Environmental Courts and Tribunals

1
Environmental
Courts and Tribunals – 2021
A Guide for Policymakers
ENVIRONMENTAL COURTS AND TRIBUNALS – 2021: A Guide for Policymakers
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i
EXECUTIVE SUMMARY
As this UNEP 2021 ECT Guide seeks to update the UNEP The UNEP 2016 ECT Guide observed an “explosion” in the
2016 ECT Guide, its aims remain broadly the same: to number of ECTs since 2000, but the observable trend today
function as a guide for policymakers, judges, academics is that of steady growth, with the number of operational
and stakeholders who have an interest in improving the ECTs standing at 2,115 in 67 countries (appendix A). This
adjudication of environmental disputes and establishing trend is attributable to several factors, including: natural
ECTs. ECTs may take different forms and models, with no plateauing of numbers as countries complete their efforts
single best model or “one-size-fits-all” design. What is best to set up ECTs; increased effectiveness of existing ECTs;
for each country depends on what fits the country’s unique the prioritization of environmental issues in courts of
ecological, historical, legal, judicial, religious, economic, general jurisdiction; the presence of judges who are well
cultural and political conditions. This guide sets out the versed in environmental matters; the growing belief
main ECT models available, which can be environmental that environmental justice can be achieved through
courts (i.e. instituted in the judicial branch of government) existing systems (reflected in the increasing number of
and environmental tribunals (i.e. instituted in either the environmental cases in general courts); and the growing
executive or administrative branch). These ECTs may have popularity of settling disputes out of court through
different degrees of independence. They may be configured alternative dispute resolution. Apart from these, other
to include legally trained judges possessing a diverse range recent trends of ECT development can also be noted:
of environmental law expertise, and even non-law actors the proliferation of green benches; amalgamation;
(e.g. policymakers and technical experts). Aside from ECTs, incrementalism; and judicial reform.
other institutions such as ombudsman offices, prosecutors
and human rights commissions also contribute to achieving
environmental justice. For ECTs to achieve success and sidestep potential
drawbacks, this update considers good practices in both
the design and operational stages of ECTs. These include
Through the enforcement of environmental laws and the independence, flexibility, inclusion of non-law decision
settling of environmental disputes, ECTs help countries makers, use of alternative dispute resolution, empowering
meet the objectives of the United Nations 2030 Agenda ECTs with a comprehensive jurisdiction, enforcement
for Sustainable Development and the Paris Agreement on powers, adequate resources, active public outreach, user-
Climate Change, among other international environmental friendly systems, cost control, and continuous improvement
instruments and commitments. They provide access to and development processes. For various reasons, not all
environmental justice and remedies, strengthen judicial countries will establish ECTs. Thus, it is helpful for these
systems to ensure accountability, and spur legal innovation good practices to be made widely known and implemented
and reforms. in judicial training programmes, so that general courts can
also be equipped to provide environmental justice.
ii ENVIRONMENTAL COURTS AND TRIBUNALS – 2021: A Guide for Policymakers
FOREWORD
This 2021 update (UNEP 2021 ECT Guide) of Environmental being developed since 2016. Further, this update identifies
Courts and Tribunals: A Guide for Policymakers (UNEP good practices by their ability to make environmental
2016 ECT Guide), first published by the United Nations justice “just, quick, and cheap” (New South Wales, Civil
Environment Programme (UNEP) in 2016, is designed Procedure Act 2005, section 56(1)).
to provide policymakers and citizens around the globe
with the latest information about the changing world of
specialized environmental courts and tribunals (ECTs). It Since the UNEP 2016 ECT Guide, there have been a number
provides an enlarged database of the available adjudicative of dramatic changes in the global environmental landscape.
forums for environmental disputes – environmental Changes in priorities, governance, economy and health, and
courts (i.e. instituted in the judicial branch of government) threats to the environmental rule of law – the most notable
and environmental tribunals (i.e. instituted in either the of which are listed as follows – necessitate a re-examination
executive or administrative branch). It also documents good and update of this toolkit for policymakers and leaders at all
practices across various ECTs. levels, in every country.
The UNEP 2016 ECT Guide found that the adjudication of Climate change
environmental, water, land and resource use disputes by
specialized government bodies is not a new phenomenon.
In fact, it first emerged in Nordic countries over a century The long-standing focus on preventing and mitigating
ago. However, between the 1960s and 1970s, global environmental degradation is now being superseded by
awareness about environmental issues increased. This a focus on the climate change crisis as the key threat to
both resulted from and led to more government action people and the environment now and in the future. Many
and non-governmental organization (NGO) advocacy. new advocacy groups, such as Greta Thunberg’s Fridays for
Likewise, the body of environmental laws, instruments Future and the Climate Change Network, and legal research
and principles grew, and specialized government bodies programmes like Columbia University’s Sabin Center for
were created to enforce them. International environmental Climate Change Law, have inspired an international call
law developments, such as the Rio Declaration on for climate justice, not just climate action. Climate justice
Environment and Development (1992), Aarhus Convention has been defined as fair treatment and freedom from
on Access to Information, Public Participation in Decision- discrimination for all in the creation of policies and projects
Making and Access to Justice in Environmental Matters that address climate change, as well as in the systems that
(1998), Guidelines for the Development of National create climate change and perpetuate discrimination. The
Legislation on Access to Information, Public Participation concept of climate justice recognizes that the burdens
and Access to Justice in Environmental Matters (the of climate change are not distributed equitably, but fall
Bali Guidelines) (2010), United Nations Conference on heaviest on the poor, women and children, minorities,
Sustainable Development (Rio+20) (2012), United Nations marginalized groups, underdeveloped countries, and island
2030 Agenda for Sustainable Development (particularly and coastal nations. This shift in focus from environmental
Sustainable Development Goal 16 “Peace, Justice and degradation per se to climate change is driving change in
Strong Institutions”) (2015), and many more, established the law and actions aimed at climate change, and a parallel
three environmental access rights – access to information, growth in climate litigation.
access to public participation in decision-making and
access to justice. These three rights are now regarded as This uneven burden is a major challenge to all courts and
key components of the environmental rule of law. Therein, tribunals today, increasing the need to employ new tools to
access to justice is the primary driver of ECT development. improve access to justice and the environmental rule of law.
Climate justice raises complex questions of law and fact,
necessitating decisions that are scientifically and technically
Good practices for ECTs were first identified and analysed informed, sustainable, enforceable, and effective in both
in Greening Justice: Creating and Improving Environmental the short and long term. The complexity of the issue has
Courts and Tribunals (Pring and Pring 2009). This study was made the precautionary principle, sustainability and access
updated and expanded to inform the UNEP 2016 ECT Guide. to experts even more important in adjudication. Climate
The UNEP 2016 ECT Guide documented an “explosion” of change litigation can be very effectively adjudicated in an
new ECTs around the world, from over 350 identified in ECT, as recent decisions in Australia’s Land and Environment
2009, to over 1,200 in 2016. In this update, it is found that Court of New South Wales and other ECTs have shown.
there are now 2,115 ECTs globally, with around 850 of them
iii
The COVID-19 pandemic aspirational – have been responsible for civil polarization
in many nations. Great numbers of people are now feeling
unempowered, unrewarded, and lacking in opportunities
The pandemic is resulting in extreme economic, social, or dignity, and are as a result becoming attracted to a
political and emotional pressures throughout the world, “populist” agenda. Policing, enforcement, scientific, and
and this is already shifting civic and governmental priorities judicial systems are less trusted by the “common man”,
and impacting access to justice and the rule of law. Social according to surveys. Typically, these shifts can have a
distancing, masking, quarantines, job losses, court closures, negative effect on support for sustainability, environmental
school and business shutdowns, vaccine distribution protection, access to justice, the environmental rule of
inequities, and health care costs are mandating novel law, fact-based decision-making, science and technology,
and controversial responses by governments at all levels, and judicial independence – some of the cornerstones of
including the general courts and ECTs. Some important successful ECTs.
ECT good practices – such as public court access, on-site
hearings, conferences of the parties and face-to-face
alternative dispute resolution – have been limited or Despite these challenging global trends, specialized ECTs
removed during the pandemic. Some other good practices have increased in number, sophistication, and adaptation to
have involved a new reliance on sophisticated information changed conditions. Since 2016, there has been an increase
technology (IT) to manage the filing, discovery, evidence of over 850 new ECTs, including 36 in France and hundreds
presentation, hearings and adjudication processes, and may in China. New ECTs are also being planned in diverse legal
be with us long after the pandemic ends. ECTs that already systems including, for example, in Ethiopia, Ireland, Turkey
were using IT were ahead of the game, but all have had to and the United Arab Emirates. Most ECTs have adopted
rapidly deal with developing IT procedures, systems and some form of IT procedure across their processes in order
equipment. to deal with COVID-19. Some ECTs have already returned to
a mix of in-person and virtual procedures. Adaptations like
these have increased access to justice and efficiency, and
Political shifts reduced costs and backlogs, and will certainly be continued
in the post-pandemic world.
Some countries have experienced shifts in political

leadership and priorities since the UNEP 2016 ECT Guide, Trends noted in 2016 – including reliance on green
in some cases from more pro-environment progressive judges and green benches in the general courts and the
agendas to more conservative economic agendas that amalgamation of ECTs into general non-environmental
can affect the courts, including ECTs. The results of this bodies – have continued and may be optimal models in
shift have included amendments of ECT rules reducing the future. Their advantages of cost savings and efficiency
their effectiveness, mergers of ECTs into other non- have to be weighed against the potential loss of good
environmental adjudication bodies, reduced budgets, practices that have been hallmarks of the specialized
and questionable personnel appointments or lack of ECTs. Focused training for environmental decision makers
appointments. The consequences can be a step backward has been provided by UNEP and other international
for access to justice and the environmental rule of law. governmental organizations and NGOs and is helping to
Some of those consequences can be reversed by future develop a cadre of judges who are knowledgeable about
shifts in political leadership and priorities, while some will environmental law and decision-making. However, in some
take decades to reverse. ECTs and even general courts, deficiencies in decisional
expertise, remedies, enforcement, standing, independence,
efficiency and flexibility remain hurdles for access to justice,
Polarization sustainability and the environmental rule of law.
Increasing gaps between groups of citizens – political, We hope that the information, analysis and examples in this
economic, social, educational, racial, gender and update will aid in the continuous development of ECTs.
George W. Pring Catherine Pring
Authors of the UNEP 2016 ECT Guide

iv ENVIRONMENTAL COURTS AND TRIBUNALS – 2021: A Guide for Policymakers
ACKNOWLEDGEMENTS
This UNEP 2021 ECT Guide for policymakers, judges, Bueta, Philippines; Eeshan Chaturvedi, India; Jiyeon Choi,
academics and stakeholders is the product of a global Republic of Korea; Rahul Choudhary, India; Joseph Chun,
research effort by numerous researchers, building upon Singapore; Valeriu M. Ciucă, Romania; Marc Clément,
the contributions of many experts. All names subsequently France; David Marín Cortés, Colombia; Rafaela Santos
listed are arranged in alphabetical order. Martins Da Rosa, Brazil; A.T. Dalen Gilhuijs, Netherlands;
Kalilou Dama, Mali; Nambitha Dambuza-Mayosi, South
Africa; Trevor Daya-Winterbottom, New Zealand; Ricardo
Firstly, UNEP wishes to acknowledge and thank the Cintra Torres de Carvalho, Brazil; Vladimir Passos De Freitas,
Asia-Pacific Centre of Environmental Law at the National Brazil; Kars J. de Graaf, Netherlands; Jerry V. DeMarco,
University of Singapore and Ghent University for taking on Canada; Habib Ahmed Djiga, Burkina Faso; Sifiso Nkosinathi
this ambitious project and supporting the development Dlamini, Eswatini; Michael Hantke-Domas, Chile; Thomas
of international environmental law knowledge. UNEP S. Durkin, United States of America; Ritwick Dutta, India;
particularly acknowledges the hard work and efforts of Rose-Liza Eisma-Osorio, Philippines; Khaled Hesham Elaiat,
the principal investigator and lead author, Linda Yanti Egypt; José Alberto Esain, Argentina; Anton Mingzhi Gao,
Sulistiawati (Asia-Pacific Centre of Environmental Law), Taiwan; César Rodríguez-Garavito, Colombia; Heather
who managed and coordinated the research project from Gibbs, Canada; Gitanjali N. Gill, United Kingdom of Great
beginning to end. Britain and Northern Ireland; Rafael González-Ballar, Costa
Rica; Madalina-Elena Grecu, Romania; Michael Green,
United Kingdom of Great Britain and Northern Ireland;
Secondly, UNEP is grateful to Linda Yanti Sulistiawati, Farah Ron Gutierrez, Philippines; Wouter Haelewyn, Belgium;
Bouquelle, Jolene Lin, Luc Lavrysen, Mark Ortega, Ricardo Nabil Haque, Georgia; Toshio Haase, Japan; Mark Haddock,
Pereira and Sean Tseng, the authors, for generously giving Canada; Tara Hastings, Canada; Ayele Hegena, Ethiopia;
their time to help draft the guide. Caroline Henrotin, Belgium; Nathaniah Jacobs, United
Kingdom of Great Britain and Northern Ireland; Lindita
Jakupi, Kosovo; Ilona Jancarova, Czech Republic; Guy Kalasi,
Thirdly, UNEP acknowledges the thoroughness and Democratic Republic of the Congo; D.W. Kaniaru, Kenya;
perseverance of all researchers involved in the research and Alexander Karavay, Russian Federation; David Kirkpatrick,
drafting process. They are Eric Bea, Giulia Contes, Daniella New Zealand; Kari Kuusiniemi, Finland; Darrell Le Houillier,
Danny, Lara Dumortier, Fok Theng Fong, Hui Jie Chieng, Canada; Alessandra Lehmen, Brazil; Jonathan Liljeblad,
Chrystal Lee Tze En, Lee Wei Ting, Dakshayani Ravindran, Myanmar; Christian Lindemann, Germany; Mary Kay Lynch,
Caiphas Brewsters Soyapi, Nikhil Dutt Sundaraj, Isabella Tan, United States of America; Moira Macmillan, United Kingdom
Selene Tanne and Wam Xiu Hui Rachel. of Great Britain and Northern Ireland; Verena Madner,
Austria; Nanna Magnadóttir, Iceland; Leila Makhmetova,
Kazakhstan; Mohamed Ali Mekouar, Italy; Blaise-Pascal
Fourthly, UNEP thanks all the experts who contributed Ntirumenyerwa Mihigo, Democratic Republic of Congo;
their valuable expertise and knowledge to make this Elizabeth Maruma Mrema, United Republic of Tanzania;
publication possible: Paolo E. Abarquez, Philippines; Suntariya Muanpawong, Thailand; Paul Muldoon, Canada;
Dennis Adjei, Ghana; Masood Ahmad, Afghanistan; Irum Bambang Mulyono, Indonesia; Laurie Newhook, New
Ahsan, Pakistan; Delphine Agoguet, France; Christine Zealand; Alain Parfait Ngulungu, Democratic Republic of
Echookit Akello, Uganda; Nagehan Ilemin Alan, Turkey; the Congo; Salvador Ernesto Nieto Carcamo, El Salvador;
Åsa Marklund Andersson, Sweden; Denise Antolini, Luis Antonio Nieto Gonzalez, El Salvador; Eric Nkurunziza,
United States of America; Luisa Arauz, Panama; Aaron P. Burundi; Fred Kennedy Nkusi, Rwanda; Farai Nyahwa,
Avila, United States of America; Matthew Baird, Thailand; Zimbabwe; Noriko Okubo, Japan; Olubayo Oluduro,
Chikosa Banda, Malawi; Gyula Bándi, Hungary; Nivea R. Nigeria; Peter Pagh, Denmark; Ana Carla Teles Duarte
Berrios-Colon, United States of America; Vedalini Bhadain, Palma, Portugal; Antonio Fernando Pinheiro Pedro, Brazil;
Mauritius; Kana-Gaba Boco, Benin; Ben Boer, Australia; Adriana Perez Niklitschek, Belgium; Brian Preston, Australia;
Elisa Samuel Boerekamp, Mozambique; Gregorio Rafael P. Catherine Pring, United States of America; George W. Pring,
v
United States of America; Dimitrios Pyrgakis, Greece; Lilliana Merideth Wright, United States of America; Emmanuel Kam
Arrieta Quesada, Costa Rica; Michael Rackemann, Australia; Yogo, Cameroon; Mochamad Adib Zain, Indonesia; and
Tahiana Lucette Rakotoarisaona, Madagascar; Luca Ramacci, Zhao Yuhong, China.
Italy; Gloria Estenzo Ramos, Philippines; Jorge Roberto
Retamal Valenzuela, Chile; Faustino Gudin Rodrígez-
Magariños, Spain; Áine Ryall, Ireland; Antoine Kaboré UNEP also thanks the following ECT 2021 Review Board
Sandaogo, Burkina Faso; Syed Mansoor Ali Shah, Pakistan; members, who took the time to review each draft and
Sibila Simeonova, Bulgaria; Winai Soiploy, Thailand; Prathum contribute constructive feedback: Anders Bengtsson,
Sompop, Thailand; Caiphas Brewsters Soyapi, South Ben Boer, Beatriz Garcia, Qin Tianbao, Yacouba Savadogo
Africa; Kathie A. Stein, United States of America; Henri and Laode M. Syarif. Finally, UNEP would like to express
Storme, Belgium; Lade M. Syarif, Indonesia; Sunil Thacker, its appreciation of a review of the report undertaken by
United Arab Emirates; Françoise Thonet, Belgium; Nana staff members in the Law Division of UNEP led by Arnold
Totibadze, Georgia; Nühet Turgut, Turkey; Rosa Uylenburg, Kreilhuber, Allan Meso, Andrew Raine and Soo Young
Netherlands; Angelina Isabel Valenzuela Rendón, Mexico; Hwang.
Jan Van den Berghe, Belgium; Annemari Vene, Estonia;
Charlotta Von Troil, Finland; Kate Wilson, Saint Lucia;
vi ENVIRONMENTAL COURTS AND TRIBUNALS – 2021: A Guide for Policymakers
CONTENTS
Executive summary .................................................................................................................................................... i
Foreword ...................................................................................................................................................................... ii
Acknowledgements ................................................................................................................................................... iv
List of figures and text boxes ................................................................................................................................... vii
List of abbreviations .................................................................................................................................................. viii
INTRODUCTION ......................................................................................................................................................... 2
1. ECT CHARACTERISTICS .........................................................................................................................................................5
1.1. Function over title ................................................................................................................................................................................5
1.2. Recent trends: Green benches, Amalgamation and incrementalism ................................................................................6
1.3 Challenges ................................................................................................................................................................................................8
2. ECT OBSERVATIONS IN 2021...................................................................................................................................................11

2.1. The transformation of environmental adjudication.................................................................................................................11
2.2. Caseload ..................................................................................................................................................................................................17
2.3. Causes and implications.....................................................................................................................................................................19
2.4. Judge training and networking .......................................................................................................................................................24
2.5. Good practices .......................................................................................................................................................................................26
3. ECT MODELS .............................................................................................................................................................................42

3.1. Initial considerations ..........................................................................................................................................................................42
3.2. Environmental courts ..........................................................................................................................................................................43
3.3. Environmental tribunals ....................................................................................................................................................................54
3.4. Environmental ombudsmen, prosecutors and commissions ...............................................................................................57
4. CONCLUSION .............................................................................................................................................................................62
5. APPENDICES ...............................................................................................................................................................................63
Appendix A: Number of operational ECTs ...........................................................................................................................................64
Appendix B: List of pending or potential ECTs ..................................................................................................................................67
Appendix C: List of authorized but not established ECTs ..............................................................................................................68
Appendix D: List of discontinued ECTs ................................................................................................................................................69
Appendix E: Contact list of ECT and access to justice experts .....................................................................................................70
Appendix F: Research scope and methodology ................................................................................................................................83
Appendix G: List of interviews .................................................................................................................................................................84
Appendix H: Review board members ..................................................................................................................................................86
Appendix I: Networks of environmental judges................................................................................................................................87
Appendix J: Regional report summaries ..............................................................................................................................................88
Appendix K: References..............................................................................................................................................................................107
vii
LIST OF FIGURES AND TEXT BOXES
List of figures
Figure 1: Example of an environmental law training certificate awarded to Indonesian judges ........................................ 6
Figure 2: Global distribution of ECTs.......................................................................................................................................................... 15
Figure 3: Profile and experience of judges .............................................................................................................................................. 24
Figure 4: Forms of alternative dispute resolution ................................................................................................................................. 31
List of text boxes

Box 1: Good practices during COVID-19 by the Vermont Environment Court .......................................................................... 23
Box 2: Training Curriculum on Environmental Law for Judges and Magistrates in Africa ..................................................... 25
Box 3: Informal networks of environmental judges and prosecutors .......................................................................................... 26
Box 4: National Green Tribunals of India ................................................................................................................................................. 28
Box 5: Kenya, Environment and Land Court Act 2011, section 18 ................................................................................................. 32
Box 6: Good practices by ECTs in China ................................................................................................................................................... 37
Box 7: The Foundation of Independent Court Experts in Environmental and Planning Law, the Netherlands ............ 49
viii ENVIRONMENTAL COURTS AND TRIBUNALS – 2021: A Guide for Policymakers
LIST OF ABBREVIATIONS
ECT Environmental Court and Tribunal
ELUAT Environment and Land Use Appeal Tribunal (Mauritius)
EPA Environmental Protection Agency (United States of America)
FAQs Frequently asked questions
IT Information technology
IUCN International Union for Conservation of Nature
LECNSW Land and Environment Court of New South Wales (Australia)
NGT National Green Tribunal (India)
NGO Non-governmental organization
SLAPP Strategic lawsuits against public participation
STAB Stichting Advisering Bestuursrechtspraak voor Milieu en Ruimtelijke Ordening/Foundation of Independent

Court Experts in Environmental and Planning Law, now called Gerechtelijke Omgevingsdeskundigen
(Netherlands)
UNEP United Nations Environment Programme
USAID United States Agency for International Development

1
INTRODUCTION
2 ENVIRONMENTAL COURTS AND TRIBUNALS – 2021: A Guide for Policymakers
INTRODUCTION
This UNEP 2021 ECT Guide is designed to provide an This guide was written as a practical guide for users,
overview for policymakers, judges, academics, and providing references which will be of value. A non-
stakeholders who are interested in improving the exhaustive list of experts is provided in appendix E.
adjudication of environmental disputes. It identifies features
of ECTs, describes good practices and provides road maps
for institution-building to support the achievement of the The “good practices” are chosen based on their extent of
United Nations Sustainable Development Goals, particularly contribution to access to justice, international law principles
Sustainable Development Goal 16 “Peace, Justice and and environmental rule of law. Although the authors and
Strong Institutions”, which seeks to promote peaceful and experts believe, based on experience, that specialized ECTs
inclusive societies for sustainable development, provide incorporating some or all these best practices do contribute
access to justice for all and build effective, accountable and to outcomes that are better for individuals, society and
inclusive institutions at all levels. an enduring world, this conclusion is not based on formal
research documenting that ECT outcomes are better than
decisions by generalist courts and tribunals. There have
To prepare this guide, over 80 current ECT judges and been and will continue to be visionary decisions delivered
experts were interviewed, and 197 countries surveyed. by knowledgeable judges in general courts and forums.
Similarly to Greening Justice and the UNEP 2016 ECT However, such outcomes are seen as exceptions to the rule.
Guide, this guide synthesizes the opinions and experience
of experts and leaders in the ECT field. The data and
information presented in this guide was accurate as at Many experts believe that national and subnational
August 2021. ECTs employing good practices can contribute to the
achievement of the Sustainable Development Goals,
and this guide seeks to be a firm step in that direction.
The following give an indication of what this guide was, and Specifically, ECTs can be designed to:
what it is not:
• It is a user-friendly guide to the current status of i. promote environmental rule of law at the national
specialized ECTs around the world, that provides and international levels and ensure access to justice
models and good practices for creating new ECTs or (Sustainable Development Goal Target 16.3);
improving existing ones.
ii. develop more effective, accountable and transparent
• It is designed to be a useful road map for policymakers, institutions at all levels (Sustainable Development Goal
judges, academics and stakeholders at the local, state Target 16.6);
and national levels who are exploring ways to improve
access to environmental justice, environmental rule of iii. ensure responsive, inclusive, participatory and
law and environmental sustainability. representative decision-making at all levels (Sustainable
Development Goal Target 16.7);
• It is not an encyclopaedia. The reader seeking detailed
statistics is pointed to the appendices for further iv. ensure public access to information and protect
information. fundamental freedoms, in accordance with national
legislation and international agreements (Sustainable
• It is a collection of recommendations based on: Development Goal Target 16.10); and
i. questionnaire surveys, interviews and desktop v. promote and enforce non-discriminatory laws and
research conducted by ECT experts consisting of policies for sustainable development (Sustainable
judges, officials, lawyers, advocates and academics; and Development Goal Target 16.10.b).
ii. secondary literature from 2016 to 2020 on ECTs and

broader environmental governance.
3
This guide does not address ECTs at the international level can hear dispute submissions from the three parties or
because international adjudication presents a different citizens under the North American Free Trade Agreement,
set of issues, and there are currently limited models for but the Commission has no enforcement powers. The Court
international ECTs. The International Court of Justice had of Justice of the European Union hears cases interpreting
an Environmental Chamber from 1993 to 2006, but it was European Union law and ensuring its equal application
discontinued as no State ever used it. The Permanent across the European Union member States; it has some
Court of Arbitration has specialized Environmental Rules informal judicial specialization in environmental law, but
for arbitration and conciliation, and a list of arbitrators has not institutionalized it. There are proposals to create an
and technical experts, but is only available to States which international environmental court and other multinational
have agreed to use arbitration or conciliation to resolve environmental adjudication bodies, but these have not
disputes. The International Tribunal for the Law of the Sea received significant support from States.
can only hear disputes arising under the United Nations
Convention on the Law of the Sea or related agreements.
Canada, Mexico and the United States of America have 1.
created a Commission for Environmental Compliance that
© Unsplash/Jeremy Cai
ECT CHARACTERISTICS
5
1. ECT characteristics
Modes of environmental dispute
1.1. FUNCTION OVER TITLE resolution
The words of Justice Brian Preston of the Land and • Environmental courts
Environment Court of New South Wales encapsulate
the challenge of defining environmental law and, more • Green chambers
specifically, environmental courts and tribunals (ECTs). In
his view, there is a “core” of environmental legislation and • Designated green judges on a general court
case law that addresses environmental problems, and a
“periphery” of laws that have the effect of protecting the • Independent tribunals
environment but were not created for the purpose of
environmental conservation (Preston 2021). Similarly, in the • Quasi-independent environmental tribunals
context of ECTs, a key question is when a court or tribunal
can be considered an ECT. In this guide, an approach of • Captive tribunals
substance over form has been taken: the key question is
whether a particular court performs the functions of an ECT.
In some countries, the words “court” and “tribunal” can be
used interchangeably. For example, in Spanish, the word
The UNEP 2016 ECT Guide posited that there are six “tribunal” is used for both judicial courts and administrative
modes of environmental dispute resolution (United tribunals or bodies. In most countries’ civil law, a tribunal is
Nations Environment Programme [UNEP] 2016). Firstly, a lower court within the general or administrative judiciary.
environmental disputes may be resolved in environmental For the purposes of this guide, a court is differentiated
courts, which are stand-alone and have a specialized from a tribunal on the basis of the branch of government in
jurisdiction over environmental matters. Secondly, green which it is instituted. Courts are bodies within the judicial
chambers in general courts, such as can be found in India, branch. Tribunals are bodies within either the administrative
may be used (Ahsan and Bueta 2015), as can environmental or executive branch, which includes all government dispute
divisions at various levels of courts, seen in Thailand (United resolution bodies. Though rare, there are other forms of
States Agency for International Development [USAID] environmental dispute resolution that may (i) specialize in
2019). Thirdly, green benches with green judges may also environmental issues, and (ii) resolve disputes out of court,
be used within courts of general jurisdiction, such as in such as ombudsman offices, prosecutors and human rights
Indonesia (Haba, Yunus and Risal 2020) and Pakistan (Shah commissions.
2021). Fourthly, environmental disputes may be resolved
in independent administrative tribunals, including free-
standing environmental tribunals or an environmental
division within an administrative tribunal. Fifthly, quasi-
independent environmental tribunals may be used; these
are under the supervision of government agencies, but
not the government agency which is being reviewed by
the tribunal. Finally, there are captive tribunals, which are
environmental tribunals controlled by the very agency
the captive tribunal reviews, such as the United States
Environmental Appeals Board (UNEP 2016).
© Freepik
1.2. RECENT TRENDS: GREEN BENCHES,

