All around the world, nations have established legal frameworks to protect our environment. While many of these frameworks share similar goals and objectives, they hold important differences as well. In Global Environmental Law, Justice Ricardo Luis Lorenzetti and Professor Pablo Lorenzetti offer a holistic view of modern environmental law.
As I write this column, I am returning from the 8th World Water Forum in Brasilia. Held every three years, the forum is the world’s largest gathering on freshwater resources. This particular convening was the first time that the event brought judges together with other policymakers to discuss the precarious state of freshwater resources and the importance of rule of law in achieving water objectives.
By virtue of ELI’s historic leadership in judicial education — thousands of judges trained in nearly 30 countries over nearly 30 years — we serve as advisors to the Global Judicial Institute on the Environment, the entity that pulled this event together along with UN Environment, the Organization of American States, and the World Conservation Union.
Alejandra Rabasa, head of ELI’s judicial education program, and I were there to participate in the exchange of ideas with a remarkable gathering of judges from around the world, including more than 40 Supreme Court justices, with Justice Antonio Benjamin from the National High Court of Brazil serving as host and leader.
Marking the importance of this gathering, ELI dedicated a section of the March 2018 issue of the Environmental Law Reporter to a series of judge-authored articles that speak to the importance of the judiciary in achieving water justice and ecological sustainability as keepers of environmental rule of law.
For me, the forum was a continuation of a fascinating lane of work that opened twenty years ago, when, as a judge on EPA’s Environmental Appeals Board, I was asked by the United Nations to participate in an initiative to build capacity for environmental adjudication. There was a powerful idea behind the measure: if judges around the world were equipped with an understanding of environmental phenomena and the relative societal importance of environmental protection, and were exposed to the basic principles that animate environmental law, as well as best practices for adjudicating environmental cases, then, driven as they are by their charge to do justice, they could be a catalyst for environmental improvement even in settings where other elements of government are failing. I became involved in a transfer of judicial knowledge that has taken me to every corner of the globe.
There were some important stops along the way, including the 2002 International Global Judges Symposium on the Environment in Johannesburg that produced The Johannesburg Declaration — the first consensus statement of its kind on the role of the judiciary relative to the environment. There was service on the Judges Advisory Committee that helped produce the 2005 Judicial Handbook on Environmental Law. There was the historic Rio+20 gathering of judges that produced The Rio+20 Declaration.
And now, the 2018 World Water Forum, which once again served as a reminder of the power of knowledge transfer among judges, and birthed the Brasilia Declaration of Judges on Water Justice. This document, which points to 10 principles of water justice, is well worth the read, as it anticipates and leans into the future shape of water law around the world.
To illustrate, let me point to a few noteworthy examples. Principle 1 provides that “the state should exercise stewardship over all water resources, and protect them, in conjunction with their associated ecological functions, for the benefit of current and future generations, and the Earth community of life.” Principle 2 provides that, “because of the close interlinkages between land and water and the ecological functions of water resources, any person with a right or interest to use water resources or land has a duty to maintain the ecological functions and integrity of water resources and related ecosystems.” Principle 6 provides that “in case of uncertainty, water and environmental controversies before the courts should be resolved, and the applicable laws interpreted, in a way most likely to protect and conserve water resources and related ecosystems.” Principle 7 provides that, absent exceptional circumstances, “those who use water resources and their services . . . should pay prices or charges based on the full life cycle of costs of providing the water resources and their ecosystem services.”
While in the United States, with our highly granular system, we may not see judges picking up the Brasilia Declaration in their decisions, in the many parts of the world where environmental duties and rights are less well defined, judges are increasingly turning to customary international law and generally accepted principles in framing their environmental judgments. That means that this declaration will serve as important new grist for water justice around the world.
On a new grist for "water justice."
The survivors of the horrible massacre at the high school in Parkland, Florida, have created a national movement in favor of measures to reduce gun violence. Firearms kill roughly as many Americans as does pollution and thus represent an equivalent threat to public health.
