can also review the constitu-tionality of a provision that is applicable in the specific caseat hand.

Given the active role of the courts, parties’ rights cangenerally be protected without legal representation. Inpractice, in the majority of cases, no lawyers are involved.There are no court fees, bonds to be paid for obtaininginterim measures, or litigation costs (except in propertycases); each party has to bear his/her own costs. A privateperson or an NGO does not risk being sued for damagesif a project should be delayed. If, on the other hand, anauthority or the court has been negligent in its executionof a case, it can be sued for damages in a civil case (or asregards governmental bodies, in practice first via a com-plaint to the Chancellor of Justice). Legal aid is not available;this is also due to the strong requirement for the court toex officio examine the case.

Most administrative cases concern both public and private interests (often the interests of third parties areaffected) and are generally not susceptible to amicable settlements. In practice, when a case concerns, for example,a dispute between neighbours, the court often tries tonegotiate and if successful, the parties make an agreementand the appeal will be withdrawn (as it is not possible toconfirm such agreements in a judgment).

4 Appellate courts

The Supreme Court is the final instance in cases that start-ed at an LEC: permit cases, civil cases and cases on theimposition of conditional fines. With a few exceptions, theLand and Environment Court of Appeal is the final instancein cases that started at authority level. This means that theAppeals Court is the last instance in the absolute majorityof cases decided under the Environmental Code and inproperty, planning and building cases.

As the procedural rules do not provide for the AppealsCourt to decide ‘in plenary’, its judgments can be ques-tioned with regards to their value as precedents. Generallyspeaking, not even the judgments from the Supreme Courtare binding. The Supreme Court has stated that a lowercourt may deviate from the case law of the SupremeCourt, if there are reasonable grounds for doing so.45 Thisissue raises the question as to the role of the higher courtsin relation to the development of domestic case law in this field. By way of example, the Land and EnvironmentalCourt of Appeal, in order to grant leave to appeal, appliesthe same provisions as any Swedish Appeals Court and notthe more limited provisions available for the SupremeCourt.46 In practice, the number of rulings from the



42 Court Matters Act section 13.43 A short view of the process includes: an authority passes its decision;

the appellant delivers an appeal to that authority. If appealed within thetime limit, the appeal (including the file from that instance) is sent to thecourt (otherwise dismissed by the authority by a decision that can bechallenged in court); the appeal is registered and randomly allocated toa judge; the judge determines whether a communication shall start andto whom the appeal then shall be sent; if required or asked for, the courtwill have an oral hearing and/or further written communication; if written procedure and when the preparation is finished, the case is presented to the court (in camera) by a drafting law clerk and the courtwill have its deliberations; if the case is closed after an oral hearing, thecourt will have its deliberations in camera and in immediate connectionto the hearing; the court delivers its judgment.

44 Court Matters Act section 12.

45 See judgment at NJA 1994 p 194 (note that the precedents from theSupreme Court are published in Nytt Juridiskt Arkiv or ‘New JudicialArchives’), the Supreme Court stated that a lower court may deviatefrom the case law of the Supreme Court, if there are reasonablegrounds for doing so.

46 Code of Judicial Procedure chapter 49, section 14 and AdministrativeCourt Procedure Act section 34a establish four situations when therespective appeals courts shall grant leave to appeal, that is if: (1) thereare reasons to alter the ruling from the LEC; (2) in order to better


Appeals Court is high and it can be difficult to seek guid-ance from them as they are often written more for the particular case (in casu) than as a precedent.47

A personal reflection is that the Appeals Court hasbecome steadily more coherent in its judgments, but in itsearly years it was frustrating to often distinguish differencesin the outcome and reasoning depending on who had par-ticipated in the judgment. The system of rotation of judgesin the Appeals Court is also problematic in this perspectiveand the continuity in practice has been provided by thetechnical judges to a great extent. This point has beenobserved and criticised in the media.48 An initial problemwas that the judges in the Appeals Court had their back-ground in general courts and limited experience in apply-ing administrative law.49 This made it hard to foresee theoutcome, as the practice from the Supreme AdministrativeCourt sometimes was interpreted in a non-traditional way.However, as the appeals judiciary gain longer experience of working with administrative cases (and no longer applygeneric procedural legislation) these problems are gradu-ally diminishing. Still, as discussed above, the full review of acase (the legality and the appropriateness) and a reforma-tory process in several instances is time and resource con-suming, and politically a hot topic that is often discussed inthe media.

5 Personal reflections

The district of my court stretches 250 kilometers to thenorth and almost as far to the south. The large land area to cover makes it necessary to spend much time ‘on theroad’ in order to come closer to the parties and to have avisual understanding of the site of contested operations.Often we have to spend the night away from home. Thismay be inconvenient for one’s private life; on the otherhand it means that you have the opportunity to get toknow your colleagues in quite a different way than if youonly meet in the court-house during business hours.

Our hearings are, if possible, held in a court-house but more often in the open air, in school buildings, townhalls or other assembly halls, sometimes rather rustic andthen we have to bring our own technical equipment and

portable alarm system instead of relying on the facilities(and security arrangements) of an ordinary court-house.

It is apparent that often the maps, sketches and photosin the file give an impression that is contradicted whenexperiencing the scenery in reality. The visits also give an opportunity to open up for discussions and facilitate mediation, especially in disputes between neighbours –even in administrative cases that as a general rule are notformally negotiable.

A general observation regarding the function of theLEC is that the judges’ close cooperation with experts infields other than law is very stimulating and fruitful: youlearn from each other’s expertise and different vocationalcultures, it deepens the discussions and the combined competences provide that the cases are given a broader,more thorough and professional treatment. This means that questions and analyses by the court will be shaped ina particular way – weighing both what the law requires and what from a technical/scientific point of view needs tobe solved in the case.

Most judges and drafting law clerks lack relevant educa-tion and experience in environmental law when they startwork in an LEC, but regardless, all judges are fully respon-sible for the cases that are allocated to them. It takes timeto get acquainted with the area and to understand the different lines of principles, overriding legislation and thenational substantial and procedural rules. The initial prob-lems of course are not unique for the environmentalcourts but a judge must rather quickly master the substan-tive law and also, for Sweden, the rather complex mix ofprocedural rules. Even seemingly minor judicial problemsmust often be put in a larger social context, in order toproperly reason and solve them – to determine, for example, if it is justified to prohibit the further use of asewage plant. Providing education in environmental law isimportant and under the Swedish Courts Academy anational programme is evolving. As a complement, at ourcourt we have a programme for the continuing educationfor all categories of personnel (judges, technical judges,drafting law clerks and secretaries).50

The backgrounds of the technical judges are naturallyquite different from those of the legally trained judges.Some have experience working for an authority while others may only have worked in private companies as environmental consultants. For some it can initially be hardto adapt to the culture at the court and their role as ajudge; this problem applies also to the specially appointedmembers. Thus a proper introduction to the role is crucial.Members take the mandatory judicial oath, and receiveeducation locally and through the Courts Academy, andthere is an open discussion on ethical matters in the court.However, this also means that at hearings and inspectionsthe judge has to be observant and may, sometimes ratherresolutely, have to guide the non-lawyer members in theirconduct, in order not to endanger the impartiality of thecourt.



determine whether the LEC has ruled correctly; (3) a ruling in a highercourt could offer guidance on how to decide in similar cases; and (4)otherwise there are extraordinary reasons to try the case. Only the lasttwo options are available in order for the Supreme Court or theSupreme Administrative Court to grant leave to appeal: see Code ofJudicial Procedure chapter 54, section 10; see also Administrative CourtProcedure Act section 36.

