Pace Environmental Courts Symposium, EPA Appropriations Riders, Obama Energy Speech & Tiger Comeback (by Bob Percival)

On April 1st and 2nd I participated in an International Symposium on Environmental Adjudication at Pace Law School. A terrific opening keynote address was delivered by Brazilian Supreme Court Justice Antonio Herman Benjamin, who spoke on “Judges, the Environment, and the Rule of Law.” I have known Justice Benjamin, who was the founder of Brazil’s Green Planet Society (an environmental NGO), since before his appointment to Brazil’s Superior Tribunal de Justiça by President Luiz Inacio Lula da Silva in 2006. Justice Benjamin contrasted two models of the role of the judiciary - the juiz espectader and the juiz protaganista. In the former a judge just performs a passive role of “calling balls and strikes” in enforcing property and contract rights, while seeking to avoid environmental controversies because of their technical nature. In the latter, judges acknowledge that they often must decide highly technical issues, like those posed by intellectual property law, and they treat environmental rights created by newly amended constitutions as more than merely cosmetic.

The conference also featured fascinating presentations by the Honorable Brian J. Preston, Chief Judge of the Land & Environment Court of New South Wales, Australia, and the Honorable Donald Kaniaru, who is directing the launch of the new Environmental Court of Kenya created by the country’s new constitution adopted in August 2010. Rock and Kitty Pring reported on their findings concerning the burgeoning movement to establish environmental courts throughout the world, offering a dozen guidelines for good practices to maximize the effectiveness of such courts.

I spoke on two panels at the conference - a panel on “The Rule of Law and Environmental Adjudication” and a panel on the “Capacity of Environmental Courts in China.” The first panel was chaired by Judge Meredith Wright of the Environmental Court of the State of Vermont. It featured presentations by Charles DiLeva of the World Bank and Ken Markowitz of the International Network on Environmental Compliance and Enforcement (INECE). I argued that whether or not countries establish specialized environmental courts, they need to resolve environmental disputes that often involve highly technical issues of environmental science. I traced the history of the U.S. federal courts’ involvement in environmental dispute resolution from the early transboundary pollution cases heard by the U.S. Supreme Court exercising its original jurisdiction over disputes between states. I noted that the federal courts often seek environmental experts to advise them, noting my own service as a special master presiding over a multi-week trial in federal court in a Superfund dispute. On the second panel I emphasized the difficulties China’s environmental courts face while operating in a country without an independent judiciary. Many of the federal regulatory programs to protect the environment in the U.S. were implemented only after citizen suits against the federal government, something that is unlikely ever to be authorized in China so long as the Communist party monopolizes power.

On Saturday April 2nd the speakers at the conference met with Professor Nick Robinson of Pace Law School to discuss a draft U.N. General Assembly Resolution to promote the development of environmental courts throughout the world. Justice Benajmin chaired the session and demonstrated a new website the Supreme Court of Brazil has created to facilitate contacts among judges throughout the world.

Fearful that the Obama administration might accede to appropriations riders restricting EPA’s ability to act, environmental groups last week launched a concerted effort to pressure the administration to threaten to veto them. By the end of the week the effort seemed to have borne fruit as Senate Majority Leader Harry Reid declared that the administration would not accept such riders as part of a budget agreement.

President Obama gave a major energy policy speech at Georgetown University last week, urging the country to shift away from imported foreign oil and to reduce U.S. consumption of it by one-third. This made President Obama the latest in a string of presidents to endorse such policies, even though they have had little success in the past.

At the opening of an International Tiger Conservation Conference last week the government of India released the results of a tiger census. The census showed that the number of tigers in the wild in India had climbed to 1,706, a substantial increase since the last tiger population estimate of 1,411 in 2007. The 2007 number did not include tigers in Sunderbans, making the actual increase somewhat smaller than it appears, but nonetheless a positive sign for tiger conservation efforts.

On Sunday I was in Charlottesville, Virginia for the University of Virginia Law School’s annual national law school softball tournament. This year 130 teams from 52 law schools competed in the tournament. One of Maryland’s coed teams advanced to the Elite Eight before losing to the University of Virginia. Florida Coastal won the coed division and UVA won the men’s division. Photos of the tournament are online at: http://gallery.me.com/rperci/100817