Environmental Criminal Tribunals: Providing a Voice to The World

Emily Rutkowski, Vol. 36 Associate Editor

The United States’ success stories of shutting down multinational corporations (MNCs) for environmental pollution often results in factories relocating from the West to the developing world. For example, Ciba, a manufacturing plant, secretly polluted the town of Toms River, New Jersey for decades before the case was made public. Once exposed, they simply closed their doors and reopened in China.   The legal system’s current framework is insufficient at providing remedies in many of these cases. Alternative dispute resolution (“ADR”), can play an important role in providing solutions to ensure that polluters cannot exploit regulatory arbitrage and relocate to loosely regulated jurisdictions in the developing world where polluters can disproportionately shift the burden of pollution onto the poor and underrepresented. In particular, this can be achieved by incorporating ADR mechanisms through specialized Environmental Courts and Tribunals (“ECTs”). ADR can help close the gaps in the current framework, both by bringing more voices to the table, allowing those voices to be heard, and providing a forum for relief.

Traditional courts, both domestic and international, have proven to be insufficient in dealing with environmental disputes, and particularly environmental disputes involving the relocation of factories to the developing world.[1] Both the rapid growth of serious environmental problems and the increasing public awareness and concern regarding these problems has created a worldwide demand for a new legal mechanism to adjudicate environmental issues justly, quickly, and cheaply.[2] This demand has resulted in the creation of specialized ECTs, which if well-designed, have the capacity to resolve complicated environmental cases “expertly, independently, holistically, rapidly, consistently, and justly.”[3] Environmental disputes are especially complex and difficult to both litigate and regulate because they are “multi-scalar” in geographic, governance, and temporal spheres, as impacts are local, regional, national, and global in scope and escalate over time.[4] Legal challenges are brought in a number of different adjudication forums and based on a variety of legal theories, such as human rights or environmental law.[5] ECTs allow for effective and efficient adjudication of environmental disputes for a variety of reasons, including integrated jurisdiction over relevant laws expertise of decision makersability to manage scientific and technical expert evidence, expanded standing for plaintiffs, and the consistency in decisions.[6]

As of September 2010, there were over 360 ECTs in more than 42 countries all across the globe – in civil law, common law, and other legal systems, in large and small jurisdictions, and in both wealthy and impoverished nations.[7] Kenya is an example of a country in the developing world whose 2010 Constitution requires Parliament to “establish courts with the status of the High Court to hear and determine disputes relating to … the environment and the use and occupation of, and title to, land.”[8]

In addition, ECT judges and decision makers are experts in the environmental field, including both prolific writers and professors. – do you have examples of who these people are? It would be interesting to list a couple people and their credentials, and how that varies with just general courts of jurisdiction.  Having an expert in the field can lead to better decision-making.  In Massachusetts v. EPA, Justice Scalia remarked, “That’s why I don’t want to have to deal with global warming, to tell you the truth.”[9] The environmental knowledge and interest of judges is important in the outcome of the case and in providing environmental justice.[10]

Though ECTs have provided many benefits in the environmental justice movement, they have been more successful in domestic disputes than international ones. Adjudicating international issues have proven to be more challenging. That is why there needs to be a call for an International ECT to adjudicate these types of cases. Having international ECTs would provide consistency and guidance in their decisions, providing a uniform set of rules. Both corporations and individuals would know what to expect when it comes to factory relocation.[11]

The use of ECTs would be able to provide finality as well. For example,  SG Sustainable Oils Cameroon (SGSOC) built a palm oil plantation and factory in the Cameroonian rainforest, despite protest from villagers.[12] The company destroys one-percent of the rainforest each year, in violation of their permit.[13] An international ECT would allow an environmental group, or even a single villager to bring a complaint against SGSOC.   The ECT judge would then make a binding decision, solving the problem once and for all.

