Some credentials Professor, 28 years, University of Oregon Founder, 17 years, Environmental Law Alliance Worldwide: (300 “public- interest” environmental lawyers in 60 countries) Active member, IUCN Commission on Environmental Law Citizen negotiator, 9 years, European ECO Forum (since 1997) Professor, 28 years, University of Oregon Founder, 17 years, Environmental Law Alliance Worldwide: (300 “public- interest” environmental lawyers in 60 countries) Active member, IUCN Commission on Environmental Law Citizen negotiator, 9 years, European ECO Forum (since 1997)

The risks of allowing real access to justice?

Experts on the role of money in access to justice Experts on the role of money in access to justice

(from Cabaret) Money makes the case go around, the remedy sound, jus-tice abound.... A ruble, a forint, a Euro or a pound,... that clinking clanking sound, can make the case go round. Money makes the case go around, the remedy sound, jus-tice abound.... A ruble, a forint, a Euro or a pound,... that clinking clanking sound, can make the case go round.

The Almaty NGO Appeal for Justice “Individuals and NGOs are often effectively barred from seeking justice... “In such situations, the Aarhus Convention may be seen as consisting of two pillars and a broken stick.” “Individuals and NGOs are often effectively barred from seeking justice... “In such situations, the Aarhus Convention may be seen as consisting of two pillars and a broken stick.”

Who gets access to justice? (USA example) Private environmental lawyers in USA: –10-20,000 1 Funded citizens’ environmental lawyers in USA: –~500 2 Government environmental lawyers in USA: –~1,000 1 Martindale-Hubbell listings 2 Data compiled by J. Bonine Private environmental lawyers in USA: –10-20,000 1 Funded citizens’ environmental lawyers in USA: –~500 2 Government environmental lawyers in USA: –~1,000 1 Martindale-Hubbell listings 2 Data compiled by J. Bonine

Funded public-interest environmental litigators for citizens in EU, E. Europe, Central Asia (1) Ecological Association Demeter in Bulgaria (5) Environmental Law Service in the Czech Republic (1) UfU in Germany (2) Environmental Management and Law Ass’n, Hungary (2) Stichting Natur en Milieu, Netherlands (3) Via Iuris (formerly CEPA), Slovakia (2) Ecojuris, Russia (1) Lawyers for Rights and the Environment, Russia (4) Environment-People-Law (EPL) in Ukraine (6) WWF, Greenpeace, Friends of Earth, R.S.P.B., UK ___ ~27 lawyers, 500 million people (1) Ecological Association Demeter in Bulgaria (5) Environmental Law Service in the Czech Republic (1) UfU in Germany (2) Environmental Management and Law Ass’n, Hungary (2) Stichting Natur en Milieu, Netherlands (3) Via Iuris (formerly CEPA), Slovakia (2) Ecojuris, Russia (1) Lawyers for Rights and the Environment, Russia (4) Environment-People-Law (EPL) in Ukraine (6) WWF, Greenpeace, Friends of Earth, R.S.P.B., UK ___ ~27 lawyers, 500 million people

Why so few public-interest lawyers?

Potential Barriers to Justice Lack of knowledge by citizens, officials, lawyers, judges Difficulty to find and pay the correct lawyer In some cases, paying science experts Paying high court filing fees Lack of legal standing Lack of the injunction remedy (strong court orders) Paying high bonds for security, required for injunctions Corrupt judges (inability to pay them while other side does?) Retaliatory actions (financial, threats to life & liberty) Paying high lawyers’ costs for appeals Paying high lawyer fees for other side if one loses Lack of knowledge by citizens, officials, lawyers, judges Difficulty to find and pay the correct lawyer In some cases, paying science experts Paying high court filing fees Lack of legal standing Lack of the injunction remedy (strong court orders) Paying high bonds for security, required for injunctions Corrupt judges (inability to pay them while other side does?) Retaliatory actions (financial, threats to life & liberty) Paying high lawyers’ costs for appeals Paying high lawyer fees for other side if one loses

If you can’t file a lawsuit, issues of training, standing, remedies, & corruption don’t even exist. Money is the problem If you can’t file a lawsuit, issues of training, standing, remedies, & corruption don’t even exist. Money is the problem