AMALGAMATION AND INCREMENTALISM
A. Green benches
Since the publication of the UNEP 2016 ECT Guide, the
trend of an “explosion” of ECTs has subsided in most
countries. Some countries have moved towards establishing
green benches in general courts. As such, instead of having
courts that adjudicate environmental cases only, judges
trained in environmental law preside over environmental
cases within a court of general jurisdiction.
Green benches are found in general courts and

comprise judges trained in environmental law
(green judges).
The practice whereby general judges with some

environmental law specialization, dedicated green judges
or green benches sit as alternatives to expensive, separate,
and legislatively created ECTs is increasingly common. This
model is used in Hawaii (Hawaii, Hawai‘i State Judiciary, no
date) and California (California Association of Environmental
Professionals 2021), United States of America. In Pakistan,
each court has a designated green bench judge presiding
over environment-related cases, reflecting Pakistan’s
commitment to strengthening environmental judicial
proceedings (Shah 2021).
A trend of installing green judges within general courts Figure 1 Example of an environmental law training certificate
can also be seen in Indonesia (Haba, Yunus and Risal awarded to Indonesian judges
2020). Initially, Indonesia was interested in establishing
stand-alone ECTs. However, due to political challenges chambers has enabled presiding judges to become experts,
and capacity constraints, policymakers decided to give or has at least provided the impetus for them to train in
general court judges environmental training instead. environmental law. This is the case in Greece (Lavrysen
This has contributed to the goal of having judges who 2004; Pyrgakis 2021), Finland (Paloniitty and Kangasmaa
are proficient in environmental issues within the general 2018), Italy (Ramacci 2018) and Spain (Gudin 2018).
courts (Indonesia, Supreme Court of Indonesia 2011). Often, the establishment of such specialized chambers
Development partners such the Asian Development Bank is based on a regulation of the court, or a decision of the
(Asian Judges Network on Environment 2015), and the president of the court, rather than through legislation. It is
Studiecentrum Rechtspleging of the Netherlands (Center recommended that ECTs be created through specific laws,
for International Legal Cooperation 2017), routinely provide rather than discretionary decisions of court presidents or
training for environmental matters to Indonesian judges judicial councils, if they are to be secured for the long term.
(Figure 1) through the National Judges Training Body under Many of these chambers also handle non-environmental
the Supreme Court (Badan Litbang Diklat Hukum dan cases and judges can be transferred to other chambers of
Peradilan Mahkamah Agung RI) (Mulyono 2021). the court (Lavrysen 2021). An exception can be found in
the Netherlands where, since 2020, the new Environmental
Chamber of the Council of State only handles environment
De facto green benches also exist in Europe. Because and planning cases (Uylenburg 2021).
environmental cases are systematically referred to the
same chambers, de facto specialization has developed
at the chamber level of some general and administrative Green benches in Europe and Africa identify themselves
courts. This concentration of environmental cases in some as part of environmental courts, while green benches in
7
other regions identify themselves as general courts with However, as observed by Peggy Sattler of the Legislative
green judges. In summary, green benches are a viable Assembly of Ontario, removing the expertise that existed
alternative for countries that do not have operational ECTs. in those tribunals by merging it into a single tribunal could
However, these green benches might not be fully capable of “water down the ability of those previous tribunals to be
incorporating the good practices that ECTs can provide. able to really look specifically at the environmental impacts
of the issues that are brought before the adjudicators”
(Ontario, Legislative Assembly of Ontario 2021, p. 11,500).
B. Amalgamation
Amalgamation is the process of combining several
institutions into one. This groups a diverse group C. Incrementalism
of experts within a single institution, cutting costs, Incrementalism is a method of working that involves taking
increasing efficiency and improving accessibility. However, small, progressive steps over a period, as opposed to
amalgamation is a double-edged sword. On the one hand, implementing drastic and far-reaching actions all at once
it creates a “one stop shop” court or tribunal that offers (Ontario, Legislative Assembly of Ontario 2021).
several benefits. On the other hand, it risks diluting the
pool of experts available if the process is not executed with
proper consideration (UNEP 2016). There are pitfalls to implementing drastic, as opposed to
progressive, systemic changes. For instance, in 2011, then-
Chief Justice Reynato Puno of the Philippines designated
For example, in Canada, the Legislative Assembly of Ontario 117 existing courts as environmental courts without
approved Bill 245 for the Accelerating Access to Justice Act increasing their budgets. However, this radical change did
2021, merging a five-tribunal cluster into the single Ontario not result in the desired outcome of directing cases from
Land Tribunal. The Bill revoked the acts and provisions general courts to these environmental courts (Ramos and
that established previous environmental tribunals, which Gutierrez 2021). Environment cases ended up in general
were the Board of Negotiation, the Conservation Review courts or even criminal courts, not in environmental courts.
Board, the Environmental Review Tribunal, the Local
Planning Appeal Tribunal and the Mining and Land Tribunal
of Ontario (Ontario, Accelerating Access to Justice Act However, although incrementalism was once effective for
2021). This amalgamation was premised on the theory progressively developing ECTs in developing countries,
that adjudicators with specialized expertise were not there are also drawbacks. The ECT may never be allowed
necessary because “a good adjudicator can adjudicate to develop and incorporate good practices because its
anything”. In this view, reducing the number of tribunals initial accomplishments are unimpressive, or it is politically
and decision makers therein results in a cheaper, faster and
more accessible decision-making process (Muldoon 2021).
© Unsplash/Chuttersnap
impossible to modify the authorizing law or rule, or the as the United States Environmental Protection Agency’s
specialization gets lost as the caseload becomes more Environmental Appeals Board (Stein 2021) and British
general (UNEP 2016). Columbia’s new clustered environmental tribunals and
Ontario’s Land Tribunal in Canada (Pring and Pring 2021a),
vacancies exist in the panel of adjudicators or have been
1.3 CHALLENGES filled with persons without environmental or scientific
expertise. This suggests an insufficient financial budget.
Having an adequate budget will help give ECT officials,
ECTs are expected to be responsive to environmental judges and prosecutors the confidence to work to the best
problems and deliver just, quick and inexpensive of their abilities.
resolution of disputes in order to facilitate access to justice
(Preston 2008). However, our research shows that survey
respondents in countries with and without ECTs are B. Other competing needs – non-prioritization
generally ambivalent about their countries’ current ability of ECT issues
to manage environmental cases. Most responses from One of the biggest challenges for ECTs occurs when ECT
respondents in countries without ECTs answered that they development is not a priority (UNEP 2016). Countries have
were “not sure” whether existing courts in their country put forth several justifications for this. For example, in many
could manage environmental cases; others answered countries, ECTs are competing for priority with other special
that their current system is inadequate in managing interests such as economic interests; furthermore, some
environmental cases. Respondents from countries with may consider other areas of law that arguably need greater
operational ECTs also indicated that they were unsure of attention (Muldoon 2021). Others have argued that the
their country’s ability to sufficiently manage environmental limited number of environmental cases in the country does
cases. not justify the costs incurred by an ECT. It has also been
contended that the development of specialized ECTs leads
to fragmentation of the legal system, where environmental
Some of the main challenges faced by these countries are cases become isolated and are dealt with by several judges
as follows: (Pring and Pring 2021a). Some countries also claim that it is
difficult, or impossible, to differentiate environmental and
non-environmental cases, and there is accordingly no need
A. Lack of government and stakeholder support for a specialized ECT. Consequently, less attention is given
Support from governments and other stakeholders is to environmental cases and to the training of judges in
crucial for the success of ECTs (Preston 2014). This includes environmental matters, resulting in the marginalization of
political support, whereby governments confer ECTs environmental issues.
with legal authority to work independently, and provide
sufficient budget, infrastructure, human resources and
security. Security is particularly important, especially in C. Information technology
countries where working as an ECT judge is a dangerous As noted in the UNEP 2016 ECT Guide, there needs to
job. Judges may face constant threats to their safety, which be improved efficiency and smart use of information
can compromise their independence and impartiality technology (IT) to create the just, speedy and inexpensive
in adjudication (United Nations, Human Rights Council courts of tomorrow (UNEP 2016). The importance of
2020). This can erode public trust in ECTs and weaken incorporating technology into ECT processes is acutely
environmental jurisprudence. It is therefore essential for underscored by the COVID-19 pandemic as litigants
courts to develop strong working relationships with law have been unable to gain physical access to ECTs and
enforcement agencies and establish systems for securing courts generally (Dentons 2021). The digitalization of ECT
the physical safety of judges. An example of this is the processes is thus crucial to ensure access to environmental
Judicial Security Division of the United States Marshals justice and transparent environmental dispute resolution.
Service, which protects more than 2,700 sitting judges
and approximately 30,300 Federal prosecutors and court
officials (United States of America, United States Marshals The COVID-19 pandemic has forced all ECTs to rapidly
Service, no date). adopt interactive IT platforms and develop entirely
new ways of conducting environmental adjudication.
Our research indicates that the shift to conducting a
Another example of a lack of political support is seen in considerable amount of court business online (including
inadequate budgets for ECTs. This is partly because of filing, taking evidence, holding hearings, conducting site
certain countries’ economic situations (exacerbated by visits and publishing opinions) will continue to be done
the COVID-19 pandemic) and partly because of political using a variety of IT platforms. Interviewees believe this
efforts to reduce the costs and increase efficiency the shift has had an extremely positive impact on access
of the ECTs (Pring and Pring 2021a). In some ECTs such to justice, as it increases speed, eases communication,
9
enhances transparency and accountability, and reduces been reported (Caribbean Policy Research Institute
costs for litigants and the court (Pring and Pring 2021a). 2018). Furthermore, many of the environmental laws in
Environmental courts in Vermont, United States of America, developing countries do not have secondary legislation
for example, already installed IT infrastructure for remote to guide enforcement efforts. Even when such secondary
hearings and online proceedings prior to the pandemic legislation exists, they may be inadequate for the effective
(Vermont, Vermont Judiciary 2021). Similarly, all court implementation or enforcement of primary legislation. For
proceedings in India’s National Green Tribunal (NGT) have example, “grey areas” for enforcement arise when several
been digitized to protect the health and safety of parties agencies are involved in the management of a protected
involved in litigation. The NGT’s work has been conducted area, but the law does not clarify the roles and powers of
by video conferencing without the parties and counsels each agency (Isaac 2017).
being physically present at the NGT complex (NGT 2021).
However, many developing countries are less prepared
to transit to virtual court proceedings due to lack of Although environmental laws do not directly relate to
technological capacity and infrastructure (Sulistiawati the internal organization and design of ECTs, they affect
and Linnan 2020). environmental adjudication in ECTs. This is not only
because environmental laws constitute the subject matter
of most environmental disputes; it is also because a lack
Most ECTs have already resumed, or are planning to resume, of proper enforcement reduces public trust and interest
in-person court proceedings and site visits, though this in environmental litigation. Thus, weak operationalization
depends on the nature of the case and the preferences of and enforcement of environmental laws do affect the
the litigants (Mulyono 2021). Moving forward, however, it is functioning of ECTs in a country, and should be taken into
recommended that ECTs continue to develop IT capacities account.
and methods to enhance their effectiveness.
Enforcement is even more challenging vis-à-vis essential

D. Lack of enforcement of environmental legislation facilities such as sewerage treatment plants and waste
The lack of enforcement of environmental legislation in disposal sites. Even if they are poorly managed and in
numerous countries also poses a challenge to ECTs and violation of the law, they cannot be shut down because
environmental justice generally. Enforcement problems further environmental degradation would result (Caribbean
due to the lack of financial and human resources have Policy Research Institute 2018).
© Unsplash/Mathis Jrdl
ECT OBSERVATIONS IN 2021

11
2. ECT OBSERVATIONS IN 2021
For the purposes of this guide, an “environmental case” is

any case relating to the natural and man-made physical
surroundings, all living and non-living components and all
the factors, on which humanity is dependent in its activities.
This is based on the definition of “the environment” set
out in the 1972 Stockholm Declaration on the Human
Environment (United Nations 1973).
2.1. THE TRANSFORMATION OF

ENVIRONMENTAL ADJUDICATION
© Unsplash/Michael Wilcox
A. The importance of ECTs cases, the Circuit Courts have jurisdiction in some of the
In contrast to the “explosion” of ECTs observed in the UNEP environmental offences, and the High Court in the Criminal
2016 ECT Guide, the current trend is one of steady growth. Division and General Jurisdiction Division has jurisdiction
In other words, the trend of rapid increase in ECT numbers in all environmental offences (Adjei 2021). In Madagascar,
has slowed (Preston 2021). At the time of this report, there a Special Court was established in 2018 to combat the
are 2,115 operational ECTs in 67 countries (appendix A). illegal trafficking of rosewood and ebony (Convention on
This trend is due to several factors, including: the increased International Trade in Endangered Species of Wild Fauna
effectiveness of existing environmental courts and and Flora 2018).
environmental tribunals; the prioritization of environmental
issues in the general courts; and the presence of judges
who are well versed in environmental matters. The increase The 21 environmental tribunals in Africa mainly handle
in the number of environmental cases in general courts also appeals against regulatory decisions regarding land
reflects the widespread belief that environmental justice planning, land use and water issues. The Water Tribunal in
can be achieved through existing systems (Shah 2021). Kenya is a new environmental tribunal established under
section 119 of the Water Act 2016. The Water Tribunal
in South Africa is still operational (Dambuza 2021). The
The following section examines trends in the number of powers of the Environment and Land Use Appeal Tribunal
ECTs in various regions, including Africa, the Americas, Asia, in Mauritius (Mauritius, Environment and Land Use Appeal
Europe, and Oceania and the Pacific. Tribunal Act 2012, section 3(1)), and the Appeals Committee
in Botswana (Botswana, Environmental Assessment
Regulations, section 73) have been broadened to hear
Africa environmental cases.
For Africa, data was found from 22 out of 57 countries. As
of 2021, there are 62 environmental courts and at least 21
environmental tribunals in the region. There is a pending Federal environmental tribunal in
Ethiopia which is expected to be operational in 2023
(Samuel 2020). The environmental tribunal has been
The Environment and Land Courts in Kenya remain the inspired by ECTs in Kenya, India and Australia. It will be
most advanced type of environmental court in Africa, an independent tribunal with broad jurisdiction, albeit
having developed a robust and progressive jurisprudence not criminal. There will also be an emphasis on alternative
(Soyapi 2019). The number of Environment and Land Courts dispute resolution, interim relief, the use of electronic
in the Kenyan counties has increased from 15 in 2016 to communications, simple rules of procedure, transparency
26 in 2021. Accordingly, the number of judges has also and broad standing (Baird and Jacobs 2021).
increased from 34 in 2017 to 51 in 2021 (Kenya, Judiciary
of Kenya 2021). Kenya also has a National Environment
Tribunal established under sections 125 and 129 of the The Caribbean
Environmental Management and Co-ordination Act 1999. There is one environmental court in Trinidad and Tobago.
Formerly, the National Environment Tribunal was under There are environmental tribunals in Antigua and Barbuda,
the Ministry of Environment, but is now subsumed under Dominica, Grenada, Jamaica, Saint Kitts and Nevis, Saint
the judiciary. In Ghana, the 16 Land and Environmental Lucia, Saint Vincent and the Grenadines, and Trinidad and
Divisions of the High Court have continued to operate post- Tobago. These environmental tribunals fall into one of two
2016. All the District Courts have jurisdiction in sanitation categories: planning environmental tribunals established to
hear appeals against planning-related decisions, or non- While there are also no environmental courts in California
planning environmental tribunals which hear decisions not State, there are environmentally trained judges in 28 out of
related to planning (e.g. appeal of water extraction permit 58 Californian counties. In each of the 28 counties, there is
requirements). Examples of the latter include Saint Lucia’s at least one trial judge dedicated to rule on cases involving
Water and Sewerage Appeals Tribunal (Saint Lucia, Water the California Environmental Quality Act. Such cases make
and Sewerage Act 2008) and Jamaica’s Natural Resources up most of the environmental litigation in California, of
Conservation Appeals Tribunal (Jamaica, Natural Resources which there is a great deal (Robie 2020).
Conservation Authority Act 1991, section 34(2)).
Environmental tribunals exist in many states in the United

Central America States of America, but were not studied in detail as tribunal
The number of ECTs in the Central American countries of decisions may be reversed by the executive agency whose
Belize, Costa Rica and El Salvador has also stabilized. Belize decision is under review. In Vermont, the Environmental
and Costa Rica each have one environmental tribunal. El Court became a Division of the Vermont Superior Court,
Salvador has four environmental courts (UNEP 2016), three though its jurisdiction and authority were unchanged.
of which were reported as authorized but not established
in the UNEP 2016 ECT Guide, but began operating in 2017
(Gonzalez 2021). Canada currently has 32 environmental tribunals – 1 at
the national level, 24 in 6 (of 10) provinces, and 7 in the 3
territories.
North America
In the United States of America, most states do not have
environmental courts, though some have specialized South America
land courts that adjudicate disputes on real estate title, In Colombia, the creation of environmental courts was
mortgage title, real estate contract and other technical proposed in July 2020 under Bill No. 047/2020C, but this
issues. One example is the Massachusetts Land Court. This was subsequently withdrawn following calls to clarify and
type of land courts are not environmental courts because of improve certain provisions in the Bill (Colombia, Cámara de
their limited focus on technical, non-environmental issues. Representantes 2020).
© Unsplash/Barkah Wibowo
13
Other South American countries have experienced no

change in ECT numbers. Brazil has 73 environmental
courts and 27 environmental tribunals. In Argentina, an
Environmental Trial Secretariat and an Environmental
Justice Office within the Supreme Court were created
in 2014 (United Nations Economic Commission for
Latin America and the Caribbean 2018). Chile has three
operational environmental courts, one of them newly
established in 2017 (Retamal Valenzuela 2019). Peru has
four environmental tribunals. In Ecuador, although there
were plans for a pilot environmental court in the Galapagos
Islands, evidence that this has been established could not
be found. Guyana has two environmental tribunals: the
Environmental Assessment Board and the Environmental
Appeals Tribunal (UNEP 2016).
Asia (excluding South-East Asia and West Asia)

Seven countries in this region have operational ECTs:
Bangladesh, China, India, Japan, Pakistan and the Republic
of Korea. In most of these countries, the number of ECTs has
not changed since 2016.
Bangladesh established four operational environmental © Unsplash/Birger Strahl

courts pursuant to its Environmental Court Act 2010.
2019. This number includes 513 environmental tribunals
(26 in High People’s Courts, 118 in Intermediate People’s
India has established five environmental tribunals since Courts and 368 in Grassroots People’s Courts), 749 Collegial
2010, namely the NGTs in Bhopal, Chennai, Delhi (Central Benches and 91 People’s Courts. Of the High People’s
Branch), Kolkata and Pune. Pakistan has five environmental Courts, 23 have adopted either a “two-in-one” model (i.e.
tribunals, one in each province, which were established the court hears civil and administrative environmental
pursuant to the Environmental Protection Act 1997. In cases) or a “three-in-one” model (i.e. the court hears
addition to these, there are 250 green benches in regular criminal, civil and administrative environmental cases)
courts, including state-level High Courts and the Supreme (China, Supreme People’s Court of the People’s Republic of
Court (Shah 2021). China 2020).
Japan and the Republic of Korea have demonstrated Bhutan still has its one green bench in the High Court,
a preference for using alternative dispute resolution which was established in 2015 (Wangchuk 2018).
for environmental cases. Japan has a national-level
Environmental Dispute Coordination Commission and
47 prefecture-level Environmental Dispute Coordination South-East Asia
Commissions, established since 1972 (Japan, Ministry of The Philippines and Malaysia are the only two countries in
Internal Affairs and Communications, no date). The Republic this region with environmental courts, most of which were
of Korea has one national and 16 regional Environmental established prior to the 2016 study. In the Philippines, 117
Dispute Resolution Commissions (Republic of Korea, Central environmental courts were established in their general
Environmental Dispute Mediation Committee, no date). courts in 2008, with one environmental court per city
or municipality (Ramos and Gutierrez 2021). By 2016,
Malaysia had two Sessions Courts and 53 Magistrate Courts
In China, however, the number of operational ECTs has established as environmental courts, with jurisdiction
increased. In 2017, there were 976 ECTs in the People’s over criminal environmental cases only. All High Courts,
Courts at all levels, an increase of 418 compared to 2016. Magistrate Courts and Sessions Courts across Malaysia’s
Of the 976 ECTs, 21 are environmental and resource 13 states were subsequently designated as Special
tribunals at the Higher People’s Courts (China, Supreme Environmental Courts in order to hear civil environmental
People’s Court of the People’s Republic of China 2017). cases (Asian Development Bank 2018).
According to a white paper published by the Supreme
People’s Court, the number of ECTs increased to 1,353 in
Indonesia’s previously announced plans to establish ECTs the court or a decision of the court president. Thus, even
have not been executed. The plan to establish a special though these chambers are not mandated by law, their
court for the environment has been modified to having numbers have remained stable for many years.
designated green benches within the general courts and
training regular judges (Syarif 2021).
Another type of ECTs in Europe are administrative appeal
bodies. Their competences are restricted to appeals against
Similarly, Thailand’s plan to create a Supreme Court-level decisions, fines or permits falling under specifically listed
ECT by transferring jurisdiction from its Supreme Court and environmental legislation (e.g. Belgium, Denmark, Iceland,
Supreme Administrative Court has not been implemented. Ireland, Malta, and the United Kingdom of Great Britain and
Thailand courts and the Government organize general Northern Ireland). Their number remains stable.
and specific training courses for general court judges in
environmental matters, and regularly provide scholarships
to judges to study environmental law abroad. A bill to A broader reach of environmental specialization can be
establish a specific environmental court was proposed, found in Sweden. Both the Land and Environment Courts,
but it was controversial. However, the Court of Justice and and the Land and Environment Court of Appeal, are part of
the Administrative Court agreed to develop the law on the general court system. They have administrative and civil
environmental court procedures, which is currently in its jurisdiction but no criminal jurisdiction (Sweden, Sveriges
first draft. Additionally, the Court of Justice has developed Domstolar, no date).
the Environmental Law Division in the Supreme Court, the
Appeals Court, Appeals Courts Regions 1–9 and the Civil
Court. The Division in the Supreme Court works intensively In France, 36 specialized environmental courts were
and has a regular meeting every month to develop created in 2020 within the general courts to address the
environmental jurisprudence (Muanpawong 2021). most complex environmental cases (France, Loi relative
au Parquet européen, à la justice environnementale et à
la justice pénale spécialisée (1) 2020). In Ireland, there are
There are no environmental tribunals in this region. plans to create a new Planning and Environmental Law
Court, in the form of a separate list in the High Court,
which will have its own specialist judges (Mason Hayes
West Asia & Curran 2020).
The United Arab Emirates has an ECT that has been
authorized but not yet established (Thacker 2021); no
further information on this could be found. Although Oceania and the Pacific
there are no ECTs in Turkey (Turgut 2021), plans to develop In comparison to the rest of the region, Australia and
environmental courts were announced on 2 March 2021 New Zealand have the most advanced environmental
as part of the President’s Human Rights Action Plan and jurisprudence and most complex legal systems. In both
published in the Official Gazette on 30 April 2021 (Turkey, countries, the number of ECTs has not changed since 2016.
Ministry of Justice, Department of Human Rights 2021).
In Australia, there is one environmental court in New South

Europe Wales, three environmental courts in Queensland, three
Our research shows that there are 70 environmental courts environmental courts in South Australia, two environmental
and nine environmental tribunals in Europe, and this tribunals in Tasmania, one environmental tribunal in
number has remained largely unchanged since the UNEP Victoria, and two environmental tribunals in West Australia.
2016 ECT Guide. An important degree of environmental In New Zealand, there are two environmental courts and
specialization has developed at chamber level within the one environmental tribunal. There is one environmental
general and administrative courts in several European court in the Cook Islands and one environmental
countries. Since environmental cases are referred to court in Niue.
specific chambers in the general and administrative
courts, judges sitting in these chambers either become
experts in environmental law by way of experience or The number of ECTs in the Pacific Island countries has
by receiving training. Such specialization can be seen in also remained the same. There is one environmental court
Belgium, Bulgaria, Finland, Germany, Greece, Italy, the each in Kiribati, Marshall Islands, Palau, Papua New Guinea,
Netherlands and Spain (European Union Forum of Judges Tonga, Tuvalu and Vanuatu. There are two environmental
for the Environment 2019). The appointment of specialized tribunals in Fiji, two environmental tribunals in Nauru,
chambers is often based on regulations promulgated by one environmental tribunal in Papua New Guinea, one
15
Status of ECT
Countries with ECTs
Countries without an ECT and only authorized but not established ECTs
Countries without an ECT and only discontinued ECTs
Countries without an ECT and only pending ECTs
Figure 2 Global distribution of ECTs
environmental tribunal in Samoa, one environmental

tribunal in the Solomon Islands and one environmental
tribunal in Tonga. Unlike traditional civil litigation, which is
retroactive in nature, “environmental cases
look to the future, and set the ground for
Figure 2 presents the global distribution of the ECTs sustainable management going forward.
discussed here.
- Justice David Kirkpatrick, New Zealand
(Kirkpatrick 2021)
B. The functions of ECTs
ECTs play an important role in providing access to justice
and remedies (Preston 2021). These are important aspects
of environmental dispute resolution, whether in large cities ECTs strengthen judicial systems and promote
or in more rural areas. As such, laws establishing any ECT accountability by enhancing a country’s legal capacity to
should contain provisions that empower the ECT to grant address environmental challenges, as well as by providing
remedies, including injunctions, remediation orders, and sound explanations to the public on the workings of
compensation for environmental harm (Preston 2014). environmental law (Preston 2014). In some cases, ECTs spur
innovation and legal reform. In China, the Supreme People’s
Court can engage in innovation because it is legislatively
In remote regions, access to justice remains elusive because empowered to develop new procedures to suit its needs
of the lack of resources including manpower, expertise, (Preston 2021). In India, ECTs have developed innovative
physical facilities, and funding. Therefore flexible ECTs, such environmental investigation procedures, albeit with room
as the “mobile” ECTs of the Pacific, may address the problem for improvements in efficiency and effectiveness (Dutta
of inadequate access to justice (Preston 2021 2021). In comparison to general courts, ECTs are also
designed to be better equipped to address environmental
issues including sustainable development, equity and the
effects of climate change. Furthermore, as independent
institutions with specialized expertise and clearly defined
jurisdictional authority, ECTs can generate stronger
environmental jurisprudence. These points will be further
discussed in chapter 3.
© Freepik
17
2.2. CASELOAD Asia (excluding South-East Asia and West Asia)

Caseload data is scarce in Asia, but official data sources
were available for a few countries. In China, the number of
Set out below are specific trends of environmental cases environmental cases has been on the rise. The number of
adjudicated by ECTs, green benches and general courts in civil environmental cases reached a high of 189,120 cases
each region, which are based on research data. However, in 2019 (China, Supreme People’s Court of the People’s
conclusions about any general, global trend could not be Republic of China 2020), up from 182,691 cases in 2018 and
reached due to insufficient data. This is because several 151,152 cases in 2017 (China, Supreme People’s Court of the
countries neither collect nor make publicly available People’s Republic of China 2021). In India, the NGT handled
information about their environmental law cases; as seen more than 5,000 cases in 2020, up from 3,062 cases in 2017
in Figure 2, 32 respondents from countries with operational (Economic Times 2017). Before the COVID-19 pandemic,
ECTs and 39 respondents from countries without ECTs said each of the five NGT benches heard from 50 to 60 cases per
that they were unsure about the number of cases. day. The number of cases heard by the NGT benches has
declined since the pandemic began in 2020 (Dutta 2021).
The Republic of Korea’s Environmental Dispute Resolution
Africa Commission has had a growing caseload from 162 cases
In Kenya, the number of cases filed in Environment and processed in 2016 to 244 in 2020, peaking in 2019 at 256
Land Courts has been decreasing: 9,970 in 2016; 5,834 in cases (Republic of Korea, Central Environmental Dispute
2017; 4,494 in 2018; and 3,156 in 2019. According to Kenya’s Mediation Committee, no date).
State of the Judiciary and the Administration of Justice
Annual Report, this can be explained by the enhanced
pecuniary and statutory jurisdiction of magistrates to South-East Asia
handle land matters. Despite an impressive case clearance In Indonesia, there were 26 environmental cases in the
rate of 175 per cent, the Environment and Land Courts have District Court in 2017, 265 cases in 2018 and 133 cases in
one of the largest case backlogs in Kenya, of 13,630 cases at 2019 (Indonesian Institute for Independent Judiciary 2020).
the end of 2019. This is due to the limited number of judges
currently serving in the court (Kenya, Judiciary of Kenya
2021). Contrastingly, the number of cases filed before the Anecdotal evidence from the Philippines indicates a decline
National Environment Tribunal in Nairobi increased from in the number of environmental cases post-2016, but no
18 in 2017 (Kenya, Judiciary of Kenya 2019) to 40 in 2019 official data is available.
(Kenya, Judiciary of Kenya 2021).
Europe
North America The number of cases in the Land and Environment Courts of
In the United States of America, the Vermont Environmental Sweden has increased from 6,109 in 2017, to 7,289 in 2020.
Court adjudicates about 200 cases per year. These include This is also the case for the number of cases filed at the
an estimated 150 appeals from municipal determinations, Land and Environment Court of Appeal: 2,290 in 2017; 2,113
20 appeals from state land use determinations, and 30 state in 2018; 2,575 in 2019; and 2,607 in 2020 (Andersson 2021).
and municipal environmental enforcement actions (Pring
and Pring 2021b). In Hawaii, there were 1,317 charges filed
in the District Court, three charges filed in the Circuit Court, Iceland’s Environmental and Natural Resources Board
and five civil cases before the Circuit Court from 1 July 2019 of Appeal received on average 120 cases per year in the
to 30 June 2020 (Hawaii, Hawai‘i State Judiciary 2020). years 2012–2015. This number increased to 175 in 2016,
158 in 2017, 153 in 2018, 134 in 2019, and 141 in 2020; it is
estimated that there will be a record of more than 200 cases
South America in 2021 (Magnadóttir 2021).
In Chile, environmental cases are increasing. While there
has been an increasing number of judicial actions in Chile
since 2012, yearly increase is marginal (Hantke-Domas In Belgium, the number of cases filed with the Enforcement
2021). Specifically, in Chile’s Third Environmental Court, College of the Flemish Region increased from 45 in 2017/18;
there was an increase in the number of claims filed in 2020 70 in 2018/19; and 92 in 2019/20. The number of cases filed
and a decrease in the number of claims for reparation for with the Council for Permit Disputes of the Flemish Region
environmental damage, which may be attributed to the first increased, from 916 in 2017/18 to 1,032 in 2018/19, but
effect of COVID-19 in the country (Retamal Valenzuela decreased again to 915 in 2019/20 (Belgium, Dienst van de
2021). In Brazil, there has been an increase in the number Bestuursrechtscolleges 2020).
of environmental cases, from 39,460 in 2018 to 48,354
in 2019 and 57,444 in 2020 (Brazil, Conselho Nacional
de Justiça 2020).
Oceania and the Pacific

From 2016 to 2019, there was an increase followed
by a slight decrease in the caseload of the Land and
Environment Court of New South Wales (LECNSW),
Australia. Its caseload was 1,332 in 2016; 1,408 in 2017;
1,486 in 2018; and 1,363 in 2019 (New South Wales
Department of Justice 2020).
In Queensland, the Land Court experienced a decrease

and subsequent increase in the number of cases filed from
1,150 in 2017; 735 in 2018; 339 in 2019; and 757 in 2020
(Queensland, Land Court of Queensland 2017; Queensland,
Land Court of Queensland 2018; Queensland, Land Court of
Queensland 2019; Queensland, Land Court of Queensland
2020). On the other hand, the caseload of the Planning and
Environmental Court has remained stable at 518 in 2016;
547 in 2017; 530 in 2019; and 483 in 2020 (Queensland,
District Court of Queensland 2016; Queensland, District
Court of Queensland 2017; Queensland, District Court
of Queensland 2019; Queensland, District Court of
Queensland 2020).
A. Notable environment cases