There may be a concern that a MNC would be subject to countless suits in an ECT, since individuals may bring suit. However, the floodgates fear is overexaaggerated.  Claim preclusion, a technique used in American Courts, can bar frivolous suits.  ECTs can develop similar or their own set of rules to address this issue

Developed states may be hesitant to grant jurisdiction to ECTs to hear MNC cases for political reasons, including the strong lobbying from MNCs. There, however, are powerful environmental and human rights groups, such as the Sierra Club, that could put just as much pressure on the United States (and other countries?). The benefits of granting ECTs jurisdiction outweigh the costs. Pollution has a direct impact on climate change, which will be felt in the United States and abroad. More intense hurricanes, increases in wind, rain, and storm surges, drier conditions in the Southwest, and increased winter temperatures have already been felt.[14] By dealing with these issues now, developed states can lower their transaction costs in the future by combatting problems before they occur. There is also the political risk that results from MNCs that includes kidnappings, international terrorism, and war.[15] Though the environment and humanitarian causes are important, perhaps another argument can be more convincing: relocating factories abroad shifts jobs away from Americans at home. 72% of voters are concerned with the economy while another 62% are concerned with job creation.[16] Admittedly, with the recent economic recovery this could be less important, but there is not a guarantee that the US economy will always be robust.

Developing countries may also be hesitant to grant jurisdiction to ECTs; however, developing countries are interested in protecting their land and people. While there is an argument that MNCs can bring development into poor countries, there is also the question as to whether the benefits are worth the costs.  In addition, leaders may be able to use ECTs as a way of “saving face” and achieving political goals without having to suffer criticism.[17] Lastly, the “race to the bottom” in which developing nations might be encouraged to weaken their environmental regulations in order to attract foreign investment, may remain a problem.[18]

Industry itself could even support ECT jurisdiction, in order to gain social acceptance for their activities.[19] For example, mining companies in South America have engaged in rigorous self-regulation in order to gain social acceptance. [20] ECTs could also establish a uniform set of rules, so MNCs would know how to deal with disputes that arise all over the world.

[1] George Pring and Catherine Pring, Specialized Environmental Courts and Tribunals: The Explosion of New Institutions to Adjudication Environment, Climate Change, and Sustainable Development 10 (Univ. of Denver Sturm Coll. of Law 2010) available at http://www.law.du.edu/documents/ect-study/Unitar-Yale-Article.pdf.

[2] Id. at 1.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at 2.

[7] Id. at 3.

[8] Id.

[9] Id. at 12-13.

[10] Id.

[11] Id.

[12] http://www.greenpeace.org/usa/global/usa/planet3/pdfs/forests/heraklescrimefile.pdf

[13] Id. at 7.

[14] Id.

[15] Jo Jakobsen, Political Risk for Multinational Companies: Empirical Evidence From a New Dataset 2 (Wisk Network 2007) available at http://www.wiscnetwork.org/porto2011/papers/WISC_2011-560.pdf.

[16] Importance of Issues: Voters List Economy, Health Care, Spending As Top Issue, Rasmussen Reports (June 16, 2014), http://www.rasmussenreports.com/public_content/politics/mood_of_america/importance_of_issues.

[17] In a dispute over the Aouzou Strip between Libya and Chad, Muammer Gaddafi did not have vested interests in the land because it was inhabitable and provided no natural resources. However, Gaddafi did not want to give the strip to Chad for political reasons, including looking weak to his constituents. When the ICJ ruled that Chad had rights to the land, Gaddafi complied with the judgment. This allowed him to get rid of the Aouzou Strip without “losing face,” as he could justify his actions as complying with international law. See Territorial Dispute (Libya v. Chad), 1994 I.C.J. 6.

[18] Lane A. Johnson, The Race That Isn’t: How Industry Can Actually Help Drive an International Trend of Heightened Environmental Regulation in the Copper Mining Industry, 26 Geo. Int’l Envtl. L. Rev. 327, 328 (2014).

[19] Id,

[20] Id.