Best Practices—Access to Justice

(Agenda for Public Interest Law Reform)John E. Bonine

Synopsis...........................................................................................................................................2Introduction......................................................................................................................................3I. Reforming the Legal Barrier of Standing................................................................................3

A. Legal standing regarding information requests...................................................................3B. Legal standing regarding public participation and other issues...........................................3

1. Generally restrictive legal doctrines................................................................................3a. “Legal interest” or “impairment of right”....................................................................3b. “Direct and individual concern”..................................................................................3c. “Public concerned”......................................................................................................3d. “Injury in fact”—U.S.A. constitutional doctrine.........................................................3

2. Flexible doctrines............................................................................................................3a. “Sufficient interest”.....................................................................................................3b. “Public interest”...........................................................................................................3

3. Best practice approaches..................................................................................................3a. “Diffuse interests”.......................................................................................................3b. Actio popularis and other open standing.....................................................................3c. Standing for NGOs......................................................................................................3d. Constitutional guarantees of standing for environmental rights..................................3

(1) Explicit provisions in national constitutions..........................................................3(2) Implicit constitutional guarantees of standing.......................................................3

II. Overcoming Economic Barriers..............................................................................................3A. Lack of funding for lawyers for citizens and NGOs............................................................3

1. In-country government funding.......................................................................................32. Domestic and foreign charitable funding........................................................................33. Pro bono versus the “private public interest bar”............................................................3

B. Obligation to pay winning side’s costs (the “loser-pays” rule)...........................................31. The attorney costs problem in its worst dimensions........................................................32. Moderating the worst with protective costs orders in U.K..............................................33. Exceptions to the loser-pays rule in Latin America.........................................................34. Abolition of the loser-pays rule in public interest or administrative court cases............3

C. Government-pays/polluter-pays rules (and “Modified American Rule”)...........................3D. Human rights guarantees.....................................................................................................3

This information memorandum does not claim to contain all the best practices in the world on access to justice, but it does contain numerous examples of good or best practices. It may serve as a template for others who wish to provide more examples, better examples, or even better practices. Professor of Law, Dean’s Distinguished Faculty Fellow, University of Oregon School of Law. A.B. Stanford University 1966; LL.B. (J.D.) Yale University, 1969. Professor Bonine has taught environmental law, administrative law, and constitutional law for 31 years. He previously served as Associate General Counsel of the U.S. Environmental Protection Agency and as a Legislative Assistant to a U.S. Senator. He co-founded the world’s first Environmental Law Clinic, annual Public Interest Environmental Law Conferences, Western Environmental Law Center, and Environmental Law Alliance Worldwide. He has traveled professionally or on a personal basis to nearly 90 countries and lectured in a number of them. His most recent book, co-authored with Dr. Professor Svitlana Kravchenko, is HUMAN RIGHTS AND THE ENVIRONMENT (Carolina Academic Press, USA, 2008).

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Synopsis

The best practices regarding access to justice include removal or modification of two major barriers: (1) restrictions on “standing to sue” and (2) the high costs of going to court. The first of these is a legal barrier. It determines which persons or organizations are allowed to file lawsuits in the courts against public authorities (governmental bodies). The second barrier can be either a legal barrier or a practical one. Lawyers and lawsuits can be expensive. Citizens and their organizations usually lack the resources to bring such cases to court.

Barriers to access to justice can be imposed by either national legislation (or in just one country by a national constitution) or court interpretations and practices. They can be overcome by national constitutions, legislation, and court interpretations.

Standing to sue

In countries with the most restrictive policies on “standing to sue,” a person cannot file a lawsuit unless he or she can demonstrate that a “legal interest” or “legal right” will be affected by the action of a public authority. This is sometimes phrased as requiring that a person show a “direct and individual concern,” that he or she is part of the public that is legally “concerned,” or even that he or she must be able to prove an “injury” that is satisfactory to the courts. All of these formulations of standing requirements impose definite barriers to access to justice.

In many countries, which have better practices, the “standing to sue” requirement has been softened by requiring only that a “sufficient interest” be shown. A similar softening occurs in countries that allow any person to start a court case to defend a “diffuse interest” or the “public interest.” These types of progress have taken place in countries in Latin America, Asia, Africa, and Europe. In several countries, particularly in Europe and nearby regions, registered nongovernmental organizations (NGOs) with a concern for protection of the environment are granted standing to sue without need to show either a legal or “sufficient” interest.

