Environmental Courts and Tribunals in Asia-Pacific: Best Practices, Challenges and the Way Forward (Brill's Asian Law)

"Environmental Courts and Tribunals in Asia-Pacific is an in-depth treatment of the features, best practices, challenges and future prospects for environmental courts and tribunals (ECTs) in the Asia-Pacific region. ECTs play an important role in improving environmental dispute resolution, access to environmental justice and environmental governance, but data and academic analysis on ECTs are very limited. This book fills that gap, with ten chapters authored by leading academics, judges and lawyers from multiple jurisdictions, including Australia, China, India, Indonesia, Japan, New Zealand, Pakistan, Philippines and Sri Lanka, as well as pan-Asia-Pacific and global perspectives"-- Provided by publisher Front Cover Half Title Series Information Title Page Copyright Page Contents Preface Figures and Tables Consolidated Cases Part 1 Bridging the Gap: Theories and Practice of ect s in Asia-Pacific Chapter 1 The Role of Environmental Courts and Tribunals in Delivering Environmental Justice 1 Introduction 2 What Is Environmental Justice? 2.1 Distributive Justice 2.2 Procedural Justice 2.3 Recognition Justice 3 What ECTs Do: Function, Doctrine and Process 3.1 Functional Roles of ECTs 3.2 Doctrinal Development by ECTs 3.3 Processes Used by ECTs 4 How ECTs Do This: Competences and Expertise 4.1 Competences of ECTs 4.2 Expertise of ECTs 5 What This Means List of References Part 2 Challenges and Benefits of ECTs in Asia-Pacific: Case Studies Chapter 2 India’s National Green Tribunal: Quo Vadis? 1 Introduction 2 Establishment and Growth of the NGT 3 Evaluating the ngt through the Core Values Framework 3.1 Equality 3.2 Accessibility 3.3 Judicial Independence 3.4 Competence 3.5 Fairness 3.6 Impartiality 3.7 Integrity 3.8 Transparency 3.9 Certainty 3.10 Timeliness 4 Conclusion List of References Chapter 3 Environmental Courts and Tribunals in the Philippines: Opportunities and Challenges in Environmental Litigation 1 Introduction 2 Opportunities for Environmental Litigation 2.1 The Rules of Procedure for Environmental Cases and Some Cases 2.1.1 Liberalized Legal Standing 2.1.2 Speedy Disposition of Cases 2.1.3 Special Remedies in the Form of the Writ of Kalikasan, Writ of Continuing Mandamus, Environmental Protection Orders 2.1.4 Consent Decree 2.1.5 Strategic Lawsuit against Public Participation (‘SLAPP’) 2.1.6 Provision on the Precautionary Principle 2.2 Upholding Rights and Laws 2.3 Environmental Tort 3 Challenges 3.1 Critical Role of Scientific and Technical Evidence; Need for Pool of Experts 3.2 Lawyers’ Pool and Funding for Environmental Litigation 3.3 Readiness, Willingness of Community to Be Part of Environmental Litigation 3.4 Establishing the Requisites for Writ of Kalikasan and Writ of Continuing Mandamus 4 Conclusion List of References Chapter 4 The New Zealand Environment Court: Past, Present, and Future 1 Introduction 2 Establishment of the Environment Court of New Zealand 3 Current Powers, Duties and Functions of the Environment Court 4 New Zealand’s Resource Management Act 1991 5 The Specialist Constitution of the Environment Court of New Zealand 6 Court Processes Facilitating Access to Justice 7 Constraining the Jurisdiction of the Environment Court 8 Current Proposals for Wholesale Legislative Change 9 Conclusion: A Commitment to Specialist Environmental Adjudication in New Zealand? List of References Chapter 5 Japan’s Administrative Environmental Tribunals: 50 Years of the Pollution Dispute Resolution System 1 Introduction 2 Overview 3 Pollution Dispute Resolution System 3.1 Historical Background 3.2 Administrative Tribunals Specializing in Environmental Matters 3.2.1 The EDCC 3.2.2 RBs 3.3 Procedural Structure of Pollution Dispute Resolution: Four Types of Dispute Resolution Procedures 3.3.1 Conciliation 3.3.2 Adjudication 3.3.3 Mediation and Arbitration 3.4 Jurisdiction of the EDCC and RBs 4 Dynamics of Administrative Environmental Tribunals 4.1 The EDCC 4.1.1 Status of Dispute Resolution by the EDCC 4.1.2 Case Study: Large-Scale Industrial Pollution Applications in the 1970s 4.1.2.1 Minamata Disease Case (EDCC-Conciliation No. 4 of 1971) 4.1.2.2 Watarase River Mining Pollution Case (EDCC-Conciliation No. 8 of 1972) 4.1.2.3 Osaka International Airport Noise Case (EDCC-Conciliation No. 1 of 1973; Conciliation No. 16 of 1981) 4.1.3 Case