January 01, 2013

Views from the Chair: The globalization of environmental law: Why it matters and what the Section is doing

Alexandra Dapolito Dunn

Robert Percival, professor and director of the Environmental Law Program at the University of Maryland School of Law, has written extensively on “the globalization of environmental law.” Professor Percival powerfully notes that “as the forces of globalization bind the world more closely together than ever before, environmental law is developing on a global scale in important new ways.” Robert V. Percival, The Globalization of Environmental Law, 26 Pace Envtl. L. Rev. 451, 452 (2009).

I understand what Professor Percival, a friend and frequent speaker at Section programs, means when he reflects on the more international nature and scope of our practices as compared to environmental law’s early days. Some of us began our practice with an international or global component, but I, for example, cut my legal teeth on domestic clean air and Superfund law, later moving into U.S. water quality law. My day-to-day practice did not require much knowledge of European Union trends, developments in Asia, or resource extraction in developing nations.

That has changed. The evolution of issues—from water shortages, to climate change, to e-waste, to multinational corporation counsel—means that we are all, in some way, global practitioners. When serving as dean of Environmental Law at Pace Law School, international students in my Human Rights and the Environment course enlightened me with their perspectives on limited transparency and information, limited judicial capacity, and resource exploitation. I have attended colloquia of the International Union for the Conservation of Nature (IUCN) Academy of Environmental Law—a global network of environment, energy, and resource law professors. In some cases, a participating academic is the only environmental law professor in his or her country, revealing how fragile our future could be with insufficient numbers of lawyers trained in our work.

Although my practice has returned to traditional U.S. water quality law, my experiences with global environmental law have permanently changed me. My evolution is well supported by a quotation cited by Professor Svitlana Kravchenko, a pioneering human rights and the environment scholar from the Ukraine, who later worked at the University of Oregon School of Law, and passed away in 2012, much too early. Professor Kravchenko offers the following in the opening to her law school text: “In this life, once you have opened your eyes, you can never close them again.” Nothing can be more accurate and truthful at this juncture for Section members. The Section posthumously honored Professor Kravchenko with the ABA Award for Distinguished Achievement in Environmental Law and Policy at the ABA Annual Meeting in August 2012.

With this reflection on my own pathway toward a more globalized view of our field, I offer some examples of work that the Section has undertaken to advance international issues relevant to our practices. Most dramatic is the Section’s work to support the World Justice Project’s (WJP) Rule of Law Initiative. Section leaders have participated in all three meetings to date of the World Justice Forum. The forum brings together more than 500 dignitaries, leaders, and innovators from more than 100 nations to discuss essential rule of law issues such as “economic development, technology, women’s rights, freedom of expression”—and thanks to the Section’s work—the environment. The Section will send a delegation to the upcoming forum in the Netherlands in July 2013, and will report back to the Section’s membership on our connections and learning there.

Our work with the WJP, chaired by Howard Kenison, continues with our most ambitious project ever. We will be developing a special report with the WJP on environmental and energy rule of law. Our study will look at five countries in the areas of enforcement, labor, corruption, transparency, criminal and civil liberties, and how these and other “benchmark areas” are perceived by the general population, and also by academic, judicial and regulatory experts in those fields. The WJP has the most objective data going back many years in some of these areas, and allows its rich and objective data to speak for itself on the state of rule of law. This special report must be undertaken with such diligence and care that we are likely two to three years from its release. However, the Section is committed to ensuring that this critical information is incorporated into the WJP’s work.

Also impressive is the fact that five of our Section’s leaders represented the ABA as a whole at the Rio+20 United Nations Conference on Sustainable Development. Our impressive delegates blogged from the June 2012 conference, and delivered a comprehensive report to the ABA at its conclusion. One of the most poignant blog comments was made by past Section Chair and Rio Delegate Sheila Hollis, when she noted on June 20, “Dear Friends—It is many things here:—Extraordinary experience—Indigenous Peoples well represented. And they are delegates; exceedingly diverse representation and positions on biggest issues. It is humbling to participate; thanks for the support and for allowing us the privilege of carrying the ABA portfolio.”

To provide a home for our global law activities, we formed this year the Special Committee on Environmental Rights and Justice, chaired by past Section Chair Claudia Rast. This special committee provides a consolidated and organized way to monitor developments, advance endeavors like the ones described, and to report to the Section’s membership on our work. This committee also contains our liaisons to the International Bar Association (past Section Chair Gene Smary) and to the IUCN Academy of Environmental Law (Ann Powers), our domestic environmental justice work (Paula Schauwecker), and our continuing post-Rio+20 activities (past Section Chair Lee DeHihns).

Beyond these larger initiatives, our recognition of the globalization of environmental law is reflected in our current activities. At our CLE programming, we have offered a variety of global law panels. Recent topics include European Union environmental law at the 40th Annual Conference on Environmental Law in 2012, environmental law within and between NAFTA member countries at the 19th Section Fall Meeting in 2011, and counseling multinational corporations on environmental compliance issues at the 18th Section Fall Meeting in 2010. At our upcoming 41st Spring Conference in Salt Lake City, the agenda will offer a panel on Arctic governance. We are supporting law students interested in global environmental law through our support of the Stetson Law International Environmental Moot Court Competition, a world-wide moot court, particularly its North America Regional Round being held in Washington, D.C. in February 2013.

Section publications also cover a myriad of international issues. For example, each year the International Environmental and Resources Law Committee (IERLC), currently co-chaired by Brett Grosko and Jennifer Wills, provides a chapter for the The Year in Review that highlights the last 12 months’ developments. The committee’s newsletter is also packed with information. The Section’s bi-monthly publication Trends has published articles by IERLC members focusing on international environmental law and energy emissions, including international battles over U.S. labeling of tuna in the World Trade Organization and EU efforts to regulate emissions from U.S.-based airline carriers. And a dynamic team of more than 50 Section members is hard at work on a brand new book scheduled for publication in 2013 tentatively called “International Environmental Law: The Practitioners’ Guide to the Laws of the Planet.” This book, edited by Roger Martella and Brett Grosko, will be like no other, providing the tools environmental practitioners need to approach international environmental law questions, and covering the environmental regimes of more than 35 countries or regions.

Finally, an executive member of the Canadian Bar Association’s National Environmental, Energy, and Resources Law Section (NEERLS) sits ex officio on our Council and our Section vice chair does the same with NEERLS. We are coordinating with the ABA’s Section of International Law through our Special Committee on Section, Division, and Forum Coordination and through the IERLC. We hope this relationship will yield additional productive activities that will serve members of both sections.

I hope that this column has raised your awareness of the Section’s global activities, and perhaps intrigued you enough to get more involved—I’m sure you didn’t miss that quite a few of our past Section chairs are! If you’d like to, reach out to me at Environ.Chair@americanbar.org. I close with words from sociologist Margaret Mead, which sum up how I feel about our personal roles in the globalization of environmental law—“Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.”

Alexandra Dapolito Dunn

Alexandra Dapolito Dunn is the executive director and general counsel of the Association of Clean Water Administrators.