Environmental norm diffusion and domestic legal innovation: The case of specialized environmental courts and tribunals (RECIEL 2022), by J. Michael Angstadt

Environmental court diffusion: mechanisms and meaning

Why are specialist environmental courts proliferating around the world? In recent years, researchers have observed a steady increase in these institutions (sometimes also referred to as “environmental courts and tribunals,” “green courts,” “green tribunals,” or “green benches”). However, an important opportunity remained to consider what actors and mechanisms are promoting specialist environmental courts-a question that represents an essential first analytical step to better understand what global norms and values the courts might reflect. In “Environmental norm diffusion and domestic legal innovation: The case of specialized environmental courts and tribunals” (published online and forthcoming in the journal RECIEL), I merge legal analysis with theories and methods of global environmental politics (GEP) scholarship to identify and characterize advocacy supporting environmental court spread. I also seek to enhance understanding of how domestic courts support global innovation and experimentation in environmental law. As I argue, environmental courts’ global emergence reflects active promotion by a range of actors. Understanding these dynamics offers important lessons about environmental courts, specifically, and environmental norm promotion, broadly.

What are environmental courts and tribunals? And why might some desire to promote them? As my study notes, these are multifaceted questions because the institutions have been established in diverse legal settings and exhibit varying institutional attributes. Environmental courts exist in Africa (e.g., Kenya Environment and Land Court), Asia (including India’s widely-referenced National Green Tribunal and over 100 environmental courts in both China and The Philippines), Europe (including environmental courts in Sweden), Latin America (including courts in Chile), North America (e.g., Hawai’i Environmental Court), and elsewhere. Nevertheless, despite this geographic and institutional diversity, environmental courts and tribunals are often advocated collectively as an alternative to generalist courts for reasons including their supposed efficiency, ability to concentrate environmental expertise, and the technical nature of environmental challenges. Therefore, the courts have been established widely-and at levels ranging from national to local. Furthermore, this establishment is occurring rapidly; researchers identified about 350 environmental courts and tribunals in a 2009 census, but found over 1,200 in a similar 2016 publication. Therefore, questions of who is promoting environmental courts, and how,are both timely and important.

Environmental court diffusion: methods and modes of analysis

Who is promoting environmental courts and tribunals? My publication explores this question. I first reviewed the GEP and international environmental law (IEL) literature to note actor classes identified for their efforts to spread (or “diffuse”) environmental norms. Of these actor classes, I noted five that could be motivated, in theory, to advocate the establishment of environmental courts and tribunals: intergovernmental organizations, regional organizations, nongovernmental organizations, professional networks, and individuals (including domestic judges). To next determine which actors and actor classes are actually engaged in environmental court promotion, I used a multi-method strategy: (1) review of existing environmental courts scholarship, (2) analysis of reports, policy documents, and related publications, (3) distribution of an expert survey to practitioners and scholars holding environmental court expertise, and (4) eight elite interviews with expert academics, scholars, and legal practitioners. For each, I used qualitative coding approaches to document references to the actors (individuals, institutions, and/or classes of actors) engaged in promoting the idea that environmental court establishment is desirable. Altogether, my data provided 552 references to the engagement of 14 different actor classes in promoting environmental courts and tribunals-and more than 350 references to the strategies that actors used when seeking to promote environmental courts and tribunals.

I found that many actor classes that might be expected to advocate environmental courts (including domestic governments, academia, judges, regional organizations, nongovernmental organizations, and judicial networks) do indeed contribute actively to the dynamics. Moreover, I found that they use a range of approaches when doing so (while advocacy is most common, I found that those promoting environmental court establishment also use a range of other approaches, such as training). Altogether, these data offer some important findings. First, they show broad engagement in promoting environmental court and tribunal establishment. The 14 actor classes that I identified varied from domestic governments and their employees to businesses and industry. This diversity emphasizes the range of institutional and individual actors who are engaged in promoting environmental court establishment. It also suggests the potential range of motivations that might lead to advocacy efforts and the diverse institutional models that they might be advocating. Second, my data show unevenness in promotional engagement within actor classes, with certain actors playing an active, outsize role. For instance, there were 66 references to the role of regional organizations in promoting environmental courts, but 54 of these highlighted the efforts and contributions of the Asian Development Bank. Similarly, 21 of the 31 references to contributions of intergovernmental organizations specifically highlight the efforts of the United Nations Environment Programme.

The Significance of Spread: norm diffusion insights and a call for interdisciplinarity

What lessons can we draw from these findings? My article suggests at least three important implications that this research offers for our understanding of (a) how environmental courts and tribunals are spreading and (b) how we might better integrate research in IEL, GEP, and related fields.

First, I highlight the important contributions of domestic judges as norm entrepreneurs in a global context. Judges are already widely recognized for the ability to translate IEL norms into domestic contexts and to absorb and apply international ideas domestically. This project highlights the important role that judges play in shaping and actively promoting new ideas and norms. In particular, I documented active efforts by domestic judges to promote environmental court and tribunals, undertaking roles similar performed by other “norm entrepreneurs” highlighted in GEP scholarship. Many respondents noted judges’ work to promote environmental courts and tribunals, their eagerness to exchange ideas relating to environmental courts with counterparts in other jurisdictions, and the receptiveness of many judges to the ideas and models advocated by other judges. These findings are important, because they underscore (1) the need for additional attention by non-legal disciplines (including GEP) to the individual and networked contributions of domestic judges and (2) a need to expand attention to judges within the already rich literature examining expert networks in driving GEP and IEL.

Second, my project highlights the important contributions of networked and institutional actors to the proliferation and spread of the environmental court model. While judges and other key individuals have served as entrepreneurs that shape the environmental courts landscape, many institutional actors (including intergovernmental organizations, regional organizations, and nongovernmental organizations) have catalyzed these exchanges. My research unearthed numerous references to these practices and their importance. For instance, regional organizations including the Asian Development Bank have helped to establish a judicial network, published relevant texts, and convened several roundtable events. Likewise, intergovernmental organizations including UNEP have convened a Global Judges Programme, and nongovernmental organizations including the IUCN have promoted exchange through the World Commission on Environmental Law and Global Judicial Institute on the Environment. Each of these, alongside other judicial networks, provide valuable venues for domestic judges to exchange insights and compare practices. As one respondent noted, by catalyzing exchanges among judges, these forums help to expand domestic judges’ worldviews to approaches that they might otherwise remain unaware.

Third, my research highlights the need to more robustly integrate research in this interrelated space. My project demonstrates a clear opportunity to better integrate environmental law, policy/governance, and Earth system scholarship-and to realize mutual benefit. My work advances global environmental politics and governance research by recognizing the important role of domestic judges in shaping environmental governance innovations. It also advances comparative environmental law and IEL research by incorporating GEP and GEG theory and methods-contextualizing legal analyses in broader conceptualizations of environmental institutions, power, and norms. Finally, my work highlights opportunities for exchange between academics and judges, while simultaneously showing that these exchanges have historically been constrained. My project is certainly not the first one to highlight these important dynamics: other researchers have advocated the integration of norm-based scholarship in GEP and IEL, for instance, and some environmental law judges’ networks have explicitly sought to bridge the academy and practice. Nevertheless, by examining the dynamic and applied environmental courts context, and by documenting the widespread engagement in the promotion of environmental courts, this project demonstrates the practice-relevance of norm-based research in environmental law and governance.  

Posted by J. Michael Angstadt (Environmental Studies Program, Colorado College, Colorado Springs, Colorado, USA)