Environmental Disputes Research Articles

Role of ADR methods in environmental conflicts in the light of sustainable development

Sustainable development could not be envisaged regardless of protection of the environment and natural resources and achieving economic growth detached from resource use, in other words, sustainable development relies on environmental sustainability. On the other hand, Goal 16 of the 2030 Agenda for Sustainable Development, calls for peace, justice, and strong institutions to promote rule of law and access to justice at a global level. Settlement of environmental conflicts is an integral part of environmental sustainability and a part of accessing justice as well. In the light of increasing environmental challenges as a result of the continuous increasing rate of population and lack of global use of the renewed resource of energy has had a substantial influence on the environment, resulting in a corresponding increase in environmental conflicts. With the significantly varied court systems of nations throughout the world and the less efficiency of most of these systems, the question of rethinking and rebuilding effective alternative dispute resolution and further its role in environmental conflicts could be basic and urgent. But on the other hand, alternative dispute resolutions (ADR) have also barriers and negative aspects. The present paper examines and studies the role of ADR methods in environmental disputes and evaluates its efficiency and research on factors that lead to its success or its failure by studying real environmental conflicts from different countries to provide recommendations and suggestions to boost ADR methods in environmental disputes.

Revisiting Proportionality in Investment Arbitration: Theory, Methodology, and Interpretation

Abstract The increasing tensions between a government’s right to regulate and investment protection are fueling the constantly increasing number of international environmental disputes and human rights disputes, in particular with respect to renewable energies, water services, and waste management. As a result, investor-State arbitration is facing greater criticism than ever before because of its potential to contradict international environmental agreements and international human rights agreements. Concerns about State sovereignty are on the rise; particularly the perception that investment tribunals have failed to strike a proper balance between investors’ economic interests and general interests of host States to further their environmental policies and interests. Against this background, this Article investigates the methodological justification for the application of proportionality analysis while discussing potential channels in investment law to crystallize such application which would have deep practical ramifications for the global energy market. At a more conceptual level, this Article proposes an alternative viewpoint in understanding constitutionalization of international investment law and argues proportionality is indispensable discourse in investor-State arbitration.

Some Transnational Aspects of Environmental Disputes in Kazakhstan and Its New Environmental Code

Environmental tort litigation is widely seen as an appropriate mechanism to redress wrongs caused by pollution, oil spills and other kinds of environmental degradation. Victims and NGOs try to find ways to sue parent companies in their country of incorporation, which is usually different from the country where the harmful event occurred. Central Asia is a region where part of the population suffers from similar situations. Kazakhstan, for instance, is very rich in minerals and foreign and domestic extractive companies often damage the soil and the air quality of towns and communities in the vicinity of their operations. The practical disappearance of the Aral Sea, partly due to the inappropriate use of water by Uzbekistan, is another example. Environmental regulation and administrative fines imposed by the countries concerned leaves the prosecution of reckless industrial practices in the hands of the Government, in countries were collusion between Governmental cliques and extractive industries is well known and where courts are often poorly trained or far from independent. Cases of transnational environmental damage are also possible due to the large border that Central Asian countries share with each other, as well as with other industrial giants like Russia and China. In such a scenario, what are the chances of using tort law and civil litigation for victims and other stakeholders, especially in view of the new Environmental Code of 2021? Central Asian countries basically belong to the civil law tradition and are greatly influenced by Russian legislation. This means that tort law and conflict of laws are usually codified in civil codes and in codes of civil procedure. Heads of jurisdiction and applicable law rules are not that different from those of other civil law countries. However, those rules often display certain “nationalist” features in that nationals or residents of the country of the forum usually have easier access to court against foreign defendants, at least on paper. Key words: Environment, Code, Litigation, Kazakhstan.

