Evolution of Judicial Specialization in Environmental Law – United States Asian Judges Symposium Manila, Philippines July 2010

U.S. Historical Perspective on Environmental Courts 1972 amendments to Federal Water Pollution Control Act mandates study on need and feasibility of an environmental court Questions asked included: ◦ Is environmental litigation so extensive that it has created burden on court system? ◦ If not, will it get too burdensome? ◦ Does environmental litigation involve complex issues and technical knowledge requiring expertise? Context: ◦ U.S. Environmental Protection Agency established in 1970 ◦ First Earth Day on 22 April 1970 ◦ Passage of major environmental statutes

Study by the Attorney General Problems encountered ◦ Scope of jurisdiction for an environmental court  Definition of environmental cases or significant environmental issues  Many cases involve some environmental aspects; and many environmental cases involve non-environmental issues

Study by the Attorney General (cont’d) Assumptions made: ◦ An environmental court would have exclusive jurisdiction (no choice of forum) ◦ Decisions from the court would be appealable to Supreme Court Suggestion on 3 models: ◦ Court to hear environmental cases in general ◦ Court to review federal administrative orders affecting the environment ◦ Court to review orders of designated federal agencies or of specified types of matter handled by federal agencies

Study by the Attorney General (cont’d) Solicited comments from 26 federal agencies and 9 private organizations, as well as from other divisions of DOJ Solicited comments on questions: ◦ Total litigation experience of new cases since 1970 ◦ Cases with significant envtl. issues v. cases with minor tangential envtl. Issues ◦ Opinion on ability of court system to handle technical environmental issues ◦ Preference among three model courts suggested

Result of Study by the Attorney General Nearly unanimous that commenters opposed environmental court Reasons included: ◦ Difficult to define jurisdiction ◦ Broad range of environmental issues makes it less feasible for court to develop expertise ◦ Preference for “generalist” court over narrower views that might likely come from specialized courts

Result of Study by the Attorney General (cont’d) Reasons for rejection of environmental court also include: ◦ Fear that court would be subject to pressure from special interest groups ◦ Concern that court would lead to other specialized courts, fragmenting court system ◦ Unclear whether environmental caseload would warrant specialized court ◦ Fear that court would be less accessible than federal district courts

Re-Examination of Study In 1974, the study revisited It determined that it had underestimated the value of an environmental court in overseeing appeals of federal agency actions Context: ◦ Since study, major statutes that were recently passed were being implemented ◦ Numerous appeals filed in various federal appeals courts challenging federal agency actions

Subsequent Consideration of Specialized Courts in General In 1990, a study was done on the need for specialized courts in general in the federal system and recommended against a specialized court to review all administrative appeals In 1991, it was proposed that if a specialized court for a particular administrative program is proposed, it should only be created if: ◦ The court would truly alleviate the caseload in the generalist federal courts ◦ The cases raise predominantly scientific and technical issues that require special expertise ◦ The field requires uniformity in agency administration

Conditions Relevant to U.S. A well-established and robust rule of law culture A mature and independent judicial system A well-developed environmental bar Experienced prosecutors and enforcement agencies (both federal and local) with expertise and better able to inform the court of the law and environmental issues Effective tools and more resources within administrative agencies to enforce the law

Vermont Environmental Court Established in 1990 To improve enforcement of environmental laws Jurisdiction over: ◦ State environmental civil enforcement cases ◦ Local land use zoning and planning permit appeals and enforcement cases ◦ State land use permit appeals ◦ Appeals of state environmental permits and decisions of the state environmental agency No jurisdiction over criminal cases or civil cases for compensation to individuals (environmental tort cases) Currently two judges sit on the court

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