The Importance of Justice and Equity in Environmental Rule of Law
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The United Nations report, Environmental Rule of Law: Tracking Progress and Charting Future Directions, is a follow-up to 2019’s First Global Report on Environmental Rule of Law, and provides a comprehensive assessment of how the environmental rule of law has advanced and been challenged since publication of the first report. Collecting and analyzing data from a survey of 193 U.N.
Plugging the Rule of Law Gap
Environmental Law Institute
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I write this on a plane returning from Beijing, where ELI convened the China International Business Dialogue on Environmental Governance. This is an innovative project brought to the Institute by ELI Leadership Council member Paul Davies of Latham & Watkins’s London office.
The idea is for ELI and our local partner, the Policy Research Center on Environment and Economy, to broker a conversation between Chinese regulators and multinational companies that are either trying to make a go of it in that country or are deeply reliant on supply chains that originate in the Middle Kingdom.
Our dialogue brought a number of companies together with senior Chinese regulatory and enforcement leaders at the national and provincial levels. The research center’s director general and I co-led and moderated the convening. The group discussed a good number of things, from how to build a compliance cultural in China’s regulated community, to the importance of compliance assistance, to the potential value of recognition programs for high-performing companies.
But perhaps the most striking feature of the meeting was the convergence of thought around the importance of effective environmental enforcement and accountability under the law, with the multinationals and regulators alike repeatedly reinforcing the importance of rule of law to China’s progress in addressing its environmental challenges. The multinationals’ commitment to this idea was underscored by their offer to provide sector-specific expertise in training Chinese inspectors, permit writers, and enforcers, to help lift up performance and ensure accountability within the country’s regulated community more broadly.
Many of the ideas expressed echoed the observations in an important ELI study that was released in January by UN Environment titled “Environmental Rule of Law: First Global Report.” In United Nations vernacular, environmental rule of law has emerged as a short form for describing the fundamental importance of rule of law to achieving environmental goals.
If you would like to understand better the importance of ELI’s work abroad, please give this study a read. The report begins with a tutorial on rule of law, reminding readers that it has two essential ingredients: the presence of laws that reflect fundamental rights and values and the observance of and adherence to those laws throughout society. On point one, the report reviews the progression of environmental law development around the world, expressed perhaps most poignantly in the dramatic increase in constitutional rights to a healthy environment.
But the most telling are the findings in the report concerning point two — the degree to which laws are observed in practice. While there has been a 38-fold increase in environmental laws put in place around the world since 1972, effectuation of those laws has lagged well behind, leaving a significant rule of law gap. Neither aid nor domestic budgeting has led to pervasive establishment of strong environmental agencies capable of effectively enforcing laws and regulations. Multiple factors contribute to poor enforcement of environmental rule of law, including lack of coordination across government agencies, weak institutional capacity, little access to information, corruption, and stifled civic engagement.
One chapter in the report speaks to the increase in violence around the world in the environmental context, and in particular the uptick in the assassination of environmental activists. Just to give you a sense, in 2010, there were 87 such “hits”; in 2017, there were 197. To say that this is an alarming trend is an understatement.
These statistics are about more than thuggish behavior, although this surely is, and in its most reprehensible form. It’s more fundamentally about the failure of the justice system and the failure of governance in the environmental context. In the absence of trusted, law-based mechanisms for transparently ventilating and resolving natural-resource disputes and the problems caused by pollution, lawlessness and violence fills the void.
The work that we are doing with your support to build environmental governance and rule of law around the world not only helps to save the natural environment, and to create a level and predictable playing field for commerce, but it also serves to save lives.
As secretariat for the International Network for Environmental Compliance and Enforcement, ELI is working with the government of Scotland and other partners to plan the 10th INECE conference for September, to be held in Edinburgh. The title of the conference is, “Are the Rules Enough?” In view of the first global report on environmental rule of law, the question is a rhetorical one. Plainly, the answer is no.
Scott Fulton on gap in environmental rule of law.
ELI 50th Anniversary: Building on the past to secure the future, after half a century of leadership on law, policy, and management
Environmental Law Institute
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ELI 50th Anniversary Building on the past to secure the future, after half a century of leadership on law, policy, and management
In September 1969, 50 lawyers, practitioners, and academics from across the country convened at Airlie House, just outside Warrenton, Virginia. This watershed event led directly to the establishment of the Environmental Law Institute and the Environmental Law Reporter to collect and analyze developments in the newly created field.
ELI was incorporated on December 22, 1969, as a §501(c)(3) organization, the same day that Congress passed the National Environmental Policy Act. The fledgling Institute held its first educational program in late 1970 and released the first issue of ELR the following year.