In Smith v. Fonterra Co-operative Group Limited (2021) in
New Zealand, the claimant argued that the defendant’s
contributions to climate change constituted torts of public
nuisance, negligence and breach of a novel duty to cease
contributing to climate change. The High Court dismissed © Unsplash/Sergey Pesterev
the first two claims but allowed the third claim to proceed
to trial. It noted that although the claimant would face In Honduras, seven men were sentenced to prison in
significant hurdles in persuading a court to recognize this 2019 for the killing of Bertha Cáceres, an environmental
new duty, the relevant issues should nevertheless activist who had opposed the dam project of Agua
be explored in a trial. Zarca, a hydroelectric company (BBC 2019). This case is
significant because it has drawn significant attention and
consequences from overseas. Much of Agua Zarca’s funding
In Kenya, Save Lamu et al. v. National Environmental came from international development banks including the
Management Authority and Amu Power Co. Ltd. (2016) Netherlands Development Finance Company (Grupo Asesor
saw the revocation of a licence for building a coal power Internacional de Personas Expertas 2017). In 2018, lawyers
plant near a UNESCO World Heritage site in Lamu. The in the Netherlands filed a lawsuit against the Netherlands
National Environment Tribunal held that the National Development Finance Company alleging that it had
Environmental Management Authority granted an disregarded warnings of human rights abuses associated
environmental impact assessment licence without proper with the Agua Zarca project (Ford and Jones 2018). Media
and meaningful public participation. It further found attention over the killing has also led to other international
that the environmental and social impact assessment investors withdrawing from the project (Lakhani 2017).
produced by the Amu Power Company was incomplete and
scientifically insufficient, thereby violating regulations. The
National Environment Tribunal focused particularly on the In Pakistan, the Supreme Court in D.G. Khan Cement
fact that the environmental and social impact assessment Company v. Government of Punjab (2019) affirmed the
failed to consider the Climate Change Act and directed legality of the Punjab Government’s decision to declare an
the Amu Power Company to conduct a new assessment area to be a “negative area”, where the establishment or
in compliance with the relevant regulation and take into expansion of cement plants is prohibited. The petitioner
account relevant considerations including climate change owned and operated a cement manufacturing plant
(UNEP 2019a). in Kahoon Valley. The provincial Government issued a
notification in 2018 to demarcate a negative area, so no
cement plants could be expanded or be newly established.
As such, the petitioner sued the Government, claiming that
19
Several factors have contributed to this outcome:
• As there is a limited number of countries (and

subnational regions) in the world, it is only natural that
the number of ECTs would eventually stop increasing.
• The courts of general jurisdiction can effectively

provide environmental justice because more resources
have been devoted to developing their capacity to
adjudicate environmental disputes, including specialist
training in environmental law for judges (Shah 2021).
• With growing popularity of alternative dispute

resolution, there is a decreasing caseload for courts and
therefore less need for new ECTs to be established. For
example, in Antigua and Barbuda, alternative dispute
resolution is encouraged under the Environmental
Protection and Management Act. The Department of
Environment is legally obliged to facilitate cooperation
among various stakeholders and encourage the use of
alternative dispute resolution to avoid or expeditiously
resolve disputes (Antigua and Barbuda, Environmental
Protection and Management Act 2019, section 17(1)).
There are, however, several factors that determine why and

when ECTs are established:
A. Civil society
the notification was, inter alia, unlawful and infringed on Civil society was identified in the UNEP 2016 ECT Guide as
his constitutional right to freedom of trade, business and a major political driver for creating ECTs, as citizens want
profession. The judges confirmed that the governments a court system that is “just, quick and cheap” (Preston
and courts of Pakistan have an obligation to protect 2014) for the resolution of environment, health and land
the fundamental rights of the public and therefore, an use conflicts. Those in favour of ECTs include judges
obligation to protect the environment. In doing so, they who advocate for specialized environmental forums, the
invoked the precautionary principle, established in the Rio business community and various NGOs (e.g. Friends of the
Declaration, to prevent scientific uncertainty from allowing Earth and Worldwide Fund for Nature).
“threats of serious or irreversible damage” (principle 10) to
materialize. Moreover, this line of reasoning was merged
with the ecocentric environmental principle in dubio pro Since the UNEP 2016 ECT Guide, environmental activism
natura (IUCN World Declaration on the Environmental by civil society, most notably climate activism, has grown.
Rule of Law 2016, principle 5) to highlight decision makers’ The last five years have seen the rise of far-reaching, social
internationally recognized obligation to resolve matters media-driven, decentralized groups and movements such
in a way most favourable to environmental protection as Extinction Rebellion, Fridays for Future and the Sunrise
and conservation. Most importantly, the decision Movement (Extinction Rebellion, no date; Fridays for Future,
reiterated the importance of sustainable development and no date; Sunrise Movement, no date). These movements
intergenerational justice. have contributed to a surge in “climate consciousness”
among citizens and governments across the world, and
awareness of the need to “take action to mitigate and
2.3. CAUSES AND IMPLICATIONS adapt to climate change” (Preston 2021). These civil society
movements coincided with an increase in climate change
litigation, as will now be seen.
Following the worldwide “explosion” of ECTs between
2009 and 2016 described in the UNEP 2016 ECT Guide, the
number of ECTs worldwide has since slowed to a steadier
growth.
B. Climate change litigation Convention for the Protection of Human Rights and
Climate change litigation continues to grow in importance. Fundamental Freedoms require the Government of the
The Global Climate Litigation Report: 2020 Status Review Netherlands to take steps to reduce carbon emissions
published by UNEP noted that between March 2017 and consistent with limiting global warming to an average
July 2020 the number of cases nearly doubled, with at of 1.5°C, consistent with the Paris Agreement
least 1,550 climate cases filed in eight countries. The Sabin (Baudouin 2021).
Center for Climate Change Law indicated that as of October
2021, there are 1,756 and 529 climate change litigation • Juliana v. United States (pending)
cases within and outside the United States of America On 17 January 2020, the Ninth Circuit Court of
respectively. Appeals of the United States held, in a 2:1 decision,
that ordering the federal Government to adopt
a comprehensive scheme to decrease fossil fuel
A notable trend is that the number of “strategic cases” (i.e. emissions and combat climate change exceeds a
cases that aim to bring about some broader societal shift federal court’s remedial authority, as such decisions
in climate policy) is dramatically increasing (Setzer and involved complex policy considerations. The case is
Higham 2021). A key reason for the rise in strategic cases currently pending a ruling on the plaintiffs’ motion
is the growing willingness of climate change activists and for leave to file an amended complaint (Our Children’s
the public to take legal action. The clearest examples are Trust, no date).
Notre Affaire à Tous v. France (2021) and VZW Klimaatzaak
v. Kingdom of Belgium (2021). The former case, described • Milieudefensie et al. v. Royal Dutch Shell plc (pending)
as “the case of the century”, was brought by four NGOs On 26 May 2021, The Hague District Court ordered
supported by over two million members of the public, Royal Dutch Shell to reduce its carbon dioxide
who signed a petition which was submitted to the court emissions by 45 per cent relative to 2019 by the end of
(Baudouin 2021). In the latter case, more than 65,000 2030. The emissions include those produced during the
citizens acted as co-claimants and supporters consumption of Shell’s oil and gas products (known as
(Klimaatzaak, no date). Scope 3 emissions). This case has been described as a
“monumental victory” (Vetter 2021) because it is the
first time a court has ordered a company to reduce its
Other notable decisions include: emissions, including Scope 3 emissions, by a specific
amount.
• Urgenda Foundation v. The State of The
Netherlands (2019)
On 20 December 2019, the Supreme Court of the
Netherlands ruled that articles 2 and 8 of the European
© Unsplash/Patrick Hendry
21
These high-profile cases created a ripple effect and inspired C. Human rights
similar cases, including rights-based lawsuits filed by youth As described in the UNEP 2016 ECT Guide, international
plaintiffs in Kim Yujin v. Republic of Korea (UNEP and Sabin recognition of the interdependence of human rights
Center for Climate Change Law 2020) and Duarte Agostinho and environmental rights, including the United Nations’
and others v. Portugal and 32 other States (pending). recent recognition of the right to a clean, healthy and
sustainable environment, has had a profound impact
on environmental law generally and ECT development
The proliferation of climate change lawsuits around the specifically. Recognizing humanity as the centre of
world have created the impetus for courts to engage sustainable development and the right to healthy
with the issue and develop dynamic environmental environment has driven efforts to enhance access to
jurisprudence in the process. For example: environmental justice at the international and domestic
levels. This is reflected in the growth of both hard and
• The NGT has heard most of the climate change cases soft international environmental law.
in India. Cases include Om Dutt Singh and another v.
State of Uttar Pradesh and others (2015); Society for
Protection of Environment and Biodiversity v. Union For example:
of India (2017); and Sukhdev Vihar Residents Welfare
Association and others v. State of NCT of Delhi and • Various countries, including Kenya and the
others (2017). Court on its own motion v. State of Philippines, have framed environmental rights
Himachal Pradesh (2016) is a unique example of an as constitutional rights. It has been noted that
ECT taking up a matter using its suo moto (“on its own countries “with constitutionally enshrined human
motion”) powers, after judges came across a newspaper rights and environmental rights have higher regard
report on the felling of 200 trees on private property for international decisions and the promotion of
without the prior permission of the relevant authorities. better environmental protection outcomes” (Asian
Development Bank 2018).
• The LECNSW is a pioneer ECT advancing the frontiers • Anti-strategic lawsuits against public participation laws
of climate change litigation. In Bushfire Survivors and regulations are being developed to ensure that
for Climate Action Incorporated v. Environment environmental defenders and other potential plaintiffs
Protection Authority (2021), the claimants were a group are not harassed by counter-lawsuits.
of Australians impacted by the 2019/20 Australian
bushfires. They initiated proceedings against the New • As discussed above, human rights have formed the
South Wales Environment Protection Agency for failing basis of reasoning in many significant climate decisions,
to perform its statutory duty of developing instruments including Urgenda Foundation v. The State of The
to protect the environment from climate change. Netherlands (2019) and Milieudefensie et al. v. Royal
On 26 August 2021, the LECNSW affirmed this duty, Dutch Shell plc (pending). Academics have commented
which arises from section 9(1)(a) of the Protection of on the close relationship between human and
the Environment Administration Act 1991 (New South environmental rights.
Wales). In a first for any Australian court, LECNSW
ruled that the Environment Protection Agency had
in fact breached this duty, and therefore ordered the The UNEP 2016 ECT Guide noted that at least 108 countries
Environment Protection Agency to fulfil its duty and enshrine the right to a healthy environment in their
take specific steps to address climate change. national constitutions, or have had the right to life judicially
interpreted as including the right to a healthy environment.
Since then, constitutional environmentalism has continued
Therefore, as climate change litigation demonstrates, ECTs to flourish and is found in the constitutions of at least 148
have merged jurisdiction over environmental matters. out of 196 countries with national constitutions (O’Gorman
Coupled with their access to specialist environmental law 2017). This bodes well for environmental protection; it has
and science knowledge, they are in a good position to been demonstrated that the inclusion of constitutional
catalyse developments in environmental law. environmental rights provisions often results in better
environmental performance in a jurisdiction (Jeffords and
Minkler 2016).
D. International environmental law principles • the adoption of more than 500 multilateral
The growing body of international environmental law environmental agreements;
principles continues to be important for the development
of ECTs. The 14 principles of international environmental • various conferences and forums which have emphasized
law, as listed in the UNEP Training Manual on International the role of courts and tribunals in protecting the
Environmental Law (UNEP 2006), and as updated by the environment and called for the development of
IUCN World Declaration on the Environmental Rule of Law specialized expertise in environmental adjudication,
(2016) and Resolution A/HRC/48/13 (United Nations, Human including via the establishment of ECTs; and
Rights Council 2021), are:
• major international commitments such as the United
1. Sustainable development, integration and Nations 2030 Agenda for Sustainable Development.
interdependence
2. Intergenerational and intragenerational equity UNEP continues to be important in supporting the

continued development of ECTs and environmental
3. Responsibility for transboundary harm adjudication, even as the number of ECTs worldwide
has stabilized. It also continues to play an important
4. Transparency, public participation and access to judicial capacity-building role through the Global Judges
information and remedies Programme, the Asian Judges Network on Environment and
the Global Judicial Institute on the Environment (Andersen
5. Cooperation, and common but differentiated 2021).
responsibilities
6. Precaution The Global Judicial Institute on the Environment has

contributed to the environmental rule of law by:
7. Prevention
• supporting judicial capacity-building and education
8. Polluter-pays principle programmes;
9. Access- and benefit-sharing regarding natural resources • providing technical assistance by sharing judicial good
practices; and
10. Common heritage and common concern of humankind
• providing research and analysis which focus on
11. Good governance environmental adjudication, dispute resolution, court
practices and procedures, judicial remedies, and
12. In dubio pro natura environmental justice (IUCN 2021).
13. In dubio pro aqua

F. International finance
14. Right to a clean, healthy and sustainable environment International financial institutions, including the World
Bank and the Asian Development Bank, frequently require
15. Principle of non-discrimination that countries seeking funding provide evidence of a
dispute resolution system with the competency to apply
16. Businesses’ responsibility (to respect human rights) international and national laws (UNEP 2016). International
financial institutions have invested, and continue to
invest, in capacity-building and partnerships to support
These principles are established customary international the development of ECTs. The Asian Development Bank
law, and are increasingly relied upon in national and local has been a leader in Asia by bringing judges, government
adjudication spaces. officials and advocates together to explore the viability
of ECTs at both regional and national levels. The Asian
Development Bank, together with the Asian Judges Network
E. UNEP leadership on Environment, also organizes environmental conferences
Developments in international law, several of which were to bring judges together. From 2018 to 2020, the Asian
driven or supported by UNEP, have contributed to the Judges Network on Environment, together with the support
creation, development and improvement of ECTs, and of of the Asian Development Bank and UNEP, hosted the
environmental dispute resolution. These developments annual Asia-Pacific Judicial Conferences on Climate Change
include: Adjudication (Asian Judges Network on Environment
2018; Asian Judges Network on Environment 2019; Asian
23
Judges Network on Environment 2020). These conferences technologies, such as video conferencing in hearings,
continue to build support for and initiate discussions can be a positive development. It will generally
around the use of ECTs and judicial strategies in handling improve access to justice, particularly where litigants
environmental issues. are located far from where hearings are conducted.
However, parties without access to information
and communications technologies may face more
G. The impact of COVID-19 hurdles in accessing ECTs and therefore suffer
The COVID-19 pandemic has had varied impacts on the reduced access to justice. On a macro level, the divide
operation of ECTs and the adjudication of environmental between rich and poor countries in terms of how
disputes. effectively environmental interests are represented
and environmental disputes are adjudicated may only
• Negative impacts: COVID-19 has caused several worsen.
economies to shrink and enter into recessions. In
the face of resource scarcity and competing needs,
attention and resources have been diverted from ECTs The COVID-19 pandemic has also affected efforts to protect
and NGOs’ efforts in the adjudication of environmental the environment and combat environmental degradation.
disputes. On one hand, many economies that are badly affected
by COVID-19 have limited resources, and funding is
being diverted from environmental efforts. On the other
• Neutral to positive impacts: COVID-19 has accelerated hand, many countries and cities view the pandemic as an
the digitalization of many court systems, including opportunity for a green recovery.
in North America, South America and Oceania. The
increased use of information and communications
Box 1: Good practices during COVID-19 by the Vermont Environment Court
The Vermont Environment Court is a Division of the Superior Court, with designated specialist judges and limited
jurisdiction. The pandemic resulted in a temporary economic recession and reduction in development applications,
and a consequent reduction in annual caseload from 350 a year in 2008 to about 200 a year today. This has resulted
in environmental judges being assigned to some non-environmental cases. However, the environmental cases have
increased significantly in complexity, and now include transboundary issues with Canada, complex water cases and big
development cases, with a reduction in small neighbour-to-neighbour conflicts.
The environmental court continues to handle enforcement cases from state and municipal environmental enforcement
orders. With the pandemic beginning to come under control by August 2021 (over 50 per cent of residents were
vaccinated as of this date) and the economy opening up, more development applications were being filed and the
case load was again increasing.
The court has become increasingly reliant on virtual technology for filings, hearings, discovery and adjudication.
In-person hearings or site visits significantly reduced during the period of the pandemic. Judge Thomas S. Durkin
anticipates that the court will continue to rely on e-filing and virtual hearings except for complex cases which still
require in-person site visits and hearings. Judge Durkin relies heavily on court-ordered mediation, and generally orders
mediation in about one third of cases each year. Of the cases where mediation has been ordered, a resolution of the
environmental disputes is reached in about 75 per cent of cases without a court trial. Throughout the pandemic, the
court has continued to have an active case management process that keeps filed cases moving through the system
and advises potential litigants on court process and expectations.
The political atmosphere in Vermont has remained supportive of environmental initiatives and sustainable
development, and the environmental court has not been the target of severe budget cuts or major reorganization.
There have been legislative efforts to unify the environmental court with other divisions to increase efficiency and
to disband the environmental court and return to a lay, non-court environmental board that would review cases but
could not rule on legal issues. To date, these legislative efforts have failed.
Pring and Pring 2021a

2.4. JUDGE TRAINING AND NETWORKING environment-related experience. We also found that
legal education in most countries does not include
environmental law as a mandatory subject. This means that
As environmental issues often involve complex interactions prospective lawyers and judges are left to learn through
between law, science and policy, judges should have continuing legal education programmes or, in some
knowledge and expertise in environmental matters. countries without any environmental judicial training,
When judges (whether in ECTs or general courts) lack exclusively on the job.
such expertise, there is the risk of adverse consequences
for the country’s environmental jurisprudence, because
environmental aspects of a case may be overlooked due That environmental matters are being adjudicated in
to a lack of judicial awareness (Preston 2014). To determine general courts makes it all the more important for judges
the level of environmental literacy among judges in ECTs, in general courts to receive environmental law training.
our research focused on: (i) the profile and experience of Without such training, judges are likely to lack familiarity
judges adjudicating environmental cases in ECTs; and (ii) with environmental law principles and may make
the training available to these judges (Figure 3). decisions in a manner that is detrimental to environmental
governance. Environmental issues can also arise in non-
environmental cases, rendering it necessary for judges to
In countries with ECTs, there are more judges who have grapple with environmental law and science.
prior experience in environmental matters generally than
those who have scientific training. However, the number
of judges who have prior experience in environmental It may not be feasible to train many general court judges
adjudication specifically is low, compared to judges in in environmental law. An important prior consideration is
countries without ECTs. the number of environmental cases and the level of judicial
interest to engage in environmental law and science.
In countries without ECTs, most environmental cases

are solved in general courts, administrative bodies and It is arguably not justifiable to provide environmental law
tribunals. This raises the question of whether judges training to judges in a court with a small environmental
adjudicating these environmental cases have experience caseload. Additionally, regular training as opposed to
in environmental matters. We found that in many of
these countries, judges are not required to have any
PROFILE AND EXPERIENCE OF JUDGES

80
70
Number of countries
60
50
40
Countries with ECTs
30 Countries without ECTs
20
10
0
Prior experience Prior experience Scientific No data
in environmental in environmental training
adjudication matters
Total number of countries sampled: 137
Figure 3 Profile and experience of judges

25
Box 2: Training Curriculum on Judicial training programmes can be conducted by national

Environmental Law for Judges and training institutes or external third parties, such as donors
Magistrates in Africa and NGOs. Efforts by third parties to provide training
for judges become extremely important where national
training bodies do not have comprehensive environmental
training programmes. An example of a supranational
In 2018, African judicial training institutes worked with training programme is the European Commission’s training
the support of UNEP and the Africa Judicial Educators package for judges on European Union environmental law
Network on Environmental Law to develop the (European Commission 2017).
Training Curriculum on Environmental Law for Judges
and Magistrates in Africa: A Guide for Judicial Training
Institutions. Irum Ahsan, the Asian Development Bank’s expert on
the Environmental Judges Network, has highlighted
The Training Curriculum contains the minimum that environmental training equips judges with a clearer
course content regarding environmental law. It is understanding to handle the proceedings, context and
accompanied by three regional judicial training substance of environmental cases. Training programmes
manuals, which are written in English, French and also serve as networking platforms for judges to share
Portuguese respectively. These framework manuals their expertise and experience (Ahsan 2021). Training and
may be adapted to suit national needs, and many networking can change judicial mindsets and are thus
African judiciaries are now using the Training crucial for a successful ECT. In Pakistan, prior to 2016,
Curriculum. The underlying goal is: judges were not sufficiently trained in environmental law,
so lawyers were hesitant to bring environmental cases
to empower judicial training institutions to court. However, as more regional and global networks
in Africa in the development of training
programmes on environment issues to equip
Judges, Magistrates and Judicial Staff with
knowledge and skills on adjudication of and
resolution of environment cases in a manner
that ensures environmental sustainability. To
ensure sustainability in the training of judges
and magistrates, it is necessary to build the
capacity of trainers.
UNEP 2018
one-off efforts should be considered, as judges need to

constantly update their knowledge of environmental law in
light of new developments.
Training for judges and tribunal members

Most survey respondents were unsure about judicial
training in their countries. This is likely because information
on judicial training may not be publicly available, judges
may not be allowed to disclose their training activities, or
there is no formal judicial training institution.
In countries with operational ECTs, mandatory training for

judges (whether initial or continuous) on environmental
matters is not a widely adopted practice. Only 10
respondents in the 137 countries surveyed informed us that
initial and/or continuous judicial training on environmental
matters is mandatory, suggesting a lacuna wherein
judges presiding in ECTs do not have sufficient training in
environmental matters. Training Curriculum on Environmental Law for Judges and Magistrates in Africa
Box 3: Informal networks of environmental on it having comprehensive jurisdiction to handle all

judges and prosecutors the environmental laws of the country and on receiving
recognition from the government (Preston 2014).
In Europe, networks of environmental judges,

regulators, prosecutors and police have been ECTs operate most effectively when their status, authority
created: the European Union Forum of Judges for the and jurisdiction are clearly specified in legislation.
Environment (EUFJE), the European Network for the Furthermore, ECTs must have judges who are experts
Implementation and Enforcement of Environmental in environmental law and can thus contribute to the
Law (IMPEL), the European Network of Prosecutors for development of environmental jurisprudence (Dutta
the Environment (ENPE), and EnviCrimeNet. 2021). External factors also determine the success of ECTs.
For instance, there must be sufficient caseload for an
These four networks work together to form a ECT to develop a rich and comprehensive environmental
compliance chain. They organize joint conferences jurisprudence (Preston 2014; Dutta 2021).
and launch joint projects to strengthen the
enforcement of European Union environmental and
nature laws, and such cooperation is based on the Issues surrounding an ECT’s status, authority, and
idea that the enforcement of environmental law can jurisdiction can hinder its initial establishment. Indonesia,
only be improved by joining forces (Lavrysen 2021). for example, decided not to establish a stand-alone ECT
due to possible complications of the proposed ECT’s
In some countries, national informal networks status, authority and jurisdiction (Mulyono 2021). The
of environmental judges and prosecutors exist. country would also have to revise its codes (civil, criminal
In Belgium there is simply an e-mailing list, and administrative) and environment-related laws,
“Milleumagistraten”, to which judges and prosecutors which would be a monumental task. In Thailand, a bill to
can subscribe, that distributes relevant case law and establish a specific environmental court was proposed,
legislation. but it was controversial. The Thailand Court of Justice and
Administrative Court have agreed to develop the law on
On 5 June 2021, in the wake of the legislative reform environmental court procedures, and have completed the
which introduced 36 new environmental courts, a first draft (Muanpawong 2021).
French association of judges and prosecutors for
environmental law and environmental health law
was created: Association française des magistrats Differences in the status, authority and jurisdiction of
pour le droit de l’environnement et le droit de la ECTs can be observed between and within countries.
santé environnementale. The board has been elected For example, in India, the NGT commands a respectable
and a scientific committee will be established. status as it is deemed to be facilitating access to justice
Representatives of the association will be designated and have developed highly specific jurisprudence (Dutta
and will focus on specific topics such as civil justice, 2021). In contrast, the five environmental tribunals in
climate change, criminal justice, international relations Pakistan are less developed. Their status, authority and
and social networks. jurisdiction are regulated by the Pakistan Environmental
Protection Act 1997, which gives the Federal Government
power to establish as many environmental tribunals as
were established for judges from 2016 onwards, Pakistani necessary (Hassan 2014). Despite this, the number of
environmental jurisprudence not only received more environmental tribunals has not changed. Jurisprudence
publicity, but judges themselves learned more about how in Pakistani environmental tribunals has also developed
other courts were deciding similar matters, enhancing their slowly, as the regulators (as expert members of the
adjudicative skills (Shah 2021). environmental tribunals) do not require a specialization in
environmental law and can have backgrounds unrelated to
the environment. It has also been said that the regulators
2.5. GOOD PRACTICES are passive in handling complaints. Furthermore, the
Pakistani environmental tribunals have limited jurisdiction
because citizens can only access the tribunals when they
Courts that deal with environmental cases do not wish to challenge an environmental protection order
necessarily have to be designated as environmental courts that has been issued. In contrast, Pakistani environmental
or environmental tribunals to perform its functions well. courts are instituted in the environmental chambers
Similarly, the status and authority of ECTs do not seem to of general courts and strengthened with green judges
determine their success. An ECT at a lower court level can trained in environmental issues. These green chambers are
be successful, while an ECT at supreme court level can
be unsuccessful. Instead, the success of an ECT depends
27
established within all 250 regular courts in Pakistan, and Our research found that most operational ECTs are
these environmental courts are flourishing better than the politically independent. This is a positive outcome for the
environmental tribunals (Shah 2021). reasons discussed above.
A. Design stage Adjudicative independence is the bedrock of any ECT.

1. Independence Several countries have indicated that environmental
ECTs that are independent and impartial go on to justice has been hindered when external pressures from
establish themselves as legitimate institutions that can the executive and/or legislature limited and/or altered
provide citizens redress for their grievances (Dutta 2021). environmental jurisprudence produced by the ECT.
Independence not only refers to independence from the
other branches of government, but also to independence
from non-State actors such as the media and industry, Administrative independence entails independence from
which might lead an ECT to decide cases other than on their all other governmental bodies. This should be embedded
legal and factual merits (for instance, on the basis of public within the design of any ECT model, even for captive
opinion instead). environmental tribunals housed in and resourced by the
very agency whose decisions they review. As stated in the
UNEP 2016 ECT Guide, “independent-decision making
Institutional arrangements and rules can be designed to insulated from government and other outside pressures
ensure the independence and impartiality of ECT judges also generates public credibility, confidence and greater
or decision makers. The selection criteria for ECT judicial willingness to bring cases to the forum” (UNEP 2016). The
appointments, the provision of long-term tenure and ECTs in Sweden and Vermont, among others, have authority
security of tenure, safeguards against the removal of judges, in some types of cases to provide a decision that is different
the means of fixing and reviewing remuneration and other from that of the issuing agency, as well as, in other types of
conditions of service, and the publication of decisions, are cases, to send the decision back to the issuing agency for a
some of the institutional arrangements that ought to be reconsideration. In Vermont, the authority to hear appeals
taken into consideration (Preston 2014). on local land use permitting was diverted in 1995 from the
general court to the environmental court (Wright 2021).
The 2021 conference of the networks of environmental judges, regulators, prosecutors and police focused on strengthening cooperation in the fight against environmental crime.
Institutional independence is also crucial to guard against and practice (India, NGT Act 2010, section 5). In this respect,
external influences that may be peripheral to adjudication. it is a welcome anomaly that the NGT, being a statutory
This means that the ECT should be able to operate freely court, requires higher qualification standards than other
without depending on outside approval or pressure. constitutional courts. Significantly, the NGT also comprises
expert members, who must have the requisite degree
qualifications in environmental science (India, NGT Act
Taking India as an example, the judiciary selection for the 2010, section 5(2)).
NGT is conducted via an open advertisement (Dutta 2021).
The recruitment process is regulated under the National
Green Tribunal Act 2010, which applies uniformly across For institutional independence to hold, there must be
all Indian provinces. Accordingly, both judicial and expert an adequate guarantee that ECT operations can be
members are selected by a committee chaired by a current resourced and maintained. This will provide the necessary
or former Supreme Court Judge (India, NGT Act 2010, sense of security for all staff and stakeholders involved,
section 5(1)). Judicial members of the NGT must be former, guaranteeing the independence and hence the strength of
retired judges of the High Court with 10 years of experience this environmental justice institution. Simultaneously, the
Box 4: National Green Tribunals of India
The NGT was created pursuant to the NGT Act 2010 to hear environmental matters. A NGT has both original and
appellate jurisdiction. The former allows it to hear all substantial questions relating to the environment, whereas the
latter allows it to hear appeals against decisions made by central and state government agencies. Currently, there are
four judicial members and four expert members in the NGT, although the Act envisioned that the NGT was to comprise
of a minimum of 10 judicial members and 10 expert members.
The NGT’s caseload has been stable in recent years. Around 20 to 24 cases on contested projects came before the NGT
annually between 2017 and 2020, while the number of appeal cases ranged from 23 to 28.
There have been some issues with the NGT’s operation so far: “The Tribunal’s test of independence and expertise is in
its function as the appellate authority. It is surprising if the NGT shies away from hearing appeals on merit, even when
they are filed within 90 days. Not even 1 per cent of projects are appealed against and the appellants, often project-
affected people from the hinterlands, deserve to be heard within the limits of reasonability” (Dutta 2021).
Nevertheless, the NGT exemplifies many good practices that are worth replicating elsewhere.
Firstly, the NGT is accessible. People are aware that they can access the five NGTs nationwide. The very fact that a
villager can approach the NGT is itself a victory in terms of access to justice. It has become common knowledge that
people can go to NGT to fight out environmental cases, with no need for a lawyer. Twenty per cent of the cases are
argued in-person (standing rules are very broad). Some groundbreaking judgments were reached in cases where the
petitioners have spoken in their own language and the judges had to translate. In Paryawaran Sanrakshan Sangarsh
Samiti Lippa v. State of Himachal Pradesh et al. (2016), the NGT recognized the rights of forest-dwelling groups
and tribes over forest land. The NGT expressed “serious anxiety on the future of the State and its progeny” due to
the alarming scale at which hydroelectric projects were being approved in Himachal Pradesh, resulting in serious
consequences to its ecology and environment, and the very life and livelihood of the villagers. Accordingly, the NGT
mandated that Himachal Pradesh must consult with the Gram Sabha (a village assembly of all adults) of the villages
of Lippa, Raring, Pangi and Telangi before any forest is cleared. This was a significant order, empowering the local
community with the right to participate in the hydroelectric project in accordance with the Forest Rights Act.
Secondly, the NGT has played an important role in developing India’s environmental jurisprudence. Cumulative impact
assessment and restitution have become important parts of Indian law because of the NGT.
Thirdly, the NGT provides better access to justice compared to what the general courts can do (Dutta 2021). Persons
may bring claims in the public interest even if they have no direct, personal connection to the matter. In addition,
a person may bring a claim on behalf of a group of people, such as all the residents of a village or all fisher folk
reliant on a certain fishery. The NGT can also hear cases on its own accord, known as suo moto. In addition to the
NGT, the District, High and Supreme Courts are still avenues for the pursuit of litigation. It is possible to file one case
simultaneously in multiple courts.
29
© Unsplash/Rebecca Campbell
in a “backsliding of democracy”. This is evident in Ontario,
appointment, careers and remuneration of ECT members Canada, where the Green Energy Plan has been rescinded
(i.e. judges, prosecutors, support staff ) must be transparent and its environmental tribunals have been clustered in ways
and in accordance with the country’s wider court standards, that dilute their environmental efficacy. Similarly, in Hawaii,
including in terms of independence. the legislature removed the jurisdiction of environmental
court judges over development in forest and natural
conservation reserves, such as on the dormant volcano of
ECTs require independence to function properly. In some Mauna Kea, to permit a new telescope to be installed for
countries, political pressure, budgetary constraints, lack of perceived scientific and economic benefit. The conflict with
governmental support, industry lobbying (Gunningham native Hawaiians, who consider the mountain sacred and
2009), regulatory capture and even threats of physical already overdeveloped, is now being reconsidered by the
violence (Dutta 2021), impede the rule of law and the Governor and Legislature (Pring and Pring 2021a).
functioning of ECTs. Small stand-alone ECTs located outside
the general court system are particularly vulnerable
(UNEP 2016). Without independence, ECTs cannot provide Fortunately, not all backsliding is permanent. In the United
procedural fairness and accountability. They will in turn lose States of America, for instance, previous environmentally
legitimacy and the trust of the people they are meant to regressive policies, such as the withdrawal from the Paris
serve. Agreement and the circumscribing of the functions and
procedures of its Environmental Appeals Board, have been
recently reversed. Additionally, although the Environmental
Political and economic pressures have driven organizational Appeals Board is not completely independent from the
changes within ECTs in efforts to streamline, control Government, it strives to be an impartial decision maker on
costs, or reduce the power and jurisdiction of some ECTs. administrative appeals under all the major environmental
Furthermore, the COVID-19 pandemic has seen many statutes administered by the United States of America’s
governments invoking their emergency decision-making Environmental Protection Agency. For example, it strictly
powers, which have diminished judicial power and resulted prohibits ex parte communications in cases with individual
3. Non-law decision makers

As noted in the UNEP 2016 ECT Guide, a best practice
that is commonly adopted by many ECTs in different
jurisdictions is the inclusion of both legally trained judges
and professionals with technical expertise (e.g. scientists,
engineers, architects and economists) as adjudicators. This
helps to ensure that the adjudication process adequately
takes into account legal and scientific considerations, which
are essential for sound decision-making in environmental
cases. An example is provided by Costa Rica, where the
three-member Environmental Administrative Tribunal
(Tribunal Ambiental Administrativo) must comprise
professionals in environmental areas, and one member
must be a lawyer (Costa Rica, Organic Law on the
Environment 1995).
This is discussed in greater detail in chapter 3.2, section C.
4. Adjudicators: selection and training

