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455 Pages·2018·5.687 MB·English
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Courts and the Environment VOIGT_9781788114660_t.indd 1 23/11/2018 10:54 THE IUCN ACADEMY OF ENVIRONMENTAL LAW SERIES Founding Series Editors: Kurt Deketelaere, University of Leuven, Belgium and Zen Makuch, Imperial College London, UK Editorial Board Zen Makuch, Imperial College London, UK (Editor in Chief) Jamie Benidickson, University of Ottawa, Canada (Editor in Chief) Natasha Affolder, University of British Columbia, Canada Javier de Cendra, IE Law School, Spain Veerle Heyvaert, London School of Economics, UK Francesco Sindico, Strathclyde University, UK As environmental law increases in importance as an area of legal research, this series brings together some of the most current research carried out by the IUCN Academy of Environmental Law, a global network of environmental law scholars. Each volume in the series addresses an important issue in the field and presents original research analysis and assessment, along with a much-needed synthesis of the state of environmental law. Directions as to the positive role that environmental law can play at a global level are also emphasized. This series provides essential reading for scholars throughout the world with an interest in cutting-edge environment-related issues, and will no doubt play an important role in shaping future debate. Titles in this series include: Global Environmental Law at a Crossroads Edited by Robert V. Percival, Jolene Lin and William Piermattei Water and the Law Towards Sustainability Edited by Michael Kidd, Loretta Feris, Tumai Murombo and Alejandro Iza The Search for Environmental Justice Edited by Paul Martin, Sadeq Z. Bigdeli, Trevor Daya-Winterbottom, Willemien du Plessis and Amanda Kennedy Implementing Environmental Law Edited by Paul Martin and Amanda Kennedy Energy, Governance and Sustainability Edited by Jordi Jaria i Manzano, Nathalie Chalifour and Louis J. Kotzé The Law and Policy of Biofuels Edited by Yves Le Bouthillier, Annette Cowie, Paul Martin and Heather McLeod-Kilmurray Protecting Forest and Marine Biodiversity The Role of Law Edited by Ed Couzens, Alexander Paterson, Sophie Riley and Yanti Fristikawati Courts and the Environment Edited by Christina Voigt and Zen Makuch VOIGT_9781788114660_t.indd 2 23/11/2018 10:54 Courts and the Environment Edited by Christina Voigt Professor, Faculty of Law, University of Oslo, Norway Zen Makuch Director, Sustainable Transitions, Imperial College London, UK; Barrister THE IUCN ACADEMY OF ENVIRONMENTAL LAW SERIES Cheltenham, UK • Northampton, MA, USA VOIGT_9781788114660_t.indd 3 23/11/2018 10:54 © The Editors and Contributing Authors Severally 2018 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2018954446 This book is available electronically in the Law subject collection DOI 10.4337/9781788114677 ISBN 978 1 78811 466 0 (cased) ISBN 978 1 78811 467 7 (eBook) Typeset by Servis Filmsetting Ltd, Stockport, Cheshire 2 0 VOIGT_9781788114660_t.indd 4 23/11/2018 10:54 Contents List of figures viii List of contributors ix Courts and the Environment: An Introduction xii Christina Voigt and Zen Makuch PART I CONCEPTUALIZING THE ROLE OF COURTS IN PROTECTING THE ENVIRONMENT 1. The nature of courts 2 Nicholas A. Robinson 2. Bridging the gap between aspiration and outcomes: the role of the court in ensuring ecologically sustainable development 35 Justice Brian Preston, Paul Martin and Amanda Kennedy 3. The legitimate role of rights-based approaches to environmental conflict resolution 59 Trevor Daya-Winterbottom PART II TAKING THE LEAD: THE COURT AS TRAILBLAZER FOR ENVIRONMENTAL PROTECTION 4. Ghana’s courts and environmental rule of law 85 Godwin E. K. Dzah 5. Activity of the Brazilian judiciary in the Amazon and Cerrado biomes aimed at combating global warming 113 Heline Sivini Ferreira, Diogo Andreola Serraglio and Rullyan Levi Maganhati Mendes 6. Procedural and substantive innovations propounded by the Indian judiciary in balancing protection of environment and development: a legal analysis 142 Stellina Jolly and Zen Makuch v VOIGT_9781788114660_t.indd 5 23/11/2018 10:54 vi Courts and the environment PART III ACCESS TO JUSTICE FOR THE ENVIRONMENT 7. Inviting civil society to the table: the case of the African Commission 170 Nora Ho Tu Nam 8. Collective environmental litigation in Colombia: an empirical