Half a century later, ELI has grown into the leading environmental law think tank, offering an objective and nonpartisan perspective through its top-tier research, educational programs, and publications.
Throughout this anniversary year, ELI will look back at its history and the sharing of environmental progress with its valued community members and diverse array of supporters. The Institute is hosting special programming and events throughout the year. Each month will focus on a key issue within ELI’s work portfolio over the last five decades. This programming began in January with programs on pollution, a focal point of ELI’s work through the years, and will end in December with a focus on environmental assessment, which occurs the same month ELI and NEPA were formed in 1969.
In keeping with its January theme, programming that month featured pollution prevention and re-thinking waste. To reduce islands of plastic waste in oceans and polluted air in cities, ELI explored ways for stakeholders to consider alternatives to the traditional linear model of resource use.
The Institute hosted a panel discussion and webinar highlighting different ways to transform the traditional “take, make, and dispose” economic model into a circular economy, even when lower costs of production processes and materials have been an obstacle to such a transformation. Moderated by Michael Goo of AJW and the Circular Economy Industries Association, panelists discussed the many obstacles and benefits of fostering a production system that recoups its waste as feedstock, and whether emerging new technologies and business models can be viable in such a resource format.
In addition to moderator Goo, expert panelists included Michael Burger, executive director of the Sabin Center for Climate Change Law; Paul Hagen, principal at Beveridge & Diamond PC; Stewart Leeth, vice president of regulatory affairs and chief sustainability officer of Smithfield Foods; and Meagan Weiland, an independent researcher at Economic & Human Dimensions Research Associates and program coordinator for Science magazine.
An additional webinar in January focused on the new and innovative methods of recycling undesired material. Moderated by ELI Senior Attorney James McElfish, director of the Sustainable Land Use Program, the panel discussed ways to encourage cities, wastewater treatment plants, corporations, and other important players to improve recycling processes, especially as the number of different types of recyclable materials increases. Interestingly, this issue also creates new business opportunities for the industrial and commercial sector to explore.
ELI’s anniversary celebration will continue throughout the year. Special programming in March will focus on re-imagining environmental governance, and April will feature the role of law in climate response and energy transformation.
In the latter half of the year, stay tuned as ELI looks forward to featuring topics including wetlands protection, technology as an emerging driver for environmental behaviors and conditions, and gender and the environment.
Institute launches podcast series to reach out to constituencies
In January, ELI launched its new People Places Planet Podcast. The series will provide a platform for Institute staff and leadership to discuss their work covering a range of environmental topics, as well as emerging developments in environmental law both domestically and internationally.
The podcast enables ELI to remain a thought-leader of environmental law and governance in the 21st century. It is a means to communicate the Institute’s cutting-edge, and thought-provoking, insights in a new medium to our growing international audience.
The inaugural episode hosts a discussion between ELI President Scott Fulton and Director of the Technology, Innovation, and the Environment Project David Rejeski on their co-written ELR Comment, “A New Environmentalism: The Need for a Total Strategy for Environmental Protection,” which was featured in the September ELR.
Fulton and Rejeski guide listeners through their theoretical framework, discuss why they focused on this topic at this time, and consider how their framework could be applied to environmental policymaking.
Rejeski remarks that despite the cluster of progress in environmental protection during the late 20th century, moving the agenda forward now requires asking questions about the four emerging drivers of the environmental protection movement: law, risk management, technology, and community.
Fulton and Rejeski urge environmental policymakers to continue to think about how these drivers will interact with the development of new technology, big data, and private environmental governance.
Identifying these drivers is just the first step; Fulton and Rejeski reflect that there are many remaining issues to pursue in the future, which raise a host of questions.
To what extent can these new drivers compensate for government failure or inability to act? How does the fast pace of technology interact within the slower changing, legacy law and policy systems, and how might one design the interface between them?
These questions are certainly important for the future of environmental protection. People Places Planet will continue to move these types of conversations forward.
Podcasts are available for download on the ELI website or from your favorite podcast app.
Deep cuts in carbon emissions require workable legal pathways
ELI was involved in producing two landmark publications in early 2019. The First Global Report on Environmental Rule of Law and the full version of Legal Pathways to Deep Decarbonization (a summary version of which was released last year) address the pressing issues of worldwide environmental protection and avenues for progress in the coming decades.
Over the past two years, ELI engaged with UN Environment to develop the first report. Environmental rule of law is critical for worldwide sustainable economic and social development, protects public health, contributes to peace and security by avoiding and defusing conflict, and protects human and constitutional rights.