47 All judgments from that court are published at www.markochmiljooverdomstolen.se, but a compilation of certain judgments is published at www.rattsinfosok.dom.se/lagrummet/index.jsp. There is no board orcommittee selecting the cases that shall be published. Currently, it is upto the judges participating in the specific case to choose those theyregard as more important. In 2016, 21 such rulings were published (45 during 2015) of in total around 200 judgments related to theEnvironmental Code, 50 related to the Public Supply and WastewaterSystems Act, around 130 to the Planning and Buildings Act and around50 judgments in property cases.

48 Article by Jenny Jewert in Dagens Nyheter (1 September 2015).49 In practice the court tried to fill that gap by always having one report-

ing clerk with a background in administrative courts.

50 For example, during autumn 2016 we had basic courses or seminarscovering the Environmental Code, the Planning and Buildings Act, procedural rules at the land and environment courts, noise, the use ofdigital map systems and how to keep minutes at court hearings.


6 Final thoughts

How to deal with environmental cases in court is mainly apolitical issue that has been answered in different waysaround the world, based on respective national legal cul-ture and traditions. The Swedish way, allocating environ-mental cases to specialised courts, has some great advan-tages regarding efficiency and the development of routinesand competences. The solution is obviously very citizenfriendly, with its cost-free process in most cases and burdenon the courts to examine the cases ex officio with the aimof reaching a substantively correct result. On the otherhand, the system is not without challenges.

One problem is the fact that cases appealed to theLECs can be tried in four and sometimes even fiveinstances. In principle, all facts of the case are then open for scrutiny and new arguments and surveys can be pres-ented until there is a ruling from the last instance court, inmost cases the Land and Environment Court of Appeal.51

These factors may of course be criticised but this followsthe traditional way that administrative cases are handled inSweden.

As the majority of cases under the Environmental Codecannot be challenged in the Supreme Court, the dev-eloping of environmental law jurisprudence is, to a greatextent, dependent on the judgments from the Land andEnvironment Court of Appeal. However, as mentionedabove, there are a high number of rulings from that courtand those rulings are often written for the specific case andnot as precedent.

There is a constant evolution of environmental law innational legislation but, for Member States in the EuropeanUnion, this is also enforced by EU law and practice fromthe European Court of Justice. Increasingly important isalso the practice under the European Convention onHuman Rights and the Aarhus Convention. This means as ajudge you never can rest with a notion that you knoweverything. This is inspiring but it also puts great pressureon the judges to be active and on the courts to provide fora thorough introduction, education and supplementarytraining. The courts also must provide access to differentdatabases with sources of law and court practice – thetools used by the judges are now to a great extent digitaland the dusty books in the library are used less and lessfrequently.

The active role for the courts in both administrativecases and technically complicated environmental cases hascreated a need to have technical expertise within thecourt, the technical judges. Our experience is that this system functions very well and is appreciated both insideand outside the court-house. The cooperation betweenthe legally trained judge and the technical judge enables thecourt to formulate adequate questions covering both thelegal and the technical/scientific aspects and also to analyseand assess the answers given, not only from a legal point of

view. The broader competence deepens the discussionsand is beneficial for the way the court may reason and alsofor the results. These circumstances may enhance confi-dence in the court as parties notice that the members ofthe court fully understand their dispute.

Which matters shall be tried in the LEC is deter-mined explicitly by law, for example provisions in theEnvironmental Code and the Planning and Buildings Act.The division between the ordinary courts and the LEC can,however, be a difficulty in so-called mixed cases. If, forexample, a civil dispute refers to causes of action under theEnvironmental Code and under the general Tort LiabilityAct, there are currently no provisions making one courtcompetent to try both causes. In practice this problemoccurs infrequently, but it is cumbersome for the court intrying to handle the disputes efficiently and this division ishard for the parties to comprehend and accept.

The concept of environmental law encompasses issuesother than those referred to the LEC. Such cases are oftenunder the jurisdiction of the administrative courts. But theEnvironmental Code refers some issues to the jurisdictionof the general courts. The most disputed issue is that crimi-nal matters are allocated to the general courts and tojudges that are often criticised for being unfamiliar with thelaw and how to evaluate the scientific surveys presented.

The aim of streamlining procedures by referring mostcases with environmental ties to the LEC has many advan-tages, but viewing the system as a whole there are gaps and the organisation and legislation in this field is not fullycoherent. Sometimes different laws overlap, sometimesthey work in parallel, while in other situations the prin-ciple of lex specialis will prevail and determine which law is applicable. This overlap also means that a project can be pursued or challenged within different systems ofauthorities and courts.

Viewing the court system as a whole, the strict divisionof tasks reduces occasions for judges to meet across the‘borders’. Often conferences and training administrated bythe National Courts Administration are focused on sub-stantive law, and then mainly attract those working in thatspecific field. This may narrow the view and the discussionbetween judges and then have a negative impact in thelong run.

To conclude, the solution that has been chosen inSweden has some great advantages – above all promotingthe competence of the court to better understand andreason in technically complicated cases, thus creating courtjudgments that appropriately guide parties in their futurebehaviour. The ex officio principle and the reformatory pro-cedure in administrative cases aim to achieve substantivelycorrect answers, and help to even out the differences inthe parties’ resources and power.

The disadvantages with our system, though, should notbe neglected. Adjustments in order to enhance the effi-ciency ought to be possible without jeopardising the legalrights of the citizens. Maybe now is the time, 15 years after the introduction of environmental courts, to evaluateclosely the functioning of the LECs and their proceduresagainst the background of the court system as a whole, andthoroughly examine the future role for these courts.



51 In administrative cases there are no rules on preclusion, meaning that, aslong as the court has not delivered its judgment, the parties are free todeliver new documents or arguments, which may have to be sent to theopposite parties for comments.


Introduction

New Zealand has until recent times been widely regardedas a world leader in terms of access to environmental justice. That reputation, however, has come under pressurewith environmental legislation in this country havingentered a state of considerable flux.

In this paper, we do not comment on government policy and the formulating of substantive laws, as it is notour place as judges to do so. It can, however, fall within ourresponsibilities as judges to make careful public observa-tions about matters of court process and access to justice.This is what we set out to do in this paper, in the contextof historic, current, and possible future legislative scenarios.

Challenges facing environment courts andtribunals

Rock Pring produced an excellent keynote paper for theforum organised by Ceri Warnock and Judge Newhook atthe 2016 Oslo Norway IUCNAEL Conference titled ‘TheEnvironment in Court’. His paper was called ‘The chal-lenges facing environmental judges in the next decade’ andmay be found at https://environmental-adjudication.org/10-challenges-for-environmental-adjudicators/. It examined tenchallenges facing environmental adjudicators, as follows:

n Challenge 1 – Sustainabilityn Challenge 2 – Climate changen Challenge 3 – What is an ‘environmental case’n Challenge 4 – Access to environmental justicen Challenge 5 – ADRn Challenge 6 – International lawn Challenge 7 – Natural lawn Challenge 8 – Public trust doctrinen Challenge 9 – Is precedent outdated?n Challenge 10 – Personal challenges.

The present paper examines challenges, past and prospec-tive, to access to environmental justice in the New ZealandEnvironment Court, focusing mainly on Challenge 4(Access to environmental justice).