THE PRINCIPLE OF IN DUBIO PRO NATURA IN THE CONTEXT OF ENVIRONMENT ADMINISTRATIVE DISPUTE: ITS CONCEPT AND IMPLEMENTATION

Besides the general principles of good governance (AAUPB) as a measuring instrument for adjudicating cases in the context of environmental administration disputes, there is also In Dubio Pro Natura principle. This study aims to describe the concept and the implementation of In Dubio Pro Natura principle as one of the particular principles known in environmental disputes. To analyze these legal issues, this study will explain the definition and scope of In Dubio Pro Natura principle and how it is applied in the environmental administration case process. This study is important considering that the largest part of environmental law is administrative law so that the Administrative Court plays a major role in the environmental law enforcement process. A complete understanding of the concept of In Dubio Pro Natura principle can influence the process of environmental administration law enforcement by the Administrative Court. The result of this study concludes that In Dubio Pro Natura principle is understood as a concept as well as a guide for judges in examining, deciding, and resolving environmental disputes. If there are judge's doubts whether in scientific uncertainty or legal uncertainty, then judges must side with the interests of the environment (pro natura). This principle also aims to maximize the existence of scientific evidence and competent environmentalists at the proof stage and make a legal invention by applying the principles of environmental policy.

THE CONCEPT AND ESSENCE OF JUDICIAL PROTECTION OF ENVIRONMENTAL HUMAN RIGHTS

The study is devoted to the examination of the essence of judicial protection of environmental human rights and the definition of the concept of “judicial protection of human rights”. The relevance of the study is due to the importance of the subject of judicial protection of environmental rights in war conditions. In the context of the implementation of the purpose of the study, the issues of judicial protection of environmental human rights in general and in war conditions, the study of legal doctrine and legislation in the relevant field, considering the judicial practice of resolving relevant disputes, are identified. During the study of the issue of judicial protection of environmental human rights, a comparative legal method was used, which helped to analyse and compare scientific views, theories, and approaches and consider problematic issues for their further solution. Due to the generalisation method, forecasting or proposing statements for improving the legal regulation of the protection of environmental human rights is applied, and due to the analysis method, the features of the principles of legal regulation of the protection of environmental rights are determined. In addition, the study is accompanied by quoting normative regulations, in particular, international treaties, which regulate all events that are currently taking place between Ukraine, the Russian Federation, and Belarus, but notes the non-fulfilment of such international treaties by Belarus and the Russian Federation. The study analyses the opinions of researchers in the field of environmental rights protection, which generally characterise the judicial practice of considering environmental disputes and emphasises the need to increase public activity in the protection of violated environmental rights. The study considers the practice of judicial protection of environmental human rights and describes the problems that exist in the context of the protection of environmental human rights. The specific features of judicial protection of environmental human rights are identified and the main examples of substantial violations of environmental human rights during the war with the Russian Federation are indicated, it is indicated what actions of the Russian Federation and Belarus caused damage to Ukraine in the field of environmental safety, with direct indication of specific objects that were hit by military equipment, as a result of which there is still a risk of environmental disasters not only in Ukraine but also in neighbouring countries. The proposals for improving the judicial protection of environmental rights outlined in this study are unique and effective for compiling scientific texts and conducting classes in the relevant field of law.

Strengthening Rembugan as A Mediation Model in The Resolution of River Water Pollution Disputes (A case study in Purbalingga, Central Java, Indonesia).

Purbalingga as an industrial area is prone to pollution that has a detrimental impact on society and the environment. It is necessary to find a way that can bring together the parties involved to peacefully resolve environmental disputes. The purpose of this study is to strengthen rembugan as a mediation model for resolving pollution disputes in the old industrial area. This research is qualitative research with a socio-legal approach, by conceptualizing law as non-doctrinal. The results showed that rembugan is a community culture in dispute resolution that reflects the values of local wisdom possessed by the Purbalingga community, namely the attitude of the parties to accept and use consensus methods in dispute resolution. The purpose of rembugan is to achieve harmony and togetherness. The mediator is the Environment Agency (DLH) and Village Head (Kepala Desa). Strengthening rembugan position in the dispute resolution model is supported by Purbalingga community culture, whose characters are honest, free, open, egalitarian, and accepting of consensus. Strengthening rembugan as a mediation model is also supported by government institutions such as village heads and Environment Agency, and is formally regulated in Law No. 32 of 2009 concerning environmental protection and management.