ECT adjudicators should be appointed via a transparent,
open and competitive selection process. As discussed in
the UNEP 2016 ECT Guide, examples of rigorous selection
processes can be seen in Australia, Brazil and the United
States of America. Positions in an ECT should not be
awarded as a sinecure or retirement benefit. Further,
judicial members should have tenure, salary equivalent
to other non-ECT judges, and equal opportunities for
career advancement. Objective appointments based on
credentials, the individual’s interest and their character
© Unsplash/Goutham Krishna not only improve the quality of decisions, but also public
confidence in the institution. It is also ideal to require
parties. At any one time, the Environmental Appeals Board candidates to have received prior training in environmental
is comprised of four well-qualified and outstanding judges issues. Alternatively, environmental law training as part
who have both a relevant background and a genuine of continuing professional development should be
interest in environmental protection and justice (Pring and compulsory.
Pring 2021a).
The appointment process in some countries does not

embody the good practices described above, usually
2. Flexibility because of extrinsic political influence. In the Philippines,
Legislatively authorizing an ECT to develop its own rules, although the judiciary is theoretically independent, political
procedures and remedies is an important best practice. It agendas tend to influence the appointment of Supreme
gives the ECT flexibility by freeing it from the limitations Court justices, since the President, a political authority,
of the general court system’s rules on standing, evidence, appoints them (Ramos and Gutierrez 2021). In Honduras,
management of expert witnesses, cost awards, orders, the appointment and removal of judges is influenced
penalties and so on, allowing it to develop a wider range by the executive branch, even though the Honduran
of “made for purpose” rules that enhance access to justice Constitution provides that the judiciary is independent and
and effectiveness. Where ECTs have such flexibility, they not subordinate to the legislative and executive branches
can use innovative problem-solving approaches to resolve (United Nations, Human Rights Council 2020).
disputes, which can be superior to traditional court rules
and procedures. The New Zealand Environment Court
and the Indian NGT are examples of ECTs authorized to 5. Alternative dispute resolution
develop their own rules and procedures. Not far off are the If one were to choose the one good practice that typifies
Environmental Division of the Vermont Superior Court and successful ECTs, it would be the use of alternative dispute
the Philippines’ environmental courts, which have their own resolution processes. Alternative dispute resolution can
special rules adopted by their Supreme Courts. be seen as a “win-win solution” as it is less formal, less
31
adversarial and can result in innovative remedies not The legislative framework that authorizes the formation
contemplated by either the law or adjudicators. It is and functioning of the ECT can include the use of
also usually faster and cheaper (particularly if the ECT alternative dispute resolution. At a minimum, the rules
provides it at no cost to parties), thereby widening access should ensure alternative dispute resolution is available
to justice. Its attractiveness from a budgetary, efficiency for litigants and the court, either in-house (preferable) or
and participation point of view suggests that the role of through an external provider, using personnel who are
alternative dispute resolution will only continue to expand. thoroughly trained in multiple forms of alternative dispute
resolution and regularly update their skillsets. In addition,
the ECT should have the authority to incorporate an
The majority of ECTs incorporate alternative dispute alternative dispute resolution agreement (or any settlement
resolution, including conciliation, early neutral evaluation, agreement) into a final binding, enforceable order.
mediation and arbitration; most ECTs carry out initial case
evaluation (by a registrar, a case manager or a judge) to
evaluate if alternative dispute resolution is viable. A number The most comprehensive model of alternative dispute
of ECTs in Trinidad and Tobago and New Zealand actively resolution is the “multi-door courthouse” approach of
encourage alternative dispute resolution in their rules. the LECNSW. Apart from litigation and merits review, the
Mediation is similarly available as a mode of alternative LECNSW offers alternative dispute resolution methods
dispute resolution in the German administrative courts such as conciliation, mediation, and neutral evaluation
(Boom juridisch, no date). Some ECTs even mandate it (Preston 2008). The housing of multiple dispute resolution
as a first step in all cases (Tasmania, Tasmanian Civil & processes within a single court allows the court to deliver
Administrative Tribunal, no date), and alternative dispute individualized justice that is appropriately tailored to the
resolution is a compulsory pre-litigation requirement in needs of the parties.
Australia, for example in family law for matters involving
children (Australia, Family Law Act 1975).
Creating a multi-door courthouse is a challenging task.
It requires having appropriate processes and guidelines
In the United States of America, the Environmental Appeals for screening, diagnosis, and referral of cases to the
Board has incorporated alternative dispute resolution appropriate dispute resolution process; properly trained
techniques in their proceedings, with an off-panel judge subject matter experts and judicial officers to facilitate
acting as mediator. The courts in Vermont further mandate the alternative dispute resolution processes; and timely
alternative dispute resolution in all environmental disputes disclosure of information between parties to increase the
(Pring and Pring 2021a). prospects of alternative dispute resolution being successful.
In this regard, having adjudicators with special expertise in
FORMS OF ALTERNATIVE DISPUTE RESOLUTION

25
20
Number of countries
15
10
0
Arbitration Conciliation Indigenous Mediation Negotiation No data or N/A
law
Countries with ECTs Countries without ECTs Total number of countries sampled: 137
Figure 4 Forms of alternative dispute resolution

disciplines relevant to environmental, planning and land Box 5: Kenya, Environment and Land Court
matters, training for judges and subject matter experts Act 2011, section 18
in various alternative dispute resolution processes, and
standardized manuals that guide court personnel when
referring cases to the appropriate forum, are all essential Guiding principles
elements for a court striving to be a multi-door courthouse
(Pring and Pring 2021a). In exercise of its jurisdiction under this Act, the Court
shall be guided by the following principles—
Our research shows that apart from litigation, ECTs (a) the principles of sustainable development,
and general courts offer other methods of dispute including—
resolution, including mediation, negotiation, conciliation
and arbitration (Figure 4). In countries without ECTs, (i) the principle of public participation in the
respondents have listed arbitration and mediation as their development of policies, plans and processes for
first and second most available forms of dispute resolution. the management of the environment and land;
(ii) the cultural and social principles traditionally

Interestingly, many respondents from countries with applied by any community in Kenya for the
and without ECTs indicated that they are unaware of management of the environment or natural
the alternative dispute resolution options in their legal resources in so far as the same are relevant and not
systems, which suggests that such information is not widely inconsistent with any written law;
available or that the focus in environmental adjudication is
still predominantly on litigation. (iii) the principle of international co-operation
in the management of environmental resources
shared by two or more states;
6. Comprehensive jurisdiction
An ECT ought to have as wide a jurisdiction as possible, (iv) the principles of intergenerational and
encompassing (i) geographic jurisdiction, (ii) subject matter intragenerational equity;
jurisdiction, (iii) level of jurisdiction, and (iv) appellate
jurisdiction. (v) the polluter-pays principle; and
• Geographic jurisdiction: Everyone in a country (vi) the pre-cautionary principle […]

should have relatively easy and equitable physical
access to the ECT, including hearings held locally
(even at the site of the problem). This could require Kenya, Environment and land Court Act 2011
ECTs to exist in multiple locations. Alternatively, ECT
judges and decision makers can travel for site visits and
hearings on site, as they do in Ireland, New Zealand,
Ontario, Queensland and other jurisdictions. In Brazil
(Amazonas State), Nigeria (Lagos and Abia States) and
the Philippines, aeroplanes, buses, boats and vans have
been outfitted as mobile mini-courthouses.
• Subject matter jurisdiction: It is a good practice

to give the ECT jurisdiction over all environment-
related laws. This avoids, for example, adjudicating
a wetlands issue with authority over ecosystem
laws but not water laws. Another important good
practice – demonstrated in Sweden, New South
Wales and Vermont – is to combine jurisdiction over
environmental laws with jurisdiction over land use
and planning laws, as decisions in one area ultimately
affect those in the other. It is also a good practice to
give an ECT the ability to adjudicate civil, criminal and
administrative issues together, because environmental
disputes frequently involve more than one (if not all
three) of these aspects. Inclusion of jurisdiction over
criminal environmental laws, such as illegal hunting
© Unsplash/Marcin Jozwiak
33
and trafficking in wildlife, and illegal fishing, is key Thailand’s approach of having environmental court
to achieving environmental justice and sustainable decisions appealed to higher environmental courts
development. Several outstanding environmental gives litigants the benefit of judges theoretically having
courts have wide jurisdiction, which includes criminal, environmental law expertise at each appeal level.
civil and administrative law (for example, New Zealand India’s NGT is only appealable to the Supreme Court,
and New South Wales) (UNEP 2016). giving the NGT a strong status in the legal system. It is a
less desirable practice to have an environmental court
decision appealed to a non-expert general court bench,
The Environment and Land Court in Kenya has perhaps but this is better than having an environmental court
the most comprehensive jurisdiction of any in the decision that can be appealed to and overturned by an
world, although it is not given criminal jurisdiction. official of the agency being reviewed.
Another best practice from Kenya, Canada, India
and the Philippines is the use of express statutory
authority to apply constitutional law and international Considering all this, it is often politically challenging to
environmental law principles in the adjudication start an ECT with broad jurisdiction. In 2014, the Hawaii
process. Use of the precautionary principle, intra- and State Legislature overruled environmental court advocates
intergenerational equity, polluter pays, and other and sided with developer concerns, giving their new
emerging international principles, allows ECTs to environmental courts no jurisdiction over land use and
protect resources now and for the future, helping development laws. In some cases, wider jurisdiction
to support the United Nations 2030 Agenda for only comes after some years. For example, Vermont’s
Sustainable Development. Environmental Court started in 1990 with jurisdiction only
over environmental issues, but it received jurisdiction
• Level of jurisdiction: ECTs can be established at the over land use in 1996 and could issue permits from 2005.
trial (first instance) or appeal (second instance), or Sweden’s environmental courts initially had jurisdiction only
the highest level (supreme court), or all three. Experts over land use cases, but started hearing development cases
agree that ECTs should have a merits (de novo) review from 2011 (UNEP 2016).
at the first level. Some ECTs, like New Zealand’s and
Sweden’s, are multi-level, acting as first instance courts
for new case filings and second instance review courts Some ECTs have had their jurisdiction narrowed, which
for appeals from decisions of local planning bodies. limits the ability of the ECT to solve problems in the
China and Pakistan have created environmental courts most efficient and comprehensive manner. In Hawaii, the
or green benches at all three (trial, appeal and supreme Environmental Court’s jurisdiction over development in
court) levels. If only one level can be approved initially, forest and natural conservation reserves was legislatively
a good practice is to have it at the first instance level, to removed. Following protests by native Hawaiians, this
develop a solid record for appeals. removal is being reconsidered by the Governor and
Legislature (Pring and Pring 2021a).
• Appellate jurisdiction: Where should appeals from
the environmental courts go? Clearly, Sweden’s and
© Unsplash/Chris Ponzi
In a number of jurisdictions, citizens do not have standing
That said, a broad jurisdiction for an ECT is only useful unless they have already suffered “actual harm” to
if the necessary resources and enforcement capacities themselves or their property, live within a set distance
are available. When Kenya established its very broad from the environmental problem, or took part in earlier
jurisdiction environmental courts, they were flooded with government agency proceedings on the problem. The
environment and land cases fielded by general courts. With European Commission and the Compliance Committee for
too few environmental court judges, they struggled to keep the Aarhus Convention have successfully pressed several
up with the workload (UNEP 2016). European Union member States for broader standing
(Regional Environmental Center 2017). The Court of Justice
of the European Union has openly identified nations that
7. Standing fail to meet the broader standing requirements under the
Standing (locus standi) is the right to bring an action Aarhus Convention, for example Sweden (UNEP 2016).
or challenge some decision. It is typically prescribed
by legislation, court rules and caselaw. It is a highly
recommended best practice to make it as broad and In China, pursuant to the 2014 amendments to the
open as possible, and indeed to open standing to any Environmental Protection Law, standing rules have been
person to raise an environmental issue, including public relaxed allowing more NGOs to bring environmental public
interest litigation, citizen suits and class actions. Having a interest litigation (Zhang and Mayer 2017). Pursuant to the
limited definition of what constitutes standing is the most 2017 amendments in the Administrative Procedural Law
significant barrier to access to justice, yet this is the case in (Xie and Xu 2021), procuratorates can also bring public
many countries, including the United States of America. interest lawsuits against the illegal actions or omissions of
governmental departments.
35
In Portugal, public interest actions to preserve the improvements in the ECT over time. Transparent and
environment can be brought in the form of an actio publicly available evaluation and accountability procedures
popularis, which confers broad access for NGOs to are useful to achieve these ends. This can be in the form
review decisions and to claim compensation on behalf of self-evaluation and the publishing of annual reports,
of aggrieved parties. Public interest actions brought or the deployment of external oversight boards and user
by environmental associations (e.g. NGOs) are partially groups to monitor performance and user satisfaction. One
qualified. In other words, they must fulfil certain (legal) such self-assessment tool is the International Framework
conditions to initiate legal proceedings (Sadeleer et al. for Court Excellence, which evaluates court quality and
2003). Similarly, Latvia allows for administrative decisions management. This has, for example, been implemented by
on environmental matters to be challenged via actio the LECNSW (UNEP 2016).
popularis. Anyone who participates in the decision-making
procedures for environmental matters is entitled to bring
proceedings to challenge the decision. 11. Adequate resources
As mentioned throughout earlier sections, a successful ECT
must have adequate resources, such as adequate remedies,
8. Remedies enforcement powers, and evaluation procedures. Aside
Having adequate remedies and powers is essential from an adequate budget, ECT also requires competent
to an ECT. A limited range of remedies may stymie an judges, staff, IT and physical facilities to cope with the
adjudicator’s ability to provide effective redress. An ECT workload.
may have the ability to impose fines and compensation,
but if it does not have the scope to articulate more
stringent remedies (e.g. specific performance, restitution It is a challenge to garner sufficient resources to build, run
or declaratory relief ), environmental harm can still be and staff ECTs. In this regard, having one ECT in the country
committed or left unrepaired. Moreover, fines which are or area with pooled, sufficient resources is better than
not pledged to restore the environment leave much to be having several that are lacking in these areas. The Nanjing
desired. There may be instances where civil remedies do Intermediate Court in China, for example, has a specialized
include the restoration of environmental damage, but no environment and resource division, designated to have
compensation to the victims. This may not be adequate jurisdiction over first and second instance environment
and could act to deter some claimants from making a claim and resource cases within Jiangsu Province (Zhao 2021).
before ECTs. Cross-border ECTs that span several provinces are also now
encouraged by the Supreme People’s Court of China to
better govern specific ecosystems, such as the Yangtze River
9. Enforcement powers (China, Supreme People’s Court of the People’s Republic
All ECTs require adequate powers to enforce their own of China 2019). If there is more than one ECT, another
decisions and remedies. Thus, the priority is to ensure possibility is to share judges by having them travel across
that there are sufficient financial and human resources to regions to hear cases. However, this may involve costs and
enforce the decisions and remedies ordered. One useful reduce efficiency.
tool used in countries including India, Pakistan and the
Philippines, is the “continuing mandamus”. This refers to the
power of an ECT to continue to have jurisdiction over the Further, the concern of adequate resources extends
case after its decision, namely by monitoring compliance to the resources that the ECT may require from low-
with it. Another approach is the rehabilitation of convicted income litigants to gain access to the ECT, which may be
defendants to avoid recidivism, such as by imposing forced prohibitive. Some ways to reduce such barriers to entry
volunteer environmental work or for defendants to attend include lowering filing fees, providing for court-paid expert
“environmental night school”, which is done in Brazil (UNEP witnesses, allowing self-representation (i.e. without needing
2016). Another enforcement approach is seen in Sweden, paid legal representation), waiving security bonds for
where individuals can seek the assistance of the Swedish injunctions, providing alternative dispute resolution and
Enforcement Authority to enforce monetary judgments and other cost-cutting measures.
injunctions (Sweden, Government Offices of Sweden, 2016).
B. Operation stage
10. Evaluation procedures 12. Public outreach
Another important best practice to incorporate is It is a best practice to educate the public fully about ECTs –
an evaluation system to ensure quality and achieve all stakeholders, from citizens to developers, government
officials, attorneys, NGOs and academia. A continuing • FAQs that are easy to read and understand; it is even
effective programme of educational outreach is in the best better if this document is made available in numerous
interest of both the public and the ECT. It improves the relevant languages, including Braille, which is the
visibility and credibility of the ECT in the public eye; helps practice in the Philippines (Philippines, Supreme Court
people understand the importance of the ECT; teaches of the Philippines 2010).
people how to access justice through the ECT; and informs
them as to what to expect from the ECT. On the whole, this • Meetings with communities, stakeholder groups and
strengthens the network of support for the ECT and enables government to help explain, design, evaluate and
it to function more efficiently. improve the ECT, such as occurs in New Zealand and
Hawaii.
Effective ECTs have capitalized on the following methods to • Stakeholder consultation processes, community
increase public outreach: oversight boards or advisory groups, such as in India
and New South Wales.
• IT, including a user-friendly, regularly updated,
interactive website with a frequently asked questions • Internal or external science and technology experts to
(FAQs) section and contacts that respond, and also decide with or to advise the ECT decision makers, such
containing instructions, forms and potentially online as in the Netherlands.
filing for complainants and counsel, such as in New
South Wales and New Zealand. The use of IT increased • Posting online notices of hearings and written
during the COVID-19 pandemic and has enabled ECTs decisions, available to the public (UNEP 2016).
to function in that period. IT plays, and will continue to
play, an important role in access to justice.
© Unsplash/The Tampa Bay Estuary Program

37
Box 6: Good practices by ECTs in China
The number of specialized environmental adjudication institutions in China has consistently increased. The total
number of environmental judicial institutions increased from 976 in 2017 (China, Supreme People’s Court of the
People’s Republic of China 2017) to 1,993 in 2020 (China, Supreme People’s Court of the People’s Republic of China
2020).
Good practices in China can be categorized into three classes:
1. Practices enhancing environmental dispute resolution effectiveness

Some Chinese ECTs have centralized jurisdiction for river basins and ecological areas that transcend administrative
divisions. This improves the quality of environmental adjudication by promoting consistency in environmental
judgments and adopting an integrated ecosystem approach to environmental governance. For example:
• In Hunan, three specialized environmental and natural resources courts for Xiangjiang River, Dongting Lake
and Dongjiang Lake heard cross-jurisdiction environmental cases and public interest litigation cases for these
watersheds (China, Supreme People’s Court of the People’s Republic of China 2018).
• In Jiangsu, there is a “9+1” model with nine grass roots-level courts (each dedicated to an ecological functional
area) and one Nanjing Environmental and Resource Court. The latter exercises centralized jurisdiction over all
environmental cases from Jiangsu Provincial Intermediate People’s Court and appeals from the nine ecological
functional area-based courts (China, Supreme People’s Court of the People’s Republic of China 2020).
• Cross-provincial judicial cooperation areas along the Yangtze River Economic Belt were established for the
integrated judicial protection of the Yangtze River Delta region. The Anhui, Jiangsu, Shanghai and Zhejiang
High People’s Courts signed the Framework Agreement on Judicial Cooperation in Environmental and Resource
Adjudication among People’s Courts in the Yangtze River Delta Region (China, Supreme People’s Court of the
People’s Republic of China 2020).
• Environmental experts pools have been created. Experts are selected from these pools to provide technical
advice to judges, which lessens the difficulties and the costs typically incurred in environmental damage
assessments (China, Supreme People’s Court of the People’s Republic of China 2020). This is a best practice,
because judges may not be experts in environmental science and require technical assistance to properly apply
environmental laws to the facts of the case.
2. Improving the quality of environmental adjudication

The Supreme People’s Court publishes an annual collection of “model environmental cases” for the public to read.
Some landmark cases that have been spotlighted include:
• Friends of Nature v. Hyundai Automobile (2019)

Hyundai agreed to fund the construction of charging points for electric vehicles to indirectly protect the
atmospheric environment, which was considered an innovative form of ecological restoration.
• China Biodiversity Conservation and Green Development Foundation v. Sumei and Taobao (2019)
The claimants brought a case against the defendants for selling automotive products on the e-commerce
platform Taobao that helped vehicles to fraudulently pass annual emission tests. The case has guiding
significance for future cases because in ordering Sumei to compensate for the cost of cleaning up the air
pollution, the Hangzhou City Intermediate People’s Court set a precedent for determining a reasonable
environmental restoration cost.
3. Increasing disclosure and public participation
• China implemented the open trial system where courts broadcast live trials of cases on the China Open
Trial Website and the social media platforms Wechat and Weibo (China Biodiversity Conservation and Green
Development Foundation v. Sumei and Taobao).
• The Law of the People’s Republic of China on People’s Assessors provides that a seven-member collegial
panel consisting of three judges and four representatives from the public shall be formed for cases involving
major social impacts and environmental public interest litigation cases. The people’s assessor system was
implemented in People’s Government of Jiangsu Province v. Anhui Haide Chemical Science and Technology
(2019), where the four People’s Assessors provided input on fact-finding and law application, enhancing public
participation and the credibility of the adjudication process.
• Public representatives and students have also been invited to attend cases with significant impacts within their
jurisdiction, promoting the transparency and openness of environmental adjudication (People’s Government of
Jiangsu Province v. Anhui Haide Chemical Science and Technology).
• The Supreme People’s Court also releases white papers and model environmental cases on an annual basis to
increase public awareness of significant developments in environmental governance (People’s Government of
Jiangsu Province v. Anhui Haide Chemical Science and Technology).
13. User-friendliness 14. Case management services

Access to justice is enhanced when ECTs are user-focused As noted in the UNEP 2016 ECT Guide, good case
and service-oriented. Traditionally, the halls of justice have management is an obvious best practice that involves
been designed to be impressive, imposing and intimidating. dedicated staff (including the judge) and streamlined
ECTs today tend to eschew this in favour of more informal processes for moving a case from filing to adjudication
and welcoming housing, with registrars and case managers (UNEP 2016).
who are focused on providing friendly, supportive customer
service.
Case management services involve an open register
system, where documents pertaining to each case are kept
The following features have been added to ECTs to enhance separated and accessible, and where procedural steps
user-friendliness: are duly complied with. Documents that are finalized and
signed will also be registered in the system. Court systems
• accessibility arrangements for people with physical with efficient case management processes will inevitably
disabilities; conclude a higher proportion of cases. Thus, investing in a
good case management system benefits all parties. ECTs
• special support systems for the blind and deaf; in Australia, New Zealand, Sweden and the United States
of America have exemplary case management systems.
• translation services at no charge; For example, the environmental court in Queensland has
an active case management process that keeps filed cases
• assistance with forms and procedures, especially for moving through the system and advises potential litigants
those not represented by an attorney; on court process and expectations. In Sweden, all five
environmental courts have coordinated and consolidated
• a case manager who monitors and facilitates the specialized information for claimants and the public on a
progression of cases; centralized website (Sweden, Sveriges Domstolar, no date).
It also bears noting that in Jamaica, judges sitting in the
• “travelling courts” in large countries or regions that Court of Appeal are given training on writing judgments
transport judges to the people and the environmental (Jamaica, Court of Appeal 2017) and case management
problem; and (Jamaica, Court of Appeal 2020).
• special efforts to engage aboriginal peoples and

incorporate traditional knowledge. ECTs ease the pressure on overburdened court systems
and handle environmental cases through a specialized
system. This helps ensure that cases can be dealt with
These efforts contribute to the goal of creating a “one stop expeditiously, so that fewer court resources are incurred.
shop” court for users (UNEP 2016). In particular, much attention is paid to active and detailed
pretrial management so that the actual trial proceeds
smoothly. A wide range of features are associated with
39
ELUAT Mauritius hearing May 2022

15. Management of experts
good case management, including directions hearings As noted in the UNEP 2016 ECT Guide, it is a best practice
and computerized tracking of cases (UNEP 2016). A case for ECTs to have rules and procedures for managing expert
management conference may also be set up, and a case testimony and evidence to promote reliability and efficiency
management bundle prepared by solicitors (United (UNEP 2016). Australian ECTs have several methods of
Kingdom of Great Britain and Northern Ireland, HM Courts expert witness management for better environmental
& Tribunals Service 2017). For instance, in Sweden, case justice. Methods include, for example, requiring experts
management plans are set out for complicated cases at to meet with the registrar or case manager (UNEP 2016).
preliminary hearings, which ensures that parties remain Another practice is to convene experts selected by both the
committed to meeting court deadlines (Bengtsson 2021). plaintiff and defendant in a meeting, so that they can clarify
any factual disagreements. The court will also be able to
identify more clearly where expert opinions diverge.
The environmental court in New South Wales is obliged to
facilitate the “just, quick and cheap” resolution of disputes
(New South Wales, Civil Procedure Act 2005, section 56). If such expert management practices are not put in place,
This calls for the application of active case management. the “battle of the experts” problem arises: expert witnesses
To further this overriding purpose, proceedings are to be fail to be objective, but only support their clients’ position
managed by the court with regard to the following objects: (UNEP 2016). In this regard, the Queensland Environmental
Court has introduced, inter alia, the requirement that all
• just determination of proceedings; expert witnesses represent the court and not the parties
that engaged them, or else face contempt charges.
• efficient disposal of the business of the court;
• efficient use of available judicial and administrative The Environment and Land Use Appeal Tribunal in Mauritius
resources; and can also order for independent specialist evidence to be
adduced in addition to the evidence brought by the parties
• timely disposal of proceedings (New South Wales, Civil (Bhadain 2021b).
Procedure Act 2005, section 57(1)).
16. Cost control ECT planners should not assume the ECT will be completely
Controlling and lowering costs is a best practice. A number or even substantially funded by litigants’ fees, because this
of successful strategies for reducing or eliminating time and prioritizes earning revenue over providing access to justice
costs have been adopted by effective ECTs, including: and proper client service. In fact, it has been found that
in certain jurisdictions, high litigation costs pose a higher
• permitting self-representation without lawyers; barrier to justice than narrow standing requirements (UNEP
2016).
• consolidating similar complaints into one adjudication
process;
• setting reasonable or no court fees for litigants;
• adopting and proactively employing alternative

dispute resolution;
• not making the losing party pay disproportionate costs

to the winner, except in cases of court abuse or extreme
behaviour;
• issuing temporary restraining orders and preliminary

injunctions to preserve the status quo, without
requiring the plaintiff to pay a security bond;
• providing court-appointed experts;
• case-managing the process efficiently; and
• providing support for indigent parties, especially for

public interest litigation.
© Unsplash/Aditya Joshi
41
ECT MODELS
3. ECT MODELS • Anti-democracy sentiment – a government or system

that does not support public access to justice or the
rule of law can undo the best efforts of ECTs.
There is no one best model for an ECT, no “one-size-fits-
all” design. Every environmental court and environmental • Inadequate or corrupt enforcement agencies – without
tribunal reflects its national character, culture and legal effective enforcement agencies, an ECT may be
system. This is understandable because what is “best” powerless.
for each country is an ECT that fits that country’s unique
ecological, historical, legal, judicial, religious, economic, • Lack of environmentally trained judges and decision
cultural and political environment. It is the model that makers – it is preferable for all initial appointees to be
results in the most effective dispute resolution process with environmentally knowledgeable.
access to justice for all affected interests. What will work
best should be explored in an open, transparent planning • Inadequate judicial and police training capacity –
process that permits thorough analysis. judicial education is needed, through a judicial training
academy, university, international governmental
organization or NGO with environmental education
There are many excellent models to consider, based on expertise and commitment.
the initial and updated ECT study findings and input from
the experts surveyed (see appendix E for the list and their • Lack of environmentally trained attorneys – without a
contact information). The selected models have been base of environmental lawyers, the ECT may not get
chosen as examples because they represent a variety of cases or have them presented well.
diverse nations, legal systems and experience, and different
levels of development, cost and sophistication. For each • Public demand – without real public demand for and
model identified below, actual ECT examples are given, support of the work of ECTs, they will likely remain
although other examples could also be cited. The good underutilized and may not last for long.
practices described for a selected ECT are not unique but
are also found in other ECTs (UNEP 2016). • Literacy of the affected population – community
education and awareness are the cornerstone of an
effective ECT and an important element to develop in
3.1. INITIAL CONSIDERATIONS the planning process.
• Awareness of the press – without adequate media

Considering the following factors will help policymakers attention, environmental verdicts remain under the
determine what ECT model is most realistic for the radar.
circumstances:
• Leadership strength – without strong leadership the ECTs’ existence, jurisdiction, powers, budget, accountability
ECT will flounder. mechanisms, etc., may be defined by (i) legislation; (ii) rules
of their parent branch of government; or (iii) the ECTs’ own
• Political and financial support – with no political will or rules. Law-trained judges are the typical decision makers
budget, failure is certain. in environmental courts, although a growing number
of environmental courts (including Chile, Finland, New
• Judiciary support and ownership – opposition of Zealand and Sweden) also include non-law scientific/
the existing judiciary to specialization can kill efforts technical judges or commissioners. Environmental tribunals
or result in ECTs being authorized on paper but not may have only law-trained judges but are somewhat more
actually established. likely to join them with scientific/technical decision makers
(for example in Belize, Costa Rica, Iceland, Kenya and Malta)
• Budget – a dedicated budget is necessary, even for and even non-professional lay member decision makers
minimalist models. (Botswana), and at least one environmental tribunal does
not require that any of its members be lawyers (the An Bord
• Opposition arguments – powerful opposition from the Pleanála of Ireland).
judiciary, the administration and business interests can
torpedo ECT creation.
Some nations, such as Canada, take pride in having what
• Changing the status quo – there may be a need first to they call a “tribunal culture” rather than a “court culture”
modify existing institutional and environmental laws for environment and land use decisions. Other nations,
and regulations if they are weak or create significant such as Pakistan, the Philippines and Sweden, have a
barriers. court-based environmental adjudication culture. Civil law
43
Hearing in 2022 at the Raad voor Vergunningsbetwistingen, a specialized environmental administrative court competent for town planning and environmental permit disputes in
Belgium
nations, such as most European nations, or Thailand, often

have two separate court systems – one for general civil ENVIRONMENTAL COURT MODELS
and criminal actions (involving private parties) and one for (UNEP 2016)
administrative actions (involving the government). Most
European and some African, Asian and Latin American
nations also have a constitutional court, but none of
those have been found with a formal environmental A. OPERATIONALLY INDEPENDENT
chamber (see however the work of the Environmental ENVIRONMENTAL COURTS (separate,
Trial Secretariat [la Secretaría de Juicios Ambientales] fully or largely independent
and the Environmental Justice Office within Argentina’s environmental courts)
Supreme Court, mentioned later in this guide). The United
States of America has a mixture of environmental courts B. DECISIONALLY INDEPENDENT
and environmental tribunals depending on the state or ENVIRONMENTAL COURTS (within
territory. A few have environmental courts, environmental a general court, but separate and free
tribunals and ombudsmen, like Kenya with its trial and to make their own rules, procedures
appeal environmental courts, environmental tribunals for and decisions)
environmental impact assessments and water cases, and
an independent environmental ombudsman, the National C. MIX OF LAW-TRAINED AND SCIENCE-
Environmental Complaints Committee. TRAINED JUDGES (may be either model
A or B above, with the two types of
judges sharing decision-making)
Each environmental court or environmental tribunal model
has potential strengths and weaknesses. For each model D. GENERAL COURT JUDGES ASSIGNED
described, specific ECT examples have been selected with ENVIRONMENTAL CASES (assigned
their identifying characteristics and good practices noted environmental cases in addition to their
(UNEP 2016). regular docket, sometimes without
necessary interest, expertise or training)
3.2. ENVIRONMENTAL COURTS E. GENERAL COURT JUDGES TRAINED

IN ENVIRONMENTAL LAW (who may
therefore be assigned environmental
This study has identified four distinct environmental court law cases from time to time)
models and a fifth alternative approach, based on their
decision-making independence:
A. Operationally independent environmental courts