UN Environment released the report to offer frameworks to address the gap between environmental laws on the books — and what is actually in practice — for countries around the world. The report is available for free download on the ELI web page.
In addition, the full version of Legal Pathways to Deep Decarbonization will be released in March 2019. The book equips policymakers and practitioners with over 1,000 recommendations for legal pathways to reduce U.S. greenhouse gas emissions by at least 80 percent from 1990 levels by 2050.
Edited by Michael Gerrard, professor at Columbia Law School, and John Dernbach, professor at Widener University Commonwealth Law School, the book is based on two reports by the Deep Decarbonization Pathways Project. The project discusses the technical and policy pathways for dramatically reducing greenhouse gas emissions. The carbon abatement goals are often referred to as deep decarbonization, a charted pathway that requires systemic changes to the energy economy.
Deep decarbonization is achievable in the United States using laws that exist or could be enacted. These legal tools can be employed with significant economic, social, environmental, and national security benefits. The book provides legal and policymaking leaders the means to begin implementing these tools to tackle emissions reductions in the coming years.
Field Notes: Profession loses two leaders in enviro protection
ELI has learned with great sadness of the passing of two giants in the implementation of environmental law. Both were integral to the Institute’s mission, offered great knowledge and wisdom, and were important members of the ELI community.
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Douglas Keare passed away on January 8 at 84 years old. He was an important member of the ELI family as part of the Leadership Council, and in shaping and supporting the ELI-Miriam Hamilton Keare Policy Forum each year.
The annual policy forum honors his mother, a noted environmentalist, and focuses on bringing key stakeholders together to discuss the most urgent environmental issues and advance solutions. Keare was an important thought leader for the forum due to his avid interest in the topics. He often pitched interesting ideas for discussions in the planning stage and asked the resulting panel engaging questions during the annual event.
Keare received his B.A. from Dartmouth College and a Ph.D. in economics from Princeton University. His career and passions were shaped around his belief in the power of cities to spark progress and secure the future.
Keare was the first head of the World Bank unit responsible for urban research and policy and led it for 25 years. He also held important positions in Malaysia and East Pakistan (Bangladesh) with the bank.
Keare also was involved in work for the Harvard Institute for International Development and the Lincoln Institute for Land Policy. He retired in Boston, Massachusetts, at which point he became a generous donor and involved with ELI’s research and program activities.
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Judge Patricia Gowan Wald died in January at age 90. Wald received the ELI Environmental Achievement Award in 2000 for her central role in creating modern environmental jurisprudence during her long tenure on the United States Court of Appeals for the District of Columbia Circuit, including five years as chief judge.
After retirement from that position, she served as an international jurist in The Hague on the tribunal adjudicating war crimes in the former Yugoslavia.
Her legacy remains in her legal and environmental work and in her determination to pave the way for women in the legal profession.
In her award acceptance speech, Wald discussed the intersection of concerns she addressed over domestic environmental statutes and those in international criminal cases. She emphasized that ultimately, quality of life depends on peaceful and non-destructive relationships with one another, and harmony with the environment.
Wald graduated from Yale University Law School in 1951. She began her legal career as the only female law clerk in the Second Circuit. During the Carter administration, she served as the assistant attorney general for legislative affairs at the Justice Department, and soon after was nominated as the fourth woman on the D.C. Court.
Although the 1970s was the primary period for passing landmark statutes, Wald’s position in the D.C. circuit court during the 1980s allowed her to make a lasting impact on how to interpret and apply the statutes passed by Congress. Her opinion in Sierra Club v. Costle in 1981, upholding EPA emission standards for coal-burning power plants, quickly grew to be a frequently cited opinion to support presidential rulemaking.
Her lifetime of achievement was honored by Barack Obama in 2013, when she received the Presidential Medal of Freedom.
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ELI continues its work in China through environmental training workshops at universities in Beijing. In January, over one hundred NGO workers, judges, prosecutors, and public interest lawyers attended ELI’s workshop at Renmin University, taught by ELI Vice President John Pendergrass and Visiting Scholar Leslie Carothers.
ELI teamed with Latham & Watkins and the Policy Research Center for Environment and Economy to hold the second Chinese International Business Dialogue on Environmental Governance roundtable on January 15 in Beijing. Launched last year, the dialogue is a working group designed to facilitate discussion between multinational businesses and Chinese authorities regarding best practices in government and industry in the area of environmental regulation, as well as the forward movement of environmental protection in China.
ELI launches 50th anniversary program series.
