Think about a large company engaging in extraction of natural resources (for example, mining ore, drilling for oil, cutting down timber). How likely do you think it is that these companies would be fined if they:
- Engage in the business operation without the required documentation?
- Do not register to pay taxes when they should?
- Contaminate a local water source so people can’t drink from it?
- Pollute beyond the legally permissible limits?
- Fail to use legally required safety practices?
How easy might it be for the public to obtain information about the company’s operations, such as if noise from those operations will affect a neighboring community, or what the economic impacts associated with those operations are? How likely is it that a project proponent or government will change its activities based on public input?
These questions probe the “Environmental Rule of Law” in a country and we hope they will get Trends readers thinking about how law intersects with the environment and public health. Environmental Rule of Law issues are critical to ensuring sustainable development around the globe, advancing human rights and equity, environmental protection, and economic growth. Many cultures have a proverb recognizing that “once your eyes have been opened you cannot close them again.” So it is with issues surrounding the Environmental Rule of Law. As more members of the American Bar Association Section of Environment, Energy, and Resources (Section) learn about these issues, their enthusiasm and desire grows to support the development of environmental legal systems around the world and here at home. This article brings our members current with the Section’s efforts to connect Rule of Law concepts to environment, energy, and resources practice and the activities of our World Justice (WJ) Task Force. It also marks the first of more regular communications in the coming months, with the WJ Task Force placing future updates on our webpage.
As the practice of environmental law has become more global, the Section has taken steps to ensure we remain current with, and ahead of, the development of environmental-related laws and associated regulatory, judicial, and administrative systems in many nations. Formation of the Section’s WJ Task Force provides a central place for members interested in this type of practice to find out about ways to advance Environmental Rule of Law discussions in our association. These opportunities include participating on the International Environmental and Resources Law Committee, attending continuing legal education programs at conferences and on webinars and teleconferences, and contributing to books focused on international environmental law. In addition, Section members are increasing our global network of contacts and relationships through their participation in and collaboration with many environmental bar organizations focused on international issues. We welcome the leaders of non-U.S. bars to play prominent roles in our conferences and events, and the Section will even have foreign attorneys hold leadership positions on the Section’s Council. Collectively, these efforts have put the Section in a better place to understand where Environmental Rule of Law issues are strong in various parts of the world and in our own nation, in addition to places where the World Justice Project (discussed below) and others can support and help grow the Environmental Rule of Law.
The Section’s WJ Task Force members strongly believe in conducting broad discussions to raise our members’ knowledge of some of the details of the Environmental Rule of Law and how it impacts rule of law experts, Section members, and the ABA at large. WJ Task Force members come from all sectors of practice—large private practice firms, government, academia, and non-profit and non-governmental organizations. The WJ Task Force has several areas of focus to promote education and discussions, including holding substantive forums, maintaining webpages on key efforts, and providing written reports to Council. Given the breadth of the task at hand, the Section’s WJ Task Force remains in close coordination—and leverages its activities—with our Section’s International Environmental and Resources Law Committee, the ABA Section of International Law, and the ABA Sustainable Development Task Force. A few recent examples of the WJ Task Force’s undertakings, some in collaboration with these groups, follow.
Most recently, in October 2014, the WJ Task Force’s chair, Alexandra Dunn, presented on a panel with representatives from the ABA Section of International Law at the World Bank’s Law, Justice, and Development Week. This particular panel was called “Making the Case: Rule of Law in the Emerging Development Agenda.” The panelists’ presentations advanced the rule of law as a goal in itself, as a key principle in the achievement of other development objectives, and as an over-arching theme in the creation of an enabling environment for sustainable development. The Southwestern Journal of International Law will publish the panel’s papers in 2015.