The best practice, however, is to abolish entirely the requirement for “standing to sue.” In such countries or jurisdictions, the courts do not look at who is bringing a lawsuit, but only at whether a public authority has violated its constitutional or statutory duties. This “open standing” (or actio popularis) can be granted by legislation or a national constitution. It can be granted explicitly or through judicial interpretation in court decisions. Such open standing has been recognized in parts of Asia, the Americas, and Europe.

Economic barriers

The most obvious economic or financial barriers to access to justice involve the high cost of lawyers and the high costs imposed by courts as a condition of filing lawsuits. These costs obviously consist of paying a person’s own lawyer. But in some countries a party who loses a lawsuit must also pay the costs of the opponent’s lawyers and experts, which can dramatically increase costs and raise barriers even higher.

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With regard to a person or NGO having to pay lawyers to bring a case, the best practice is for government programs to provide steady funding for individuals or NGOs that are dedicated to the protection of the environment. Funding from private charitable foundations is crucial as bridge funding, until such time as governments recognize the value of public interest litigation and their obligation to support it. Relying on the voluntary efforts of private lawyers is necessary in many countries at the present time, but it is sporadic and uncertain. This results in unequal justice because business interests have the resources to pay for their own lawyers and the pressure of threatened lawsuits coming from only one side can lead government officials to lean in their direction.

With regard to being ordered by a court to pay the costs of the lawyers and experts on the other side of a case, when the individual or NGO brings a case but is not successful, countries that have such a “loser-pays’ policy have erected a particularly high barrier to justice. The best practice is to eliminate such a policy entirely. This can occur through either legislation or court decisions rejecting this policy. Such court decisions can be based on constitutional, human rights, or pragmatic grounds. A good practice is at least to create an exception for public interest cases, or for all cases in which a public authority is on the other side of the case.

In the process of abolishing the loser-pays requirement as it is applied against individuals and NGOs, some countries provide for courts to award costs to individuals and NGOs when they win. Such “one-way attorney costs” is a best practice, giving citizen enforcers of environmental law the best of both worlds.

IntroductionBest Practices—Access to Justice

Access to Justice is defined as the ability of citizens to turn to impartial arbiters to resolve disputes over access to information and participation in decisions that affect the environment. Such impartial arbiters include mediators, administrative courts and formal courts of law, among others.1

Widespread access to justice to resolve disputes is more likely to result in obtaining equal justice. This is especially true in the case of challenges to decisions of public authorities (governmental bodies). Of course, inequalities will always exist. Those with power and resources will always have a larger effect on governmental and private decisions than those lacking power and resources. But this inequality is magnified where access to courts is restricted. Restrictions are usually formulated in terms that are less likely to affect access to courts by powerful economic interests. As a result, economic interests (private enterprises) are treated with respect by government officials. Citizens and their organizations, on the other hand, often do not have the same access to justice, and so their entreaties may well fall on deaf governmental ears. The result of this disparity is an imbalance not only in the courts but in the content of governmental decisions.

1 The Access Initiative, Glossary, available at http://www.accessinitiative.org/glossary/7/lettera.

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The need for adequate legal remedies for citizens in environmental matters has been widely recognized. Principle 10 of the Rio Declaration of 1992 committed governments to the proposition that “at the national level . . .  effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”2 More recently, judges of Western Europe, meeting in London in 2002, stated that the judges recognize the value to society of enhancing “the ability of citizens to obtain access to the courts to further enhance the effective implementation, compliance with, and enforcement of, environmental laws.” 3

The variety of legal systems in the world—civil law or common law, centralized or federalist, anglophone, francophone, Arabic- or Spanish- or Bahasa-speaking or others—makes analysis difficult. Nonetheless, this paper seeks to make a first effort at identifying the main barriers and proposes some best practices to remove those barriers. In this paper, I discuss two central issues of access to justice: legal standing (Part I) and financial barriers (Part II). I primarily discuss best practices in access to justice regarding decisions, actions, and inaction by public authorities, not actions by private enterprises.4 I also do not discuss social or cultural barriers that impede access to justice.

