The ABA Section of Environment, Energy, and Resources (SEER) has been involved with the international World Justice Project (WJP) for nearly two decades. Recently, the WJP initiated a new campaign—Rebuilding Trust: Strengthening Rule of Law in the United States—that provides an on-the-ground opportunity for SEER members to be directly involved in improving understanding of rule of law in the United States. Although this new campaign is not expressly an environment, energy, or resources law issue, SEER’s World Justice Project Task Force believes WJP’s campaign is an opportunity to involve SEER lawyer and associate members in an important rule of law project.
In a fall 2022 NR&E Perspectives column about the WJP, I wrote of a lawyer’s special obligation as “a public citizen having special responsibility for the quality of justice.” According to the Preamble to the Model Rules,“[a]s a public citizen, a lawyer should seek improvement of the law, . . . [and] cultivate knowledge of the law beyond its use for clients . . .” The “Rebuilding Trust” effort provides SEER members a project that seeks to improve the rule of law in the United States.
First, some background. WJP is “an independent, multidisciplinary organization working to create knowledge, build awareness, and stimulate action to advance the rule of law worldwide.” The WJP asserts that the “effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small.” For example, when pollution laws are ignored and inspectors are bribed, the environment suffers.
Members of SEER have worked with the WJP to improve the quality of justice in environmental matters. SEER has provided knowledge of environmental law for the WJP’s international World Justice Forum (WJF). The 2022 WJF focused on topics that SEER has been on the forefront of promoting, including SEER-led resolutions in the ABA House of Delegates concerning environmental justice, sustainable development, and climate change.
The WJP’s primary work revolves around its Rule of Law Index (Index), which “offers a detailed and comprehensive picture of the extent to which 142 countries adhere to the rule of law. . . . ” “The Rule of Law Index relies on more than 149,000 household and expert surveys to measure how the rule of law is experienced and perceived in practical, everyday situations by the general public around the world. Performance is assessed using 44 indicators across 8 categories, each of which is scored and ranked globally and against regional and income peers: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice.”
SEER and the WJP created a similar index focused on environmental issues. The outcome was a report: Environmental Governance Indicators for Latin America and the Caribbean (EGI). The EGI represents the first-ever effort to address how environmental governance functions in practice.
Critically, the United States’ score in the WJP Rule of Law Index 2023, while rebounding, has been low for several years. Among the factors pulling down the U.S. rule of law score in recent years was a weakening of constraints on government power.
According to the WJP, in 2022, following four consecutive years of declining rule of law, the United States was among the top improvers. However, “2022’s gains were not enough to overcome the long-term decline since 2016, however, and this year U.S. rule of law took a downturn again. . . Overall, the U.S. ranks 26 out of 142 countries and jurisdictions on the rule of law, below the majority of other high-income countries.”
Per the WJP, faltering confidence in government accountability remains an area of concern. The Index “subfactor” that examines whether government officials are sanctioned for misconduct is down 16 percent since 2016. This indicator declined again between 2022 and 2023, and the United States now ranks 36th globally on this category in the Index.
The United States ranks in the bottom 20 percent of countries in accessibility and affordability of the civil justice system (115 out of 142) and absence of discrimination in the civil justice system (124 out of 142) and ranks in the bottom 25 percent of countries in the impartiality of the criminal justice system (109 out of 142).
The poor performance of the U.S. justice system this year is not an anomaly.
Both the civil and criminal justice systems declined between 2016 and 2023, specifically the subfactors measuring impartiality of the criminal justice system and discrimination in the civil justice system––down 26 percent and 22 percent respectively.
As stated in a press release of November 2023, Betsy Andersen, the executive director of WJP concluded that, “Overall, these findings underscore the need to build public trust in U.S. institutions.” As Andersen noted, “An independent judiciary plays an especially important role by constraining executive power, guaranteeing fundamental rights, and ensuring the justice system delivers on its promise of equal justice.”
As a result of these outcomes, the WJP is embarking on a campaign to strengthen rule of law and “rebuild trust.” Cofounder and WJP Board chair William Hubbard has stated that “[WJP] will be working and looking for partners to build capacity and support local leaders who stand up for rule of law principles.”
The SEER WJP Task Force is currently planning ways to encourage SEER members’ involvement in the Rebuilding Trust campaign. By way of example, the Task Force is tapping into SEER’s large and active national community of environmental, energy, and resource lawyers, advisors, law students, and decision-makers to present the Rebuilding Trust information to local and state bar associations.
To assist the outreach effort, WJP has developed a PowerPoint presentation and supporting script: “A Call for Rule of Law Leadership.” These documents are “designed to engage members of bar associations and other legal communities.”
SEER’s WJP Task Force will provide information to SEER Council on these member opportunities as they are more fully developed. We invite all SEER members to join us in this important effort.