Before doing so, it might be useful however to note in relation to Challenge 5 (ADR), that the operation ofalternative dispute resolution mechanisms in our court –employing mediation processes – is in very positive terri-tory. This free service undertaken by independent facili-tators, our Environment Commissioners, is successful inresolving about 75 per cent of the cases filed in the court,on a comparatively cost-effective basis. Challenge 4, in

contrast, might be thought quite richly to justify its label‘challenge’.

Challenges 4 and 5 are in fact seen by us to coalescesomewhat in the following way. Some academics such asJudith Resnik have expressed concern that ADR risks creating ‘privatisation of adjudication’, removing public lawdisputes from the public sphere.1 We consider that thereare important safeguards against this in the context of thework of the NZ Environment Court because first, ADRprocesses are facilitated by members of the court, ourCommissioners, and secondly, resolution of cases in thoseprocesses is subject to final approval by a judge who willnot sign off without enquiry or even a hearing in opencourt if there are problems such as want of jurisdiction.

The New Zealand Environment Court

Judge Newhook has previously written quite extensivelyabout the constitution, work, powers and practices of theNew Zealand Environment Court. Persons interested canconsult a variety of those materials on the website of thecourt, https://environmentcourt.govt.nz.

As for the constitution, work, powers and practices ofthe New Zealand Environment Court, we can do no bet-ter than to quote Ceri Warnock’s recent and brilliantly succinct description: 2

Note on the New Zealand Environment Court

The specialist Environment Court (NZEnvC) is both ajudicial body and a court of expertise: tenured andindependent judges sit with expert ‘lay’ commissioners. Itmakes decisions impacting public resources and privateproperty and so individual rights may be impacted: hencethe constitutional propriety of an independent court deter-mination. The Court determines some first instance deci-sions, but is predominantly concerned with appeals fromLocal Authority decision-making that it hears de novo onthe merits. It is not confined to legality review. It is theprimary environmental adjudicative body in New Zealand,empowered specifically to determine cases under the[Resource Management Act 1991] – and so all of theCourt’s decisions must accord with the statutory mandateto ‘promote sustainable management’ of the resources inquestion3 – but it also has jurisdiction under a number of

ISSUES WITH ACCESS TO JUSTICE IN THE ENVIRONMENT COURT OF NEW ZEALAND : NEWHOOK ET AL. : (2017) 29 ELM 125


1 Judith Resnik ‘Reinventing courts as democratic institutions’ (2014)143Daedalus 9.

2 Ceri Warnock and Ole Windahal Pedersen ‘Environmental Adjudication:mapping the spectrum and identifying the fulcrum’ Public Law 2017(forthcoming).

3 RMA s 5(1).

Issues with access to justice in the Environment Courtof New ZealandPrincipal Environment Judge Laurie Newhook and Environment Judges David Kirkpatrick and John Hassan Environment Court of New Zealand

9-Newhook_ELM Article template 03/10/2017 15:53 Page 125

other environmental statutes.4 In one sense it is a classicjudicial body. It finds facts and applies the law to thosefacts, and interprets both statute law and planning docu-ments that constitute regulations in the statutory scheme.5

It tends to follow litigious procedures (although, can con-trol its own procedures and adopt an inquisitorial ap-proach where appropriate),6 and it also enforces the law(albeit, has a great deal of flexibility as to the enforcementapproach it takes).7 But the Court also has a regulatoryrole and is explicitly empowered under the RMA to hearand determine disputes concerning local authority plansand policy-documents, i.e. statutory regulations, to refinethose documents to ensure that they ‘promote sustainablemanagement’, and to give them final approval. In doing so,it must ensure full public participation.8 The Court also hasa role more traditionally reserved to the administration: itlicenses specific activities as regards the take, use, develop-ment and discharge of/into land, air and water that are notautomatically permitted, and in this sense is concernedwith prediction, uncertainty, risk-evaluation and allocation.How to ‘promote sustainable management’ of a resourcewill be determined by the facts and relevant context of anygiven case but will be guided by the legislation and policyframework9 that the Court must in turn interpret or mayhave played a role in crafting. The Court has considerableflexibility in terms of procedure, methods of interpretation,the decision-making process (with legal and non-legalexpertise feeding into both fact and law evaluation, and theapplication of law to facts) and remedies.10

We are happy to work with that description of the courtas a foundation for the matters to be discussed in thispaper, but add for present purposes that references to fact-finding routinely include extensive adjudication on conflicting expert opinion about management of futurestates and risks.

We also wish to emphasise one of the facets of theabove, the legislative context in which the court (along withall planning and consent authorities in NZ) is duty-boundto promote the sustainable management of natural andphysical resources.11

The court embraces change for positive effect, and isconstantly looking for efficiencies and to enhance access tojustice, working with regular parties, the professions andother stakeholders. The court is in fact directed by statuteto operate efficiently and in a timely and cost-effectivemanner.12 Particularly apposite in this regard is section 269

of the Resource Management Act 1991 (RMA), giving thecourt broad powers of procedure and ordaining that itmay conduct proceedings without procedural formalitywhere consistent with fairness and efficiency. The judges ofthe court have interpreted section 269 as meaning that thecourt should be considered publicly accessible or even‘user friendly’, commensurate nevertheless with efficiency,fairness to all, and due respect for the institution. To thisend, the court aims to carry out its role in not only pro-moting efficiencies but at the same time adhering to theimportant principles of the rule of law. We stress the needto think and work creatively, and strongly believe thataccess to justice can operate hand in hand with workingefficiently.

In this respect, reference should be made to the court’sextensive Practice Note (2014) which has been developedincrementally over a number of years: https://environmentcourt.govt.nz/assets/Documents/Publications/2014-ENVC-practice-notes.pdf. The introductory provisions to thePractice Note record that it is not a set of inflexible rules,but a guide to practice in the court to be followed unlessthere is good reason to do otherwise.

The Practice Note focuses significantly on efficiency andaccessibility; robust case management by the judges; judi-cial conferences; the importance of and procedures foralternative dispute resolution, including mediation and facilitated independent conferencing of expert witnesses;and the use of electronic media for access to the court andcommunication amongst parties.

Earlier papers published by the judges, including thosereferenced above, have described electronic innovations in the court in recent years, including use of electronictablets for hearings, interactive use of the court’s website,and non-electronic innovations including the use of processadvisors for submitters in large cases. These innovationsevidence how – in a 21st century context – we canbecome more efficient while remaining true to rule of lawprinciples. Both can be achieved if we give careful thoughtto the issues.

Alternative adjudicative processes

The following section of this paper concerns the manykinds of new hearing processes introduced by legislation in recent years. The effect is an increasingly pluralisticapproach to environmental adjudication in New Zealand.These processes essentially run in parallel with the work ofthe Environment Court but do not have the same consti-tutional quality of full independence from government, lacking security of tenure for members amongst otherthings. Included are Boards of Inquiry, applications to theEnvironmental Protection Authority in the ExclusiveEconomic Zone of New Zealand (EEZ), and hearing panels established to determine the Proposed AucklandUnitary Plan and Christchurch Replacement District Plan.There are further processes in the wings being advancedby the Ministry of Business Innovation and Employment,the NZ Treasury, and the NZ Productivity Commission.

Two of the three of us have in recent times beeninvolved in running such processes: Judge David Kirkpatrickchaired the Independent Hearing Panel for the Proposed

126 (2017) 29 ELM : ISSUES WITH ACCESS TO JUSTICE IN THE ENVIRONMENT COURT OF NEW ZEALAND : NEWHOOK ET AL.