Barriers Vary by Region EU, Eastern Europe*, Central Asia Paying the lawyer Paying a court’s filing fee Paying a bond for injunction Retaliatory actions (financial, threats to liberty) Paying appeal lawyers Paying other side’s lawyer fees Paying the lawyer Paying a court’s filing fee Paying a bond for injunction Retaliatory actions (financial, threats to liberty) Paying appeal lawyers Paying other side’s lawyer fees EU, Eastern, Central Asia Eastern, Central Asia (in some courts) EU countries, Eastern Financial: EU, Eastern Threats to liberty, life: Eastern, Central Asia EU, Eastern, Central Asia Many EU countries EU, Eastern, Central Asia Eastern, Central Asia (in some courts) EU countries, Eastern Financial: EU, Eastern Threats to liberty, life: Eastern, Central Asia EU, Eastern, Central Asia Many EU countries

Good Practices (summary) Government funds NGO lawyers –General funding for NGO lawsuits –Legal Aid funding, case-by-case basis –Government pays NGO lawyer fees when court rules that Government violated law Court’s filing fees are lowered Injunction bonds are not required No requirement to pay opposing lawyer fees if NGO loses Government funds NGO lawyers –General funding for NGO lawsuits –Legal Aid funding, case-by-case basis –Government pays NGO lawyer fees when court rules that Government violated law Court’s filing fees are lowered Injunction bonds are not required No requirement to pay opposing lawyer fees if NGO loses

Good Practices (details) Government pays the lawyer (or NGO) –General NGO lawsuit funding REC/donor funding, Romania (and others previously) Court awards (India) –Legal Aid UK – for some cases Spain – for some cases –Government pays NGO lawyer fees upon victory U.S. FOIA (1974) U.S. Equal Access to Justice Act (1980) Kazakhstan: new proposal to reduce costs (10 percent of court fees allocated to social organizations in successful cases) Government pays the lawyer (or NGO) –General NGO lawsuit funding REC/donor funding, Romania (and others previously) Court awards (India) –Legal Aid UK – for some cases Spain – for some cases –Government pays NGO lawyer fees upon victory U.S. FOIA (1974) U.S. Equal Access to Justice Act (1980) Kazakhstan: new proposal to reduce costs (10 percent of court fees allocated to social organizations in successful cases)

Good Practices (details) Court’s filing fees are lowered –Spain: no filing fees for NGOs (Mexico also) –Hungary: no filing fees for NGOs. Court’s filing fees are lowered –Spain: no filing fees for NGOs (Mexico also) –Hungary: no filing fees for NGOs.

Good Practices (details) Injunction bonds are not required or just symbolic in public-interest cases –USA –Australia’s Land & Envir. Court of NSW Injunction bonds are not required or just symbolic in public-interest cases –USA –Australia’s Land & Envir. Court of NSW

Good Practices (details) No requirement to pay opposing lawyers’ fees in Aarhus/enviro cases if you lose –Spain: in unsuccessful cases against government (also Mexico) –Ukraine: actual practice (but law allows such costs orders) –Hungary: limitation on opposing fees to a published schedule. No requirement to pay opposing lawyers’ fees in Aarhus/enviro cases if you lose –Spain: in unsuccessful cases against government (also Mexico) –Ukraine: actual practice (but law allows such costs orders) –Hungary: limitation on opposing fees to a published schedule.

An idealistic view

Reality

Conclusions (the NGO view) Access to justice is equal for those who can pay for it Access to justice is equal for those who can pay for it

Judges’ View EECCA Judges Lviv Statement (2003): Acknowledge... the important role played by citizens and their organisations in bringing matters before the courts.... Further identify the need for financial and other support for … lawyers to assist citizens and their organisations to apply to the courts to defend environmental rights. Source: 15 Chief Justices and senior judges from Supreme and Constitutional Courts from 11 countries of Central/Eastern Europe, Caucasus and Central Asia (the EECCA Region) EECCA Judges Lviv Statement (2003): Acknowledge... the important role played by citizens and their organisations in bringing matters before the courts.... Further identify the need for financial and other support for … lawyers to assist citizens and their organisations to apply to the courts to defend environmental rights. Source: 15 Chief Justices and senior judges from Supreme and Constitutional Courts from 11 countries of Central/Eastern Europe, Caucasus and Central Asia (the EECCA Region)

Questions for Task Force to consider Can the Task Force help identify financial barriers? –How? Can the T.F. help catalog good practices? –How? Can the T.F. make suggestions to W.G. of the Parties? –Which ones? Proposal: Web-based questionnaire Can the Task Force help identify financial barriers? –How? Can the T.F. help catalog good practices? –How? Can the T.F. make suggestions to W.G. of the Parties? –Which ones? Proposal: Web-based questionnaire