Operationally independent environmental courts are
described as representing the zenith of environmental
courts due to their wider jurisdiction and incorporation of
the greatest number of good practices (UNEP 2016). Three
environmental courts were described in the UNEP 2016
ECT Guide as examples that fall within this category: the
LECNSW, Australia; New Zealand’s Environment Court; and
the Court of Environment and Agrarian Issues of Amazonas,
Brazil (UNEP 2016). As of 2021, all three environmental
courts remain operational and continue to embody good
practices.
In Australia, the LECNSW was established in 1980 and

continues to be recognized as one of the most visionary
and successful based on its innovations, good practices and
advice for other environmental courts around the world. It
has been lauded for the successful use of alternative dispute
resolution and IT (UNEP 2016). The LECNSW is an example of
an environmental court that has an all-inclusive jurisdiction,
including both land and environment jurisdiction, as well
as environmental criminal jurisdiction. In recent years, there
has been a marked increase in cases filed before the court,
with approximately 1,400 cases handled by the court each
year (New South Wales, Land and Environment Court 2020).
It has been noted that there is an increasing diversity in the
arguments made before the court (Preston 2021). Although
the types of cases received are effectively limited by the
court’s authorizing statute, disputes on climate change
obligations, human rights and the protection of indigenous
land rights have increasingly been presented by plaintiffs
as planning and classic tort cases (for example, the tort of
nuisance).
In New Zealand, the Environment Court is one of the

oldest free-standing environmental courts and continues
to embody good practices, for example, by embracing
IT and alternative dispute resolution (UNEP 2016). The
Environment Court has three registries in different parts
of the country and can hold hearings at the place in issue,
thereby facilitating access to environmental justice (UNEP
2016). The number of cases before the court has increased
in recent years – at present, the New Zealand Environment
Court handles approximately 500–800 cases per year (Daya-
Winterbottom 2021a). Moreover, the types of cases brought
before the court have also become more varied (Kirkpatrick
2021). For example, in Smith v. Fonterra Co-operative Group
Limited (2021), the claimant sought declaratory relief
by arguing that the defendants had breached their duty
of care by carrying out activities contributing to climate
change, separate from his other tortious claims of public
nuisance and negligence (Daya-Winterbottom 2021b). The
New Zealand Hight Court allowed the climate tort claim to
go to trial, although the public nuisance and negligence
claims were rejected.
The Court of Environment and Agrarian Issues in Brazil

is within the Federal Regional Tribunal (First Region)
© Unsplash/Boudhayan Bardhan
45
and another example of an independent environmental annual caseload of the court has decreased in recent years
court, notable for having one of the widest and most from 350 cases in 2008 to 200 in 2021, a decline which can
innovative range of remedies. The remedies available be explained by the pandemic and economic recession.
include community service, restoration of environmental Some good practices of the Environmental Division include
harm and such unique sentences as requiring large an active case management process, alternative dispute
businesses to pay for environmental education signs on resolution, e-filings and virtual hearings, the latter two
buses. In Instituto Socio-Ambiental et al. v. IBAMA and introduced in response to the global pandemic (Durkin
the Federal Union (2020), three NGOs filed a lawsuit with 2021). To date, Vermont has remained supportive of
the main objective of voiding a decision by the Brazilian environmental initiatives and sustainable development, and
Institute of the Environment and Renewable Natural its environmental court has not been the target of severe
Resources that allowed the export of native wood with budget cuts or major restructuring (Pring and Pring 2021b).
less government oversight. The applicants highlighted the
role of the Amazon forests in maintaining the ecological Similarly in Europe, the dominant ECT model is also one
and climatic balance, the significant increase in the rates of specialized chambers within the general courts. Such
of illegal deforestation in the Amazon, and destruction specialization can be seen in Belgium, Bulgaria, Finland,
allegedly caused by public environmental policies. The case Greece, Italy, the Netherlands and Spain (European Union
is currently pending decision before the Seventh Federal Forum of Judges for the Environment and Milieu Consulting
Environmental and Agrarian Court. 2019). For example, the environmental courts in Belgium
are specialized chambers within the Council of State and
Other self-standing environmental courts in other countries certain courts of appeal. The specialized section within the
include the Environment and Land Court in Kenya (Ojo Council of State of Greece, the third chamber within the
2020), three environmental courts in Chile (Retamal criminal section of the Supreme Court of Cassation of Italy,
Valenzuela 2019) and six environmental courts in Sweden and the fifth section of the third chamber of the Supreme
(Sweden, The Swedish Environmental Code 2000; Sundberg Court in Spain, also serve as environmental courts in their
2018). There are 11 environmental courts in Belgium, of respective countries.
which two are operationally independent (European Union
Forum of Judges for the Environment 2018). France, taking a different approach, created 36 specialized
environmental courts within the general courts without
creating any new structures. It did this through Law
B. Decisionally independent environmental courts No. 2020-1672 of 24 December 2020 on the European
As was described in the UNEP 2016 ECT Guide, there Prosecutor’s Office, environmental justice and specialized
are environmental courts which are part of the general criminal justice. Further, in the jurisdiction of each Court
court system (i.e. within its supervision, budget, staff of Appeal, one environmental court has been designated.
and management), but nevertheless have substantial These environmental courts have jurisdiction to investigate,
independence in terms of their procedures, rules and prosecute, and adjudicate offences pursuant to the
decisional freedom. The UNEP 2016 ECT Guide referred Environment Code, the Forest Code, the Mining Code, the
to two environmental courts as good examples of this Rural Code, and other complex issues of marine fishing
model: the Planning and Environment Court in Queensland, and illegal wood trade or products (France, Loi relative au
Australia, and the Environmental Division of the Vermont Parquet européen, à la justice environnementale et à la
Superior Court in the United States of America (UNEP 2016). justice pénale spécialisée (1) 2020). Less complex cases will
continue to be handled by the local first instance courts.
The Planning and Environment Court in Queensland is These environmental courts will have trained, specialized
a specialized court housed within the general trial court prosecutors, investigating judges and trial judges. Training
system. As noted in the UNEP 2016 ECT Guide, the Planning is provided to both prosecutors and judges so that they
and Environment Court “can be easily identified, is highly can better understand environmental matters, particularly
regarded and – by sharing overhead, budget, courtrooms, the valuation and importance of ecological damage and
staff and facilities with the general court – benefits from the causal links related to the environmental offence
lower administrative expenses, less management time and (France, Ministère de la Justice 2021). The French Minister
greater efficiency”. Other good practices of the Planning of Justice has asked the General Inspectorate of Justice to
and Environment Court involve various methods of conduct a support mission (mission d’appui), to pilot such
managing expert witnesses (UNEP 2016). environmental courts in Amiens, Bordeaux and Coutances
(Delbos 2021).
The Environmental Division of the Vermont Superior Court
in the United States of America is widely regarded as an Other countries with environmental courts that are
effective trial court with state-wide jurisdiction within the decisionally independent despite being part of a general
state’s general trial court system. It is the first and only court system are:
state-level environmental court in the United States of
America with designated specialist judges (UNEP 2016). The
• Argentina, which has an Environmental Trial Code, including European Union environmental law. The
Secretariat (la Secretaría de Juicios Ambientales) and jurisdiction of the courts includes planning and building,
Environmental Justice Office created in 2015 by the as well as real estate. They are also competent in cases
Supreme Court of Justice. concerning environmental damages and compensation, as
well as private actions against hazardous activities. They do
• Ghana, which has 16 environmental courts which form not have jurisdiction in relation to environmental crimes.
part of the Land and Environmental Divisions of the
High Court. The regional environmental courts function both (i) as trial
courts (first instance) on permits for hazardous activities,
• Pakistan, which has 250 green benches, one for each water developments and environmental damage claims
court (including the state-level High Courts and its made by individuals, groups, NGOs or Government; and
Supreme Court). (ii) as appellate courts (second instance) for appeals of
decisions by local and regional bodies on environmental
permits, disposal of waste and clean-up orders. The Land
C. Mix of law-trained and science-trained judges – and Environment Court of Appeal hears appeals of cases
multidisciplinary decision-making from the regional environmental courts. Its first instance
A number of environmental courts (and environmental decisions can be appealed to the Supreme Court, while its
tribunals) have both law-trained judges and scientific or second instance decisions are usually final.
technically trained judges deciding cases together on
an equal footing. This ECT model can be found in both The Swedish Environmental Code provides that each of the
environmental courts and environmental tribunals and regional environmental courts is to have a panel consisting
in both the operationally independent and decisionally of one law-trained judge, one environmental technical
independent models above. They are highlighted separately expert (with a scientific or technical education) and two lay
here because of their unique “partnership approach” to expert members in cases of environmental permitting (with
adjudication, combining the analysis and decision-making a science or technical education, appointed by industry
of judges who are either trained in law or in science. Judges and national public authorities). The law-trained regional
with different yet complementary expertise hear the cases judge and technical expert are full-time employees of the
as co-judges. court, and the two lay experts are assigned depending on
the expertise(s) required in the respective case. All four
Most of the experts surveyed believe that this combined
approach can deliver more expert, fair and balanced
judgments, which can directly contribute to sustainable
development and environmental protection. Because
environmental adjudication is increasingly based on
highly complex scientific and technical projections of
uncertain future impacts on intricate social, economic,
and environmental factors – and law-trained judges do
not generally have the scientific-technical training to
analyse expert testimony on these issues – this partnership
approach has the potential to deliver more rational,
sophisticated and comprehensive decisions.
The Land and Environment Court in Sweden is an

example of a decisionally independent environmental
court with a multidisciplinary judicial approach. When
Sweden’s environmental courts were authorized in its 1998
Environmental Code, it was among the first to formally
acknowledge that environmental cases can involve
complex, multidisciplinary scientific and technical issues, in
addition to legal issues, and to put both kinds of decision
makers on their benches (UNEP 2016).
Sweden has five regional Land and Environment Courts at

District Court level, and one Land and Environment Court
of Appeal in Stockholm responsible for the whole country,
that are part of the general court system. Their jurisdiction
covers all kinds of decisions made pursuant to the
Environmental Code and acts and ordinances relating to the
Administrative Court of Vaasa, Finland conducting a site visit.
47
members of the panel are equals in the decision-making noted that in Sweden’s Land and Environmental courts
process. The technical judges must have a long experience and Supreme Court, reporting clerks (i.e. judges without
and good scientific and technical education. They must also tenure) who specialize in environmental law will prepare
be familiar with judicial interpretation and the procedural and present case briefs for judges deciding environmental
code (Sweden, The Swedish Environmental Code 2000; cases. This serves as another method for achieving
UNEP 2016). environmentally sound decisions.
The Land and Environment Court of Appeal consists of In the words of the late J. Eklund, former Technical Judge of
three law-trained judges and one technically trained judge. the Vaasa Administrative Court in Finland:
However, shifting caseload demands can result in the law-
trained judges being temporarily assigned to a general In Finland and Sweden, science is brought into
case or to other divisions of the general court, and judges Court by technical judges on the bench who
without environmental expertise can be assigned to sit in participate in the preparation, resolution and
the environmental court (UNEP 2016). wording of the case. This eliminates the difficulty of
translation from scientific language into legalese,
The use of technical judges has improved the quality of as technical judges soon learn both. The drawback
environmental judgments in Sweden. The collective panel of (external) expert opinions is that you must be
achieves a better understanding of the parties’ expert an expert to understand what the expert says
reports, including environmental impact assessments, and, especially, what he chooses not to say. The
and can therefore “ask the right questions” in hearings. drawback of (external) experts is that, usually,
This allows for equal weighting of information and they are not legally trained and have difficulties in
considerations at hearings, and also improves adjudicative understanding the processual restraints on a case.
transparency. As a result, this hybrid panel assesses the (Eklund 2018)
environmental effects in the cases better and faster than
a exclusively law-trained panel (Schultz 2019). Especially Environmental courts in Chile are another good example
given the ever-changing nature of scientific knowledge, of multidisciplinary decision-making. In 2012, the
the hybrid panel with its experts offers sharper, up-to- Chilean National Congress authorized three substantially
date knowledge of relevant environmental standards for autonomous environmental courts, with multidisciplinary
and scientific methods (Schultz 2018). It should also be panels of judges, and made them independent of the
© Pexels/Jesse Zheng
administration and not directly part of the existing for at least 10 years and have excelled in professional
judicial system, but under the administrative, policy and or academic activity in the field of administrative or
financial review of the Supreme Court. This took place environmental law. The third judge must hold a Bachelor
in the context of a major reform of the Environmental of Science with a specialization in environmental matters
Law, which provided for the creation of the Ministry, the and at least 10 years of professional practice. Each
Environmental Assessment Service and the Environmental environmental court also has two substitute or alternate
Superintendencia. The Ministry has executive and policy judges, one with a law degree and the other with a
powers, the Servicio de Evaluación Ambiental grants Bachelor of Science. The same requirements apply to these
environmental permits, and the Superintendencia oversees alternate judges, but eight years of professional practice
compliance with environmental permits and regulations. suffices. They are chosen through a four-step political
The Courts were created as a counterbalance to the powers selection process: (i) names are proposed by the Chilean
of the Superintendencia, in the administrative field (Perez civil service recruitment department to the Supreme Court;
Niklitschek, 2021). (ii) the Supreme Court selects nominees from that list to
recommend to the President; (iii) the President selects
The law authorized the First Environmental Court (Primer nominees from that pool; and (iv) the final nominees are
Tribunal Ambiental) to be located in the country’s northern ratified by the Senate (UNEP 2016).
city of Antofagasta, the Second Environmental Court
(Segundo Tribunal Ambiental) in Chile’s centrally located Contrary to the other courts, the judges of the
capital Santiago, and the Third Environmental Court (Tercer environmental courts are appointed for a limited time (six
Tribunal Ambiental) in the southern city of Valdivia. The years) and the grounds for termination include voluntary
Second Environmental Court began hearing cases in resignation and inability to hold office. This is different to
2013, the Third Environmental Court in 2014, and the First the process for career judges who are protected by law,
Environmental Court in 2017. appointed for their whole career and have guarantees
of their independence. Therefore, independence for the
The authorizing law in Chile specifies that the environmental courts is a recurring challenge (Perez
environmental courts will each have three judges – two of Niklitschek, 2021).
them must have a law degree, have practiced the profession
49
The environmental courts complement the competence technical training to analyse expert testimony on these
of the Courts of Appeal and the Supreme Court, which issues. Involving scientific and technical judges in the
have jurisdiction to hear constitutional claims under the decision-making process adds value to all stages of the
recurso de protección, which guarantees the right to live dispute resolution process. This helps to ensure a “just,
in an environment free of contamination. The recurso de quick and cheap” solution that benefits both parties and the
protección is applicable to acts and omissions coming from adjudicators. Not only does this improve access to justice,
an authority or a private party. The competence of the it also makes the legal system more efficient on the whole
environmental courts is more specific and restricted. The (UNEP 2016).
recurso de protección provides a simpler way of access to the
enforcement of environmental rights for the majority of the As shown by the preceding discussion, there are several
population (there is no need to hire a lawyer or present the ways to incorporate environmental science into legal
private reports of specialists) than starting a plea before the decision-making. The first and most commonly adopted
environmental courts (Perez Niklitschek, 2021). model is to have science-trained judges who will judge
alongside law-trained judges in environmental cases. The
Considered thus, the aforementioned multidisciplinary second model is to have an external panel of scientific
approach acknowledges that environmental adjudication experts that a court (or parties) may consult if a particular
is becoming increasingly complex. It continues to be case requires such expertise.
based on scientific and technical projections that will also
impact social, economic and environmental conditions.
Law-trained judges generally do not have the scientific or
Box 7: The Foundation of Independent Court Experts in Environmental and Planning Law,
the Netherlands
Rather than having science-trained judges, a court may direct specific scientific or technical questions to specialized
regional or national authorities. The Foundation of Independent Court Experts in Environmental and Planning Law
(Stichting Advisering Bestuursrechtspraak voor Milieu en Ruimtelijke Ordening, “STAB”, now called Gerechtelijke
Omgevingsdeskundigen) of the Netherlands is an example of this alternative approach.
Through STAB, judges may request expert opinions regarding environmental and planning cases, from the
independent and impartial expert employees of STAB (STAB 2021a). Generally, STAB experts can handle almost all the
expertise needed in these cases (STAB 2021b). Expert opinions are provided for free, are delivered quickly within an
average period of three months and are of good quality (STAB 2021a).
STAB is an independent and impartial institution financed by the Ministry of Justice of the Netherlands (Backes 2018),
with 40 experts with diverse expertise. STAB experts are bound by the STAB Code of Conduct, the Code of Conduct for
Judicial Experts of the Council of State, and the Code of Conduct for Judicial Experts in Civil and Administrative Law
Matters (STAB 2021a).
STAB experts can provide general information about a case, such as the facts and circumstances of the case, the
relevant legal framework, and explanations of technical and/or technical-legal issues. They may also provide case-
specific information – for example, in a case concerning traffic noise, this may entail pinpointing the correct acoustic
report that correctly explains, and can be permitted as scientific evidence on, the effects of a new highway on traffic
movement (Backes 2018).
In addition, STAB experts conduct site visits and interview all the parties involved. Thereafter, STAB experts may
compose a report to which parties can respond (STAB 2021a). This report will also be subjected to a second expert’s
quality review, who can accompany the experts to the hearing (Gilhuijs 2021).
STAB facilitates the administration of justice, as it saves time on sourcing for reliable expert opinions (Backes 2018). Not
only do STAB experts know the applicable legal framework and its interactions with the technical issues at hand, their
impartiality and independence are legally assured and verified (STAB 2021a). These expert opinions have increased the
quality of adjudication and caselaw. This method also sidesteps the potential obstacle of a deadlock between experts
engaged by the parties (Backes 2018). Therefore, it is unsurprising that the courts of the Netherlands are increasingly
engaging with STAB experts (Backes 2018; Gilhuijs 2021).
D. General court judges assigned environmental cases

Instead of creating an ECT, some countries have chosen to
designate an existing court as a green bench or particular
judges as green judges. Strictly speaking, whether these
models should be considered environmental courts is
debatable. Nonetheless, because this model saves on time,
budget and even judicial training, it is the preferred option
in numerous countries. This trend cannot be ignored.
The Court of First Instance of Ghent, Belgium: criminal chamber hearing environmental cases, pronouncing judgment in a complex case of waste and food safety.
In Bhutan, the green bench in the High Court was created It is important to note that the Bhutan green bench was
in commemoration of the sixtieth birth anniversary of not established due to a rise in environmental cases.
the fourth King of Bhutan and is still operational today Rather, its establishment was in anticipation of a rise in
(Wangchuk 2018). This green bench specializes in the environmental litigation given the increasingly pronounced
adjudication of environmental disputes, and is aimed challenge in balancing developmental requirements
at “bringing about uniformity, accuracy, precision and and environmental considerations. Training is therefore
predictability in judgments and informed interpretation conducted to ensure environmental court judges have the
of environmental laws” (Wangchuk 2018). Even though specialized knowledge and skill required in the adjudication
this green bench was formed with existing judges, it has of environmental disputes (Wangchuk 2018).
adopted its own procedures to provide speedy, fair, and just
adjudication of environmental disputes. Some of the more In Malaysia, prior to 2016, 42 Session Courts and 53
notable features of such procedures include: Magistrates’ Courts were designated as environmental
courts that heard criminal cases only. In 2016, all High
• the liberalization of locus standi rules such that public Courts, Magistrates Courts and Sessions Courts in all 13
interest litigation can be pursued, either against the states were assigned as specialized environmental courts
State or public authority, by any person in Bhutan; that can also hear civil environmental cases (Kamaruddin
2017). This increased the total number of environmental
• the shift in the burden of proof, specifically to the courts from 95 to 134 today. The implementation of
person or body interfering with ecology to prove that this nationwide system of environmental courts aims at
there is no adverse impact; and ensuring access is available to the population at large to
lodge grievances or file claims seeking redress for a range
• the ability of the bench to be assisted at its discretion of complaints (Mustafa 2020). These include cases of
by scientific or technical experts (amicus curiae) to non-compliance of licenses, air pollution, water pollution,
deal with various aspects of environmental problems industrial effluence and offences related to wildlife
(Bhutan, Judiciary of Bhutan, no date). conservation. The majority of cases are filed in Johor and
Selangor (Kamaruddin 2017).
51
To facilitate the functioning of the environmental courts The model adopted in California may be representative of
and bolster the practice of environmental law, the the trend that might soon prevail in the United States of
Environmental Rules of Court are currently being drafted in America. Experts interviewed indicate that moving forward,
Malaysia and are set to be implemented in the future (Inns it is unlikely that the United States of America will see the
of Court Malaysia 2017). The purposes of the Environmental development of stand-alone, specialized ECTs. Rather, the
Rules of Court are to: model adopted by California and Hawaii will be indicative
of the future for environmental courts – somewhat
• provide a simplified, efficient and inexpensive specialized general judges, dedicated green judges or green
procedure for the enforcement of environmental laws benches will be the alternative to expensive, separate,
and disposition of environmental cases; and legislatively created environmental courts. Future
environmental courts will also be characterized by features
• facilitate the advancement of constitutional rights for a such as “clustering” and cross-cutting jurisdictions. Since
healthy and pollution-free environment; and environmental cases are so complex and touch on so many
areas of law, shifting panels of judges and commissioner
• ensure effective enforcement of remedies (Mustafa experts may be required based on the issues raised by
2020). individual cases. In this way, trained judges and experts
with environmental expertise will be empanelled to sit on
In the meantime, certain procedures were implemented cases that need their specific knowledge (Pring and Pring
in tandem with the establishment of the environmental 2021a)
courts to improve the courts’ efficacy. This includes a target
of a six-month timeline to dispose of environmental cases, This model may be an attractive “middle ground” approach
which Malaysia has commendably met – the rate of disposal to the establishment of environmental courts, should
within this six-month period was 99.5 per cent from 2012 to budget restrictions or limited political and judicial resources
2017 (Mustafa 2020). will prevent the development of stand-alone and fully
dedicated environmental courts. In some instances, having
It should be reiterated that no new environmental courts an environmental court in which general court judges are
per se were created in the past five years in Malaysia assigned environmental cases may provide better access
– rather, the courts’ jurisdiction was expanded to hear to justice and build judicial expertise in environmental law
environmental cases. Nevertheless, this development is better, especially as a stand-alone environmental court may
still significant. Members of the public are now allowed to be less accessible or well resourced.
bring civil actions to remedy breaches of environmental
law (Mustafa 2020), which provides an additional means to States and countries that have adopted a similar model
access justice for environmental harm. include Hawaii, where 22 existing judges at the general
judicial system district (small claims) and circuit (larger
Notwithstanding the lack of an independent and claims) courts are designated as environmental court
formal environmental court in California, it still is worth judges; Pakistan, where there are 250 judges at both the
highlighting that the California Supreme Court adjudicates Trial and High Courts, though the practice of creating green
upon a significant number of environmental cases per year. benches has apparently been discontinued (Zaman 2021);
The California Environmental Quality Act, along with how the Philippines, where there are 117 courts; and Thailand,
it has become interpreted and applied, presents one of the where there are 21 environmental courts across all levels of
most prominent tools used by litigants there (Gray 2021). its Courts of Justice and Administrative Courts (UNEP 2016).
However, this has been observed to have had a double-
edged effect in recent times, as some projects challenged Finally, it should be noted that the effectiveness of
under the California Environmental Quality Act, such as such a model is highly dependent on judicial expertise
public service and infrastructure plans, are the same types in environmental law. For instance, the Philippines,
of projects plans that current environmental and climate which was mentioned in the UNEP 2016 ECT Guide as a
policies seek to promote (Hernandez 2018). In 2020 alone, successful example of an environmental court’s model of
there were 34 appellate cases that related to the California incrementalism (UNEP 2016), is increasingly less effective
Environmental Quality Act, while in 2019 there were 45 due to insufficient judicial expertise on environmental
(Latham & Watkins LLP 2021). Judges in the California law. This can be attributed to the lack of judicial training
Supreme Court are, therefore, presumably well acquainted on environmental law at all levels of the court. Training
with the adjudication of environmental law disputes given is not mandatory and spans only a few hours. Further,
the frequency with which they deal with them. However, experts interviewed revealed that judges themselves shy
it is unclear whether it is mandated that these designated away from environmental cases as they are not trained
judges have any form of interest, training or experience in enough to handle environmental cases (Ramos and
environmental law. Gutierrez 2021). Thus, while a total of 117 environmental
courts exist in the Philippines, this high number does not disproportional environmental impacts on women, equity
necessarily correspond to the actual effectiveness of these and sustainability, environmental degradation by private
environmental courts. corporations, and the COVID-19 pandemic.
In Mexico, which has one authorized but not established

E. General court judges trained in environmental law ECT, the environmental liability claims are filed with
There are several reasons that countries should, and administrative district judges under General Rule 27/2015 of
for which some do, train their general court judges in the Federal Judicature Council. However, environmental law
environmental law. is treated as a sui generis legal area, covered by extensive
and complex regulation (Valenzuela Rendón 2021).
Firstly, due to various causes, a country may not have an
operational ECT to handle environmental cases. In such This inherent complexity makes the analysis of evidence
cases, these countries train their general court judges a difficult task for judges, even more so for those who are
in environmental law instead of establishing an ECT. not environmentally trained. Judges must understand the
We see this is Indonesia, where judges have been given evidence thoroughly to recognize the objects, subjects,
environmental law training and certification since 2011 and causal links between them. For example, when
(Haba, Yunus and Risal 2020; Mulyono 2021). Indonesian calculating environmental damages, the main elements
experts think that establishing an ECT unnecessarily of the environment must be clearly identified so that
complicates matters because establishing an ECT the judgment can properly identify who is responsible
requires amendments to the current civil, criminal and for remedying the harm, how remedial efforts are to be
administrative codes, and each of the respective procedural executed and when they must be implemented. Moreover,
codes. In effect, this means overhauling the country’s entire as compensation can be ordered only when restoration is
legal system. However, they also think that environmental impossible (such as the extinction of a species, or a flood
cases in developing countries, like Indonesia, must be or landslide that has destroyed a village), judges must have
specifically managed by a court that understands the sufficient understanding to determine and come up with
urgency of environmental and natural resources protection a solution. Determining these elements, even with the
(Mulyono 2021). help of expert members of the court, is a highly complex
procedure. Therefore, training as many general court judges
as possible in environmental law should be considered,
even if the country already has an ECT.
WHY GENERAL COURT JUDGES
ARE TRAINED IN ENVIRONMENTAL Thirdly, strategic lawsuits against public participation
LAW (SLAPPs) are being brought to non-environmental courts.
SLAPPs can take the form of criminal or civil lawsuits, and
are brought to intimidate, financially cripple and silence
1. The country does not have any environmental advocates and activists (Business & Human
operational ECTs, but is handling many Rights Resource Centre 2021). As SLAPPs can have a chilling
environmental cases. effect on environmental advocacy, this tactic is often
used by powerful actors, including corporate entities and
2. Environmental issues are frequently governments, to prevent people from raising concerns
argued in non-environmental cases. about their practices and speaking out against abuse. These
SLAPP lawsuits are an outright abuse of the justice system
3. Judges should know how to recognize and, when allowed, they amount to judicial harassment
and deal with SLAPP cases. (Business & Human Rights Resource Centre 2020b). The
British case of McDonald’s Corporation, McDonald’s
Restaurants ltd. v. Helen Marie Steel and David Morris (1997)
illustrates how SLAPP lawsuits have a chilling effect on
environmental advocacy efforts. In that case, McDonald’s
Secondly, even in countries with operational ECTs, sued two members of London Greenpeace for remarks
environmental issues have surfaced in non-environmental printed on a factsheet distributed by the organization,
cases. Therefore, even general court judges inevitably including the allegation that McDonald’s destroys 800
have to grapple with environmental law and science. square miles of forest a year for its packaging. The case is
Furthermore, contemporary environmental issues have widely regarded as a SLAPP because the aim of McDonald’s
arisen in classic types of environmental law claims. This was seen as silencing its critics via a heavy-handed claim
highlights the intersectional, multidisciplinary nature of for damages that they can never expect to recover from the
environmental issues, particularly obvious in contemporary impecunious defendants (Hilson 2016).
issues such as climate change, gender inequality and
53
the leader of the protesters based on several interactions

during the protest against Bumi Sukses Indonesia, and
convicted him on grounds of anti-communism laws for the
use of communist symbols painted on the protest banners
and publicity materials. Further, the Court held that that
the anti-SLAPP articles in the Environmental Protection
and Management Law do not extend to protesters who
conduct demonstrations in violation of the Freedom to
Express Opinion in Public Law 1998, which requires written
notification to the Indonesian National Police before such
gatherings are conducted. Thus, he was sentenced to 10
months’ imprisonment (Business & Human Rights Centre
2020b). However, on a more hopeful note, in August
2021, a High Court in Indonesia acquitted six villagers in a
dispute against a tapioca factory, ruling that the criminal
© Pexels/Kat Smith
charges, allegedly brought at the behest of the company,
According to the Business & Human Rights Resource Centre were frivolous and could not be used to silence criticism of
(2021), at least 355 SLAPP cases were filed from 2015 to environmental violations (Jong 2021). This signifies the first
2021; 224 of these involved criminal charges, most of which win against SLAPP in Indonesia.
were for libel or other defamation charges. This reflects
how the SLAPP is becoming an increasingly common and Thailand enacted its anti-SLAPP provisions in 2019, in
globalized tactic taken by influential actors who can afford response to international criticism and as part of Thailand’s
to initiate and sustain legal action. Though SLAPP lawsuits National Action Plan on Business and Human Rights (United
are not aimed only at environmental defenders, the latter Nations, Office of the High Commissioner for Human
are increasingly being targeted. Rights 2018). Specifically, articles 161/1 and 165/2 were
added to the Criminal Procedure. Article 165/2 provides
SLAPP lawsuits are usually brought by claimants on non- that the court may dismiss a case if it is satisfied that the
environmental grounds, meaning that these cases would case was filed in bad faith or was intended to take undue
be heard in general courts. Therefore, if general court advantage of a defendant. Though this is a positive step
judges are not privy to environmental issues, they would in the right direction, these provisions remain inadequate
fail to connect the genuine environmental concerns that against SLAPP lawsuits (Rawski 2020). Both only apply to
the non-environmental lawsuit seeks to overshadow. This criminal cases filed by a private complainant, meaning
failure to identify an environmental SLAPP case means that that they cannot be used to dismiss SLAPP suits that are
it is not dismissed for injustice. Not only does this failure public prosecutions or civil cases. This leaves a problematic
lead to dangerous and traumatic consequences for the loophole, especially given the historical tendency of both
environmental defenders charged, but it also substantially the Government and private corporations to constrain
impedes environmental justice and protection (UNEP and public participation through these two types of SLAPP
Sabin Center for Climate Change Law 2020). lawsuits.
Though both legislation and the judiciary are crucial The Philippines has gone a step further by defining SLAPP
defences against SLAPP injustices, legislation is cases in their Rules of Procedure for Environmental Cases
foundational. Some countries, such as Indonesia, the (the Rules) in 2010. Following this, anti-SLAPP provisions are
Philippines and Thailand, have implemented statutory in place, such as rule 19, section 1, which allows defendants
provisions against SLAPP cases. of a criminal prosecution to file a motion to ‘dismiss the
Criminal action [as] a SLAPP’. This motion is not permitted
Indonesia’s Law Concerning Protection and Management for civil SLAPP cases, in which the SLAPP defence may be
of Environment enshrines, inter alia, “environmental raised only through an answer (Philippines, Supreme Court
education, access to information, access to participation of the Philippines 2010).
and access to justice in fulfilling the right to a good and
healthy environment” (Indonesia, Environmental Protection As theoretically promising and significant as they may
and Management Law 2009, article 65(2)). Moreover, any be, these provisions are not bulletproof. In Hotchkiss et.
person “who fights for the right to a good and healthy al v. Hon. Ridgway Tanjili, the defendants struggled to
environment shall not be prosecuted based on criminal get judges to recognize the new anti-SLAPP rules due
and civil lawsuits”. In practice, however, these articles are to the lack of precedent on how they should be applied,
difficult to enforce (Jong 2018). As a prime example, the with some judges recusing themselves from the case.
Indonesian Supreme Court had rejected anti-SLAPP laws in One trial court judge asserted that the Rules applied only
PT Bumi Sukses Indonesia v. Heri Budiawan (“Budi Pego”) to environmental courts and not regular courts, even
(2018). The Court found that Budi Pego was practically though there is no such restriction under the Rules. The
SLAPP defence was not recognized by the lower court In Mauritius, the Environment and Land Use Appeal Tribunal
and the case was allowed to continue. When the case (ELUAT) was established under the Environment and Land
subsequently reached the Court of Appeal, the case was Use Appeal Tribunal Act 2012 to hear appeals relating
finally dismissed, albeit six years after the SLAPP case had to land use and environmental matters with a mandate
been filed. Because this case had been so protracted – and to provide environmental justice (Mauritius, ELUAT Act
for some, because of fear of further attacks by the plaintiff 2012, section 3(1)). Its mission is “to dispense effective
company – a substantial number of environmental litigants environmental justice, to promote environmental rule
and witnesses withdrew from the case. Though this did of law and to ensure proper regulation of land use and
not materially disadvantage the ultimate outcome, it planning norms”, and “To ensure the fair, consistent and
demonstrates the broader fact that environmental lawsuits effective resolution of cases involving the environment;
are extremely intensive in terms of time, money and effort, Endeavour to achieve expeditious disposal of cases;
which can exert significant pressure on the less advantaged Endeavour to resolve environmental and planning disputes
parties. through mediation; [and] Providing an avenue in cases of
urgency and where there is a threat to the environment”
SLAPP cases are not easy to identify if the judge is not (Mauritius, ELUAT, no date a).
familiar with environmental law and the related cases
behind the SLAPP. In these examples, we can see that As an environmental tribunal, ELUAT is a quasi-judicial body
judges’ training and the knowledge of jurisprudence are operating independently from the executive. However, it
just as important as getting the rules in place. Judicial falls under the office of the Prime Minister as concerns the
training gives judges knowledge and confidence in budget and staffing (Bhadain 2021a). ELUAT can develop
handling environmental issues outside ECTs; how to its own rules and procedures, subject to the executive
identify, connect the dots to environmental issues; and promulgating them through the Minister’s regulations
creating environmental law jurisprudence for protection of (Bhadain 2021b). The permanent positions of chairperson
the people’s justice. and vice-chairperson are appointed by an independent
commission (Mauritius, ELUAT Act 2012, section 3(1)(a)). The
other members of ELUAT do not have to be barristers, and
3.3. ENVIRONMENTAL TRIBUNALS are appointed by the Attorney General, after consultation
with the Ministers for Environment, Housing and Local
The UNEP 2016 ECT Guide identified three different types Government, on an ad hoc basis and for such a period as
of environmental tribunals based on their decision-making considered necessary (Mauritius, ELUAT Act 2012, sections
independence. 3(1)(c), 3(3)(a)).
The Tribunal members bring the specialist input and must