I. Reforming the Legal Barrier of Standing

The main legal barrier that obstructs access to justice is the doctrine of legal “standing to sue” or locus standi—restrictions on who may file a lawsuit. In some countries, the issue of whether judicial review is available can be seen as different from the issue of who is entitled to seek such judicial review,5 but in most countries these are combined into a single question, and that question is considered to be whether a potential litigant has standing-to-sue.6

2 Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992) (emphasis added), available at http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=78&ArticleID=1163.3 London Bridge Statement, adopted at the Symposium on Environmental Law for European Judges (2002), available at http://data.iucn.org/themes/law/pdfdocuments/LN-290304London%20Bridge%20Statement.pdf.4 Many countries have laws involving access to information in the hands of government, while only a smaller number extend rights to obtain information from private companies or individuals. Laws on public participation often involve plans for private development as well as governmental decisions, but legal challenges for violation of those laws almost always involves suits against public authorities, not against the private entities.5 For example, without mentioning standing the U.S. Freedom of Information Act (FOIA) provides explicitly that “the district court . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records . . . .” 5 U.S.C. § 552(a)(4)(B). Statutory provisions ensuring judicial review for other matters can be found in the Administrative Procedure Act (APA), Title 5 U.S. Code § 704, judicial review provisions in various environmental statutes, e.g., section 307 of the Clean Air Act, Title 42 U.S.C. 7607, and section 509 of the Clean Water Act, Title 33 U.S.C. § 1369, and “citizen suit” provisions in various environmental statutes, e.g., section 304 of the Clean Air Act, Title 42 U.S.C. 7604, and section 505 of the Clean Water Act, Title 33 U.S.C. § 1365. With regard to § 704 of the APA, it allows judicial review of any “agency action” after the public authority (called an “agency”) has completed the decisionmaking processes. A definitive U.S. Supreme Court case in 1967, Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), stated that section 704 creates a “presumption” of judicial review. Another provision of the APA, § 701(a)(1), states that judicial review does not apply to the extent that a statute specifically “preclude[s]” judicial review. Courts have been hesitant to interpret statutes as actually precluding review, however.6 Some additional access to justice issues, such as requirements for exhaustion of administrative remedies and deference given by courts to governmental decisions, are beyond the scope of this paper.

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There are three potential sources of restrictions on standing: judge-made standing law, constitutional restrictions, and statutory restrictions. Best practice is to allow broad standing to sue or to abolish restrictions on standing altogether—by judicial decision, constitutional interpretation, or explicit statutory provision.

In a few instances, standing is regulated for information requests in a manner different from standing for other matters. In a few instances, standing with regard to public participation issues is also different. An effort is made below to indicate these special instances.

A. Legal standing regarding information requests

Standing to sue is rarely restricted or challenged when a person is seeking relief in a court for denial of a request for information, but it is a best practice to grant such standing explicitly so that there can be no doubt. One example of such a best practice can be found in South Africa’s Promotion of Access to Information Act, which provides that a person who has been denied information may take an access to information dispute with a public or even private body to court.7 Similarly, Uganda’s Access to Information Act of 2005 provides explicitly that a person may “appeal to the High Court.”8 In South Korea, a person who does not receive information that he or she has requested from the government can file a law suit under the Administrative Litigation Act. In the same manner, the Aarhus Convention in Europe, the Caucasus, and Central Asia requires its Parties to guarantee standing with regard to information disputes in these terms:

Each Party shall . . . ensure that any person who considers that his or her request for information . . . ignored, wrongfully refused, [etc.], has access to a review procedure before a court of law . . . .9

In the United States, as in some other countries, standing to sue for denial of access to information is not explicitly stated in legislation. Nevertheless, courts have simply accepted without question the proposition that a person who is denied access to documents that he or she has requested under the Freedom of Information Act has legal standing.10

7 Promotion of Access to Information Act, Act No. 2, 2000. § 78(2). RSA Government Gazette, 3 Feb. 2000, No. 20852, available at http://www.info.gov.za/gazette/acts/2000/a2-00.pdf. 8 The Access to Information Act, 2005, Act. 6, Acts Supp. No. 4 to the Ugandan Gazette, No. 42, vol. XCVIII, 19 July 2005, § 38, available at http://www.freedominfo.org/documents/uganda_ati_act_2005.pdf.9 Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, signed at Aarhus, Denmark, June 25, 1988, 38 I.L.M. 517 (1999), § 9(1), available at http://www.unece.org/env/pp/treatytext.htm (various languages) (hereinafter Aarhus Convention). The full provision states:

Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.

