Judges and Nature – A Colloquium organized by the Ministry of the Environment of Finland, the Supreme Administrative Court of Finland, the University of Helsinki and the IUCN World Commission on Environmental Law – WCEL
Speech in the discussion “The Role of Judges in the Conservation of Nature: A Dialogue", University of Helsinki, December 14, 2015
Ladies and gentlemen, distinguished colleagues
I come from a court of justice where environmental law cases, at large and in ordinary conditions, make up about 20 per cent, sometimes even a quarter, of all incoming cases. This state of affairs is something very different from some other countries. The outcomes largely depend on the structure of the national court system, and in particular on the existence of separate administrative courts and administrative court litigation procedure. As we just heard, already the Nordic countries differ from each other in this respect, not to mention other countries. In the western Nordic judicial regime, where one general court system has an overall competence and no administrative law litigation category exists, environmental law cases and control of administrative decision-making in them, very seldom reaches the supreme court instance.
When we speak of courts of justice and the environment, the substantive law is always crucial. Courts of justice and individual judges are never free actors, so to say. Of course it is also true that the scope of discretion varies strongly in different situations. But the core of the role of a court of justice and of an individual judge is in principle always the same; irrespective of the nature or category of the case at stake. In other words, the relevant law shall be applied correctly, and in particular the fundamental rights and obligations shall be taken seriously. This as such is of course something else than intentional conservation of nature and biodiversity or protection of the environment, or prevention of climate change, although these two viewpoints may more or less coincide, again depending on the applicable law. There is rather less to do, if the legislation in force does not contribute, or perhaps prevents protection, whatever the personal will of judges may be.
The topical trends of de-regulation may affect also the environment, and more or less hidden goals may exist in any legal system. Not all deregulation is innocent. In topical Finnish public debate “norm" has partly become an ugly word. People sometimes do not realize that a functioning legal system and rule of law consists of rights and obligations of various subjects, i.e. of legal norms. Good regulation is of course always of vital importance, irrespective of the issue at stake, and unnecessary rules are naturally unnecessary, if the difference is agreed upon. But it also seems often that the more there is talk on good and smart legislative practices, the worse and the more hastily planned the substantive outcome may become, from the environmental point of view, too. And also here there may be hidden goals and premises. This regards hard law of course, but on the other hand e.g. economic incentives and created market mechanisms such as emission trade are based on legislation, that also being applied by courts of justice.
But on the other hand, without independent and sufficiently resourced judicial machinery, nature and the environment cannot be protected, at least not in many circumstances. And if the judges do not possess the relevant expertise themselves, or if they are not able to resort to such real, objective and impartial expertise, science-based knowledge included, not much can be expected.
There are many, and many different, challenges. Conflicting interests and rights – also between different fundamental rights and obligations – emerge in everyday judicial life. And although constitutional fundamental rights and internationally recognized human rights often coincide, there is an annoying structural difference between many constitutions (and the European Union Charter) on the one hand and the European convention on human rights on the other, since the latter lacks an environmental clause.
The general legitimacy of environment-related public-decision-making and application of law every now and then appears to be problematic. Practically anything with environmental relevance can e.g. be reasoned by short-term positive employment impacts, while environmental damage and even disasters often evolve only gradually. Courts of justice still always have their important role in maintaining rule of law and general confidence. One of the problem-creating factors is that the general public and the media are usually not well aware on the margin of discretion of courts of justice. Judges are not politicians who are able to resort a variety of policy options. Of course people are usually not well aware of notions of law and concepts of environmental protection and law, either. I personally always get somewhat irritated when e.g. carbon dioxide is called pollutant, or the need to remove unhealthy particles and other pollutants from atmospheric emissions cannot be distinguished from greenhouse gas emissions. (By the way, clean technology is not a good expression, either, if carbon dioxide, and not pollutants, is primarily focused.)
Dear colleagues, I also have some structural remarks. Different legal systems always vary in many respects. E.g., the general emphasis in environmentally relevant litigation may be proactive, or on the opposite, reactive. Here in Finland litigation mainly focuses the proactive elements – plans, prior notifications, permits and provisions set forth in individual permits. The role of reactive law, especially that of criminal law, is less important and less effective in respect to nature and the environment themselves. This is partly due to the essence and general doctrine of criminal law where the subject-related principles such as in dubio pro reo and in dubio mitius prevail. And through means of criminal law the detrimental impacts in nature and environmental conditions can never be restored. Here other judicial means, in particular those of re-instatement and restoration are consequently needed in addition to the proactive regulations, and indeed are often provided by law. Also problems of quite new kinds may emerge here. European Union law in respect to the environment, food and chemical safety etc. is presently to a large extent based on self-control by individual actors and operators, and on their various notification duties. But what will happen to these legal mechanisms in the light of the heretofore jurisprudence of the European Court of Human Rights regarding the sophisticated bans on self-incrimination, created and evolved by that court in very different situations? National and common legal orders do not need any sudden and fundamental surprises, like what has happened to taxation systems in the progress of ne bis in idem.
Something similar holds true regarding individual environmental damages. In principle and typically, pecuniary compensations only cover individual economic losses, without restoring the environment.
Another structural key issue is the question of legal standing before courts. On the one hand, all relevant viewpoints should be present and all relevant parties, perhaps associations etc. included, should have their voices heard, maybe already for constitutional reasons. The legal fundamentals here are manifold, however. Just one example: protection of property rights may affect in favor of opposite parties of the case at the same time and, regarding some of them, coincide with the applicable fundamental environmental right, where any. But on the other hand, mere nuisance and unnecessary delay of legally blameless projects should be avoided. It is nevertheless far from an easy and unequivocal task to combine and reconcile these two opposite requirements.
Dear participants, this all being said, I still have full reason to emphasize that courts of justice are in a key-position in respect to the future of our common environment.