In bringing their message to the nation’s capital in a huge demonstration in March, with sibling gatherings around the country, they were consciously following in the tradition of their school’s namesake. Before Rachel Carson, before Aldo Leopold, there was Marjory Stoneman Douglas. “In the history of the American environmental movement, there have been few more remarkable figures,” according to the Independent. She was a prolific freelance writer — a staple of the Saturday Evening Post’s fiction lineup during the Depression — and earlier one of the vanguard of female journalists of a muckraking bent who began to come on board early in the last century (think Ida Tarbell).
It was relatively late in life, in 1947, that she published The Everglades: River of Grass, a great example of branding that burned into the public consciousness that this was a treasure, not a swamp that had to be drained for development. She was eventually bestowed the sobriquet “Empress of the Everglades” and became beloved by conservationists and dreaded by industry.
Douglas campaigned for environmental protection generally and for Everglades protection specifically for the rest of her long life — she died in 1998 at the age of 108. The massacre survivors who led the march in Washington were born a few years later.
Her famous book was a project that began from an assignment for a series of works on American rivers. She researched the Miami River and found it had its source in the Everglades. The publisher permitted her to change her scope, and she spent the years of World War II crisscrossing the huge wetland, gathering information.
It was during this research that she came to realize that the water in the Everglades was a huge southward flow emanating from Lake Okeechobee and flowing to the Gulf of Florida. That gave her the famous title. Then she penned her signature line to open the book: “There are no other Everglades in the world.”
Fifty years later the Christian Science Monitor would comment, “Today her book is not only a classic of environmental literature, it also reads like a blueprint for what conservationists are hailing as the most extensive environmental restoration project ever undertaken anywhere in the world.”
From her arrival in South Florida, it is safe to say that Douglas was horrified by what she saw happening. Before World War I, Miami was an outpost of 5,000 people. But even then sugar cane farmers and ranchers were burning down the Everglades to make way for their exploitation of what Douglas came to realize was the source of drinking water for the burgeoning city and the rest of growing South Florida. Her evocative language shamed the businessmen for their rapaciousness and galvanized the public to protect the wetland, although that is still a project very much in progress.
Hired by the Miami Herald in 1915 to write the society column, her third day on the job she wrote about suffrage. She also took on the Ku Klux Klan. “She wrote whatever the hell she wanted to write about,” says biographer Jack E. Davis. The Washington Post enumerates columns “shaming her readers for not knowing that Florida was still running a slavery-like convict-leasing program and demanding the creation of a public welfare office for the protection of children.”
As the Post puts it, “Douglas had a reputation for relentlessly challenging politicians and powerful political interests even on issues that seemed like lost causes at the time.” The paper calls that “a description that almost eerily parallels the efforts of the teenagers leading the charge today.” Of the survivors’ efforts, the Post quoted a former journalist for the Tampa Bay Times who was among the last to interview the late activist: “I would bet my soul that Mrs. Douglas would not only approve, but applaud,” said Jeff Klinkenberg.
Douglas, like the kids, had her experience lobbying Florida legislators, in her case for suffrage — an occasion she likened to talking to “dead mackerel.” But her constant crusade on all fronts to protect her beloved wetland was eventually rewarded by some measures mitigating the harm and attempts at restoration.
The effort to protect the River of Grass is far from over. The high school in Parkland was built on land reclaimed from the Everglades, an irony that bothered the great lady and serves to illustrate the difficulties in preserving this national treasure. There are no other Everglades in the world.
The White House Office of Management and Budget on Friday evening [February 23] released its annual report on the costs and benefits of federal regulations, showing that the benefits of major Obama-era rules far exceeded the costs.
The report found the annual benefits of major federal regulations from 2006 to 2016 were between $219 billion and $695 billion, while the annual costs were between $59 billion and $88 billion.
The findings are at odds with the Trump administration’s push to roll back a host of Obama-era environmental rules.
Public interest groups were quick to accuse OMB of burying the report because it undercut the administration’s deregulatory agenda.
“They released it on a Friday evening while Congress was on recess and nobody was really paying attention in Washington,” said James Goodwin, senior policy analyst with the Center for Progressive Reform.
“For most normal people, this report is good news,” Goodwin said. “It basically says that all the regulations the Obama administration put out had huge net benefits.
“For the Trump administration, it’s bad news because they have to say something nice about the Obama administration, which they’re loathe to do.” . . .