Report on Environmental Rule of Law
Environmental Law Institute
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Since the 1992 Earth Summit, environmental laws have grown dramatically as countries have come to understand the vital linkages among the ecosystem and economic growth, public health, social cohesion, and overall security. The growth of environmental laws, rights, and institutions has helped to slow degradation and achieve the manifold benefits that accompany protection of the natural world.
Too often, though, countries are failing to fully implement and enforce environmental regulations. Laws may lack clear standards and mandates or may not be tailored to local and national contexts, and implementing ministries may be underfunded or politically weak. As a result, there is often a gap between the laws on the books and their effect. These shortfalls are not limited to developing nations.
To address this implementation gap, UN Environment engaged ELI to help advance environmental rule of law. This rule of law is achieved when laws are widely understood, respected, and enforced and the benefits are enjoyed by people and the planet. In January, we published a flagship report on the environmental rule of law to help countries address the gap.
Written with UN Environment and worked on by over 20 ELI staff and volunteers, the flagship report frames the international discourse on environmental rule of law. It builds on the precepts of sustainable development developed by ELI President Scott Fulton and Brazilian High Court Justice Antonio Benjamin in their 2011 article “Foundations of Sustainability” and subsequently expanded upon by UN Environment’s International Advisory Council on Environmental Justice.
In addition to highlighting global trends across five key domains of environmental rule of law (laws, institutions, rights, civic engagement, and adjudication), the report presents a wide range of case studies of environmental rule of law. It concludes with actionable recommendations for countries and partners.
One key recommendation emphasizes the need for a regular global assessment of the state of environmental rule of law. The report proposes an indicator framework and highlights existing datasets that could be utilized in support of such an assessment. Another notable recommendation is a call for a concerted effort to support countries in pilot testing approaches to strengthen environmental rule of law.
These practices — and others facilitating effective implementation and enforcement of environmental rule of law — are likely to be hallmarks of the next generation of environmental law and will form the basis for a fundamental shift in the political economy around environmental law.
The report was written in consultation with a wide array of stakeholders, including environmental lawyers and researchers located across the globe and active in both the public and private sectors. With a substantial diversity of experiences, approaches, and perspectives, ELI’s experience in bringing together diverse perspectives proved helpful. The completed report provides a thorough and evenhanded overview of the possibilities for building environmental rule of law in both developed and developing nations.
These possibilities are organized into four substantive chapters, as well as an introduction and a section on future directions. These chapters highlight broad themes of the key domains identified above, while the last section emphasizes that achieving sustainable development depends on strengthening environmental rule of law and makes several overarching recommendations. One of these addresses the importance of engaging diverse actors and of measuring, tracking, and reporting on progress and performance.
Within each of these chapters, maps depict the spread and current extent of various specific related indicators, such as the existence of environment ministries or the protection of indigenous land rights. Case studies also highlight exemplary stories of environmental governance.
While the full text of the report is available online from ELI and UN Environment, there are other ways that parties can engage with its analysis. All of the maps included are available from ELI’s web page on Environmental Rule of Law, as are the full datasets.
The report comes at a pivotal time when human society is at risk of exceeding critical ecological thresholds. If these boundaries are to be respected, it is imperative that environmental rule of law be expanded and improved and that clear and even-handed environmental laws be enacted, implemented, and enforced.
It is our hope that this report will convey the importance of environmental rule of law and inspire national and subnational governments — as well as nongovernmental organizations and other private-sector actors — to focus their activities to give force and practical effect of environmental laws, not only for the good of all but for their own.
Report on environmental rule of law.
The Rule of Law Speaks to Our Generation
United Nations Development Programme
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As humanity confronts the greatest challenges in its history, society must realize that legal principles are fundamental to realizing our aspirations while avoiding planetary catastrophe.
Achim Steiner, administrator of the United Nations Development Programme, spoke on accepting the ELI Award at the Annual Dinner on October 18, 2017. This article is adapted from his remarks.
The journey you have taken together in your careers, in your lives, is an extraordinary privilege to share. I want to give tribute to the work that you do in your law firms, in your institutions, in your businesses, in your agencies, in your communities, because you are part of that which defines the rule of law.
The concept of rule of law is fundamental to, first of all, the way we govern ourselves and, secondly, to how we resolve differences over sometimes competing interests, and yes, even conflicting views of reality. The rule of law, the separation of powers, and in the last 50 years, I would argue, also the journey of the environmental rule of law, define a significant part of the leadership that the United States has played, first of all for its own self as a nation, but increasingly over the decades also in influencing, inspiring, and catalyzing others.