4 Including: Biosecurity Act 1993, Crown Minerals Act 1991, Electricity Act1992, Forests Act 1949, Heritage New Zealand Pouhere Taonga Act2014, Local Government Act 1974, Public Works Act 1981, GovernmentRoading Powers Act 1989, EEZA 2012, Housing Accords and SpecialHousing Areas Act 2013, Land Transport Management Act 2003.

5 Ceri Warnock ‘Reconceptualising the role of the New ZealandEnvironment Court’ (2014) 26 JEL 507.

6 Laurie Newhook ‘The constitution, work, powers and practices in trialand pre-trial work of the Environment Court of New Zealand’(International Forum of Environment Judges, IUCN AEL Colloquium,Oslo, June 2016) (available at https://environmental-adjudication.org).

7 RMA, pt 12.8 Canterbury Regional Council v Apple Fields Ltd [2003] NZRMA 508 (HC).9 Environmental Defence Society Incorporated v Marlborough District Council

[2014] NZSC 38 [10]–[11].10 Including civil, criminal and reflexive responses, see RMA pt 12.11 Section 5 RMA.12 See sections 251(2) and 269(2) RMA in particular.


Auckland Unitary Plan during 2014 to 2016, and Judge JohnHassan was Deputy Chair of the Independent HearingsPanel for the Christchurch Replacement District Plan during the same period.

The traditional adjudicatory approaches

As originally enacted, the Resource Management Act 1991(RMA) provided only two routes for obtaining a resourceconsent:

(a) by application to a consent authority (i.e. at LocalAuthority level) and, if there were an appeal from thatauthority’s decision, by hearing before the PlanningTribunal (now, the Environment Court); or

(b) by call-in by the Minister for the Environment for con-sideration, hearing and recommendation by a board of inquiry and a subsequent decision by the Ministerfor matters of national importance.

The first route has been the ‘standard’ procedure wellbefore the RMA came into force. It potentially provides fortwo levels of adjudication on the merits.

A first instance hearing is held before the consentauthority, being a city or district council in relation to landuses and subdivisions or a regional council in relation to water and discharge permits (and the Minister ofConservation on some classes of coastal permit). Joint orcombined hearings can occur if proposals involve consentsunder more than one district plan or a district plan and aregional plan. Consent authorities routinely delegate thishearing function to a committee of its members or a panelmade up of its members or its appointed independentcommissioners, or both. Cross-examination of witnesses is not undertaken; questioning is done only by panel mem-bers, and hearings are relatively informal.

A decision of a consent authority may then be the subject of an appeal to the Environment Court by theapplicant or by a submitter (which appeal such parties orany other person who obtains leave in accordance with thestatutory tests13 can join), the hearing of which – if the caseis not earlier resolved through alternative dispute resolu-tion – is conducted as a full hearing de novo.

Hearings before the court are conducted according to the court’s procedures,14 are more formal, and includerights of cross-examination.

Beyond that right of appeal, there is a further right ofappeal to the High Court, but only on a question of law:15

the High Court has stated on many occasions that it will bevigilant to resist attempts to re-litigate factual findings in anappeal limited to a question of law.16

Further appeals can be made to the Court of Appealand to the Supreme Court, with leave where it can bedemonstrated that the appeal involves a matter of generalor public importance or that a substantial miscarriage ofjustice may have occurred or may occur unless the appealis heard.

The second traditional route authorised the Minister for the Environment to direct that she or he would decideany particular application or all applications for resourceconsents in respect of a proposal that the Minister con-sidered to be of national significance.17 This route has beenfollowed only once, in 1993.

2009 Amendments

The Resource Management (Simplifying and Streamlining)Amendment Act 2009 made many changes to the RMA.For present purposes, the most significant were thereplacement of ministerial call-in with two new proceduresfor hearing and determining resource consent applica-tions:18

(a) by direct referral to the Environment Court under ss87C–87I

(b) by a board of inquiry under Part 6AA.19

Direct referral

An applicant for resource consent who wishes to go directly to a hearing in the Environment Court may applyto the consent authority. If the consent authority grantsthat procedural application, it must prepare a report on thesubstantive issues of the proposal and suggest conditionsthat it considers should be imposed if the application isgranted. The applicant must then apply to the EnvironmentCourt for orders for a direct referral hearing.

The hearing of a directly referred matter is generally thesame as any appeal hearing before the court.

The position with costs is, however, substantially differ-ent to the usual position. Unlike the usual discretion givento the court in other proceedings, in a directly referredhearing the court must apply presumptions that costs arenot to be awarded against a submitter participating unders 279 RMA and that the court’s costs and expenses are tobe paid by the applicant.

Commentators have noted that while a direct referralprocedure enables the parties (both applicant and submit-ters) to avoid the time and cost inherent in a two-stepprocess, it removes the possibility that at least some of theissues arising from a proposal may be explored andresolved at first instance, which can often be of benefit. Italso removes the less formal and less adversarial firstinstance hearing which can be better suited to addressingthe concerns of neighbours than the more rigorous proce-dures in court (even allowing for the court’s options ofalternative dispute resolution).

Boards of inquiry

The Minister for the Environment may appoint and directto a board of inquiry any proposal that, according to statu-tory criteria, qualifies as a matter of national importance.



13 RMA s 274.14 Part 11 of the Resource Management Act 1991, especially ss 269 to 298.15 Sections 299–308 Resource Management Act 1991.16 New Zealand Suncern Construction Ltd v Auckland City Council [1997]

NZRMA 419 (High Court) at 426.

17 Sections 140–150 Resource Management Act 1991 as originally enact-ed and now repealed.

18 A useful commentary on these amendments is a paper by Gardner-Hopkins and Robinson, Participation in the Brave New World, NZLS CLEIntensive on the RMA – Strategic Engagement, July 2011.

19 Sections 140–149ZE Resource Management Act 1991.


A key aspect of process is the requirement that the final report and decision of the board of inquiry must bedelivered no later than nine months after the proposal wasnotified.20 (The Minister may extend that time but only ifthere are special circumstances and in any event the timeperiod as extended may not exceed 18 months unless theapplicant agrees.21)

The imposition of and emphasis on time limits may havethe most far-reaching effects on the hearing and adjudica-tive processes. While the efficient use of hearing time andthe desirability of avoiding delay cannot be denied, theimposition of a time limit in advance of identification of the nature of the project and the issues related to it is adoubtful management technique. Experience shows thatthe consequences of such an overarching deadline in-clude the necessary imposition of strict limits on the timeavailable for the presentation of cases and for cross-examination. An applicant may be better placed than sub-mitters or the board itself because the applicant can atleast choose when to apply. The other parties must thenrespond with the clock ticking, and the board must delib-erate and prepare its report and decision with haste oncethe hearing has concluded.

Exclusive Economic Zone consents

In general, the boundary of a district ends at the line ofmean high water springs (MHWS). The boundary of aregion extends across the foreshore and then 12 nauticalmiles seaward. Since the Third United Nations Conferenceon the Law of the Sea concluded in 1982, New Zealandhas claimed an exclusive economic zone (EEZ) extending200 nautical miles (about 370 km) seaward of MHWS. Asan isolated island nation, New Zealand’s EEZ is substantial(apparently the fourth largest in the world) and covers anarea of over 4 million square kilometres (about 15 timesthe country’s land area).