ENVIRONMENTAL TRIBUNAL be independent (Bhadain 2021b). Where the subject
MODELS (UNEP 2016) matter of an appeal relates to a technical field, the Attorney
General may, on the recommendation of the chairperson,
A. OPERATIONALLY INDEPENDENT enlist the services of a suitable expert in the field, to act as
ENVIRONMENTAL TRIBUNAL (separate, fully or member of the Tribunal on an ad hoc basis for such a period
largely independent environmental tribunal) as they consider necessary (Mauritius, ELUAT Act 2012,
section 3(4)).
B. DECISIONALLY INDEPENDENT
ENVIRONMENTAL TRIBUNAL (under a ELUAT has jurisdiction over the entire island of Mauritius,
government agency’s supervision, but not adjudicating on the environmental decisions of the Minister
that whose decisions they review) of Environment, and the land use or planning decisions
of local authorities (Mauritius, ELUAT Act 2012, section
C. CAPTIVE ENVIRONMENTAL TRIBUNAL (within 4(1)). ELUAT handles 200 cases per year (Mauritius, ELUAT,
the control of the agency whose decisions no date b), and its caseload continues to increase. Apart
they review) from adjudication, ELUAT is also empowered to conduct
mediations that would encourage amicable settlements
between parties (Mauritius, ELUAT, no date c). ELUAT can
A. Operationally independent environmental tribunals order restoration and compensation of environmental
Two very different environmental tribunals illustrate the damage (Mauritius, Environment Protection Act 2002,
diversity of operationally independent environmental article 54(3)). Its orders are enforceable in the same manner
tribunals – that is, environmental tribunals that in general as a District Court order (Bhadain 2021a). Persons can
control their own operations, rules and (most importantly) appeal against decisions of ELUAT before the Supreme
decisions (UNEP 2016). Court of Mauritius on points of law (Mauritius, ELUAT Act
2012, section 5(10(b)). However, since 2012 there have
been several amendments geared towards restricting the
55
© Freepik
categories of persons that can appeal against administrative of the National Diet, the Parliament of Japan, for a term
decisions on permits and environmental impact of office of five years. In particular disputes, an academic
assessments (Bhadain 2021b). expert may be appointed to conduct a specialized
investigation. Overall, this structure ensures neutrality
In Japan, the Environmental Dispute Coordination and independence of decisions, and encourages their
Commission, also known as the Kouchoi, is an external harmonization with wider social interests (Japan, Ministry of
agency of the Ministry of General Affairs. It is modelled Internal Affairs and Communications, no date).
different from other relatively independent environmental
tribunals, as it emphasizes a “settlement system” based on There are also subnational or provincial versions of
investigations and alternative dispute resolution conducted the Pollution Dispute Coordination Commission,
by its members, “instead of adversary proceedings” (UNEP called Prefecture Pollution Examination Commissions,
2016). established in Japan’s 47 prefectures. In addition, at the
local government/municipal level, there are consultation
The national Pollution Dispute Coordination Commission is services for environmental complaints, which, according
an administrative commission that facilitates the settlement to one report, handle some 100,000 applications per year,
of environmental pollution disputes through conciliation employing a total of over 11,000 staff (UNEP 2016).
and adjudication. This is done through the Environmental
Dispute Settlement System. In addition, it also coordinates The Environmental Dispute Coordination Commissions and
mining, quarrying and gravel-gathering industries, and the prefecture and local units do not have power to review
other industries including agriculture and forestry, in the or overturn decisions of Government agencies. Traditionally
general public interest (Japan, Ministry of Internal Affairs their major role has been the award of compensation
and Communications, no date). to individuals for harm done by industrial pollution and
development (with the Government largely paying the
compensation rather than the violator). A substantial
The Pollution Dispute Coordination Commission has benefit for those filing complaints is that there are no filing
one chairperson and six commissioners, all of whom are fees and the entire investigation process is paid for by the
qualified legal professionals and experts in various fields.
They are appointed by the Prime Minister with the consent
Environmental Dispute Coordination Commissions. It is (Costa Rica, Organic Law on the Environment 1995, article
viewed as just, quick and cheap for the limited jurisdiction it 104). Members of the Tribunal must be professionals in
has (UNEP 2016). environmental areas (which may not be law-related), and
one standing member and their respective substitute must
be a lawyer (Costa Rica, Organic Law on the Environment
B. Decisionally independent environmental tribunals 1995, article 105).
Another type of environmental tribunal is one under
the supervisory and operational control of another The Tribunal has jurisdiction to hear complaints for
governmental entity or agency, and are therefore not violations of all environmental laws across the country
stand-alone environmental tribunals per se. However, such (Organisation for Economic Co-operation and Development
environmental tribunals are still substantively independent 2020). However, the Organic Law does not authorize the
in the sense that their decisions are independent and not Tribunal with any power to make its own rules. Instead,
reviewed by their supervisory governmental entities. under article 106 of the Organic Law, the Tribunal is
required to comply with the procedures and rules for
In Costa Rica, the Environmental Administrative Tribunal operation established in the Organic Law and the General
was formed pursuant to the Organic Law on the Public Administration Law.
Environment 1995 and is a decentralized agency under
the Ministry of the Environment and Energy. However, The Tribunal has a wide range of remedies at its disposal.
the Tribunal has exclusive authority and functional It can impose fines and administrative sanctions for the
independence for the performance of its responsibilities. elimination or mitigation of damage that has been caused.
Their rulings are of the highest administrative order. Any It can also take interim measures of protection according
resolutions it makes cannot be appealed and must be to the precautionary principle (Environmental Rights
complied with (Costa Rica, Organic Law on the Environment Database, no date). The Tribunal can order environmental
1995, article 103). remediation measures in the second instance if the initial
administrative decision is appealed against (Organisation
The Tribunal comprises three standing members and three for Economic Co-operation and Development 2020).
substitutes that have experience in environmental matters The Tribunal’s actions are not limited to legal remedies.
© Unsplash/Hansjorg Keller
57
For instance, in response to the use of agrochemicals by appeals by imposing deadlines and limits on extensions,
Costa Rica’s pineapple industry, the Tribunal decided to it would also limit the Environmental Appeals Board’s
develop a training programme including scientific and legal authority by preventing it from reviewing EPA decisions.
instruction on the environmental impacts of pineapple Subsequently, in 2021, the EPA published a new rule that
processing (Gro Intelligence 2017). This helped to increase reversed the 2020 rule and reaffirmed the Environmental
awareness and support for changing practices in the Appeals Board’s independence from the EPA and authority
industry to protect the environment (Environmental Rights to issue final decisions (United States of America, EPA
Database, no date). 2021b; United States of America, EPA 2021c).
Cases filed with the Environmental Administrative Tribunal Other examples of captive environmental tribunals include
are increasing, at a rate of almost double each year the Office of the Appeals Convenor Environment Council
(González Ballar 2021; Quesada 2021). However, Tribunal in Western Australia (Western Australia, Environmental
rulings are not always effectively enforced. A recent Protection Act 1986, section 107A), the Advisory Committee
investigation published by the University of Costa Rica, in the Solomon Islands (Solomon Islands, The Environment
found that a pineapple plantation in a wildlife refuge in Act 1998, section 32) and the Environment Council in Papua
northern Costa Rica which the Tribunal had ordered to shut New Guinea (Papua New Guinea, Environment Act 2000,
down in 2010 remained in operation in the following year section 17).
(Zúñiga 2011).
In this example, the tribunal is under a separate 3.4. ENVIRONMENTAL OMBUDSMEN,

government entity, which could also be a ministry of justice PROSECUTORS AND COMMISSIONS
or other ministry. However, there is another variation of
decisionally independent environmental tribunal, whereby Environmental ombudsmen, prosecutors’ offices and
the environmental tribunal is part of a “super-tribunal” that human rights commissions can make major contributions
amalgamates a number of smaller tribunals under it. Some to resolving environmental conflicts, though they are not
examples include the Environmental Review Tribunal in strictly ECTs (UNEP 2016).
Ontario, Canada, and the Victorian Civil and Administrative
Tribunal and Western Australia State Administrative Tribunal
in Australia. Such a model has been seen to have a number A. Environmental ombudsmen
of benefits, including flexibility in judicial assignment, There are specialized environmental ombudsmen, deputy
decisional consistency, and savings in staff and budget. ombudsmen or environmental divisions of ombudsman
offices in several countries including Austria, Greece,
Hungary, Kenya and New Zealand (UNEP 2016). An
C. Captive environmental tribunals ombudsman typically receives complaints from the public
Captive environmental tribunals are those under the against a government (and sometimes private parties),
administrative, fiscal and policy control of an agency whose then investigates, mediates and reports findings and
decisions the environmental tribunal reviews (UNEP 2016). recommendations to higher government authorities. They
They are therefore presumed to not be independent of the typically do not have binding decision or enforcement
policies, judgments and political agendas of their parent powers, but some can initiate or participate in lawsuits.
agency. The UNEP 2016 ECT Guide noted that although General ombudsman offices are found throughout the
the “captive” label carries a negative connotation, this is European Union and elsewhere in the world, but specialized
not the case in all instances. The Environmental Appeals environmental ones are rare. General ombudsman staff are
Board in the United States of America is a notable example experts on government administration issues, but usually
of a captive environmental tribunal that is regarded as not experts on environmental matters. Such a lack of
independent, professional and respected, showing that this expertise can lead to superficial, drawn-out investigations
type of environmental tribunal can operate effectively. with no expert outcomes.
In the United States of America, the Environmental Appeals From 2007 to 2011, Hungary had the most comprehensive,
Board in the Environmental Protection Agency (EPA) powerful environmental ombudsman in the world – the
serves as the appellate adjudicator of administrative cases Office of the Parliamentary Commissioner for Future
arising under all environmental laws administered by the Generations. It was unique because the office could issue
EPA (United States of America, EPA 2021a). It was created binding resolutions for environmental problems (UNEP
in 1992 and generally hears appeals against first instance 2016) However, the legislature abolished the office after
decisions by the EPA Office of Administrative Law Judges only four years, and merged it into a newly created Office
or permit decisions by the EPA Regional Offices (UNEP of Hungarian Commissioner for Fundamental Rights
2016). In 2020, the EPA published a rule streamlining the (Hungary, Office of the Commissioner for Fundamental
procedure to permit appeals (United States of America, EPA Rights of Hungary, no date a). The Ombudsman for
2020). Although the 2020 rule was intended to expedite Future Generations was transformed into a deputy
commissioner. At present, the Hungarian Ombudsman for and contributing to environmental policy. Thus, it facilitates
Future Generations has the power to, inter alia, review and alternative dispute resolution for environmental disputes
comment on national and local legislative proposals, and and can issue recommendations to the Cabinet Secretary
monitor policy developments and legislative proposals (Kenya, National Environmental Complaints Committee, no
to ensure that they do not pose a severe or irreversible date).
threat to the environment, thus causing possible harm
to the interests of future generations. Furthermore, the On a regular basis, the National Environmental Complaints
Ombudsman has investigative powers and is authorized Committee investigates complaints or allegations regarding
to produce official evaluative reports on the actions the condition of the environment in Kenya and suspected
of and recommendations for public authorities. When cases of environmental degradation. Pursuant to this, it
necessary, the Ombudsman may also intervene in any has conducted investigations throughout the country
public administrative court cases (Hungary, Office of the and issued recommended solutions that are tailored to
Commissioner for Fundamental Rights of Hungary, no each locality. It is also empowered to bring public interest
date b). Though the powers of the Ombudsman have been litigation environmental claims on behalf of civil society
reduced, the fact that this position exists is exceptional in (Kenya, National Environmental Complaints Committee,
itself – it is rare for any public institution in the world to 2018).
centre its activities around environmental human rights and
the rights of future generations. Environmental ombudsman offices are attractive because
they are paid for by governments so can represent
Austria has Environmental Ombudsman individuals and communities without cost, can be given
(Umweltanwaltschaft) offices located in each of its nine substantial independence and oversight powers, and
länder or states, with the duty to represent the interests of can bring about resolution of environmental complaints
nature conservation and the environment. They have all in or out of court. A strong, well-funded environmental
the usual powers and are also authorized in certain cases ombudsman can make a substantial difference in terms
to bring cases complaints before Austria’s administrative of environmental protection, but it is no substitute for an
courts (UNEP 2016). ECT, and alone does not meet the Aarhus Convention’s
requirements for access to justice (UNEP 2016).
The Austrian Environmental Ombudsman has standing
rights in fields pertaining to, inter alia, environmental
impact assessments, waste management or nature B. Prosecutors
protection (European Union e-Justice Portal 2016). As a Environmental compliance and enforcement are essential
formal party to the procedure, the task of the Ombudsman for the rule of law, good governance and sustainable
is to claim the observance of objective environmental law. development. Specialized environmental prosecutors play
In this capacity, the Ombudsman is competent to challenge a key role in achieving this. The International Network for
administrative decisions in the abovementioned areas. Environmental Compliance and Enforcement develops
However, the Austrian Ombudsman does not have standing and implements practical and innovative activities that
in environmental liability procedures that are decided by strengthen environmental compliance and enforcement
the administrative courts, neither they can file complaints
with the Constitutional Court (European Union e-Justice
Portal 2016). In addition, they cannot issue enforceable
decisions, unlike those issued by an ECT.
New Zealand has an independent, very active

environmental ombudsman, the Parliamentary
Commissioner for the Environment. This body has the
power to investigate Government environmental efforts
and environmental problems, compel the production of
information whether public or not, summon people under
oath, and report to and advise the House of Representatives
and recommend law reforms. Like all ombudsman offices,
the Parliamentary Commissioner for the Environment can
reach conclusions and make recommendations, but does
not have enforcement powers (UNEP 2016).
Kenya has a National Environmental Complaints Committee,

which replaces the former Public Complaints Committee.
It aims to improve public access to environmental justice
by providing a forum for environmental conflict resolution
© Unsplash/Davi Mendes
59
at all levels of government. The Network includes proactivity of the prosecutor), suboptimal agreements
environmental regulators, investigators, prosecutors, (faster than the regular judicial case, but not as effective), or
judges, and employees of international environmental and using the power of prosecution to gain personal visibility.
development organizations.
The United States of America also has specialized
In several countries, there are specialized environmental environmental prosecutors at both federal and state
prosecutors assigned exclusively to environmental laws and levels. For example, the Department of Justice has
cases. For example, most countries in Latin America, both an Environmental Crimes Section with 43 full-time
with and without ECTs, have specialized environmental environmental prosecutors that bring criminal cases against
prosecution offices (UNEP 2016). private and public parties for violating the nation’s laws
protecting the environment (UNEP 2016). From 1 October
Environmental prosecutors in both Latin America and 1998 to 30 June 2021, the Environmental Crimes Section
in Europe have created networks, respectively the Rede had concluded criminal cases against more than 1,787
Latino-Americana de Ministerío Público Ambiental or individuals and 552 corporate defendants, leading to an
REDEMPA, and the European Network of Prosecutors for the overall issuance of 1,117 years of incarceration and $4.24
Environment, to exchange information and experiences, billion in criminal fines and restitution (United States of
build capacity, hold training programmes, and plan joint America, Department of Justice 2021). These cases have set
activities (UNEP 2016). the contemporary standards for natural resources damages
and funding for ecological restoration.
Brazil has exemplary environmental prosecutors to
investigate and prosecute criminal and civil complaints on C. Human rights commissions
behalf of the people and the environment. Their offices National human rights institutions
have both civil and criminal jurisdiction, are well staffed A human rights commission is a national or subnational
with dedicated and experienced lawyers and technical government body set up to investigate abuses of, hold
experts, can initiate cases on their own, and have strong hearings on and protect human rights. Some human rights
enforcement powers. Brazilian environmental prosecutors commissions cover environmental rights, particularly if
have the power to negotiate adjustment agreements with the country’s constitution includes a right to a healthy
accused violators, similar to mediated agreements. Violation environment or right to life.
of this agreement can result in possible media exposure and
court filing/proceedings. In these cases, the prosecutors As noted in the UNEP 2016 ECT Guide, though human
act very much like an ECT, because they are deciding the rights commissions may operate like quasi-courts by
outcome of an environmental case. As the process takes holding hearings, most only have the power to make
place outside the public eye and without judicial oversight, recommendations. Moreover, they do not specialize
a caution is that it could lead to inconsistencies between in environmental issues. Thus, these human rights
regions (more cases in one area depending on the personal commissions cannot be considered as ECTs. However,
since human rights commissions can move to resolve
environmental problems, they do provide a valuable service
in situations where environmental enforcement agencies
and courts are weak or inactive, and where there is no ECT
in the country.
There are also national human rights commissions

addressing environmental issues, for instance the Comisión
Nacional de los Derechos Humanos in Mexico (UNEP 2016).
The Zimbabwe Human Rights Commission has powers

to investigate and give recommendations on human
rights violations, and includes a Thematic Working Group
on environmental rights (Zimbabwe Human Rights
Commission 2020a). Some of the tasks of the Zimbabwe
Human Rights Commission include the following:
• receiving complaints of human rights abuses and

taking appropriate action;
• protecting people against abuse of power and

maladministration by the State, public institutions and
officials of those institutions;
• making recommendations to Parliament on the best commissions that address the relationship between
ways of observing, promoting and protecting human environmental protection, human rights and Indigenous
rights and freedoms; Peoples rights (Inter-American Commission on Human
Rights 1983; Inter-American Commission on Human Rights
• investigating the conduct of any authority or person 1985; Social and Economic Rights Action Center and the
suspected of violating any of the human rights Center for Economic and Social Rights 2002; Inter-American
provided in the Constitution’s Declaration of Rights; Court of Human Rights 2017).
and
For example, on 6 February 2020, the Inter-American
• taking necessary action to assist victims of human Commission on Human Rights handed down its
rights violations to receive justice (Zimbabwe Human unprecedented judgment for the Indigenous Communities
Rights Commission 2020b). of the Lhaka Honhat Association (Our Land) v. Argentina.
In this case, the claimants comprised several communities
The Commission has produced one investigative report on of Indigenous People of the Province of Salta. They sought
violations of environmental rights, in the case of Mazvihwa recognition and protection of their lands from illegal
Community v. Murowa Diamonds (Pvt) Ltd. (2017). Two logging and cattle ranching because these activities have
hundred households living near the Murowa diamond mine compromised forest resources, biodiversity and their
complained about their houses cracking due to the blasting access to food and water. Pursuant to article 26 of the
at the mine, about dust emissions and noise pollution. American Convention on Human Rights, the Inter-American
After desk research, interviews and on-site inspection, the Court of Human Rights considered the rights to a healthy
Commission recommended Murowa Diamonds to facilitate environment, adequate food, water, and cultural identity.
the relocation of the affected households and to engage an The Court held that Argentina had in fact violated the
independent consultant to assess and monitor the effects claimants’ collective property rights, political rights and
of blasting and dust emissions to the houses and the health judicial guarantees, and economic, social, cultural and
of the community (Zimbabwe Human Rights Commission environmental rights. These human rights underpin the
2020c). Indigenous populations’ rights to, inter alia, resettlement
and access to adequate productive lands. The Court ordered
International human rights treaty bodies Argentina to delimit, demarcate and title 132 Indigenous
International human rights treaty bodies play an important communities, and relocate the Creole population outside
role in monitoring implementation of international the Indigenous territories (Inter-American Court of Human
human rights law, making recommendations to State Rights 2020).
parties, and providing legal decision on individual cases or
complaints filed to them. In recent years, treaty bodies have
received several environment and climate change-related
complaints and issued a decision. These bodies, although
not the same as national courts, often issue landmark
decisions on environmental issues.
Regional human rights bodies

The Inter-American Commission on Human Rights, Inter-
American Court of Human Rights and African Commission
on Human Rights are notable examples of regional
© Pexels/Pixabay
61
CONCLUSION
© Unsplash/Miha Rekar
especially with a view of providing a coherent and sound
4. CONCLUSION solution. In some cases, ECTs have spurred innovation
and legal reform.
In contrast to the rapid increase of ECTs observed in the

UNEP 2016 ECT Guide, the current trend of ECTs is steady ECTs embody several good practices that make them the
growth, 67 countries now have operational ECTs (appendix most suitable avenue to provide environmental justice.
A). Among other reasons, this more steady growth of Although commendable efforts have been made to provide
ECTs is due to the increased effectiveness of existing ECTs; environmental justice by assigning environmental cases to
the prioritization of environmental issues in the general general courts, and training judges from general courts on
courts, the presence of judges who are well versed in environmental law, these are still insufficient to perfectly
environmental matters, and the increase in the number replicate the adjudication that an ECT provides. Among
of environmental cases in general courts, as more people other gaps, general courts may not be able to provide the
become convinced that environmental justice can be same levels of independence and flexibility, alternative
achieved through existing court systems. dispute resolution support, and diverse pool of expert
decision makers. Thus, ECTs still provide an edge given that
a variety of complex, multidisciplinary issues constitute
Our research indicated that the documentation of both the crux of environment-related cases, including climate
ECTs and environmental cases is still weak across the world. change, economic changes, political shifts and resource
Thus, there is an urgent need to enhance documentation insecurities. That said, ECTs and general courts alike must be
efforts, which are crucial to track the development and prepared to face these challenges. Therefore, it is crucial for
performance of ECTs. Such data should also be made easily ECT good practices to be shared and adapted in the design
accessible to the public. Under the coordination of UNEP, and operation stages.
stakeholders can work together to fulfil these needs and
increase public participation through methods such as
research, meetings, workshops and seminars. Finally, judicial training and networking should not be
overlooked. These efforts can develop adjudicators’
perspectives towards environmental cases. Since the
ECTs play an important role in providing access to justice UNEP 2016 ECT Guide was published, more judicial
and remedies. ECTs that are more accessible and flexible, networks have been established globally. This has made
such as the mobile courthouses used in some countries, judges more aware of the demands, impacts and visibility
may help mitigate the lack of access to justice. ECTs also of their work, thereby spurring them to increase their
strengthen judicial systems and ensure legal accountability. environmental law capabilities. Apart from enhancing
Not only do ECTs explain the workings of environmental the quality of environmental law jurisprudence at both
law to the public, but they also provide the capacity for the national and transnational levels, the presence of more
legal exploration and resolution of environmental issues, competent judges is also cause for increased public trust
and participation in environmental justice.
63
APPENDICES
Appendix A: Number of operational ECTs
Country Environmental courts Environmental tribunals
Antigua and Barbuda 0 2
Argentina 1 0
Australia 7 5
Austria 11 0
Bangladesh 4 0
Belgium 16 0
Belize 1 0
Bolivia 9 0
Botswana 0 4
Brazil 73 27
Bulgaria 1 0
Burundi 1 0
Canada 0 32
Chile 3 0
China 1,353 0
Denmark 0 3
Dominica 0 1
El Salvador 4 0
Fiji 0 2
Finland 2 0
France 54 0
Gambia 1 0
Germany 1 0
Ghana 16 0
Grenada 0 1
Guyana 0 2
Iceland 1 0
India 0 5
65
Ireland 1 3
Italy 1 0
Jamaica 0 3
Japan 0 48
Kenya 27 2
Kiribati 1 0
Lesotho 1 0
Madagascar 3 0
Malaysia 134 0
Malta 0 1
Marshall Islands 1 0
Mauritius 0 1
Nauru 0 2
Netherlands 1 0
New Zealand 2 1
Nigeria 12 1
Niue 1 0
Pakistan 0 5
Palau 1 0
Papua New Guinea 1 1
Peru 0 4
Philippines 117 0
Republic of Korea 0 17
Saint Kitts and Nevis 0 2
Saint Lucia 0 2
Saint Vincent and the Grenadines 0 1
Samoa 0 1
Sierra Leone 1 0
Solomon Islands 0 1
South Africa 0 1
Spain 1 0
Sweden 6 0
Tonga 1 1
Trinidad and Tobago 1 0
Tuvalu 1 0
United Kingdom of Great Britain
5 0
and Northern Ireland
United States of America 3 39
Vanuatu 1 0
Zambia 0 11
1,884 232
TOTAL
2,115
67
Appendix B: Pending/potential ECTs
Country Pending/potential ECTs
Three potential environmental courts: chambers specializing in criminal environmental

Belgium
cases in the First Instance Courts of East Flanders, Henegouwen and Limburg.
Possible environmental court (ole judiciaire spécialisé) or specialization of general court

Burkina Faso
judges.
Five environmental tribunals discontinued – zonal benches were discontinued due to

Ethiopia
financial and human resource constraints.
One potential environmental court: Planning and Environmental Law Court as a

Ireland
separate list in the High Court.
Kenya Pending plans to have at least one environmental court in all 47 counties.
Regulatory Authorities Appeal Tribunal for appeals against regulatory decisions in the
Mauritius
supply of water.
Turkey Plans to develop environmental courts have been announced.
Officials are lobbying the Judicial Service Commission to establish a specialized branch
Zimbabwe
within the Magistrate Court system which will be focused on environmental law.
Appendix C: List of authorized but not established ECTs
Country Authorized but not established ECTs
Two environmental courts announced for Magistrates’ Courts (Banjul and Brikama)
Gambia
are authorized but not established.
Environmental Tribunal (Lesotho, Environment Management Act 2008) and Water

Lesotho
Tribunal (Lesotho, Water Act 2008) are authorized but not established.
A 2002 law authorized both an Environmental Administrative Court (trial) and an

Liberia
Environmental Court of Appeal (appellate); both are authorized but not established.
The Environmental Management Act 2017 established an Environmental Tribunal.

The Act has entered into force, but the Environmental Tribunal is authorized but not
Malawai
established. The Water Resources Act No. 2 of 2013 introduced a Water Tribunal, but it is
unclear whether this has been established.
Mexico One ECT is authorized but not established.
A Water Tribunal is planned (Namibia, Water Resources Management Act 2013),

Namibia
authorized but not established.
Thirty-six Rural Land Tribunals (Tribunaux du Foncier Rural), one for each district of
Niger
Niger, were announced in 2004, but are authorized but not established.
Panama Two environmental courts are authorized but not established.
Administrative courts may be split into specialized jurisdiction sections to handle public
procurement sections and urbanization and building, environment and spatial planning
Portugal
sections (Portugal, Lei No. 114/2019 de 12 de setembro [2019], article 9(5)), but this has
not yet been implemented.
An environmental tribunal was authorized by legislation in 2003, but is still not

Rwanda
established.
Uganda One environmental tribunal is authorized but not established.
United Arab Emirates One ECT is authorized but not established.
A National Environment Appeals Tribunal was authorized by legislation in 2004, but is

United Republic of Tanzania
still not established.
69
Appendix D: List of discontinued ECTs
Country Discontinued ECT(s)
One environmental court or Umweltsenat was designated for environmental impact

Austria
assessment cases until 2014.
Five zonal benches which were environmental tribunals have been discontinued
India
due to financial and human resource constraints.
Two low-level criminal environmental courts operated successfully, mostly on

South Africa fisheries cases, in Hermanus (2003–2006) and Port Elizabeth (2004– 2009), but were
discontinued.
While online sources between 1997 and 2010 confirmed the existence of a State
Environmental Court in Khartoum State and two other states, no subsequent
Sudan information can be found. Sudan: First State of Environment and Outlook Report 2020
(UNEP and the Higher Council for Environment and Natural Resources in Sudan 2020)
does not mention these courts, which are thus believed to have been discontinued.
Appendix E: Contact list of ECT and access to justice experts
Country/region of expertise Name Affiliation Contact
Former Director of Revenue

Audit, Auditor General’s Office;
Afghanistan Lutfullah Saadat former Director of Technical [email protected]
Affairs, Afghanistan Customs
Department
Centre International de Droit
Africa Mohamed Ali Mekouar [email protected]
Comparé de l’Environnement
emirjam.ahmetaga@
Emirjam Ahmetaga Supreme Court of Albania gjykataelarte.gov.al
[email protected]
Albania
Florjan Kalaja Supreme Court of Albania [email protected]
plorenzetti@
estudiolorenzetti.com.ar
Pablo Lorenzetti University of Buenos Aires
pablolorenz1@hotmail.
com
Argentina
Ricardo Lorenzetti Supreme Court of Argentina [email protected]
[email protected]
Carina Pamela Tolosa Universidad Nacional del Sur
[email protected]
School of Law, University of

Australia (and Asia) Ben Boer [email protected]
Sydney
chiefjudgeassociate@
Australia (New South Wales) Brian J. Preston LECNSW
courts.nsw.gov.au
president.kingham@
Fleur Kingham Land Court of Queensland
courts.qld.gov.au
Australia (Queensland)
Planning and Environment Court
judge.rackemann@
Michael Rackemann of Queensland; District Court of
courts.qld.gov.au
Queensland
Environment, Resources and
[email protected]
Australia (South Australia) Christine Trenorden Development Court of South
[email protected]
Australia (2002–2010)
[email protected]
Resource Management and
Australia (Tasmania) Jarrod Bryan singletribunal@justice.
Planning Appeal Tribunal
tas.gov.au
District Court of Western
judge.parry@justice.
Australia (Western Australia) David Parry Australia; State Administrative
wa.gov.au
Tribunal of Western Australia
Austria Verena Madner Constitutional Court of Austria [email protected]

71
Matanat Asgarova Academy of Justice, Azerbaijan [email protected]
Natavan Baghirova BM Morrison Partners [email protected]
james.hogan@dentons.
Azerbaijan James E. Hogan Dentons
com
Ministry of Ecology and Natural [email protected].

