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
 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
 Thank You

http://www.vermontlaw.edu/china