The sustainable management of the resources of thisvast area is not governed under the RMA, but instead issubject to the Exclusive Economic Zone and ContinentalShelf (Environmental Effects) Act 2012. Under that Act, theEnvironmental Protection Authority has the functions ofdeciding applications for marine consents in respect of suchactivities as exploration for and extraction of petroleumand minerals, aquaculture, carbon capture and storage andmarine energy generation. It also has the functions of monitoring compliance and enforcing the legislation.

The EPA may choose to exercise its power to decide on applications itself, or in the case of nationally significantcross-boundary22 activities delegate this to a board ofinquiry.23 The constitution of the EPA is very different tothe Environment Court. Decision-makers are appointed bythe Minister, appointees do not have security of tenure, andthere is no legislative requirement for any of them to belegally trained.

The EPA’s own procedures are similar to those of a terrestrial consent authority at first instance, except thatquestioning of witnesses by parties is permitted with theEPA’s consent. For a board of inquiry, the relevant provi-sions of the RMA discussed above apply.

Plan review processes

Special circumstances in Auckland and Christchurch led tothe creation of alternative processes for preparing plans inthose cities, as mentioned above.

In Auckland, local government was reorganised in 2010,merging eight authorities into a unitary council.24 As at the date of amalgamation, there were 14 separate plans inforce. Special legislation25 addressed resource managementplanning for the new city by requiring a Unitary Plan to beprepared, being a combined regional policy statement andregional and district plans.

The process for preparing this plan and making deci-sions on submissions made in relation to it, involved numer-ous amendments to the standard provisions in Schedule 1to the RMA. An independent hearings panel was estab-lished with members appointed by the Ministers for theEnvironment and of Local Government in consultation withthe new Auckland Council and with Maori mana whenuagroups, being the 19 Maori iwi (akin to tribe) who are tangata whenua (‘peoples of that land’) in Tamaki Makaurauarea and are recognised by the Council as having a man-date to speak for Maori in the region.

The Panel was given the function of hearing submissionsand of making recommendations on the proposed plan as distinct from the standard function in Schedule 1 of makinga decision on the provisions and matters raised in submissions.This meant that the panel was not confined to the scopeof submissions, but could make out-of-scope recommen-dations (which it was required to identify as such). TheCouncil retained the role of decision-maker with limitedappeal rights unless the Council made a decision which wasdifferent than the panel’s recommendation.

The whole process was under a statutory deadlineresulting in tight timing over 33 months from the notifica-tion of the Unitary Plan in September 2013 to the panel’srecommendations on 22 July 2016 and the Council’s decisions on 19 August 2016. It may be noted that thetimeframe was set before the scale of the exercise wasknown.

The process was participatory, with 13,000 written submissions covering some 70 topics. Many submissionsaddressed multiple issues, so that there were 93,000 submission points, and 4,300 submitters were heard in 58sessions over 249 days. Ten thousand pieces of evidencewere presented, with much of that being expert evidence.To deal with the complexity of the evidence, the paneladopted both adversarial and inquisitorial methods, limit-ing presentation times and heavily discouraging cross-examination.



20 Section 149R Resource Management Act 1991.21 Section 149S Resource Management Act 1991.22 Being the boundary between the territorial sea and the EEZ.23 Section 16(b) Exclusive Economic Zone and Continental Shelf

(Environmental Effects) Act 2012.

24 The Local Government (Auckland Council) Act 2009.25 Part 4 of the Local Government (Auckland Transitional Provisions) Act

2010.


Ultimately the panel delivered its recommendations ontime, consisting of an extensive overview (including a pop-ulation and housing capacity analysis), with 58 topic reportsand a completely revised plan, both text and maps. TheAuckland Council accepted most recommendations. Therehave been relatively few appeals:

(a) sixty-five to the Environment Court to be heard ontheir merits where the Council rejected the panel’srecommendation;

(b) forty-one to the High Court on questions of lawwhere the Council accepted the recommendation; and

(c) eight applications for judicial review relating mainly tojurisdictional matters.

The Auckland Unitary Plan is now operative in large part.The situation in Christchurch City and Banks Peninsula

was forced by the major earthquakes in September 2010and February 2011. In their aftermath, the ChristchurchCity Council requested government intervention. Actingunder the Canterbury Earthquake Recovery Act 2011 byOrder in Council,26 an independent hearing panel wasappointed in 2014 by the Ministers of the Environment andfor Canterbury Earthquake Recovery.

This panel had similarly tight deadlines to those inAuckland: it had to produce strategic directions by 28February 2015 and the remainder of a replacement districtplan by 16 December 2016.

Levels of participation were similarly high, with 4,800written submissions and around 1,400 submitters beingheard over 154 hearing days. There were 1,480 statementsof evidence and submissions filed and 58 pre-hearingmeetings, 40 expert conferences and 70 mediation ses-sions were held.

While the Auckland process involved a single UnitaryPlan (combining the regional policy statement, regionalplan, regional coastal plan and district plan) being pro-duced and considered at once, a significant difference inChristchurch was an incremental approach whereby ‘pro-posals’ for chunks of the proposed replacement districtplan were notified at different times. In the end there were45 proposals notified, including five by the Panel’s direction.

Another significant difference was that the Christchurchpanel had a power of decision whereas the Auckland panelwas a recommendatory body. The Christchurch panelissued more than 60 decisions over 27 months.

There have been even fewer appeals in Christchurchwith ten appeals to the High Court. Seven concerned particular land zoning decisions and the others were onaspects of heritage, biodiversity, earthworks and airportnoise. Bar one application for leave to appeal to the Courtof Appeal, concerning a confined land zoning matter, all theappeals have been determined.

The Christchurch District Plan is thus largely in place.The success of both processes in completing the tasks

within the deadlines set should not obscure the concernsexpressed throughout the process by all participants thatthe speed achieved came at high cost, particularly in terms

of significant pressure on all the people involved. Many indi-viduals advised that they could not cope with the schedulesfor mediation and hearings or with the complexity of theprocesses used to deal with issues, and some withdrew.Even large organisations with good resources and exten-sive experience in resource management processesadvised that they found it extremely difficult to keep paceand to provide good quality evidence, given the constraintsof the process. These reactions raise an issue whether suchprocesses can be relied on as a matter of routine and outside of special circumstances.

More broadly, commentators have said that the one-step process creates a real risk that as the contested issuesaddressed by these plans are not able to be reviewed onthe merits at a second stage, the quality of the plans themselves may be reduced. This may have the effect ofincreasing litigation down the line.

Marlborough Salmon Farm Relocation Advisory Panel

The most recent example of a special tribunal to address a resource management matter is the establishment of an advisory panel to report to the Minister for PrimaryIndustries, exercising the powers of the Minister ofAquaculture,27 on a proposal to amend28 the provisions of a regional coastal plan that relate to the management ofaquaculture, being the relocation of certain salmon farms in the Marlborough Sounds.

This panel’s published advisory information notes thatits process is not a normal RMA plan change process andis the first occasion where this particular regulation-makingpower has been considered. The panel indicates that itintends to proceed in a manner more akin to a firstinstance hearing before a consent authority than to theEnvironment Court. Its role is to report to the Minister onthe comments presented to it, not to make a decision onthe proposal for regulations.

The panel is now in the midst of its process. It remainsto be seen how this new process goes.

Recent legislative change: further reductions in access to environmental justice in the Environment Court

On 18 April 2017, a long and complex collection ofamendments to the RMA was enacted in the ResourceLegislation Amendment Act 2017.

Included were a number of changes to rights of appealto the Environment Court, many cancelling or significantlylimiting access to the court.