How narratives shape policy: Lessons learned from port projects adjacent to coral reefs in Florida and the Cayman Islands

Coral reefs hold immense economic, ecological, and cultural value but are severely threatened by climate change and other local stressors, such as coastal development projects. In Miami, Florida and the Cayman Islands, two locations with vibrant coral reef ecosystems, large scale dredging port projects have either been planned or implemented. Environmental disputes emerged during both projects due to the uncertainty over ecological risks of dredging on coral ecosystems. In this research, a refined version of the Narrative Policy Framework is employed to understand how narratives used by stakeholders, both supportive of and opposed to these dredging projects, influenced the ultimate implementation status and impacts therein. The findings show that supporters of the port projects place themselves as heroes in their narratives, in which they advocate for economic prosperity while simultaneously presenting their side as protecting the environment through actions with high technological certainty. On the other hand, opponents of the port projects emphasize the environmental risks involved by contesting the science presented. Opponents portray supporters as villainous for potential dredging impacts and for overstating technological certainty. Across the cases, this paper finds the heterogeneity and dynamism in the use of science and symbols cannot be predicted by supporters or opponents of the projects but rather, are adaptable to either cause readily. As environmental disputes increase along with the impacts of climate change, understanding the narratives that coalitions of stakeholders employ to advocate for preferred policies will be important for global environmental policy-makers.

Factors that Encourage the Implementation of Alternative Dispute Resolution Between Indigenous Peoples and Corporations in Indonesia

In essence, customary law prioritizes the existence of deliberation and consensus, both in the family, kinship, neighborliness starting a job or in ending the work between one and the other, preferably the way of settlement in harmony and peace with deliberation and consensus, by forgiving each other without having to rush the relationship directly brought or delivered to the state court. However, it is necessary to evaluate in-depth the implementation of alternative effectiveness of environmental dispute resolution to comply with local wisdom to realize social justice. Therefore, the authors examined the factors that influence the implementation of alternative environmental solutions with the type of socio-legal research and enforcement of legal sociology.

Depending on the lighting environment of outdoor sports facilities, A Study on the Impact of Light Pollution.

Light pollution intrusion light due to overuse and misuse of lighting, Urban Skyglow, Glare, Clutter, and Overillumination affect the human body's physiological process, and excessive light mainly causes confusion in night activities. This study suggested a way to reduce light pollution by measuring the vertical illuminance, discomfort glare index(UGR), and glare index(TI) of the residential area for light pollution caused by the lighting environment of outdoor sports facilities adjacent to the residential area. The results of this study are as follows. First, as a result of the illumination simulation, it was confirmed that the reference value according to the KSC illumination standard was met, and the lighting environment of the sports facility has no problem in proceeding with the game. Second, the maximum illuminance value of the vertical plane measured in the window of the residential area barely satisfies the reference value of 10[lx] or less. As a result of implementing it as a way to reduce light pollution, the maximum illuminance value of the vertical plane was measured from 0.94 to 9.82[lx] before improvement to 0.72 to 6.62[lx], and the maximum illuminance of the vertical plane after improvement was reduced by more than 20%. Third, the UGR index of residential area (apartment housing) was satisfied with the international standard of 22, and also satisfied with the domestic Central Environmental Dispute Committee's acceptance limit of 36, so there was no difference between before and after the change. Fourth, as a result of evaluating the unpleasant glare measured in the 500M range of the up and down lines, it was measured as 4.6[%] of the up line and 3.1[%] of the down line, and there was no difference before and after the change as a result of satisfying the unpleasant glare acceptance limit(10%). It is meaningful to use it as light pollution prevention lighting installation data for outdoor sports facilities in the future by presenting supplementary points for the "light radiation permission standard" of the "light pollution prevention method of artificial lighting" according to the lighting environment of sports facilities.

