Evolution of Judicial Specialization in Environmental Law – United States

Asian Judges SymposiumManila, Philippines

28-29 July 2010

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

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

ThankThank YouYou

http://www.vermontlaw.edu/china