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Evolution of Judicial Specialization in Environmental Law – United States

Evolution of Judicial Specialization in Environmental Law – United States. Asian Judges Symposium Manila, Philippines 28-29 July 2010. U.S. Historical Perspective on Environmental Courts.

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Evolution of Judicial Specialization in Environmental Law – United States

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  1. Evolution of Judicial Specialization in Environmental Law – United States Asian Judges Symposium Manila, Philippines 28-29 July 2010

  2. U.S. Historical Perspectiveon 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

  3. 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

  4. 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

  5. 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

  6. Result of Study by the Attorney General • Nearly unanimous that commentersopposed 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

  7. 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

  8. 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

  9. 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

  10. 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

  11. 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

  12. ThankYou http://www.vermontlaw.edu/china

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