TRIGGERING ENVIRONMENTALISM THROUGH ACCESS TO COURT: IMPERATIVE OF DEEPENING THE RECOGNITION OF THE RIGHT TO HEALTHY ENVIRONMENT IN NIGERIA

The environment is increasing emerging as a critical component of the socio-economic development of average Nigerians as it has not only been valuable to traditional societies for their nutritional and health needs, but also, crucial to the realization of fundamental rights. This is more pertinent as it relates to the inhabitants of the Niger Delta region of Nigeria where the activities of oil multinational companies has made the region to be synonymous with oil pollution, devastated environment and human right abuses. Unsurprisingly, Nigerian courts are increasingly being called upon to adjudicate on issues relating to pollution and other environmental abuses by both private and public persons within the oil sector. Most times, environmental disputes are brought to the court in Nigeria as tortuous cases seeking compensation for damages. Remedies can also be sought under statutory laws or as writ petitions under the fundamental human right enforcement procedure rules. The latter implicates the provision of a human right to healthy environment under statutory laws, and whether such right is recognised as binding by the courts in Nigeria. This paper explores how environmentalism can be triggered in Nigeria through the judicial recognition of the right to a satisfactory environment. It recognises that there are some efforts towards such judicial recognition of the right. However, it argues that to promote environmentalism in Nigeria, there is a need to deepen judicial recognition of the right by detailed pronouncements on the justiciability of the right.

Power Struggles in a Small Town Community: The Intersection of Rural Environmental Protest, Politics, and Hyperlocal News Media

This article presents an in-depth case study of large-scale conflict in a small town, and reveals the complex ways that community groups and activism, hyperlocal news media, and political power intersect through rural environmental disputes. An important but under-recognized feature of such conflicts is the unique role performed by notions of rurality in the construction of environmental protests, discourses, and decisions; that is, the ways in which rural communities’ conservation efforts can be unfairly characterized as “backwards” and “anti-development”. Through a series of interviews and focus groups with protestors and residents, our case study examines a controversial boat ramp development that had a marked environmental impact on the isolated coastal town of Mallacoota (population 1,000) in the state of Victoria, Australia. We show that the environmental activism of protesters lifted the issue's visibility to the level of regional, state, and national news and politics. But the community consultation processes that occurred in response to protests raise significant concerns about government decision making that fails to acknowledge and negotiate the diverse understandings of place and rurality that exist within a community. The outcomes of struggles for power in this small town are lamentable and lasting, damaging the hyperlocal news environment and undermining the community newspaper's reputation among citizens.

Studi Komparatif Penyelesaian Sengketa Lingkungan Di Pengadilan Tata Usaha Negara Indonesia Dan Thailand

This study aims to analyze the comparison of environmental dispute resolution in the State Administrative Court (PTUN) of Indonesia and its Thailand equivalent. This is a normative legal research, using statutory and comparative approaches. The results of the study are presented in an analytical descriptive form. The results of the study conclude that first, the equatlisation for the settlement of environmental disputes in the Indonesian PTUN and the ones in Thailand is based on the General Administrative Court Procedure Law as regulated in the laws governing the PTUN of each country, but technical guidelines for resolving environmental disputes in the PTUN are issued by the respective Supreme Courts of each country. Second, the first difference is that the Thai Administrative Court provides special arrangements related to compensation issues which include costs for health problems, costs for damage to natural resources, loss of identity and community arts and culture. Meanwhile, the PTUN Indonesia provides very limited compensation and prioritizes the claim for the validity of the object of dispute. The second difference is that the handling of environmental problems in the Thai Administrative Court examines the substance and facts related to the environment more deeply, so that a real picture of environmental problems is obtained in the field. An in-depth study of the substance, facts, environmental problems in the field is taken into consideration by the judge in making a decision, even though administratively there are no problems. Meanwhile, the dispute resolution in the Indonesian PTUN is administrative and procedural in nature.