The report “directly contradicts, rather than supports, the push to roll back protections in virtually every sector,” [Public Citizen’s Amit] Narang said.
— E&E News
“We’ve spent 40 years putting together an apparatus to protect public health and the environment from a lot of different pollutants. . . . [EPA Administrator Scott Pruitt] is pulling that whole apparatus down.”
— William D. Ruckelshaus as quoted in the Washington Post
Down Under should have an environmental agency, experts are saying. “Australia needs an independent national agency charged with safeguarding the environment and delivering effective climate policy,” according to The Conversation blog, which cites “a new campaign . . . by a coalition of environmental, legal, and medical NGOs.”
The huge nation, modeled after Great Britain and the United States, surprisingly has been taking care of environmental protection in an ad hoc manner, unlike her progenitors.
“The proposal would involve establishing a high-level Commonwealth Environment Commission that would be responsible for commonwealth strategic environmental instruments, in much the same way that the Reserve Bank is in charge of economic levers such as interest rates.
“The new CEC would manage a nationally coordinated system of environmental data collection, monitoring, auditing, and reporting, the conduct of environmental inquiries of a strategic nature, and the provision of strategic advice to the commonwealth government on environmental matters, either upon request or at its own initiative. The necessary outcomes would then be delivered by government and ministers via a newly created National Environmental Protection Authority.”
Chile protects 4,000-mile coastline with marine reserves. The government in Santiago has passed legislation to protect its famous ocean border, according to the St. Kitts & Nevis Observor. President Michele Bachelet signed the law that creates a string of natural preserves.
“President Bachelet . . . said that Chile needed to establish the basis on which it would conserve its marine territory for the future,” the newspaper reported. “Who we are and who we can be, is inevitably tied up with our 6,400-kilometre coast,” Bachelet said. “This is why it is so important to understand that the sea is vital for our national development.”
The newpaper reports that the legislation “will increase the area of sea under Chilean state protection from 4.3 percent to 42.4 percent, and protect marine life in around 1.4 million square kilometres of sea.”
A new Afghan law would impose the death penalty for major pollution offenses, according to Tolo News. Other environmental crimes will result in serious jail time. “President Ashraf Ghani has issued a decree on the environmental law, stating any person found guilty of committing major pollution-related crimes can face between 16 and 20 years in prison,” the newspaper reports.
The legislation also places the onus on inspectors, who can face fines and prison time for failing to enforce the law, “while an offender whose actions have led to the death of a person can get the death penalty.”
The newspaper notes that “members of the public and health experts have welcomed the enforcement of this law and said that the high levels of pollution, especially in Kabul, has resulted in a marked increased in illnesses.”
The right to a healthy and sustainable environment is vital, a press release from Human Rights Watch, Earthjustice, Amnesty International, and the Center for International Environmental Law claims. The release calls for adoption of an internationally recognized right to ensure “a life of dignity. Clean water, air, and soils, and diverse ecosystems are indispensable for people to lead healthy lives. More generally, the right also protects the civic space needed for individuals to engage in dialogue on environmental policy.”
School’s namesake would have supported gun activists.
Artificial Intelligence is changing how our society operates. AI now helps make judicial decisions, medical diagnoses, and drives cars. AI also has the potential to revolutionize how we interact with our environment. It can help improve resource use and energy efficiency and predict extreme weather.
AI can also exacerbate existing environmental issues. For example, software manipulation of over a half million VW diesel automobiles created one of the largest environmental scandals of the past decade.
ELI’s Technology, Innovation, and the Environment Program was developed to better understand the environmental impacts and opportunities created through emerging technologies and their underlying innovation systems
When Software Rules: Rule of Law in the Age of Artificial Intelligence, a new report from program director David Rejeski, explores the interaction between AI and the environment and the need for some form of governance to ensure that it is deployed in a manner that is beneficial.
“As environmental decisionmaking becomes internalized into AI algorithms, and these algorithms increasingly learn without human input, issues of transparency and accountability must be addressed,” said Rejeski. “This is a moment of opportunity for the legal, ethical, and public policy communities to ensure positive environmental outcomes.”
“When Software Rules” offers the government, businesses, and the public a number of recommendations they can use as they begin to consider the environmental impacts of AI.
