The Role of the Courts

As was noted earlier, the judiciary plays a crucial role in improving environmental enforcement, both in a system of public enforcement and in private enforcement, especially when the so-called private enforcers need access to court. In the past, successful use of the court has been limited by a number of factors. Probably the most fundamental one is that courts are not always an appropriate way to resolve environmental conflicts because of multi-party dynamics, high levels of scientific uncertainty, huge economic stakes with a high perceived economic upside risk and a high perceived environmental downside risk, and a transnational character. All these elements provide procedural and enforcement challenges that sometimes lend themselves better to other forms of conflict resolutions.

Other limiting factors are more inherent to the courts themselves. Judges lack training on environmental law and/or do not have easy access to the various laws and regulations. In other cases, the thresholds for bringing a complaint are too high, or there are language barriers or institutional weaknesses. Financial resources are limited, with funding for the courts depending solely on the government (Llermanos, 1994). It has also been noted that some courts have a “historical reluctance to sanction industry” (Llermanos, 1994), and/or a reluctance to impose penalties for acts that do not involve violence against people (Lawyers Committee for Human Rights, 1998).

Over the last few years, several initiatives have been taken to address the role of the courts in environmental enforcement. In 1996, the IDB approved US$350,000 for a regional technical cooperation to strengthen the juridical system on the environment in Central America. The project was coordinated by the Central American Commission for Environment and Development (CCAD) and executed by CEDARENA, an environmental-law center based in Costa Rica. This project has resulted in the preparation of training materials in the form of environmental-law manuals for each of the seven participating countries (Belize, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama). In each country, the manuals have been distributed through the law schools to judges, prosecutors, lawyers, environmental authorities, NGOs, and universities. On the basis of the manuals, the project has resulted in the training of almost 500 professionals. In total, 16 workshops have been organized with the active support and participation of the law schools and universities. In addition, the project has resulted in the strengthening of the national environmental law NGOs through their involvement in the preparation of the materials and the training seminars.

Since 1996 the IDB has approved a number of judicial reform projects. Whenever feasible and appropriate, the Bank includes a component on environmental law in these projects, normally dealing with training and improving access to justice. Other organizations are also involved in providing training. In July 1996, the Center for Governmental Responsibility of the University of Florida organized a training program for judges, prosecutors, and lawyers in the state of Paraná, Brazil, for which the Center also prepared a manual (Center for Governmental Responsibility, 1996). Also in 1996, the Colombian Office of the Defender of the People organized a seminar for regional and high court judges to instruct them on the national environmental legislation. During the workshop, the judges were trained on the provisions in the legislation dealing with legal mechanisms, such as the constitutional right to “tutela” and “popular actions” (IER, 1996). In Paraguay, the Public Ministry sponsored 18 seminars on environmental law for judges and prosecutors, although it is reported that only a few attended (Lawyers Committee for Human Rights, 1998).

Despite these international initiatives, much more work seems to be needed. In its recent publication Judicial Reform and the Environment (1998), the Lawyers Committee for Human Rights makes a set of recommendations aimed at improving access to the courts. The recommendations are related to improving administrative procedures and oversight and allowing greater private access to courts through changes in the loser-pays rule, and standing and legal representation requirements.

Although no data are known to exist about any increase of environmental cases before the courts, there are reports indicating that training does make a difference (Lawyers Committee for Human Rights, 1998). According to some reviewers, there is growing evidence of litigation on environmental issues in Latin America and the Caribbean (Gracer, 1995). In any case, there have been a number of high-profile environmental court cases during the last couple of years. In 1993, the Colombian Constitutional Court declared the right to a clean and safe environment to be a fundamental right, which means that if a person feels his right is violated, he can invoke the Tutela Action to go to court. Public environmental officials are required to carry out the court’s decision (EWLA, February 1993, p. 12). In Brazil, a federal judge in Mato Grosso granted an injunction prohibiting the Government from starting work on the Hidrovia project in the Paraguay-Paraná rivers on the ground that it had failed to consult with affected communities, in this case an Indian tribe whose 130 members live on an island in the Paraguay River (IER, 1998). In Chile, the Rio Condor logging project in Tierra del Fuego has been stalled by several lawsuits, challenging the legality of the environmental-impact studies conducted for the firm Trillium. Separate suits by parliamentarians, non-governmental organizations and countersuits by Trillium have been filed (IER, 1998, Vol. 21). Other cases are still pending: in Venezuela, Pemon Indians living in the southeastern rainforest are protesting the construction of a power line and have filed lawsuits to challenge the governmental decree that opens up 40 percent of the Imataca rainforest reserve to mining and logging (Decree 1850) and the construction of a pipeline (IER, 1998).