Legally green

Abstract

Sometimes, it's better to have more (as opposed to fewer) judges. Worldwide, the number of courts and tribunals that specialize in environmental issues has doubled over the past decade, primarily due to increasingly complex environmental regulations and growing concerns about damages to and depletion of natural resources. Recently, a joint study by the University of Denver and the World Resources Institute analyzed the dramatic international growth of environmental courts and tribunals (ECTs). The report cites some 354 ECTs, with about 170 created since 2005, in 41 countries. Indeed, many nations are revising their existing court structure to accommodate an environmental focus. Although designed to create new avenues of access to justice and environmental governance/protection, these specialized courts are not a new concept; courts earmarked specifically for environmental jurisprudence have been around for almost a century. For example, Denmark's Nature Protection Board of Appeal, focusing on the preservation of the “natural environment”, was created in 1917. Likewise, Sweden's Water Court, which concentrated initially on water rights issues, was established in 1918. Currently, ECTs fall into three general categories: (1) specialized courts with expert judges; (2) a segment of existing judicial systems with specialized expertise and functions (a so-called “green bench”); and (3) tribunals, which can be further divided into four subclasses: those operating independently (outside of environmental agencies), dependently (within an administrative agency), in solely a non-judicial administrative capacity (usually appealable to a court), and as special commissions. Although specialized local and state environmental bodies with some judicial and quasi-judicial functions have existed in the US since the 1970s, a comprehensive national system has yet to be developed. In 1990, the US Federal Courts Study Committee reported on a study of specialized courts within the Federal system, concluding that the existing Federal Court system was adequate for dealing with the volume and complexity of environmental cases. At the Federal level, one ECT – categorized as a tribunal – is the US Environmental Protection Agency's (EPA's) independent Environmental Appeals Board (EAB). Created in 1992, the EAB is composed of a four-judge panel that acts as the final EPA decision maker on administrative appeals concerning all major statutes falling under EPA jurisdiction. A case will not ordinarily reach the EAB until an EPA Administrative Law Judge or senior EPA official (or, in some permit cases, a state agency official with delegated authority to issue Federal environmental permits) has issued a decision on the matter and someone who is adversely affected by that decision submits an appeal. Thus, the EAB's caseload consists primarily of appeals connected with EPA permit and civil penalty decisions. Petitions for reimbursement of costs incurred in complying with cleanup orders – issued under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which was enacted in 1980 – are included within the EAB's caseload as well. The EAB is also authorized to hear appeals from various administrative decisions under the Clean Air Act's (CAA's) acid rain program and appeals of Federal CAA Title V operating permits. In all cases, decisions of the EAB are appealable to the Federal Appeals Court system. Alternatively, at the state level, for instance, the Vermont Environmental Court is a trial court with statewide jurisdiction over environmental matters. In addition to appeals – stemming from permit decisions and other actions of the Vermont Agency of Natural Resources (ANR), as well as from municipal land-use zoning and planning decisions – the Court hears enforcement cases regarding municipal land use and related actions brought by the ANR and Natural Resources Board. Almost all cases are heard by one or two of the dedicated judges with an evidentiary trial, usually in the county court in which the case arises. In Illinois, one finds a state tribunal similar to the EAB – the Illinois Pollution Control Board (IPCB). Created in 1970, the IPCB is an independent agency responsible for deciding contested environmental cases and – in a departure from some states' programs – for promulgating Illinois' environmental regulations and rulemaking functions. There are also currently more than 25 US cities and counties that have environmental courts dedicated to local environmental matters of both a civil and criminal nature, including associated areas such as health, safety, and building/zoning violations. For instance, the NYC Environmental Control Board has, since 1975, handled assorted environmental and local health and safety issues. Similarly, Shelby County's (which includes Memphis, TN) Environmental Court has dealt with all manner of environmental civil and criminal matters since 1983. If we believe former Supreme Court Chief Justice Charles Evans Hughes' statement, “The United States is the greatest law factory the world has ever known”, then the development of specialized environmental courts seems a logical product of those processes.