One particular change which comes into effect inOctober 2017 is to cancel entirely any right of appeal tothe Environment Court concerning the majority of cases in three classes of consenting, called boundary activities,subdivision, and many kinds of housing development.Leaving aside that there will likely be arguments to be



26 Canterbury Earthquake (Christchurch Replacement District Plan) Order2014.

27 Under s360B Resource Management Act 1991.28 Under s360A Resource Management Act 1991.


resolved by courts about definitions and the applicability ofthe changes in many cases, many different types of peopleinvolved in the field have publicly expressed anxiety at lossof access to the Environment Court, including members ofthe public who might in future be adversely affected by theactivities, NGOs, and subdividers and developers. Some are also clearly anxious that there is now a large gap inappellate merits consideration of matters potentially affect-ing the core purpose of the legislation, the promotion ofsustainable management of natural and physical resources.

Emeritus Professor Pring’s Challenge 4 – Access to environmental justice

The following remarks need to be seen strictly through the lens of access to justice. It is not the business of the judiciary to, and we expressly do not, engage in ‘patch protection’.

While in this paper we have written about some signi-ficant erosions of access to environmental justice in NewZealand, there have been some moves at government levelto add some elements to the jurisdiction of the NewZealand Environment Court – transferring to it judicialfunctions found in many statutes concerning land, waterand air, where adjudication is currently undertaken beforevarious tribunals and general courts. It is possible that legislative change might emerge to make the EnvironmentCourt the forum for these matters, many of which haveconsiderable synergies with the work of the court underthe RMA.

Even without the need for legislative change, the judgesof our court have taken over responsibility as chairs of theLand Valuation Tribunals (LVT) throughout the country, in place of District Court Judges. We have been able to do this relatively quickly because we hold dual warrants,one for each court. The arrangement included that the registry functions of the LVT be absorbed into theEnvironment Court registries so that we could exerciseour own brand of robust case management, arrange alternative dispute resolution, and move matters quickly to hearing when necessary. In the few months we have held this jurisdiction, many cases have been resolved by various means including decision, conference, negotiation,and withdrawal.

Significant parts of the LVT jurisdiction bear synergieswith the work of the Environment Court concerningrequirements for designation for public works under theRMA, and the access to justice objective is to offer, if not a‘one-stop shop’ to parties, at least an expeditious sequenceof case resolution steps under the RMA, the Public WorksAct, the Land Act and related Acts and Regulations.

Further possible legislative attention might be given tonumerous pieces of legislation dealing with land, water, public works, infrastructure, public transport, and othermatters of development and conservation. While the NZEnvironment Court cannot yet be called a ‘one-stop shop’like the Land and Environment Court of New South Wales(LEC NSW) or the Kenya Land and Environment Court,noted by the Prings as exhibiting the world’s best practice,an expansion of jurisdiction might move New Zealandcloser to those models.

We hold the view that such expansions of our jurisdic-tion to include such matters would embrace the tenet ofaccess to justice in a peripheral sense, rather than serve any core purpose of environmental law such as (in theRMA) the sustainable management of natural and physicalresources. That is not to detract from the benefits thatcould flow from the specialist court attending to thesematters. It is simply a statement that may signal that theenhancements might not be seen by some to balance oreven mitigate erosion of access to environmental justice ofthe kinds we have discussed.

The lessening of access to justice that we are about todescribe, might be thought by some appropriately to beassessed against the backdrop of international instrumentsto which New Zealand is a signatory. Prime amongst theseis no doubt Principle 10 of the Rio Declaration onEnvironment and Development issued at the UnitedNations Conference on Environment and Development inRio de Janeiro, June 1992. Principle 10 records:

Environmental issues are best handled with participation ofall concerned citizens, at the relevant level. At the nationallevel, each individual shall have appropriate access to infor-mation concerning the environment that is held by publicauthorities, including information on hazardous materialsand activities in their communities, and the opportunity toparticipate in decision making processes. States shall facili-tate and encourage public awareness and participation bymaking information widely available. Effective access tojudicial and administrative proceedings, including redressand remedy, shall be provided.

Chief Justice Brian Preston of Land and Environment Courtof New South Wales has made reference to Principle 10 in various of his many writings. In his paper for this collec-tion, he also makes reference to the ‘outcome document’adopted by the United Nations General Assembly inSeptember 2015, ‘Transforming our World: the 2030Agenda for Sustainable Development’, which containedmany sustainable development goals, and numerous targetsto achieve them. Justice Preston appropriately focuses onGoal 16 and four relevant targets in his paper.

For those of us with reasonably long memories, one canrecall the international Brundtland Report in 1987. Wenote with interest also the writings of Ian McChesney29

who, in discussing the Brundtland Report, noted in the late1980s a tense but somewhat ‘back room’ debate about theissue of sustainable development, which he reportedamounted to bitter departmental clashes over the veryconcept of sustainability. He reported that:

The interdepartmental working group mentioned aboveessentially split into two factions representing ‘ecological’and ‘economic’ approaches, and their report to the RMLRCore Group presented two visions of sustainability.

New Zealanders might sense a little déjà vu in the currentand rather more public debates about the RMA. As towhat was enacted in the RMA in 1991, some might say that



29 Ian G. McChesney ‘The Brundtland Report and sustainable developmentin New Zealand’. Lincoln University New Zealand, February 1991.


it represents something closer to the ‘ecological’ model,although others might place it somewhere between the‘ecological’ and ‘economic’ models.

We refer again to the legislative changes in NewZealand that have had the effect of reducing access toappellate environmental justice. We have seen a number of analyses of the most recent enactments in the pub-lic domain from various organisations, such as the law societies, the Resource Management Law Association, andlaw firms. Some in particular have discerned and com-mented on trends involving progressive reductions inaccess to justice through several amendments to the RMAin recent years.30

Several analyses have assisted us to navigate our waythrough various versions of the new Amendment Act, itsprecursor Bills, and explanatory notes. We acknowledgeand generally accept the various authors’ analyses, but takefull responsibility for the accuracy or otherwise of descrip-tions of provisions which follow.

Our starting point is that the RMA as promulgated in1991 ordained a regime for environmental decision-makingthat involved wide rights of public participation. While pre-dating the Rio Declaration by about a year, it could be said that its tenets were more or less in alignment withthe principles enshrined in Rio.

Standing to participate in decision-making was estab-lished on a broad platform. Anyone could make sub-missions on proposed policy statements and plans (and further submissions thereon) and on notified resourceconsent applications. Submitters were entitled to be heardat public hearings on these matters, and subsequently toappeal council decisions about them to the EnvironmentCourt.

There was emphasis in the early stages on an expecta-tion that applications for resource consent would be noti-fied, something that has changed since.

Perhaps understandably, Parliament has since felt theneed to balance rights of public participation against thedesirability of timeliness of delivery of processing applica-tions and decisions. It was widely believed that the sheerbreadth of open standing to participate in the early stagesoften resulted in inefficient and costly delays for propo-nents of development and other activities. Subsequentreforms of the RMA have made changes to that situationand could be argued to have sought to find a balancebetween public participation and efficiency of decision-making.

Amendments in 1993 represented a step along thatspectrum.

Amendments in 2003 introduced the concept of ‘limit-ed notification’ to make rights participation more focused,but the presumption in favour of notification remained.