Study: Diversification of Pollution Disputes Since the 1980s 4.1.3.1 Spiked Tire Road Dust Case (EDCC-Conciliation No. 17 of 1987) 4.1.3.2 Yamanashi and Shizuoka Prefectures Golf Course Pesticide Damage Case (EDCC-Conciliation No. 12 of 1990) 4.1.3.3 Odakyu Railway Noise Case (EDCC-Adjudication of Liability No. 1 of 1992) 4.1.3.4 Teshima Industrial Waste Illegal Dumping Case (EDCC-Conciliation No. 4 of 1993) 4.1.3.5 Kamisu City Arsenic Health Hazard Case (EDCC-Adjudication of Liability No. 2 of 2006) 4.1.3.6 Suginami Diseases Case (EDCC-Adjudication of Cause No. 1 of 1997) 4.1.3.6.1 Implications of the Case Studies 4.2 RBs 4.3 Pollution Complaints System in Prefectural and Municipal Governments 4.3.1 What Is the Pollution Complaints System? 4.3.2 Trends in Pollution Complaint Handling 5 Conclusion List of References Chapter 6 Greening the Bench in Indonesia: From Certification to Environmental Courts? 1 Introduction 2 Greening the Judiciary in Indonesia 3 The Green Bench in Climate Litigation 3.1 The Kallista Alam Case 3.2 The Bumi Mekar Hijau Case 3.3 The Palangkaraya Forest Fires Case 3.4 The Samarinda Menggugat Case 3.5 The Cirebon Coal Power Plant Case 3.6 The Celukan Bawang Coal Power Plant Case 3.7 Between Hopes and Concerns 4 Establishing an Environmental Court? 4.1 Navigating Political and Legal Constraints 4.2 A Quest for Legitimacy 5 Conclusion List of References Chapter 7 Unearthing Environmental Justice: Judicial Review and Pakistan’s Climate Crisis 1 The Challenges 2 The Legal Framework 2.1 Judicial Review, Public Interest Litigation, and the Environmental Rights Evolution 2.1.1 Invoking International Principles 2.2 Relaxing the Rules on Standing 2.3 Suo Motu Jurisdiction 2.4 The Relevance of Procedural Rights 2.5 Climate Action 2.6 Developing Legal Tools 2.7 Climate Change: A Gendered Perspective 3 Conclusion List of References Chapter 8 Specialized Environmental Courts in China 1 Introduction 2 Environmental Courts as Local Responses to Water Pollution Crises 3 National Reform on Specialized Environmental Adjudication 3.1 Institution Building and Innovation in Jurisdiction 3.2 Judicial Interpretations on Environmental Adjudication 3.3 Guiding Cases and Model Cases 4 Chinese Environmental Courts in Operation 4.1 Comprehensive Jurisdiction and Combined Adjudication 4.2 Standing and Access to Justice 4.3 Judicial Mediation and Innovation in Remedies and Enforcement 4.4 Responsiveness to New Challenges and New Demands 4.5 Undue Delay in Response to Climate Change 4.6 In Search of Independent Adjudication 5 Conclusion List of References Part 3 Regional Perspectives on ECTs: Prospects and Challenges Chapter 9 South Asian Perspectives on Environmental Courts and Tribunals: Prospects and Challenges 1 Introduction 2 An Overview of the ECTs in Bangladesh, India and Pakistan 2.1 The Background of Establishing ECT s in the Selected South Asian States 2.1.1 Bangladesh 2.1.2 India 2.1.3 Pakistan 2.2 Jurisdiction and Procedure 2.2.1 Bangladesh 2.2.2 India 2.2.3 Pakistan 2.3 Judicial Expertise 2.3.1 Bangladesh 2.3.2 India 2.3.3 Pakistan 2.4 Access to Justice and Other Challenges 2.4.1 Bangladesh 2.4.2 India 2.4.3 Pakistan 2.5 Alternative Dispute Resolution (ADR) Mechanisms 2.5.1 Bangladesh 2.5.2 India 2.5.3 Pakistan 3 Prospects and Challenges of ECTs in South Asian Nations 3.1 Prospects of ECT s in South Asian Nations 3.1.1 Ability to Uphold Environmental Justice 3.1.2 Jurisdiction and Procedure of ECTs 3.1.3 Expertise of the Panel of Judges 3.1.4 Necessity to Provide a Broader Approach to ADRs 3.2 Challenges 3.2.1 Lack of Expertise 3.2.2 Access to Justice 3.2.3 Procedural Hindrances & Loopholes in the Legislative Framework 3.2.4 Implementation 3.2.5 Logistical Challenges 4 Conclusion List of References Chapter 10 Asia-Pacific Regional Perspective on Environmental Courts and Tribunals: The Way Forward 1 Introduction: Environmental Courts and Tribunals in the Asia-Pacific 2 Regional Perspective on ECTs 2.1 Developing ECT s Is Very Challenging 2.2 ECT s as Institutions Creating Environmental Justice and Environmental Jurisprudence 2.3 ECT s Encourage Public Participation 2.4 ECTs Are Regarded as the Last Resort against Environmental Destruction 3 The Way Forward for ECTs 3.1 Environmental Rights as Human Rights 3.2 The Development of Climate Change Litigation 3.3 COVID-19 Pandemic 3.4 Disparities and Disruption in Society 4 Conclusion List of References Index Back Cover