Tural Mammadov
Resources, Azerbaijan az
Azerbaijan National Academy of

Islam Mustafaev [email protected]
Sciences
weekesmiche@gmail.
Barbados Michelle Weekes Supreme Court of Barbados
com
karin.deroo@vlaanderen.
Karin De Roo Council for Permit Disputes
be
Court of West Flanders, Kortrijk Wouter.haelewyn@just.

Wouter Haelewyn
Department fgov.be
Luc.lavrysen@const-
Luc Lavrysen Constitutional Court of Belgium
court.be
Belgium
pierre.lefranc@raadvst-
Pierre Lefranc Council of State, Belgium
consetat.be
françoise.thonet@just.
Françoise Thonet Court of Appeal, Mons
fgov.be
Court of First Instance of East jan.vandenberghe@just.

Jan Van den Berghe
Flanders fgov.be
kanaboco078@gmail.
International Center for
Benin Kana-Gaba Boco com
Comparative Environmental Law
[email protected]
Dasho Tshering Namgyel High Court of Bhutan, Thimphu [email protected]

Bhutan
Garab Yeshi Thimphu District Court [email protected]
Marcela Agramont Universidad Catolica Boliviana [email protected]

Bolivia
Ivette Miranda Universidad Catolica Boliviana [email protected]
Supreme Court of the Federation fatima.mrdovic@

Bosnia and Herzegovina Fatima Mrdovic
of Bosnia and Herzegovina pravosudje.ba
Court of the Environment
adalberto.carim@tjam.
Brazil Adalberto Carim Antonio and Agrarian Issues State of
jus.br
Amazonas
Antonio Herman [email protected]

Superior Court of Justice of Brazil
Benjamin [email protected]
Rafaela Santos Martins

Rio Grande do Sul, Fourth Circuit [email protected]
Da Rosa
Vladimir Passos de vladimir.freitas@terra.

Passos de Freitas Advocates
Freitas com.br
Companhia Ambiental do
Brazil Patrícia Iglesias Estado de São Paulo (State [email protected]
Environmental Agency)
Assessoria jurídica da Secretaría
angelamolin625@gmail.
Angela Molin de Meio Ambiente de Porto
com
Alegre
Antonio Fernando fernando@
Pinheiro Pedro Attorneys
Pinheiro Pedro pinheiropedro.com.br
Universidade do Estado da [email protected]

Valmir César Pozzetti
Amazonas [email protected]
Supreme Administrative Court of

Bulgaria Sibila Simeonova [email protected]
Bulgaria
ahmeddjiga@hotmail.
Habib Ahmed Djiga Université Thomas Sankara
com
Antoine Kaboré Ecole Nationale d’Administration

[email protected]
Sandaogo et de Magistrature
Burkina Faso Technical Adviser of the Ministry
of Environment, Green Economy
and Climate Change, Burkina
Yacouba Savadogo [email protected]
Faso; Coordinator of the African
Network of Francophone
Environmental Lawyers
Enseignant-chercheur en droit de
Burundi Eric Nkurunziza [email protected]
l’environnement
Paññãsãstra University of [email protected]

Cambodia Kong Phallack
Cambodia [email protected]
Cameroon Emmanuel Kam Yogo University of Douala [email protected]
david.estrin@uwindsor.
Canada David Estrin University of Windsor
ca
Patricia Farnese University of Saskatchewan [email protected]

Canada (British Columbia)
Forest Practices Board of British mark.haddock@gov.
Mark Haddock
Columbia (retired) bc.ca
Environment and Land Tribunals, jerry.demarco@ontario.

Canada (Ontario) Jerry V. DeMarco
Ontario ca
73
Michael Hantke-Domas Tercer Tribunal Ambiental [email protected]
fredeslegalconsultant@
Miguel I. Fredes Tactical Chambers
gmail.com
Environmental Law Center, constanzagumucios@

Chile Constanza Gumucio
University of Chile gmail.com
joseignaciovasquez@
José Ignacio Vásquez Constitutional Court of Chile
uchile.cl
adrianacecilia.
Adriana Cecilia Perez Centre for Environmental and
perezniklitschek@ugent.
Niklitschek Energy Law, Ghent University
be
Dimitri de Boer ClientEarth [email protected]
School of Law, Tsinghua

Deng Haifeng [email protected]
University
Research Institute of
Qin Tianbao Environmental Law; School of [email protected]
Law, Wuhan University
Wang Shuyi School of Law, Wuhan University [email protected]

China
School of Law, Central South
Zhang Bao [email protected]
University
Changsha University of Science zhangminchun@gmail.

Zhang Minchun
and Technology com
Zhao Yue School of Law, Sichuan University [email protected]
zhoudi19890703@126.
Zhou Di School of Law, Wuhan University
com
cese01@notificacionesrj.
Roberto Serrato Council of State, Colombia
gov.co
Colombia
Carolina Velandia [email protected].
Northern Illinois University
Hernandez edu
Comoros Youssouf Darday [email protected]
Faculty of Law, University of rgonzalezballar@gmail.

Costa Rica Rafael González Ballar
Costa Rica com
County Court of Rijeka (Court of

Croatia Ksenija Dimec [email protected]
Appeal)
Reform and Judicial Training reformtraining@

Cyprus George Erotocritou
Office, Supreme Court of Cyprus sc.judicial.gov.cy
Ilona.Jancarova@law.
Czech Republic Ilona Jancarova Masaryk University
muni.cz
Université de Kinshasa;
Guy Kalasi United Nations Development [email protected]
Democratic Republic of the Programme
Congo
Blaise-Pascal blaisepascalmihigo@
Université de Kinshasa
Ntirumenyerwa Mihigo gmail.com
Denmark Peter Pagh University of Copenhagen [email protected]
Hugo Washington Universidad San Francisco de

Ecuador [email protected]
Cahueñas Muñoz Quito
khaled.hesham@ppo.
Egypt Khaled Hesham Elaiat Ministry of Justice, Egypt
gov.eg
Luis Francisco López firmalegal_

El Salvador Firma Legal López Guzmán
Guzmán [email protected]
Ministry of the Environment,

Estonia Annemari Vene [email protected]
Estonia
Law, Policy and Standards

Ethiopia Ayele Hegena [email protected]
Research Directorate
nicholas.barnes@
Nicholas Barnes Munro Leys
munroleyslaw.com.fj
Environment Tribunal, Ministry of

Ropate Green [email protected]
Environment, Fiji
maria-goreti.muavesi@
Fiji Muavesi Maria IUCN Oceania Regional Office
iucn.org
Environment Tribunal, Ministry of

Krishan Prasad [email protected]
Environment, Fiji
Fiji Environmental Law kiji.vukikomoala@fela.

Kiji Vukikomoala
Association org.fj
Supreme Administrative Court of

Kari Kuusiniemi [email protected]
Finland
Finland
Charlotta Von Troil Ministry of Environment, Finland [email protected]
General Inspectorate of Justice, delphine.agoguet@

Delphine Agoguet
Ministry of Justice, France justice.gouv.fr
France
marcclement62@gmail.
Marc Clément Administrative Court of Lyon
com
Legal Department of the Ministry
nana.totibadze@gmail.
Georgia Nana Totibadze of Environment Protection and
com
Agriculture, Georgia
75
Federal Ministry for the

Environment, Nature christian.lindemann@
Germany Christian Lindemann
Conservation and Nuclear Safety bmu.bund.de
of Germany
Greece Dimitrios Pyrgakis Master of Requests [email protected]
jpgramajo@mayora-
Guatemala Juan Pablo Gramajo Mayora & Mayora
mayora.com
jamelalawyer11@yahoo.
Guyana Jamela A. Ali Attorney-at-law
com
University of California Hastings

Haiti Brian Gray [email protected]
College of the Law
Honduras Sandra Nichols Thiam Judicial Education Programme [email protected]
Office of the Commissioner for

Hungary Gyula Bandi [email protected]
Fundamental Rights, Hungary
nanna.magnadottir@
Iceland Nanna Magnadóttir Reykjavik District Court
domstolar.is
Legal Initiative for Forest and rahulchoudharyy@gmail.

Rahul Choudhary
Environment com
Legal Initiative for Forest and

Ritwick Dutta [email protected]
Environment
Northumbria Law School,
Northumbria University, United gita.gill@northumbria.
India Gitanjali (Gita) Nain Gill
Kingdom of Great Britain and ac.uk
Northern Ireland
Adarsh Goel National Green Tribunal [email protected]
Swatanter Kumar Jindal Global Law School [email protected]
Head of the Judges Education

and Technical Training Centre,
Bambang Mulyono [email protected]
Legal and Court Training Agency,
Supreme Court of Indonesia
takdir_rahmadi@yahoo.
Takdir Ramadi Supreme Court of Indonesia
com
Indonesia Partnership for Governance laode.syarif@kemitraan.
Laode M. Syarif
Reform in Indonesia or.id
Law Faculty, University of

Andri Wibisana [email protected]
Indonesia
Mochamad Adib Zain Indonesian judiciary [email protected]

Centre for Law and the

Ireland Áine Ryall [email protected]
Environment, University of Cork
Tel Aviv District and Appellate

Israel Zila Zfat [email protected]
Court
Italy Luca Ramacci Corte Suprema di Cassazione [email protected]
Toshio Haase Tokyo International University [email protected]
Graduate School of Law and [email protected]

Japan Noriko Okubo
Politics, Osaka University [email protected]
Environmental Dispute
Yuna Shirakura [email protected]
Coordination Commission
safwan.moubaydeen@
Jordan Safwan Moubaydeen Dentons
dentons.com
Kazakhstan Beibut Shermukhametov Supreme Court of Kazakhstan [email protected]
Donald Kaniaru Kaniaru & Kaniaru Advocates [email protected]

Kenya
Samson Odhiambo okongosamson@gmail.
Environment and Land Court
Okong’o com
lindita.jakupi@hotmail.
Kosovo Lindita Jakupi Basic Court of Pristine
com
a.ismailova91@gmail.
Kyrgyzstan Dilara Arstanbaeva Supreme Court of Kyrgyzstan
com
Lao People’s Democratic

Khemngeun Pongmala National University of Laos [email protected]
Republic
Administrative Law Department,

Latvia Rudīte Vīduša [email protected]
Supreme Court of Latvia
https://enmg.org.mg/
Tahiana Lucette Ecole Nationale de la
Madagascar tahianadfm_enmg@
Rakotoarisaona Magistrature et des Greffes
yahoo.fr
Malawi Chikosa Banda University of Malawi [email protected]
Malaysia Hanim Kamaruddin Universiti Kebangsaan Malaysia [email protected]
Mali Kalilou Dama YES Inc MALI [email protected]
[email protected]
Mauritius Vedalini Badhain ELUAT vedaphoolchund19@
gmail.com
77
Mexican Center for

Environmental Law; Vice-
Gustavo Alanis Ortega President of the Joint-Advisory [email protected]
Committee of the North
American Free Trade Agreement
Mexico School of Government, alejandro.posadas@cide.
Alejandro Posadas
Tecnologico de Monterrey edu
angelina.valenzuela@
Angelina Valenzuela udem.edu
Universidad de Monterrey
Rendón isabel_angelina@yahoo.
com.mx
elisasamuelmz@gmail.
Mozambique Elisa Samuel Boerekamp Judicial and Legal Training Centre com
[email protected]
Hnin Hnin Saw Hla Faculty of Law, Taungoo drhhshm2012@gmail.
Maung University com
Myanmar
Professor, College of Law, jonathan.liljeblad@anu.
Jonathan Liljeblad
Australia National University edu.au
trevor.daya-
Trevor Daya- Faculty of Law, University of
winterbottom@waikato.
Winterbottom Waikato
ac.nz
justice.glazebrook@
Susan Glazebrook Supreme Court of New Zealand
courts.govt.nz
New Zealand Environment Court of New [email protected].

David Kirkpatrick
Zealand nz
Environment Court of New [email protected].

Laurie Newhook
Zealand (retired) nz
Environment Court marlene.oliver@xtra.

Marlene P. Oliver
Commissioner co.nz
olubayooluduro@yahoo.
Nigeria Olubayo Oluduro Adekunle Ajasin University
com
ragnhild.noer@
Norway Ragnhild Noer Supreme Court of Norway
hoyesterett.no
Waqqas Mir Axis Law Chambers [email protected]

Pakistan
Supreme Court of Pakistan
Syed Mansoor Ali Shah [email protected]
(retired)
jabrego@ciampanama.
Panama Joana Abrego Secretary for Justice, Panama
org
Center for Environmental Law

Papua New Guinea Peter Bosip [email protected]
and Community Rights Inc.
Attorney General of Papua New [email protected].

Peter Hairoi
Guinea pg
National and Supreme Courts of akandakasi@

Papua New Guinea Ambeng Kandakasi
Papua New Guinea pngjudiciary.gov.pg
Supreme Court of Papua New

Eric Kwa [email protected]
Guinea
Peruvian Society of
Martha Aldana [email protected]
Environmental Law
Jean Pierre Araujo Peruvian Society of

[email protected]
Meloni Environmental Law
Peru
Luisa Franshesca
Attorney-at-law [email protected]
Gamarra
Luis Eduardo Ramirez National Water Disputes Court;

[email protected]
Patrón Forestry and Wildlife Court
gbueta.consultant@adb.
Gregorio Rafael P. Bueta Asian Development Bank
org
[email protected].
Rose-Liza Eisma-Osorio School of Law, University of Cebu
ph
tonyoposa1024@gmail.
Philippines Antonio (Tony) Oposa Jr. Attorney
com
Jose Midas P. Marquez Supreme Court of the Philippines [email protected]
Gloria Estenzo Ramos Attorney [email protected]
University of Opole
[email protected].
Jerzy Jendroska Jendroska Jerzmanski Bar &
pl
Partners
Poland
Supreme Administrative Court
Teresa Zyglewska [email protected]
Warsaw
Ana Carla Teles Duarte ana.carla.teles.duarte@

Portugal Lisbon Administrative Court
Palma gmail.com
Republic of Korea Jiyeon Choi Korean Law Research Institute [email protected]
Universite ”Alexandru Ioan Cuza” valerius.m.ciuca@yahoo.

Valeriu Ciucă
Iași com
Romania
Former High Court of Cassation
Madalina-Elena Grecu [email protected]
and Justice of Romania
People’s Friendship University of [email protected]

Russian Federation Aleksandr Solntsev
Russia [email protected]
79
[email protected]
Rwanda Fred Nkusi INILAK
[email protected]
Department of Sustainable
Saint Lucia Kate Wilson [email protected]
Development, Saint Lucia
Daryl Clarke Justice and Acting Chief Justice [email protected]
Ministry of Environment and shirley.malielegaoi@

Shirley Malielegaoi
Natural Resources, Samoa mnre.gov.ws
Samoa
Clarence Nelson Samoa judiciary [email protected]
Secretariat of the Pacific

Clark Peteru [email protected]
Environment Programme
Serbia Marija Milakovic Judicial Academy of Serbia [email protected]
angelique
Alliance of Small Island States
Seychelles Angelique Pouponneau pouponneau11
(AOSIS)
@gmail.com
miroslav.gavalec@nsud.
Slovakia Miroslav Gavalec Supreme Court of Slovakia
sk
Andrej Kmecl Supreme Court of Slovenia [email protected]
[email protected]
Slovenia Rajko Knez Constitutional Court of Slovenia
[email protected]
[email protected]
Maša Kovič Dine University of Ljubljana
lj.si
Solomon Islands Environmental kayniakenieroa@gmail.

Kenya Kenieroa
Law Association com
Solomon Islands
Executive Committee of the
Senoveva Mauli Solomon Islands Environmental [email protected]
Law Association
Nambitha Dambuza- Supreme Court of Appeal of
[email protected]
Mayosi South Africa
South Africa
Faculty of Law, North-West
Caiphas Brewsters Soyapi [email protected]
University
Faustino Gudin
Spain Criminal Court Segovia [email protected]
Rodríguez-Magariños
Former Senior Judge, Land and judge.bengtsson@telia.

Sweden Anders Bengtsson
Environment Court of Växjö com
asa.
Land and Environment Court
Sweden Åsa Marklund Andersson marklundandersson@
Nacka
dom.se
Davron Hoshimzoda Constitutional Court of Tajikistan [email protected]

Tajikistan
http://www.nmlaw.tj/
Firdavs S. Mirzoev Nazrisho & Mirzoev, LLC
[email protected]
Chananphon
Mae Fah Luang University [email protected]
Boonkerdsap
University of the Thai Chamber of namphon_lim@utcc.

Namphon Limpajate
Commerce ac.th
Chief Judge, Justice Research
Suntariya Muanpawong Division; Environmental Law [email protected]
Division, Supreme Court
Kudun and Partners Company
Songpol Pirunsarn [email protected]
Ltd.
Thailand
Naporn Popattanachai Thammasat University [email protected]
prang.p@mhm-global.
Prang Prakobvaitayakij Chandler MHM Ltd.
com
Winai Ruangsri Supreme Court of Thailand [email protected]
peter.shelford@dlapiper.
Peter Shelford DLA Piper (Thailand) Ltd.
com
A.T. Dalen Gilhuijs STAB [email protected]
Public Law and Sustainability,

The Netherlands Kars J. de Graaf [email protected]
University of Groningen
r.uylenburg@
Rosa Uylenburg Council of State, Netherlands
raadvanstate.nl
wanderson@
Winston C. Anderson Caribbean Court of Justice caribbeancourtofjustice.
org
Trinidad and Tobago
Environmental Commission of chateramsinanan@
Chateram Sinanan
Trinidad and Tobago yahoo.com
Nagehan Ilemin Kocaeli Úniversitesi [email protected]
International Relations and

Turkey Seran Karatari Kostu [email protected]
Project Bureau
Nükhet Turgut Atilim University [email protected]

81
Yolbars Kepbanov Aarhus Centre [email protected]

Turkmenistan
Atabek Sharipov GRATA International [email protected]
julie.miehe@
Julie Miehe Keypoint Law
keypointlaw.com.au
Tuvalu Filiga Taukiei People’s Lawyer [email protected]
sonia.whitehouse@
Sonia Whitehouse Keypoint Law
keypointlaw.com.au
National Environment
Uganda Christine Echookit Akello [email protected]
Management Authority
[email protected].
Oleksandr Prokopenko Supreme Court of Ukraine
gov.ua
Ukraine
urkevych2014@supreme.
Vitalii Urkevych Supreme Court of Ukraine
court.gov.ua
lcarnwath@
Robert Carnwath Landmark Chambers
landmarkchambers.co.uk
Senior President of Tribunals of senior.
Keith Lindblom the United Kingdom of Great presidentlindblom@
United Kingdom of Great Britain Britain and Northern Ireland ejudiciary.net
General Regulatory Chamber, HM
Moira Macmillan [email protected]
Courts and Tribunals Service
Richard Macrory University College London [email protected]
United Kingdom of Great Britain Courts and Tribunals, Scottish

Michael Green [email protected]
and Northern Ireland (Scotland) Government
School of Law, University of

John Bonine [email protected]
Oregon
United States Department of

United States of America John Cruden [email protected]
Justice
Environmental Democracy
Lalanath DeSilva Practice World Resources [email protected]
Institute
Presiding Judge, Environmental

thomas.durkin@
Thomas S. Durkin Division of the Vermont Superior
vermont.gov
Court
Scott Fulton Environmental Law Institute [email protected]
Yasmim Goes New York University [email protected]
Office of Appeals and Dispute

Resolution Massachusetts State timothymjones123@
Timothy M. Jones
Department of Environmental gmail.com
Protection
EPA Environmental Appeals
Mary Kay Lynch [email protected]
United States of America Board
John (Jay) Pendergrass Environmental Law Institute [email protected]
School of Law, Emeritus Pace

Nicholas A. Robinson [email protected]
University
EPA Environmental Appeals

Kathie A. Stein [email protected]
Board
michael.d.wilson@courts.
Michael D. Wilson Supreme Court of Hawaii
hawaii.gov
Distinguished Judicial Scholar, envj.merideth@gmail.

Merideth Wright
Environmental Law Institute com
Uzbekistan Atabek Sharipov GRATA International [email protected]
Vanuatu Environmental Lawyers

Colin Leo [email protected]
Association
Vanuatu Environmental Law ataufa4024.vela@gmail.

Vanuatu Albert Taufa
Association com
Margaretha Wewerinke- mjwewerinke@gmail.

Universiteit Leiden
Singh com
Institute of State and Law,
Viet Nam Nguyen Thu Dung Viet Nam Academy of Social [email protected]
Science
Environmental Management
Zimbabwe Farai Nyahwa [email protected]
Agency
83
Appendix F: Research scope and methodology
This UNEP 2021 ECT Guide is intended to update the data Our researchers contacted various legal practitioners
on ECTs around the world published in the UNEP 2016 ECT and experts on environmental law, a portion of whom
Guide. It resulted from an empirical and normative study completed the questionnaire. A link and short set of
focusing on the development of ECT institutions in various instructions were shared with those respondents willing to
jurisdictions, countries and regions around the world. The take part. Fifty-five direct responses to the questionnaire
study covered relevant developments in 197 countries from were used for this guide.
1 January 2016 to 1 August 2021.
B. Online interviews
This study was organized by UNEP, which assigned the Semi-structured interviews were conducted using guiding
main research components to the Asia-Pacific Centre of questions based on the questionnaire. Our researchers
Environmental Law at the National University of Singapore. contacted various legal practitioners and experts on
The University of Ghent was assigned to assist in the study environmental law, a portion of whom agreed to participate
of Europe and Africa, while the Asia-Pacific Centre of in online interviews. Due to the COVID-19 pandemic, all the
Environmental Law covered all other regions. interviews were held online over Zoom.
Based on the 1972 Stockholm Declaration on the Human Data was also collected from secondary sources, including
Environment, “the environment” was defined as natural and scholarly literature published between 2016 and 2021. For
man-made physical surroundings upon which humanity is this, thorough desktop research was conducted by our
entirely dependent in all its activities. An “environmental researchers, who then compiled their findings according to
case” was defined as any case relating to the natural and the structure of the questionnaire. Desktop research yielded
man-made physical surroundings upon which humanity is data for 102 countries.
entirely dependent in all its activities.
The second phase, which focused on analysing data, took

This study was conducted in four phases: place from June to August 2021. Different data sets from
the collection phase were triangulated to synthesize
specific conclusions. The UNEP 2016 ECT Guide was used as
The first phase, which focused on data collection, took a template for data analysis methods.
place from February to June 2021. This process made use
of primary sources: an online questionnaire, interviews,
legislation and other policy documents. Respondents for The third phase took place from July to September 2021,
the questionnaire and interviews are listed in appendix E: during which time the report was written. Our findings were
Contact list of ECT and access to justice experts. compiled and presented in various forms (i.e. a narrative,
tables, graphs and diagrams) to enhance the readability and
comprehensiveness of the study.
A. Questionnaire
The online questionnaire was designed by the Asia-
Pacific Centre of Environmental Law ,with inputs from the The final phase of the study took place in September 2021.
University of Ghent, UNEP, and George Pring and Catherine During this phase, two drafts of the report were reviewed
Pring. The questions varied according to the type of ECT by the review board, one after the other, with a week-long
a country had: operational ECT(s), pending or potential editing period between.
ECT(s), authorized but not established ECT(s), discontinued
ECT(s), or no ECT(s). An example of the questionnaire can be
found https://bit.ly/3muMZyQ.
Appendix G: List of interviews
Date Name Current Designation or Affiliation
4 April 2021 Heather Gibbs Chief Review Officer, Environmental Protection Tribunal of Canada
International Relations Officer, General Inspectorate of Justice, Ministry of Justice,

7 April 2021 Delphine Agoguet
France
Jan Van den
12 April 2021 Vice-President, Court of First Instance of East Flanders
Berghe
Syed Mansoor Ali
20 April 2021 Former Chief Justice, Supreme Court of Pakistan
Shah
22 April 2021 Irum Ahsan Asian Development Bank, Asian Judges Network on Environment
23 April 2021 Thomas S. Durkin Presiding Judge, Environmental Division of the Vermont Superior Court
26 April 2021 Mark Haddock Former attorney for the British Columbia Forest Practices Board (retired)
29 April 2021 Marc Clément Administrative Court of Lyon
Kinshasa University; United Nations Development Programme Programmes Officer

30 April 2021 Guy Kalasi
in Democratic Republic of the Congo
Mohamed Ali
5 May 2021 Centre International de Droit Comparé de l’Environnement, Africa
Mekouar
9 May 2021 Laurie Newhook Former Chief Judge of the Environment Court of New Zealand (retired)
Michael
9 May 2021 Planning and Environment Court of Queensland
Rackemann
10 May 2021;
Merideth Wright Distinguished Judicial Scholar, Environmental Law Institute
4 July 2021
Chairperson, Environmental Appeal Board, Forest Appeals Commission; Oil and Gas
11 May 2021 Darrell Le Houillier
Tribunal of British Columbia
12 May 2021 Jerry V. DeMarco Commissioner of the Environment and Sustainable Development, Canada
Former Vice-Chair of the Environmental Review Tribunal of Ontario; Associate Chair

12 May 2021 Paul Muldoon of the Assessment Review Board of Ontario; Adjunct Professor of Environmental Law,
University of Toronto
Ricardo Cintra
13 May 2021 State of São Paulo Court of Justice
Torres de Carvalho
14 May 2021 Kathie A. Stein EPA Environmental Appeals Board, United States of America
85
Date Name Current Designation or Affiliation
17 May 2021 Brian Preston Judge, LECNSW
George W. Pring
17 May 2021 and Catherine University of Denver
Pring
Gloria Estenzo
18 May 2021 Ramos and Ron Attorney; Professor, both based in Philippines
Gutierrez
20 May 2021 Jonathan Liljeblad Professor, College of Law, Australia National University
20 May 2021 Kars J. de Graaf Professor, Public Law and Sustainability, University of Groningen
20 May 2021;
Matthew Baird Asian Research Institute for Environmental Law
23 June 2021
20 May 2021 Nathaniah Jacobs International Institute for Environment and Development
César Rodríguez-
21 May 2021 School of Law, New York University
Garavito
Gregorio Rafael P.
23 May 2021 Asian Development Bank
Bueta
24 May 2021 Jolene Lin Associate Professor, National University of Singapore
Anton Mingzhi
27 May 2021 National Taiwan University
Gao
3 June 2021 Zhao Yuhong Chinese University of Hong Kong
Khaled Hesham
16 June 2021 Ministry of Justice, Egypt
Elaiat
4 July 2021 Ritwick Dutta Legal Initiative for Forest and Environment, India
Caiphas Brewsters
9 July 2021 Senior Lecturer, Faculty of Law, North-West University, South Africa
Soyapi
Bambang Head of the Judges Education and Technical Training Centre, Legal and Court
24 July 2021
Mulyono Training Agency, Supreme Court of Indonesia
23 August Suntariya Chief Judge of the Justice Research Division; Environmental Law Division, Supreme
2021 Muanpawong Court of Thailand
Françoise Thonet
18 October
and Caroline Judges in Belgium
2021
Henrotin
Appendix H: Review board members
Name Position Email
Former Senior Judge, Land and Environment Court of

Anders Bengtsson [email protected]
Växjö
Professor Emeritus, School of Law, University of

Ben Boer [email protected]
Sydney
Senior Lecturer, School of Law, Western Sydney

Beatriz Garcia [email protected]
University
Catherine Pring Director, Global Environmental Outcomes LLC (GEO) [email protected]
George W. Pring Emeritus Professor, University of Denver [email protected]
Professor, Director of the Research Institute of

Qin Tianbao Environmental Law; Associate Dean for School of Law, [email protected]
Wuhan University
Technical Adviser of the Ministry of Environment,

Green Economy and Climate Change, Burkina Faso;
Yacouba Savadogo [email protected]
Coordinator of the African Network of Francophone
Environmental Lawyers
Executive Director of the Partnership for Governance

Laode M. Syarif [email protected]
Reform in Indonesia
87
Appendix I: Networks of environmental judges
Region Network
Global Judicial Institute on the Environment

(https://www.iucn.org/commissions/world-commission-environmental-law/our-work/global-
judicial-institute-environment)
Global
International Network for Environmental Compliance and Enforcement
(https://inece.org/)
Africa Africa Judicial Educators Network on Environmental Law
Asia, including South- Asian Judges Network on Environment

East Asia (https://www.ajne.org/)
EnviCrimeNet
(https://www.envicrimenet.eu/)
European Union Forum of Judges for the Environment

(https://www.eufje.org/)
European Union Network for the Implementation and Enforcement of Environmental Law
Europe
(https://www.impel.eu/)
European Network of Prosecutors for the Environment

(https://www.environmentalprosecutors.eu/)
French Society of Judges and Prosecutors for Environmental Law

and Environmental Health Law
Appendix J: Regional report summaries
1. Africa
Benin 0 0
Botswana 0 5
Burundi 1 0
Cabo Verde 0 0
Cameroon 0 0
Egypt 0 0
Eswatini 0 0
Gambia 1 0
Ghana 16 0
Ivory Coast 0 0
Kenya 27 2
Lesotho 1 0
Madagascar 3 0
Mali 0 0
Mauritius 0 1
Mozambique 0 0
Nigeria 12 1
Rwanda 0 0
Sierra Leone 1 0
South Africa 0 1
Sudan 0 0
Zambia 0 11
TOTAL 62 21
Algeria, Angola, British Indian Ocean Territory, Central African Republic, Chad,
Comoros, Congo, Democratic Republic of the Congo, Djibouti, Equatorial
Guinea, Eritrea, Ethiopia, French Southern Territories, Gabon, Guinea, Guinea-
No response; 0 assumed
Bissau, Liberia, Libya, Malawi, Mauritania, Mayotte, Morocco, Niger, Réunion,
Saint Helena, Sao Tome and Principe, Senegal, Seychelles, Somalia, South Sudan,
Togo, Tunisia, Uganda, United Republic of Tanzania, Western Sahara
89
Important updates since 2016
Country Update
An Appeals Committee for appealing decisions made by the Department of

Botswana
Environmental Affairs was established in 2019.
A Special Environmental Court for Land and Other Property existed in 2016, but
Burundi
was not reported.
A new environmental tribunal has been proposed and is expected to be

operational in 2023. This environmental tribunal has been inspired by others
Ethiopia in India, Kenya and New South Wales. There is an emphasis on efficiency and
practical provisions such as alternative dispute resolution, interim relief, the use
of electronic communications and simple rules of procedure.
The two environmental courts announced for other Magistrates’ Courts (Banjul
Gambia
and Brikama) remain authorized but not established.
Sixteen Land and Environmental Divisions of the High Court in Ghana existed in
Ghana
2016, but were not reported in the 2016 study. They mainly handle land matters.
Since 2016, the number of Environment and Land Courts in the Kenyan counties
increased from 15 to 26. The number of its judges increased from 34 (2017) to 51
Kenya
(2021). Kenya has also subsumed the National Environment Tribunal (NET) under
its judiciary.
The Land Division of the High Court existed in 2016, established through section
Lesotho
74 of the Land Act 2010, but was not reported.
Since 2016, there has been a Special Court for the Fight against Rosewood
and/or Ebony Trafficking in Madagascar, governed by Law No. 056 of 2015 and
Madagascar
two Anti-Corruption Poles, created by Law No. 021 of 2016, that handle some
environmental offences.
The Environmental Management Act 2017 established an Environmental

