Despite sharp political conflict over environmental issues during the U.S. presidential campaign, the global trend decidedly favors the environment. Judges around the world are becoming more responsive to environmental concerns and more countries are creating specialized environmental courts.
The implications of this trend for the development of global environmental law were explored by Maryland Professor Robert V. Percival during his Environmental Distinguished Lecture at Florida State University College of Law on October 19.
In his lecture on “The Greening of the Global Judiciary,” Percival reviewed the history of judicial involvement in shaping the direction of environmental law. Prior to the enactment of national environmental statutes, courts developed common law doctrines to protect the environment.
During the early 20th century, the U.S. Supreme Court heard several prominent disputes between states over interstate air and water pollution and even issued injunctions to control it. After Congress adopted laws creating national regulatory programs to protect the environment in the 1970s, courts decided landmark cases requiring that the new laws be taken seriously.
Judges outside the U.S. also gave impetus to the development of environmental law, intervening when legislative bodies and executive agencies failed to respond to environmental concerns. Relying on constitutional provisions to protect the environment, Supreme Courts in countries including India, the Philippines, Australia, Chile and Argentina, issued landmark decisions to address burgeoning problems.
Percival highlighted the development of specialized environmental courts in several countries. Australia has a Land and Environment Court. China now has more than 500 specialized environmental courts (Percival participated in a workshop to train judges from these courts at China’s National Judge’s College last June). India has created a National Green Tribunal. Chile has a new system of environmental courts. While the U.S. in the 1970s decided against creating federal environmental courts, Vermont and Hawaii have established such courts at the state level.
In April 2016, Percival participated in the first World Environmental Law Congress at the Supreme Court of Rio de Janeiro where the Global Judicial Institute for the Environment was launched. This organization is one of several initiatives to improve the capacity of judges around the world to handle environmental cases. This is an important development, particularly as U.S. courts continue to dismiss lawsuits by foreigners on forum non conveniens grounds.
Despite the green global trend, the U.S. Supreme Court remains sharply divided on environmental issues. The outcome of the 2016 presidential election and the fate of President Obama’s nomination of Judge Merrick Garland to the Court may tip the balance. Percival explored these issues in a webinar on the Supreme Court’s upcoming term at the Environmental Law Institute on October 3 and during a presentation to the annual meeting of the American College of Environmental Lawyers in New Orleans on October 29.
Professor Percival’s FSU lecture will be published in the Land and Environment Law Review in the spring.