Amendments in 2009 significantly changed the notifica-tion framework. The statutory presumption in favour of

notification disappeared; the requirement for public notifi-cation was now to arise only where effects would be morethan minor beyond adjacent land, unless an applicantrequested public notification, or a rule in a plan required it;provision was made for limited notification on a wider footing. Applicants for resource consent could now feelgreater certainty as to how applications would be pro-cessed. There emerged a very significant reduction in thenumbers of notified applications. Numbers of appeals tothe Environment Court understandably reduced quite significantly at this point.

Some commentators considered, and they might wellbe right, that there then emerged an increased desire bypeople to participate in plan-making processes, due to thereduction in opportunity to be involved in subsequent con-senting processes. Further consequences appear to haveincluded increased pressure through submissions on plan-ning instruments against rules providing for non-notificationof certain activities; there also emerged greater use of judi-cial review challenging decisions not to notify, or to notifyapplications only on a limited basis.

The 2009 amendments brought an increase in thepromulgation of models of alternative hearing and disputeresolution such as the work of boards of inquiry previous-ly referred to. Provision was also made for ‘direct referral’of notified applications to the Environment Court bypass-ing a council level hearing; and with any right of furtherappeal to the High Court restricted to points of law only.The Environment Court has developed reasonably sophis-ticated procedures to deal with such cases, given that theyoften involve participation by large numbers of people.Proponents of direct referrals have been learning that it isnecessary to prepare cases with great care, because theydo not gain the benefit of problems being uncoveredthrough the operation of a filter offered by first instancehearings before councils. Interestingly, the tight nine-monthstatutory timeframe for processing and resolving mattersof national significance by boards of inquiry appointed one-off for specific cases does not generally allow for adjourn-ments to repair problematic aspects of proposals. In thoseinstances, there is an elevated risk that applications will bedeclined. Another aspect of such cases seems to be greaterlevels of expense for all involved.

As promulgated in 2012, the Resource Legislation Bill(now just enacted as the 2017 Amendment Act) intro-duced further amendments to the notification regime. Itproposed that public notification would be precluded(unless there were special circumstances) for controlledactivities, restricted discretionary or discretionary sub-division and residential activities, restricted discretionary,discretionary or non-complying boundary activities, andactivities where a rule or a National EnvironmentalStandard precludes public notification. Similar restrictionswere proposed for limited notification processes in two circumstances.

In the paragraphs above, we described the removal ofnumbers of classes of appeal. A further change ushered in by the 2017 Act was that merit appeals would berestricted to matters raised in a person’s submission, thusprecluding appeals on matters that could not have been



30 In particular we refer to commentary made by Derek Nolan QC, assist-ed by Simon Pilkinton, solicitor at Russell McVeagh, ‘Changes to publicparticipation under the Resource Management Act 1991’, LegalwiseSeminars 2017. See also Alec Dawson ‘Principles, participation, and pro-posed changes to the RMA’ (2016) 27 NZULR 185.


reasonably foreseen and raised in their submission becausethe application had been amended during the consentingprocess. Further, activities involving marginal or temporarynon-compliances would now be deemed ‘permitted’.

Possible consequences to these changes include that:proponents might gain further certainty in relation to theirapplications; the role of the Environment Court in resourceconsent decision-making would be further reduced; com-mentators believe that there might be an increase in theuse of High Court judicial review as an outlet for personsconcerned about proposals and in particular about non-notification of them; and commentators also consider thatthere might be further encouragement for the public toparticipate in local and regional plan-making and in devel-opment at national level of proposed national policy state-ments and in national environmental standards, and alsothe newly proposed national planning standards that willset the shape of plans to come.

Turning now to avenues for participation in policy andplan-making. The RMA as first promulgated, in its Schedule1 ordained a two-step process, with submissions, furthersubmissions and a council level hearing; followed by fullappeals on the merits to the Environment Court. Somerestriction on further submissions was introduced in the2009 amendment.

The 2009 amendments also introduced provision forlocal authority and private plan changes, and notices ofrequirement involving a proposal of national significance tobe referred to a one-step process either before a board ofinquiry or the Environment Court. Appeals are limited topoints of law in the High Court.

The 2017 Amendment Act introduces further limits on participation in policy and plan-making processes.Notification for plan changes and variations will be limitedwhere all directly affected persons can purportedly beidentified. The amendments also introduced alternative‘streamlined’ and ‘collaborative’ planning processes, withlimits on participation in first instance decision-making, andproviding only limited rights for merits appeals. It intro-duced provision – indeed a requirement – for a nationalplanning template to be developed, which itself couldattract public submissions but with no right to be heard onthe submissions.

Commentators have identified certain implications forpolicy and plan decision-making (remembering that this isan area that should attract greater public participation,given earlier limitations imposed on participation in con-senting applications), as follows:

n Overall, rights of participation in decision-making havebeen very significantly reduced

n The option of the collaborative process for plan-making, if chosen by councils, will be very similar to theAuckland Unitary Plan process, so many of the con-cerns that arose from that process may continue andbe more regularly experienced in the future

n Public participation having been substantially con-strained in relation to consent decision-making, thereforms might be seen to erode the refuge in partici-pation in policy and plan-making that arose in conse-quence

n Commentators accordingly perceive a continuing andsignificant erosion of the opportunity for citizens toparticipate in decision-making processes and obtaineffective access to judicial proceedings.

Some commentators ask whether efficiency might in manyinstances have been better served by enhancing access to justice and balancing that participatory approach withmore streamlined procedures rather than emphasising thelatter to the virtual exclusion of the former.

Is the New Zealand Environment Court an‘activist’ court?

The New Zealand Environment Court is apparently one ofthe few courts in the world that entertains appeals aboutsubstantive issues in the preparation of local governmentplanning instruments. It is important to remember, how-ever, that the court does not have an involvement in thepreparation of the more ‘senior’ instruments: national policy statements and national environmental standards.The latter two types of national instrument provide strongguidance for councils, parties, and the Environment Courtin considering the contents of the ‘lower order’ regionaland district plan and policy instruments. The court is alsoinvariably fully informed about matters of regional and district policy, internally within the instruments underappeal, by other policy documents created by local andcentral government, and by expert evidence adduced bythe councils and others.

The court is therefore significantly constrained in deci-sion-making about planning instruments under appeal.Despite suggestions by some commentators, it has any-thing but a ‘free hand’ to make policy. It is required to makejudgments, and weigh various issues against each other,informed by the evidence brought to it, and based on theRMA and directions given by the senior instruments.

It is our view that the New Zealand Environment Courtcannot be considered in any objective sense an ‘activist’court. While New Zealand is not possessed of aConstitution to trump ordinary legislation, the RMA, thenational planning instruments, and decisions of highercourts on appeal, ensure that decision-making atEnvironment Court level is kept constrained on a largelypredictable and calculable path.

There is another aspect of the constitution of the courtthat works as a constraint. Decisions are not solely madeby judges. Commissioners (usually two) sit with a judge on a panel to hear cases and have an equal say in the outcome. The Commissioners are highly skilled non-legalprofessionals generally at the peak of their careers, and the deliberation process amounts in effect at times to a vigorous peer review of decisions in the course of prepa-ration.

Despite all these constraints and principles, complaintsare heard in some quarters suggesting that theEnvironment Court is a ‘non-elected body that makes pol-icy’. We resist such suggestions for the reasons we have justset out, and observe as well that many members of NewZealand society appreciate the presence of checks and bal-ances in a system designed ultimately to serve the purpose




of the RMA: the sustainable management of natural andphysical resources.

It is appropriate here to offer comments on a specificaspect of plan appeal work by the Environment Court,which in our view points strongly to the desirability of thejurisdiction being retained by the court in the interests offairness and access to justice.