Global Regulatory Standards in Environmental and Health Disputes: Regulatory Coherence, Due Regard, and Due Diligence, written by Caroline E. Foster

Global Regulatory Standards in Environmental and Health Disputes: Regulatory Coherence, Due Regard, and Due Diligence, written by Caroline E. Foster

Intensive judicial oversight and corporate green innovations: Evidence from a quasi-natural experiment in China

The deterioration of pollution problem has increased environmental disputes. However, little is known about the relationship between intensive judicial oversight and corporate green innovations. Regarding the establishment of environmental courts in China as an almost ideal quasi-natural experiment, this paper identifies the impact and mechanism of environmental courts on corporate green innovations. We find that: (1) environmental courts have a significant positive impact on green innovations. However, by employing instrument variable (IV) strategy to alleviate the endogenous issues, we find environmental courts mainly promote the quantity of green innovations; (2) the positive effect on green innovations is more salient for firms in the industry with high pollution intensity, state-owned enterprises, and firms in regions with stricter mass supervision; (3) environmental courts can improve the efficiency of dealing with environmental disputes and alleviate the collaboration between government and firms. Therefore, it could promote corporate green innovations with the increasing pressure for pollution abatement; (4) environmental courts could cause additional costs to firms, such as crowding out non-green innovations and decreasing corporate TFP in the short term. Meanwhile, the establishment of environmental courts could also achieve specific social welfare effects, which is conducive to improving local environmental quality. This paper provides implications for judicial oversight of regulators on environmental protection.

RESOLVING ENVIRONMENTAL DISPUTE WITH MEDIATION METHOD

Dispute the Environment is a dispute between two or more parties that posed the presence or suspected presence of contamination and / or destruction of the environment. Dispute settlement environment in the outer court was held to reach an agreement regarding the form and amount of compensation and/or for specific actions to ensure the will not the occurrence or recurrence of a negative impact on the environment. In the settlement of disputes environment outside the court can use the services of a third party, both of which do not have the authority to take decisions and who has the authority to take decisions, to help resolve disputes environment. Mediation is one form of dispute resolution environment outside the court. In order to resolve the dispute the environment outside the court, then the mechanism is the use of Alternative Dispute resolution as stipulated in Law No. 30 of 1999 on Arbitration and Alternative Dispute resolution. The mediation can also be used to resolve environmental disputes in Court that the mechanism is based on the PERMA No. 1, 2008 on the Procedure of Mediation in the Court

Perancangan E-Government Pelayanan Pengaduan Dan Penyelesaian Sengketa Lingkungan di Era Kebiasaan Baru Pada Dinas Lingkungan Hidup Kota Makassar

At the Environmental Service, there is a PPLH Arrangement and Compliance Division. One of the environmental dispute reporting services is a dispute between two or more parties arising from activities that have the potential and or have an impact on the environment. The environmental complaint and dispute resolution service at the Makassar City Environmental Service have guidelines for verifying disputes involving many aspects of activities and data collection. The background of the research is the community's obstacles in quick access to reporting complaints due to allegations of pollution and or environmental destruction. Another problem is that the Department of the Environment still needs to prepare a verification plan for environmental disputes involving the reporter and related agencies. The impact of the pandemic that cities and even countries have felt makes the problem even more complicated. The research objective is to design an E-Government application for Complaints and Environmental Dispute Resolution Services that can be accessed by the public anytime and anywhere, especially in the era of new habits. The waterfall's system development method starts from system engineering, needs analysis, design, coding, testing and maintenance. Black box testing method for functional testing. The programming language used is the PHP programming language in building environmental dispute verification media and Android-based applications as a complaint medium. The results of this study are that this application can be a medium so that complaints become easier and can neatly document the dispute resolution process.

Environmental Pollution And Urbanization Restoration Strategies In Karawang Regency

This study aims as a model and to provide information to the public about what can be done to help restore environmental and natural conditions, especially in Karawang Regency. This research was conducted by conducting a literature review or literature study on several previous studies related to environmental and social problems in Karawang Regency. The result is Karawang Regency that has a relatively high population density and is one of the industrial areas in the province of West Java, with environmental problems, such as Water Pollution, Air Pollution, B3 Waste, and Solid Waste, Natural Disasters, Damage to Land, Forest, and Soil Resources, Damage to Coastal and Marine Ecosystems, Legal Compliance and Facilitation of Environmental Disputes, Institutions, and Monitoring Facilities Environment, Institutions, and Facilities for Monitoring Environment, Waste, and Urbanization. The strategies that can be done to restore environmental conditions in Karawang Regency, among others; Environmental quality improvement; Wise exploitation of natural resources to maintain environmental harmony and balance; Development of science and technology in environmental management; Improved environmental management performance in business and industry; Creating responsive and alert community participation; Building a community that cares about the environment (green society concept); Increase the effectiveness of implementing environmental regulations; Build an environmental clearing hall; and Strategies for handling and controlling the urbanization of the family planning village.