In April 2014, the WJ Task Force, in conjunction with our Section’s Sustainable Development Task Force headed by Lee DeHihns, organized an at-capacity event featuring a multidisciplinary panel of experts on the rule of law and sustainable development. ABA President James Silkenat opened the event, which was a high point for all. Dynamic and diverse panel members each brought their expertise to bear in addressing the foundation, measurement, and implementation of Environmental Rule of Law initiatives, as to meet international sustainable development goals and principles. A recording of the event is available through this link: https://video.law.gwu.edu:8443/ess/echo/presentation/3380ab10-c3c6-42c1-90fc-d9e86fee6be5. One of the concluding remarks was:
Environmental rule of law, though nascent in its ability to be measured, is a critical challenge facing civil society and governments around the world, . . . without clearly publicized information, access to regulatory policies, and a responsive judicial system, the rule of law—and therefore environmental justice—means nothing to the average citizen.
Looking back just a bit, in September 2013, WJ Task Force members Alexandra Dunn and Steve Wolfson joined global leaders at a workshop organized by World Resources Institute on “Public Administrative Fairness in Environmental Decision Making” at the George Washington University Law School. Naysa Ahuja, a WJ Task Force member, played a leading role in organizing this workshop and, later, sought to bring the World Resources Institute’s Environmental Democracy Practices (formerly The Access Initiative) and the efforts of the WJ Task Force together. Complementing these important efforts is the Section’s decade-long support for the World Justice Project (WJP, worldjusticeproject.org). While the ABA started the WJP through a presidential initiative in 2006, WJP is now is an independent, multidisciplinary international organization that remains focused on advancing the rule of law around the world. The Section has been a founding, and regular, contributor to the WJP’s work. Section members have attended all four of the WPJ’s World Justice Forums, held approximately every other year in Europe, to ensure that the Environmental Rule of Law becomes a focal point for the WJP, while competing for relevance among difficult and compelling issues concerning public health, poverty, human trafficking, military law, corruption, and judicial capacity. For example, at the WJP’s World Justice Forum IV in The Hague, Netherlands, the Section moderated a Justice Incubator session on environmental conflict resolution. Over 40 delegates from across the globe attended this session. These delegates, from non-governmental organizations, academia, government, and private practice firms, all worked together in an effort to strengthen the Environmental Rule of Law. The Section’s WJ Task Force further fleshed out proposals developed by participants from Nigeria, Cameroon, Malawi, and Mongolia during the session and submitted them for funding through the WJP’s Opportunity Fund. Although the WJP chose not to fund them, the WJP highly appreciated the Section’s work and offered support in finding other sources of funding for these excellent projects.
Through the Section’s nearly 10-year investment of time, energy, and financial contributions to the WJP, our WJ Task Force is now working closely with the WJP to frame and commence a multiyear project that will study the nexus between environment and energy issues and the rule of law. The Section’s efforts with WJP’s executive director, Juan Carlos Botero, and his team will result in a report focused on the Environmental Rule of Law, which the WPJ will release in summer 2016 at the World Justice Forum V in London. The Section plans to support a delegation to the forum, and the delegation will be charged with sending live dispatches back to the Section for posting, making the experience as inclusive as possible for all members. The report will use the WJP Rule of Law Index®, an excellent resource developed through extensive surveys, which measures the rule of law experience in everyday life in 99 countries. Building on contacts made with international environmental professionals through the World Justice Forums, the index includes case studies and information offering insights into the status of the Environmental Rule of Law globally.
With such an excellent team, leadership, and clarity of thought, the focus of our WJ Task Force’s work in the coming year will be to lead more informative and technical sessions at the World Justice Project Forums. As in the past, the Section’s participation will focus on bringing expertise to, and expanding the discussion of, environment, energy, and resources issues at the global platform, like the Law, Justice, and Development Week at the World Bank. Finally, we will continue to support conversations regarding the relevance of this work to Section members and the legal profession as a whole. To get involved, please email WJ Task Force Chair Alexandra Dunn at email@example.com with the subject line “WJ Task Force.”