This aspect concerns quality of plan preparation anddrafting. It is the experience of the Environment Court thatthe quality of local authority plan-making invariably fallsshort of required standards at first instance, often to anotable extent. There are many decisions of the court inrelation to plan appeals where the opportunity has beentaken to improve planning instruments by bringing internalconsistency and clarity of wording, removing unlawful content, and ensuring adherence to the policy direction ofsenior instruments, amongst other things. The court isaware that improving some of these instruments has re-sulted in greater efficacy at the consenting stage, with acommensurate reduction in time and cost for all con-cerned. One of many examples concerns plan changeapplications made in relation to the extraction of geo-thermal energy in New Zealand’s central North Island.31

The court has been informed subsequently that consentingof major geothermal developments has been considerablyassisted and quickened by the plan provisions having beenextensively improved during the appeal process.

One possible concern we have heard in relation to theEnvironment Court’s jurisdiction in plan change appeals,relates to the appropriateness or otherwise of determining‘polycentric’ issues in an adjudicatory setting. The origins ofthis debate may derive from thinking advanced over 50years ago by Michael Polanyi32 and Lon Fuller.33

Fuller considered that a polycentric problem is one that comprises a large and complicated web of inter-dependent relationships, such that a change in one factorcan produce an incalculable series of changes to other factors. His primary concern appeared to be that the morethat decisions had the potential to affect large numbers of unrepresented persons, the greater might be the impacton the integrity of the adjudicatory process. In particular,Fuller suggested that disputes about resource allocation areunsuitable for adjudication by courts due to the presenceof complex issues and interdependent interests beinginvolved.34

We hold the view that much litigation in courts aroundthe world in the modern age is increasingly complex.Indeed, this must be trite. It must also be acknowledgedthat much complex litigation has the potential to impactunrepresented persons. A notable example is adjudicationof human rights issues, but at the more mundane end ofthe spectrum simple issues of statutory interpretation canpotentially have wide impacts.

As often recognised in ‘Rules of Court’, also in ‘PracticeNotes’ such as those in our court, techniques are avail-able to identify and place argument before courts con-cerning the interests of unrepresented persons. Courts like our own sometimes appoint an amicus curiae, andthere is additional power available to the New ZealandEnvironment Court under s259 RMA, where we mayappoint special advisors to assist the court. We also adopta wide approach to locus standi when empowered todetermine this issue.35

We also advance that the very nature of litigation underthe Resource Management Act is not focused exclusivelyor even primarily on private interests, but is almost invari-ably heavily laced with matters of public interest. There canbe little argument that in a democracy, society should notshrink from adjudication of matters of public interest forreasons of complexity or difficulty.

We understand that many members of New Zealandsociety appreciate the presence of checks and balances –including the power of the court to ‘check’ planning instru-ments – in a system designed ultimately to serve the pur-pose of the RMA, and protect the many interests of citizensin a principled way. Media reports of proceedings beforethe Select Committee of Parliament about submissions onthe recently passed Amendment Act (by a range of sub-mitters, from industrialists to environmental advocates)attest to this.36 Many commentators confirm the integrityand ability of the New Zealand Environment Court to offerthese checks and balances.

One more challenge?

A less obvious but critical aspect of the court’s efficientfunctioning, which can strongly impact on access to justice,concerns the administrative support supplied by theMinistry of Justice. The way in which administrative supportis provided can influence, positively or negatively, the effec-tiveness of the work of the judges and Commissioners,including importantly as to the ability of the PrincipalEnvironment Judge to ‘ensure the orderly and expeditiousdischarge of the business of the Court’ (as mandated bystatute: s251 RMA). Ministries and government depart-ments worldwide quite regularly restructure administrativesupport for courts. Sometimes this is done on the basis of well-researched business cases to increase efficiency,reduce costs and, in an ideal world, create benefits of truecost-efficiency (in some contrast to short-term pure cost-saving).



31 Geotherm Group Limited Decisions A 47/06 and A151/06 (EnvironmentCourt).

32 The logic of liberty: reflections and rejoinders (Routledge and Kegan Paul,London 1951).

33 ’The forms and limits of adjudication’ (1978–1979) 92 Harvard L Rev353– first written in 1957 and revised in 1959 and 1961 and publishedposthumously.

34 Cf S Theil ‘Polycentricity – a fatal objection to the adjudication of envi-ronmental rights?’ UK Const. L. Blog (10 September 2015) (available athttp://ukconstitutionallaw.org). Stefan Theil answers this concern by making the point that polycentric issues are abundant in modern life andcourtrooms. He argues that while polycentricity is pervasive in modernlegal adjudication, there is no clear evidence that entrusting such ques-tions to courts is any less suitable than alternative modes of resolution.Further, he argues that it is not appropriate to reject the adjudication ofpolycentric issues, including those involving environmental protection, forthe reasons advanced by some writers.

35 For example under s 274 RMA.36 See, for instance, The New Zealand Herald, Business Section, Friday 6 May

2016, p 2.


Sometimes one of the three arms of government, the executive, will work collaboratively with another, thejudiciary, to devise and effect changes to enhance effi-ciency, cost-efficiency, and access to justice. Unhappily,administrative support services for many courts in NewZealand, including specialist courts like the EnvironmentCourt, have been subjected to staff restructuring proposalsin the last two years that we feel have not been broughtabout in such desirable ways.

The staffing reforms were not informed by prior inputfrom the judiciary, nor from representatives of the publicwho might have been expected to benefit from any posi-tive reforms, such as the law societies and the ResourceManagement Law Association. Some official roles ordainedby statute were proposed to be disestablished. The judi-ciary was simply invited to comment after promulgation of the proposals, at the same time as Ministry staff.

Despite commentary from our court and other benches, the restructuring has proceeded along largelyregional lines of organisation which we feel do not fit comfortably with the national way which a court like oursmust operate. Members of the Environment Court travelregularly on circuit around the country attending to alltypes of ADR and hearing work. The orderly and efficientdischarge of the business of the court is ordained by s 251RMA to be the responsibility of the Principal EnvironmentJudge. The Ministry is required to support the same, andbears the cost of premises, equipment, and salaries. Weconsider that collaboration and co-operation would bestserve the statutory and practical requirements placed onboth arms of government.

Conclusion

The New Zealand Environment Court has in recent years worked hard to foster efficiency and good access to justice. This has been done in strong collaboration withthe executive arm of government. Electronic and other efficiencies have been trialled and put in place as man-dated or encouraged by statute. Processes undertaken ormanaged by members of the court have been the subjectof considerable study, consultation, and eventual imple-mentation. The court embraces change for identifiablegood.

For some years the court has been happy to be ableclaim that it has no backlog of cases awaiting deter-mination. In fact, counsel and expert witnesses are some-times heard to express concern about the speed withwhich they are directed to perform tasks on behalf of theirclients! The great majority of cases are resolved withinmere weeks or a few months through ADR processes, and hearings where needed occur in a timely fashion, withdecisions issued promptly. We consider it reasonable toclaim that based on previous initiatives undertaken collab-oratively by the judiciary and the executive in past years,37

the multiple objectives of access to justice, efficiency, cost-efficiency, and adherence to the rule of law have been well served. Perhaps it is against that backdrop we hearcommentators questioning the need, even appropriate-ness, of some statutory reforms, particularly the removal of significant checks and balances on first instance decision-making, and administrative restructuring.



37 Obviously, excluding the staff restructuring undertaken in the last year.