Environmental courts and foreign direct investments: evidence from China.

As China's pollution problems worsen, environmental disputes are increasing rapidly. However, only 1% of environmental disputes can be resolved via judicial channels. Based on the establishment of environmental courts since 2007, we employ the multi-period DID approach to investigate the impact of environmental courts on foreign direct investments. We find that (1) compared with cities without environmental courts, FDI of cities with environmental courts would drop by 3.32% from the average, which is consistent with the pollution haven hypothesis. Besides, we verify the credibility of the conclusion through detailed endogeneity discussions, placebo tests, and robustness tests. (2) The negative effect of environmental courts on foreign direct investments is more salient in the east, regions with higher historical environmental investment, and regions with more serious local protectionism. (3) There are two channels. The greater risks of environmental litigation and stricter environmental public supervision brought by environmental courts would lead to additional environmental violation costs, thereby inhibiting foreign direct investments. Our findings provide new causal evidence for the pollution haven hypothesis from the perspective of intensive environmental justice.

Conflict of Jurisdiction and Harmonization Between WTO and Marine Environmental Dispute Resolution Mechanisms -- Concentrating on the EC-Chilean Swordfish Case

There is a conflict of jurisdiction between the maritime environmental dispute settlement mechanism and the WTO dispute settlement mechanism, which can lead to conflicts in practice, especially with regard to free trade. This paper therefore analyses the EC-Chile Swordfish case, in which both parties to the dispute submitted their cases to both the UN Tribunal for the Law of the Sea and the WTO panel procedure, and finds that the conflict of jurisdiction between the two mechanisms arises because of the conflicting concepts of their rules and the lack of specific provisions that make them equivalent in effect. As a result, it was not possible to exclude the jurisdiction of the other party, which could lead to different outcomes and a new impasse in dispute resolution. It is therefore important to harmonise the conflicting principles of the marine environment and free trade, and to establish a coordinating body between the two mechanisms in order to better resolve marine environmental disputes and ultimately help China to deal with such conflicts and establish its own environmental and trade regime.

Judicial policy of Russia and Kazakhstan: environmental disputes and regulatory and law enforcement mechanisms for their resolution

The article is dedicated to the analysis of the legislation of the Russian Federation and Republic of Kazakhstan in the sphere of environmental protection. The authors also describe the consideration of ecological disputes by courts of general jurisdiction and arbitrary courts of the Russian Federation in terms of judicial policy. The term of “harm inflicted upon the environment” prescribed by legislation of the Russian Federation and European Unity Directive, is analyzed. The authors pay attention to the fact that in the Russian Federation in 2020 it is possible that environmental tax will be introduced. Fees from this tax will be used to support eco-programs. Basing upon the Environmental Code of the Republic of Kazakhstan the authors explain changes in legislation which concern storage, placing, conversion, and burial of waste. It is noted that in 2011 the term of “placing of waste” was substituted by the term of “temporary waste storage facility” which brought particular clarity into judicial practice. The authors make demonstrative parallel between these terms by means of particular example from the materials of judicial practice. Attention is paid also to the Rules for the economic evaluation of damage from environmental pollution which don’t contain clear definition of criteria establishing the fact of natural object pollution. According to these rules harm inflicted upon the environment is subjective by nature and doesn’t deal with degradation of the objects. The authors of the article touch the disputable issue of respecting principles of equality and adversarial character of the parties when dealing with disputes about compensation for environmental damage. The authors conclude that qualified consideration and protection of rights in the sphere of environmental protection mostly depend on competent development and systematic character of judicial policy.