During my career, rule of law was something that I discovered as I went along, and friends opened my eyes to the fundamental value of legal principles. And let’s be honest, it’s not something that as a non-lawyer I would necessarily gravitate toward, because the cliché of lawyers is usually that they complicate lives. And the further I have gone in my professional career, the more I can confirm that notion — because actually lawyers can immensely complicate life. But every now and then one comes across somebody who uses law not as something that prohibits, restricts, constrains, but that actually empowers, that speaks to fundamental principles, and allows us to do things that otherwise we would not be able to accomplish. And this is a very important part of understanding the centrality of the rule of law in our societies.
Law is not just about codifying the rules. It is about codifying the foundations of what binds us together in society. It expresses values, choices of what is acceptable, notions of what is not acceptable, and making that part of a social compact codified in law. It is principled. It also provides us with due process, because every now and then, the only thing we have left is to turn to the law and then the courts and the judiciary in order to ensure due process in our society. Behind that is a very simple assumption — fairness.
The rule of law is above all rooted in the principle of fairness. And it is, therefore, blind to power, influence, money, ideology, or faith. It is based on the construct that we, as mature, sovereign societies and peoples, agree to draw on in governing our lives. But perhaps the most important part, if you look at the social and the environmental history of our communities, is that law is an immensely powerful instrument to liberate but also to protect.
Very often, the courts are, in our societies, the last recourse that we have. When everything else has failed, we turn to the courts because it is our hope, our aspiration, our expectation that they will rule in a way that is not beholden to any particular interest. They instead enforce the compact on which we agree to live together in our society, and above all, gives expression to fairness.
The environmental community has used law in the last 50 years increasingly effectively, partly to codify what science was beginning to tell us about what is happening to us and our planet, the environment around us; partly to also enshrine the responsibility of those who harm toward those who are harmed. To also capture the responsibility — and this is new in human history — of an intergenerational-justice principle, because we are perhaps only the second or third generation in the history of humanity through which we, with our decisions and choices that we make, literally will define the options and realities of future generations. It is we who protect the interests of the unborn generations.
The environmental consequences of actions that we have taken, often out of ignorance and not out of intent to harm, are today part of the fabric that we have woven to allow us as societies to practice a responsible set of choices, defined not only by self-interest, not only by the interest of my neighbor with whom I don’t want to have a conflict — or whom I don’t want to do to me what I would not wish to do to them — but also to accept fundamental responsibility.
The environmental rule of law speaks to our generation, the generation that is defined by living in what some have called the Age of the Anthropocene, that era in which for the first time in the history of this planet, we, as human beings, as society, are on the verge of becoming the dominant force that shapes the future of this planet, not just environmentally in terms of ecological footprint but even geologically. That is a challenge to lawyers. It is certainly a challenge to that notion of the rule of law and it is perhaps where we finally converge among those who use the law for advocacy and activist purposes, those who use the law for fundamental principles of justice, and those who believe that the law is fundamental to defending the principles of freedom, choice, and justice.
Let me end by saying that I’m truly humbled this evening to receive this award. I began my life on a farm in the south of Brazil, a son to a farming couple, who learned to ride a horse before he knew how to walk, and never thought that he would find himself one day in a room with 700 professionals from the world of law and the environment, and receiving this honor. I certainly never thought I would work for the United Nations, and I certainly didn’t anticipate a year ago to be standing in front of you today as the head of the UN’s development programme — UNDP.
I accepted the invitation of the secretary-general to rejoin the United Nations after my earlier tour at UNEP because I truly believe in the principle upon which it is built. That is first of all, the failure of what led to the Second World War and the catharsis we experienced — the tragedy of when human beings stopped talking to one another and resolving conflicts through diplomacy is perhaps forgotten by many of us fortunate enough not to have to have lived in a society ravaged by war.
There is also the principle that in this day and age the idea of a United Nations, of multilateralism, is not some abstract notion. Recall the vision of the UN Charter, which begins with very simple words, “We the Peoples.” It is this realization that to this day motivates me to work in this complex, complicated, often conflict-defined and even contradictory environment to accept a very simple notion: We need one another and we need the institutions that will allow us to transact what we require to succeed in the struggle to achieve sustainability.
In order to succeed, to thrive, to protect, we need to ensure that future generations have something to look forward to with both optimism and with pride in their parents. I hope that this idea will accompany you in the work that you do, just as I hope that in a few years’ time, I will be able to say, “Yes, this was why I chose to work in the United Nations.” TEF
TESTIMONY ❧ As humanity confronts the greatest challenges in its history, society must realize that legal principles are fundamental to realizing our aspirations while avoiding planetary catastrophe.