The report discusses concerns with AI systems. These include unintended consequences, such as race bias in algorithms, and the common difficulty of understanding the logic of deep-learning systems and how they come to decisions. Other sources of concern include issues like algorithms functioning on the basis of correlation without proving causality; legal liability issues; lack of privacy from data mining; and the risk of hacking.
Some form of governance over AI systems is necessary to address some of these issues, and ensure responsibility, including taking environmental considerations into account. Semi-formal governance systems may include voluntary codes outlining engagement with AI research or self-governance by institutions looking to create “ethical” AI systems. A more formal governance system may include legislation protecting consumers from faulty algorithms.
ELI provides a number of recommendations as to how AI governance can include consideration of environmental impacts. Suggestions are provided for all stakeholders: the private AI sector, programmers, governments, and the public.
For example, the private AI sector can develop research teams that include evaluation of the socio-environmental impacts of their algorithms and assemble stakeholder groups to develop guidelines for sustainable development of AI.
Programmers can increase the transparency of their algorithms so users can understand why decisions are being made, and they can increase their commitment to prioritizing environmental benefits.
Governments can ensure AI systems are powered by renewable energy to meet the energy demand of these new systems and create incentives for the development of AI that tackles environmental issues.
Members of the public can advocate for systems that promote their cultural norms and values, including environmental protection, and they can make responsible consumer choices by supporting AI companies that are transparent and environmentally conscious.
As AI governance becomes a societal expectation and is later bound by semiformal or formal contracts, the environment must be a central focus in AI discourse and subsequent laws and policy, the report concludes. ELI will continue to provide guidance on how these goals can best be achieved.
“When Software Rules: Rule of Law in the Age of Artificial Intelligence” is available for free download at eli.org/research-report/when-software-rules-rule-law-age-artificial-intelligence.
ELI co-hosted the annual Al-Moumin Distinguished Lecture on Environmental Peacebuilding, a hallmark of the Institute’s Environmental Peacebuilding Program. Co-sponsored by the Environmental Law Institute, American University, and the United Nations Environment Programme, the lecture recognizes leading thinkers who are shaping the field of environmental peacebuilding and presents the prestigious Al-Moumin Award. The series is named for Mishkat Al-Moumin, Iraq’s first Minister of Environment, a human rights and environment lawyer, and a Visiting Scholar at ELI.
This event, now in its fifth year, honored Ken Conca and Geoff Dabelko for their outstanding contributions to the field.
Conca is a professor of international relations in the School of International Service at American University. Dabelko is a professor and director of environmental studies at the Voinovich School of Leadership and Public Affairs at Ohio University; he is also a senior advisor to the Environmental Change and Security Program of the Woodrow Wilson International Center for Scholars.
Fifteen years ago, Conca and Dabelko published Environmental Peacemaking, a rejoinder to grim scenarios foreseeing environmental change as a driver of conflict. Conca, Dabelko, and collaborators argued that, despite conflict risks, shared environmental interests and cooperative action could also be a basis for building trust, establishing shared identities, and transforming conflict into cooperation.
In their lectures, Conca and Dabelko reflected on the evolution of environmental peacebuilding research since their work began in the early days of the post-Cold War era, their seminal publication, and their long-term engagement with policymakers and practitioners applying these insights around the world.
Their work transformed, and continues to have a profound impact on, the way scholars and practitioners approach and understand the intersection of environmental protection, national security, and human rights.
Conca and Dabelko’s work is also the heart of ELI’s Environmental Peacebuilding Program: As the world experiences increasing pressures on its natural resources and climate, countries must learn to peacefully resolve resource disputes and make the environment a reason for cooperation rather than conflict.
Legal authorities are now available in Indonesia to enable civil society and the government to file claims to hold responsible parties liable for damages and the restoration of natural resources.
Through an ELI workshop and curriculum developed in conjunction with the Indonesian Center for Environmental Law and others, judges will learn best practices and methods for implementing new legal processes, including environmental damage valuation and restoration and compensation, tailored to the specific needs of the host country.