Malawi Tribunal. The Act has entered into force, but the Environmental Tribunal is still not
established.
Nigerian Urban and Regional Planning Tribunals existed in 2016, but were not
reported. Furthermore, in 2016, five mobile courts were inaugurated in Lagos state
Nigeria to handle environmental and traffic offences “on the spot”, including imposing
fines. Since then, some of these mobile courts seem to have become non-
functional due to logistical and funding problems.
The Lands, Property and Environment Division was created pursuant to the
Sierra Leone
Constitutional Instrument No. 4 of 2019 and a High Court Division Order.
The Lands Tribunal Act 2010 established the Zambian Planning Appeals Tribunals
Zambia
and Land Tribunal.
The Environmental Management Agency is lobbying with the Judicial Service

Commission to establish, albeit administratively not by legislation, a specialized
branch within the Magistrates Court system which will focus on environmental
law. The Zimbabwe Human Rights Commission has powers to investigate and
Zimbabwe
give recommendations on rights violations, including environmental rights. The
number of violations has increased as offenders take advantage of the need for
new investment, as well as limited enforcement resources, to carry out illegal
activities.
Prominent ECT type(s) in the region Where present (even in Kenya, which is lauded as having
From the case law examined and respondents’ comments, the most developed ECT systems in the continent), the
it appears that the prominent environmental concerns recurring pattern seems to be that the institutions and/
in Africa include waste, illegal mining, water pollution, or their staff are not managing environmental cases
inadequate environmental impact assessments for adequately. A lack of political will has been cited as the
infrastructure projects, illegal logging, and wildlife root cause, leading to problems including corruption
trafficking. However, most African countries do not and inadequate institutional funding that hinder the
yet have ECTs development of environmental jurisprudence, investigation
and enforcement efforts on the ground. The general lack
of funding and resources continues to be a major problem,
which has been exacerbated by the economic ills of the
COVID-19 pandemic.
2. The Caribbean
Antigua and Barbuda 0 2
Bahamas 0 0
Barbados 0 0
Cuba 0 0
Dominica 0 1
Dominican Republic 0 0
Grenada 0 1
Haiti 0 0
Jamaica 0 3
Saint Kitts and Nevis 0 2
Saint Lucia 0 2
Saint Vincent and the

0 1
Grenadines
Trinidad and Tobago 1 0
TOTAL 1 12
91
Country Update
The Appeals Committee established a second environmental tribunal under the

Antigua and Barbuda
Environmental Protection and Management Act 2019.
The Environmental Commission’s jurisdiction in subject matter was widened by

Planning and Facilitation of Development (Amendment) Bill 2018. Theoretically,
it handles appeals of certain decisions of the planning authority, but the sections
expanding jurisdiction as such had not entered into force even in 2019, the date of the
most recent available information. This embodies the larger problem that although
the Environmental Management Act has a built-in mechanism for expanding the
Trinidad and Tobago
jurisdiction of the Commission, efforts in this regard have not been forthcoming. For
example, there are numerous sectoral statutes on the environment over which the
Commission has no jurisdiction, such as legislation relating to oil pollution. Judicial
review of government action towards the environment is also not within the purview
of the Commission. Neither, it appears, does the Commission have jurisdiction over
environmental offences.
Prominent ECT type(s) in the region relate to the internal organization and functioning of
Environmental tribunals are the most common type of ECTs, they still have a palpable effect on environmental
ECT in the Caribbean region. However, more research is adjudication in ECTs because they either form or qualify the
needed to uncover the reason behind the preference for merits of environmental cases. Thus, the (lack of ) proper
environmental tribunals over environmental courts. operationalization and enforcement of environmental laws
should also be considered when examining ECT activity in
the Caribbean.
Poor enforcement of environmental primary legislation
in numerous Caribbean countries is worth noting. In
Saint Lucia, many of the environmental laws do not Apart from ECTs, alternative dispute resolution is
have supporting regulation; when existent, they may encouraged in Antigua and Barbuda. The Environmental
be inadequate for the effective implementation or Protection and Management Act obliges the Department
enforcement of primary legislation. Enforcement problems of Environment to facilitate cooperation among various
due to the lack of financial and human resources have also stakeholders, including the encouragement and use of
been reported in Haiti, Saint Vincent and the Grenadines, alternative dispute resolution to avoid or expeditiously
and Jamaica. In Jamaica, enforcement against entities resolve disputes. This would allow more disputes to be
that manage facilities such as sewage treatment plants is settled outside the courtroom, thereby reducing the
even more challenging – even if they are poorly managed, caseload for the environmental courts.
shutting them down would result in greater environmental
degradation. Although environmental laws do not directly
3. Central America
Belize 0 1
Costa Rica 0 1
El Salvador 4 0
Guatemala 0 0
Honduras 0 0
Panama 0 0
TOTAL 4 2
Country Update
The environmental courts that were previously reported in the UNEP 2016 ECT Guide
as being authorized but not established have since been established. According to
El Salvador our contact, in 2017, the Second Instance Environmental Court and two First Instance
Environmental Courts (Juzgado Ambiental de Santa Ana and San Miguel) began to
operate.
Specialized environmental courts and an environmental prosecutor’s office were

allegedly created as part of an environmental justice reform project by USAID between
2015 and 2017, whereby USAID provided significant funding to develop the legal
system at both the court and prosecutorial level. Programmes to train prosecutors
and judges on environmental matters, and systems to increase transparency and
accountability, were also set up. A 2017 USAID report demonstrated promising results,
Guatemala
with increased sentencing of environmental crimes (USAID 2017). However, desktop
research yielded no evidence of this. Furthermore, contact with the law firm Mayora
& Mayora indicated that there is in fact no specialized ECT; it seems that all (criminal)
judges and general courts have jurisdiction over environmental matters, since those
issues are prosecuted under the regular courts. That said, environmental cases are on
the rise, particularly after the 2017 USAID project.
93
Prominent ECT type(s) in the region administrative sanctions. That said, it has no power to
Most countries in this region do not have ECTs. make its own rules and its rulings may not be consistently
enforced in reality.
Belize and Costa Rica are the only two countries with
environmental tribunals, although they are starkly different In El Salvador, the Supreme Court of Justice must provide
from each other. The Belize Environmental Tribunal is the support required by the Environmental Courts (i.e.
arguably weaker in both power and jurisdiction: it cannot environmental experts). Furthermore, Environmental Court
award remedies or order enforcement measures. It may judges have the power to request experts from public
only be convened when a developer has submitted a institutions and the latter shall collaborate (El Salvador,
written appeal to the Minister against the decision of the La Asamblea Legislativa de la República de El Salvador
Department that a project or activity cannot proceed. 2020, article 3). Environmental Courts have complete
geographical jurisdiction and can adjudicate civil cases.
They may issue preventative (i.e. suspend industrial projects
Contrastingly, the Environmental Administrative Tribunal for a specific period), restorative and/or compensatory
of Costa Rica is a decentralized agency under the Ministry orders. Appeals must be made in the Environmental
of the Environment and Energy, with exclusive authority Chamber (Cámara Ambiental). However, elected judges for
and functional independence for the performance of its the Environmental Courts need not have a specialization in
responsibilities. Its rulings are of the highest administrative environmental law.
order, and any resolutions it makes cannot be appealed, and
must be obligatorily fulfilled. It has authority throughout
the entire country and has jurisdiction to hear complaints As noted in the UNEP 2016 ECT Guide, the two First Instance
for violations of all laws protecting the environment and Courts of Panama were authorized in the General Law of
natural resources. Significantly, its decisions are final the Environment. However, they remain unestablished. In
and may not be appealed. It can order environmental practice, most environmental litigation in Panama takes
remediation measures and can impose fines and/or the form of administrative action against Government
decisions, or human rights litigation.
4. North America
Canada 0 32
United States of America 3 39
TOTAL 3 71
Country Update
The biggest development is the consolidation of environmental tribunals in Ontario Province in 2021.
The Accelerating Access to Justice Act 2021 amalgamates five environmental tribunal clusters into a
single Ontario Land Tribunal, revoking legislation that established other independent bodies. This is
coupled with the deliberate reduction of the Tribunal panel’s experts and reducing the stringency of
the panel member appointment process. These changes were motivated by the idea that adjudicators
Canada
with specialized, environmental expertise are not necessary, since “a good adjudicator can adjudicate
anything”. In turn, generalizing the adjudication process and reducing the number of experts
involved results in cheaper, more efficient court processes. In theory, this would increase access to
(environmental) justice. However, in practice, this consolidation dilutes the environmental efficacy of
the tribunal.
Some jurisdictions in the United States of America have developed and now apply one or more forms
United States of of alternative dispute resolution for environmental disputes. Vermont State mandates it in all cases.
America The Environmental Appeals Board offers it through a judge who is not sitting on a given case. By
comparison, Canada does not use alternative dispute resolution for environmental dispute resolution.
Prominent ECT type(s) in the region In the United States of America, the predominant
Environmental tribunals are prominent in this region. environmental tribunal is the Environmental Appeals Board.
It is not completely independent from the Government but
strives to be an impartial decision maker on administrative
In Canada, the federal and provincial environmental appeals under all the major environmental statutes
tribunals deal with only a small proportion of the administered by the EPA; for example, it strictly prohibits ex
environmental litigation that takes place; most cases are parte communications in cases with individual parties. At
litigated in unspecialized regular courts as generic civil any one time, the Environmental Appeals Board comprises
cases or criminal prosecutions. The federal Environmental four well-qualified and outstanding judges who have both
Tribunal has narrow jurisdiction, only over appeals relevant background and genuine interest in environmental
regarding administrative monetary penalties and protection and justice. That said, the broader Federal court
compliance orders issued by federal agencies. However, system does not require prior experience or scientific
there are other federal administrative tribunals dealing training for judges.
with specific environmental matters, such as the Canadian
Energy Regulator and the Ontario Energy Board.
95
5. South America
Argentina 1 0
Bolivia 9 0
Brazil 73 27
Chile 3 0
Colombia 0 0
Ecuador 0 0
Guyana 0 2
Mexico 0 0
Paraguay 0 0
Peru 0 4
Uruguay 0 0
TOTAL 86 33
Country Update
The Environmental Trial Secretariat and the Office are now operational. Theoretically,
Argentina they can deal with environmental cases from any province, but the competence is too
limited given that it is a court of last resort.
In September 2017, the First Environmental Court became operational (the Second and
Third Environmental Courts were already operational by then). There have also been
some important changes to national laws that have impacted the operation of ECTs. For
Chile
example, Law No. 20920 created an extended producer liability mechanism that falls
within the environmental courts’ jurisdiction, allowing such claims to be brought before
ECTs against the pronouncement of the Secretary of Environment.
Country Update
Bill No. 047 of 2020 for the creation of ECTs was proposed, but it is unclear whether it
has been passed. It proposes five environmental courts domiciled in each region, the
location of each determining their respective jurisdiction and territorial competence.
Separately, the Special Jurisdiction for Peace was created in 2016, including a special
Colombia
Ethnic Commission (Comisión Étnica) and Territorial and Environmental Commission
(Comisión Territorial y Ambiental). Its competence is limited to prosecuting
environmental crimes as an international crime within the context of Colombian
internal armed conflict.
Despite claims in the UNEP 2016 ECT Guide of a planned pilot environmental court,
Ecuador
there is no evidence of such having been set up.
The Environmental Appeals Tribunal, a court of record to hear appeals of decisions of
Guyana
the country’s Environmental Appeals Board, is now operational.
Despite claims in the UNEP 2016 ECT Guide of two environmental courts, no evidence of
Paraguay
these could be found.
Prominent ECT type(s) in the region though this is not a new development. For example, the
Environmental courts are a prominent type of ECT in Argentinian Environmental Crimes Investigation Unit
the South American region. These environmental courts conducts preliminary investigations and supports ongoing
are typically independent from the executive, and their investigations regarding environmental crimes.
powers can be extensive, ranging from issuing fines to
prison sentences. Chile, the State most developed in
environmental justice in the region, is a prime example Uniquely, Brazil has a proliferation of both environmental
of this. Most environmental disputes are either over courts and environmental tribunals. Courts, which are
public administration (i.e. citizens’ claims against the independent of the executive, are divided into state and
Superintendent of Environment and the Environmental federal jurisdictions. Both types adjudicate environmental
Assessment Service), or civil lawsuits claiming monetary matters, depending on the parties and whether the
compensation for environmental damage. Significantly, matter is subject to federal, state or local control. Usually,
there is no automatic right to appeal a decision of the ECTs environmental issues are considered matters of state
in Chile, as sentences only can be reviewed in relation to justice, qualifying under federal justice when there is
specific matters via the “Recurso de Casación” mechanism. A conflict or environmental impact involving more than one
more limited experience of specialization of environmental state, Indigenous People or federal government agency,
courts is found in Argentina. Out of 23 provinces, only or nuclear energy. Some cities have Agrarian Courts, an
Jujuy Province has an environmental court, which only has environmental court with competence only over criminal
jurisdiction in that particular province. cases.
Additionally, the specialization of environmental

prosecutors is particularly common in South America
(in countries both with and without established ECTs),
97
6. Asia (excluding South-East and West Asia)
Bangladesh 4 0
Bhutan 0 0
China 1,353 0
Democratic People’s
0 0
Republic of Korea
India 0 5
Japan 0 48
Kazakhstan 0 0
Kyrgyzstan 0 0
Maldives 0 0
Mongolia 0 0
Nepal 0 0
Pakistan 0 5
Republic of Korea 0 17
Sri Lanka 0 0
Taiwan 0 0
Tajikistan 0 0
Turkmenistan 0 0
Uzbekistan 0 0
TOTAL 1,357 75
Country Update
Unlike in most countries, there has been a proliferation of ECTs in China in recent years
– from 456 ECTs in 2015, to 1,353 in 2019. This development is part of China’s broader
effort to improve environmental governance and modernize its environmental legal
framework. ECTs are given some discretionary power to customize procedural rules,
and their judges are encouraged to develop their expertise in environmental law.
The Supreme People’s Prosecutorate has also launched a “battle against pollution” by
filing thousands of lawsuits against local authorities and companies that have violated
environmental laws.
The majority of ECTs experience difficulties in securing financial support to carry out
their investigative duties in environmental public interest litigation. In response, the
China
China Environmental Protection Foundation has established a China Environmental
Protection Fund, which allows any Chinese court to apply to the fund for a sum of
money between 60,000 and 120,000 yuan to carry out necessary investigation in any
civil EPIL.
China has also been actively increasing access to justice. The amendments to the
Environmental Protection Law have reduced the barriers for the public, particularly
NGOs, to bring an action. Previously, Chinese courts had discretion to refuse to accept
cases for filing, However, article 58 obliges the courts to accept lawsuits by eligible social
organizations. These developments have created a more conducive atmosphere for
environmental litigation to flourish.
The number of environmental cases has been declining in India over the last two to
three years. It has been observed that the decrease in caseload is attributable, inter alia,
India
to perceptions of a less receptive NGT as a result of a change in leadership, as well as
litigation fatigue on the part of civil society actors.
Prominent ECT type(s) in the region environmental investigation procedures have been created
There is a large variation in how jurisdiction of an ECT and implemented by ECTs (although the efficiency and
is decided upon. In China, the spread and jurisdiction effectiveness can be improved).
of ECTs depends on the geographical location and its
corresponding environmental concerns. Most notable ECTs
are found in major cities where environmental problems Environmental tribunals in Japan and the Republic of Korea
are pertinent, especially from rapid industrialization (e.g. in may also develop procedures independently. However, a
Beijing, Guangzhou, Guizhou, Hangzhou, Jiangsu, Qinghai, majority of environmental dispute resolution institutions
Shanghai, Suzhou, Yunnan and Wuhan). Cross-border ECTs in these countries focus on non-litigation (i.e. mediation,
have also been established in ecological zones spanning conciliation and arbitration). In the Republic of Korea,
several provinces for better environmental governance all Environmental Dispute Resolution Commissions may
of a single ecosystem, such as the Yangtze River. In most adjudicate as per the Environmental Dispute Mediation
countries, jurisdiction over environmental cases is not Act, though that is not their focus. In Japan, only the
exclusive to ECTs. National Environmental Dispute Coordination Commission
may adjudicate, and there has been an obvious shift from
conciliation towards litigation in recent years.
Most ECTs are empowered to develop their own court
procedures, jurisprudence and judicial training regimens. In
China, the Supreme People’s Court encourages innovation
and experimentation by ECTs in developing their own
procedures to suit their context. In India, niche
99
7. South-East Asia
Brunei Darussalam 0 0
Cambodia 0 0
Indonesia 0 0
Lao People’s Democratic

0 0
Republic
Malaysia 134 0
Myanmar 0 0
Philippines 117 0
Singapore 0 0
Thailand 0 0
Viet Nam 0 0
TOTAL 251 0
Country Update
Initially, only 42 Sessions Courts and 53 Magistrates’ Courts were established in 2012 as
environmental courts with jurisdiction only over criminal environmental cases (though
Malaysia enforcement powers were wide). In 2016, the High Courts, Magistrates Courts and
Sessions Courts in all 13 states were assigned as Special Environmental Courts to hear
civil environmental cases as well.
The military coup beginning in 2020 has severely disrupted the rule of law, including
Myanmar
environmental adjudication and enforcement (Liljeblad 2021).
Prominent ECT type(s) in the region save time and costs, as litigation is generally a protracted
The Philippines has the most developed environmental and expensive endeavour. That said, the availability of the
litigation system in the region. Not only has it established choice to avoid litigation altogether is usually only available
specialized environmental courts, but it has also developed for civil issues.
special actions and procedures for environmental claims:
relaxed locus standi requirements, the writ of kalikasan
(writ of nature), the writ of continuing mandamus (i.e. That said, Indonesia and Thailand have proven to be
an environmental protection order is converted from exceptions to the pattern. Despite the lack of specialized
temporary to permanent), anti-SLAPP rules and requiring ECTs, they are comparatively active in environmental
the precautionary principle (Philippines, Supreme Court adjudication and the development of environmental
of the Philippines 2010). The related judicial training jurisprudence. This is especially so of Indonesia, whose
institution, the Philippine Judicial Academy, is also active environmental law caseload is quantifiably comparable
in conducting judicial training both domestically and to that of the Philippines, which has the region’s most
bilaterally, as a form of regional cooperation. On the developed environmental legal system. Thailand does
other hand, Malaysia’s environmental courts lack similar not have an ECT due to administrative, logistical and
specialized procedures and handle a far smaller caseload; bureaucratic barriers; instead, it has a green bench.
Malaysian environmental jurisprudence is developing at a
much slower rate.
In most, if not all, countries in South-East Asia, there is
a lack of standardization when it comes to classifying
Eight of the ten States in the region do not have environmental cases. As a prominent example, when
environmental courts, as most prefer to deal with (civil) environmental crimes are committed, these are usually
environmental issues through administrative action. brought under the remit of criminal law generally, despite
Litigation is often a last resort, if at all – it is not uncommon having a direct environmental impact. This relegates
for laypeople to lack environmental literacy and awareness environmental issues beneath other competing priorities
of their environmental rights, and/or sufficient funds to and affects both individual outcomes and general
pursue legal action. Administrative action is especially jurisprudential development.
preferred by countries whose judiciaries are relatively
less and/or lacking in environmental expertise, including
Brunei Darussalam, Lao People’s Democratic Republic and It should also be noted that in all States, judicial training in
Myanmar. It could also be a result of a less litigious civil environmental law and science is not mandatory.
society, such as Singapore. Often, this option is preferred to
8. West Asia
Armenia 0 0
Azerbaijan 0 0
Bahrain 0 0
Cyprus 0 0
Georgia 0 0
Iraq 0 0
Israel 0 0
Jordan 0 0
101
Kuwait 0 0
Lebanon 0 0
Oman 0 0
Qatar 0 0
Saudi Arabia 0 0
Syrian Arab Republic 0 0
Turkey 0 0
United Arab Emirates 0 0
Yemen 0 0
TOTAL 0 0
Country Update
Turkey Judicial environmental training has begun.
United Arab Emirates One ECT has been authorized but not established.
Prominent ECT type(s) in the region

The absence of ECTs is the dominant trend in the region.
Some countries in this region are experiencing armed
conflict and/or severe economic problems, including
Afghanistan, Iran (Islamic Republic of ), Iraq, Lebanon, Syria
and Yemen; it is to be expected that the development of
ECTs has not been a priority.
9. Europe
Albania 0 0
Austria 11 0
Belgium 16 1
Bulgaria 1 0
Cyprus 0 0
Czech Republic 0 0
Denmark 0 3
Estonia 0 0
Finland 2 0
France 18 (+ 36 new ECTs created in 2021) 0
Georgia 0 0
Germany 6 0
Germany 0 0
Greece 1 0
Hungary 0 0
Iceland 0 1
Ireland 1 3
Italy 1 0
Latvia 0 0
Malta 0 1
Netherlands 1 0
Norway 0 0
103
Portugal 0 0
Romania 0 0
Russian Federation 0 0
Serbia 0 0
Spain 1 0
Sweden 6 0
Switzerland 0 0
United Kingdom of Great Britain

5 0
TOTAL 70 9
Andorra, Belarus, Bosnia and Herzegovina, Kosovo, Liechtenstein,

Luxembourg, Moldova, Monaco, Montenegro, North Macedonia, San Marino, No response; 0 assumed
Slovakia, Ukraine
Country Update
Between 2016 and 2021, the Courts of First Instance of Antwerp (Antwerp Department),
Hainaut (Charleroi Department), Liège (Huy Department), Luxemburg (Arlon
Department), Namur (Namur Department) and West Flanders (Kortrijk Department),
have formally installed a specialized department for all criminal environmental cases
of the districts. The judges who work there are do not always devote themselves
exclusively to environmental cases, as they must combine environmental matters with
Belgium other types of criminal cases.
By Presidential Decree of 9 October 2021, an environmental chamber has been created

in the Court of Appeal of Mons which handles civil as well as criminal environmental and
town planning cases. The aim was to concentrate all environmental (in the broad sense,
including environment food safety, town planning and agriculture) cases and to allow
the judges to specialize. The chamber will still handle non-environmental civil cases.
The Nature and Environmental Appeals Board (Natur-og Miljøklagenævnet) dealt

with environmental administrative appeals until 2016, when it was replaced by the
Environment and Food Appeals Board (with a jurisdiction including agriculture) and the
Planning Appeals Board (with jurisdiction over plans and decisions under the Planning
Denmark
Act). Both boards have various permutations of panel members to suit the technicality
of a case – some panel groups may be “lay configurations”, while others may be “expert
configurations”. Decisions on non-compliance cannot be brought before the Appeals
Boards.
Country Update
On 24 December 2020, a law regarding the European Prosecutor’s Office, environmental

justice and specialized criminal justice created 36 specialized environmental courts
France within the general courts. This law also allows the prosecutor to propose a corporation
accused of environmental offences under the Environment Code, to conclude a Judicial
Convention of Public Interest and impose a fine, regularization and/or reparation.
The Government published a programme in June 2020, setting out commitments to

establish a new Planning and Environmental Law Court managed by specialist judges.
Ireland
What is envisaged is not a stand-alone environmental court, but a model based on the
existing Commercial Court, a separate list in the High Court.
The Environment and Planning Review Tribunal of Malta was created in 2016, but was
Malta
not reported in the UNEP 2016 ECT Guide.
In January 2020, Portugal created the Central Department of State Litigation, Collective
Portugal and Diffuse Interests in the Office of the General Prosecutor of the Republic, dedicated
to environmental matters.
The Environmental Chamber was established on 1 January 2020, in anticipation of the

entry into force of the new Environmental and Planning Act (Omgevingswet). It handles
The Netherlands all nature, environment, and planning cases in appeal, but also in sole and last instances.
The division into chambers is not laid down in law, but is determined by the chairperson
of the Administrative Jurisdiction Division of the Council of State.
The UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 commits
United Kingdom of Great Britain the Scottish Government to publish a report and consult on whether establishing an
and Northern Ireland (Scotland) environmental court would enhance access to justice in environmental matters and
governance following Brexit.
Prominent ECT type(s) in the region Administrative courts or appeal bodies are also pertinent,
In Europe, the dominant ECT model is one of specialized though their competences are often restricted to appeals
chambers within the general courts and administrative against decisions, fines or permits falling under specifically
courts. These were all existing in 2016, but not all described listed environmental legislation. On the whole, ECT
in the UNEP 2016 ECT Guide. These numbers have been numbers have remained stable since 2016.
stable since 2016 but will potentially increase, as there are
41 pending or potential environmental courts envisaged
within various European general court systems. Some countries (Austria, Greece and Malta) also have an
ombudsman system to increase access to (environmental)
justice through representation, particularly when a large
An important degree of specialization has developed de group of people (100 people is the threshold in Austria)
facto at chamber level of supreme (administrative) and is affected by an environmental problem. Generally, an
some appeal courts, because environmental cases are ombudsman has wider and stronger standing rights in
systematically referred to those chambers. This increases the environmental cases, including administrative issues,
environmental caseload and has enhanced the expertise environmental impact assessment and waste management
of judges involved, through experience and/or (voluntary) procedures. This is an important way to increase access to
technical training. justice, because citizens do not ordinarily have these rights
for lack of particular conditions or circumstances (e.g. not
being directly affected by a decision). It also prevents the
The appointment of specialized chambers is often based failure of justice where people do not or cannot take legal
on a court regulation or a presidential decision. As these action (e.g. they cannot afford to do so, or lack knowledge
developments are not anchored in primary legislation, of how to do so).
those chambers are not structurally fixed for the long term.
As such, many also handle non-environmental cases, and
judges can easily be moved to other courts.
105
10. Oceania and the Pacific
Australia (Australian
7 5
Capital Territory)
Fiji 0 2
Kiribati 1 0
Marshall Islands 1 0
Nauru 0 2
New Zealand 4 1
Palau 1 0
Papua New Guinea 1 1
Samoa 0 1
Solomon Islands 0 1
Tonga 1 1
Tuvalu 1 0
Vanuatu 1 0
TOTAL 18 14
Country Update
Firstly, the environmental divisions in the respective territorial civil administrative

tribunals of the Australian Capital Territory and Northern Territory were abolished prior
to the 2016 report.
Secondly, the Land Court of Queensland and the Land Appeal Court were excluded
from the 2016 report, despite having a wide jurisdiction over environmental cases.
Since 2016, the Land Court of Queensland has substantially reformed its alternative
dispute resolution procedures, specifically pertaining to alternative dispute resolution
and expert evidence. Mediation is the primary mode of alternative dispute resolution
employed. A panel of accredited and expert mediators are selected by the parties, and
then screened and trained by the Land Court. This has allowed for timely resolution of
Australia cases, with 26 per cent of matters resolving before any substantial pre-hearing process.
Additionally, case appraisals are conducted by a suitably qualified Convenor, who must
be accredited under national mediator accreditation standards, and must also possess
qualifications or experience that is relevant to the types of cases filed in the court. Since
the reform, the Land Court continues to issue expert evidence practice directions to
enhance procedures as necessary. Thus, better alternative dispute resolution and expert
evidence practices have enhanced the impartiality and reliability of the procedures and
decisions of the Land Court of Queensland.
Moreover, the Land Court provides procedural assistance service for self-represented
litigants. This is a service that observes the distinction between procedural assistance
and legal advice and connects self-represented parties with suitable support services.
Prominent ECT type(s) in the region In most of the jurisdictions in this region, there are land
Both courts and tribunals are equally prominent. Two courts which hear traditional land rights claims.
categories of ECTs can be identified: jurisdictions which
have environmental courts with broad legal jurisdiction;
and jurisdictions which have independent administrative However, only Fiji, Samoa and Tonga have independent
tribunals which are largely limited to land planning/ environmental tribunals with a wider environmental remit.
development appeals and land valuation appeals. In There are also captive administrative review mechanisms
addition, in New Zealand, the Māori Land Court and which ultimately report to political leaders (such as the
Waitangi Tribunal have been established to specifically Environment Ministers) in Papua New Guinea and the
hear claims relating to Māori Indigenous land claims and Solomon Islands. Finally, in Micronesia, Nauru and Vanuatu,
settlements (New Zealand, Māori Land Court, no date). no ECTs of any sort exist.
The countries and jurisdictions in this region present a Case reports of most environmental cases are not available
patchwork of different approaches towards the provision online, and information on ECTs in the region is also limited.
of environmental justice. This reflects the wider diversity However, a general sentiment in the region is an increasing
of legal systems in the region – all the sovereign countries interest in environmental litigation, especially climate/
in the region (including Australia and New Zealand) have climate-adjacent litigation. This is unsurprising, as all the
received common law (in part or in full) from being former States in this region are small island developing States.
American or British colonies/territories, but Vanuatu has Furthermore, judiciaries in the region work with research
a mixed (civil and common law) legal system, and French bodies (e.g. the Grantham Institute of the London School
Polynesia and New Caledonia are under French jurisdiction, of Economics) to expand online environmental case report
a civil law system. repositories.
107
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1

© 2022 United Nations Environment Programme

ISBN No: 978-92-807-3951-0

Job No: DEL/2448/NA

Some countries have experienced shifts in political

George W. Pring Catherine Pring

Authors of the UNEP 2016 ECT Guide

2. ECT OBSERVATIONS IN 2021...................................................................................................................................................11

3. ECT MODELS .............................................................................................................................................................................42

LIST OF FIGURES AND TEXT BOXES

List of text boxes

ELUAT Environment and Land Use Appeal Tribunal (Mauritius)

EPA Environmental Protection Agency (United States of America)

FAQs Frequently asked questions

IUCN International Union for Conservation of Nature

LECNSW Land and Environment Court of New South Wales (Australia)

NGT National Green Tribunal (India)

NGO Non-governmental organization

SLAPP Strategic lawsuits against public participation

STAB Stichting Advisering Bestuursrechtspraak voor Milieu en Ruimtelijke Ordening/Foundation of Independent

UNEP United Nations Environment Programme

USAID United States Agency for International Development

ii. secondary literature from 2016 to 2020 on ECTs and

1.2. RECENT TRENDS: GREEN BENCHES,

Green benches are found in general courts and

The practice whereby general judges with some

Enforcement is even more challenging vis-à-vis essential

ECT OBSERVATIONS IN 2021

2. ECT OBSERVATIONS IN 2021

For the purposes of this guide, an “environmental case” is

2.1. THE TRANSFORMATION OF

Environmental tribunals exist in many states in the United

Other South American countries have experienced no

Asia (excluding South-East Asia and West Asia)

Bangladesh established four operational environmental © Unsplash/Birger Strahl

In Australia, there is one environmental court in New South

Figure 2 Global distribution of ECTs

environmental tribunal in Samoa, one environmental

2.2. CASELOAD Asia (excluding South-East Asia and West Asia)

Oceania and the Pacific

In Queensland, the Land Court experienced a decrease

A. Notable environment cases

Several factors have contributed to this outcome:

• As there is a limited number of countries (and

• The courts of general jurisdiction can effectively

• With growing popularity of alternative dispute

There are, however, several factors that determine why and

2. Intergenerational and intragenerational equity UNEP continues to be important in supporting the

6. Precaution The Global Judicial Institute on the Environment has

13. In dubio pro aqua

Box 1: Good practices during COVID-19 by the Vermont Environment Court

Pring and Pring 2021a

In countries without ECTs, most environmental cases

PROFILE AND EXPERIENCE OF JUDGES

Figure 3 Profile and experience of judges

Box 2: Training Curriculum on Judicial training programmes can be conducted by national

one-off efforts should be considered, as judges need to

Training for judges and tribunal members

In countries with operational ECTs, mandatory training for