assessment 190 Everaldo Lamprea and Angela M. Páez 9. Are courts colour blind to country? Indigenous cultural heritage, environmental law and the Australian judicial system 211 Justice Rachel Pepper and Lauren Butterly 10. What Chinese courts could learn from the USA: the approach of public interest litigation under the new China Environmental Protection Law 228 Zhuoxian Zhang 11. Protection of environmental rights of citizens in the courts of Kazakhstan, Russia and Ukraine 250 Aleksandra Chornous and Nikolay Kichigin PART IV COURTS IN ACTION 12. The challenge of bringing transnational corporations to justice for environmental damage: a case study of Texaco Oil Company and Chevron vs Lago Agrio Plaintiffs 271 María Augusta León Moreta and Bingyu Liu 13. Enhancing corporate responsibilities to fulfil the right to a clean environment: a lesson learned from Indonesian courts 290 Yetty Komalasari Dewi and Anbar Jayadi 14. The Urgenda case: a successful example of public interest litigation for the protection of the environment? 305 Otto Spijkers 15. US climate change adjudication: the epic journey from a petition for rulemaking to national greenhouse gas regulation 345 David Hodas 16. A review of environmental courts and tribunals for CSOs and the judiciary 369 Ria Guidone and Holly Jonas VOIGT_9781788114660_t.indd 6 23/11/2018 10:54 Contents vii 17. Swedish environmental courts – specialized civil and administrative courts 389 Anders Bengtsson Index 419 VOIGT_9781788114660_t.indd 7 23/11/2018 10:54 Figures 1.1 The seal of the IUCN Academy of Environmental Law 2 2.1 Key system actors 46 2.2 Contextualizing judgments 49 2.3 Selected system dynamics 53 8.1 Issue discussed in the suit 199 8.2 Plaintiffs in environmental popular actions 201 8.3 Defendants in environmental popular actions 202 8.4 When was the popular action suit filed? 203 8.5 When was the popular action case decided? 204 8.6 Success rate for litigants 205 8.7 Amount of the incentive for popular actions 208 16.1 Countries containing at least one ECT to date. Designed via an aggregate of ECT estimates from articles, books, commentaries and other online sources. (The base map is courtesy of Bruce Jones Design Inc. and FreeUSandWorldMaps.com) 371 16.2 Global estimate of the number of ECTs established between 1970 and 2017 373 16.3 Illustration of the decision-making hierarchy for environmental matters adjudication in Sweden 376 16.4 Twelve critical ECT design factors to consider in the decision-making process 387 17.1 Swedish court system in (most) environmental matters 397 17.2 The procedure in civil cases 403 17.3 The sequential procedure in permit cases 406 17.4 The procedure in administrative cases 408 viii VOIGT_9781788114660_t.indd 8 23/11/2018 10:54 Contributors Anders Bengtsson, Senior judge, Land and Environment Court (Växjö, Sweden) Lauren Butterly, Lecturer, University of New South Wales Law School (Sydney, Australia) Aleksandra Chornous, Researcher of Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, Candidate of Legal Sciences (Kyiv, Ukraine) Trevor Daya-Winterbottom, Dr, Senior Lecturer, Faculty of Law, University of Waikato, member of the Faculty’s Centre for Environmental Resources and Energy Law (Waikato, New Zealand) Yetty Komalasari Dewi, Associate Professor at the Department of Private Law, Faculty of Law, Universitas Indonesia (Depok, Indonesia) Godwin E. K. Dzah, Doctoral Candidate, Peter A. Allard School of Law, University of British Columbia (Canada) Heline Sivini Ferreira, Associate Professor of Graduate and Postgraduate Programs in Law at Pontifícia Universidade Católica do Paraná (PUCPR); PhD in Law from Santa Catarina Federal University (UFSC), Regional Coordinator of the Association of Professors of Environmental Law in Brazil (APRODAB); International Affairs Director of Law for a Green Planet Institute (IDPV) (Curitiba, Brazil) Ria Guidone, JD, Schulich School of Law, Dalhousie University (Halifax, Canada) Nora Ho Tu Nam, Dr, Post-doctoral fellow at the Dullah Omar Institute, University of the Western Cape (Belville, South Africa) David Hodas, Distinguished Emeritus Professor of Law, Delaware Law School, Widener University (Wilmington DE, USA) Anbar Jayadi, Junior Member at the Department of International Law  (2015–2018), Faculty of Law, Universitas Indonesia (Depok, Indonesia) ix VOIGT_9781788114660_t.indd 9 23/11/2018 10:54

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