The goal is to promote environmental accountability through judicial enforcement. Ultimately, the benefits will include reduced deforestation and greenhouse gas emissions, as well as improved biodiversity and quality of life for vulnerable communities.
ELI recently traveled to Indonesia to help prepare for the week-long workshop to be held this summer. Staff met with various local stakeholders to gain background on topics like injury quantification, restoration and compensation, and settlement. ELI was also able to hear from judges which topics are most important to cover.
ELI staff held focus groups with ICEL as well as the Ministry of Environment and Forestry and Ministry of Justice and Human Rights, using an oil spill case to discuss valuation, settlement, and transboundary issues.
ELI and ICEL also held focus group discussions with the Supreme Court of Indonesia’s Environmental Working Group and Center for Training and Legal Research. The discussion included a presentation on the needs assessment by ICEL and a presentation on the comparative study of valuation, compensation, and restoration practice in several countries.
ELI’s judicial education program is a hallmark of the Institute’s work. With in-depth consultations, custom design of programs to meet the specific needs of the particular jurisdiction, and success in creating institutional capacity, the lessons learned continue to be applied after the education is completed. Since 1991, ELI has developed, presented, and participated in more than 40 workshops on critical topics in environmental law for more than 2,000 judges from 27 countries.
ELI met with a local NGO and members of the government to prepare for workshop on judicial enforcement of environmental laws.
ELI President Scott Fulton and Director of ELI’s Judicial Education Program Alejandra Rabasa traveled to Brazil to participate in the World Water Forum. The forum is the world’s biggest water-related event and is organized by the World Water Council, an international organization that brings together all those interested in the theme of water. Supreme Court justices from over 50 counties were in attendance to shine a light on the importance of rule of law in advancing water quality goals.
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ELI hosted a day-long conference on Environmental Law In Practice in Detroit. The conference presented a spectrum of emerging legal issues with a focus on environmental justice. It introduced a wide-ranging exploration of career opportunities in the EJ field. This event featured environmental law experts on panels including Careers in Environmental Justice, Energy & Climate Justice, Water Access and Affordability, and Urban Air Quality.
Agustin V. Arbulu, executive director of the Michigan Department of Civil Rights, delivered opening remarks. Keynote addresses were given by Mustafa Santiago Ali, senior vice president of climate, environmental justice and community revitalization, Hip Hop Caucus, and Charles Lee, senior policy advisor, EPA Office of Environmental Justice.
Members of the public came together with lawyers, students, academics, civil rights and social justice advocates and activists, and community groups to discuss pressing issues.
The Conference was co-sponsored by Wayne State University Law School’s Transnational Environmental Law Clinic and Environmental Law Society, University of Chicago Law School’s Abrams Environmental Law Clinic, the American Bar Association’s Environmental Justice Committee of the Section of Civil Rights and Social Justice, and the Great Lakes Environmental Law Center.
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Director of the Ocean Program Xiao Recio-Blanco moderated a webinar on Current Developments on U.S. Fisheries Policy. The Trump administration’s approach to fisheries management seems to constitute a significant policymaking shift. Recent decisions such as extending the Gulf of Mexico season for red snapper or overturning a decision by the Atlantic States Marine Fisheries Commission that would have cut New Jersey’s recreational quota for summer flounder seem to go against NOAA’s traditional approach of situating scientific information at the center of fisheries decisionmaking.
The webinar discussed these and other recent developments and assessed the direction U.S. fisheries policymaking may take in the future.
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ELI and the China Environmental Protection Foundation held the first training session to build the capacity of public interest groups and prosecutors in China since receiving its temporary registration for an environmental protection-related project from China’s Ministry of Environmental Protection and the Beijing Bureau of Public Security.
The session was held at Tianjin University Law School. A total of 53 participants — comprising representatives from public interest groups, environmental courts, prosecutors, and environmental protection bureaus — attended from 16 provinces, autonomous regions, and cities.
Report on perils, promise of artificial intelligence.
Online course on sustainability and peace set to launch in 2018.
On Natural Resource Management and State Fragility in the African Context.
The tale of two different cities: Medellin, Colombia, in the 1990s and today.
The Paris Agreement lays a good foundation for climate progress in the future.
On change and progress.
ELI presidents at Paris side events to promote legal aspects.