10 See, e.g., Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C. Cir. 1985) (“Standing does, of course, lie as a general matter where a request is submitted under FOIA for existing documents . . . .”) (dictum).

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Standing may also be guaranteed as a constitutional matter. For example, the Constitution of Uganda, Article 50, explicitly guarantees standing in court for “any person who claims that a fundamental right has been infringed” and access to information, according to Article 41, is a fundamental right.11 The second paragraph of Article 50 goes even further, stating that any person or organization may being an action “against the violation of another person’s or group’s human rights.”12 In the same manner, although a person who is denied information has the right to sue under South Korea’s Administrative Litigation Act, the country’s Constitutional Court has ruled, in addition, that a person denied information can go to court as a matter of constitutional adjudication.13

B. Legal standing regarding public participation and other issues

Restrictions on standing to sue on issues of inadequate public participation or other issues of non-compliance with environmental and other laws, as well as best practices to remove such restrictions, are discussed below. They are arranged from the most restrictive legal arrangements to the best, most open approaches.

1. Generally restrictive legal doctrines

Countries that restrict access to the courts to those with “legal rights” or “legal interests” sometimes grant legal standing only to those with economic interests or similar, specific interests to protect. A variety of terms is used, such as requirements for a “direct and personal” interest, the “violation of a right,” or a protected “legal interest.” A person or private enterprise with an economic interest will usually be admitted into the court under this approach, while those with an interest in non-economic environmental values or simply a devotion to requiring public authorities and others to comply with the rule of law will often not be able to sue. The legislation in some jurisdictions appears to restrict standing even more explicitly, granting standing only for those with a “direct and individual” or “direct and personal” interest. An equally restrictive approach is for the courts to impose a constitutional interpretation that requires a plaintiff to show “injury” and sets the courts up as the sole arbiters of what is a sufficient “injury” for standing purposes.

a. “Legal interest” or “impairment of right”

Traditional legal doctrine in Germany has disfavored allowing the public to go to court to require public authorities to abide by the law unless they can show a ‘legal interest” or “impairment of a right.” One writer has explained, “German standing doctrine is built on deeply-engrained principles against the general legality view of access to court and the right of citizen groups to challenge administrative action.”14 On the other hand, many of the Länder, or

11 Constitution of Uganda, 1995, id., Chapter Four, Protection and promotion of fundamental and other human rightsand freedoms.12 Constitution of Uganda, 1995, available at http://www.parliament.go.ug/images/constitution_1995.pdf.13 Forests Survey Inspection Request Case, 1 KCCR 176, 88Hun-Ma22 (Constitutional Court of Republic of Korea, September 4, 1989), case on file with author.14 Ari Afilalo, How far Francovich? Effective judicial protection and associational standing to litigate diffuse interests in the European Union, 1998 Jean Monnet Papers, Harvard Law School, available at www.jeanmonnetprogram.org/papers/98/98-1-.html. Other citations on German standing doctrine include Ormond,

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states, have been more progressive and open toward granting standing to sue, particularly for established environmental NGOs.15

Some countries with seemingly restrictive “legal interest” tests have found a way to liberalize standing through judicial interpretation. For example, environmental protection associations have had some success in gaining standing in Norway even though that nation uses a “legal interest” test. As long ago as the Alta case in Norway in 1979, Norges Naturvernforbundet (the Norwegian Society for the Preservation of Nature) successfully achieved legal standing. The Norwegian Supreme Court stated:

It has been accepted under the circumstances that a plaintiff may have a legal interest in bringing an action even though the decision has no direct influence on his own legal position. Depending on the circumstances, also an interest organization may have the required legal interest even though the decision in the matter is of no direct consequences to the organization’s or the members’ rights. The need for judicial control of the public administration may be the decisive factor here.16

The environmental NGO had a “legal interest” simply because the purpose of the organization, expressed in its bylaws, was to protect nature. This liberal interpretation of “legal interest” appears to be the exception, however. Generally speaking, restricting access to the courts to those with a “legal interest” invites courts to interpret standing in the most conservative fashion, granting standing to those whose interests are rooted in concepts of the past, rather than also allowing those pursuing a concept of the public interest to insist that governmental bodies obey the law.

b. “Direct and individual concern”

A second formulation that has resulted in greatly restricted legal standing can be found in the Treaty Establishing the European Community, which provides in article 230(4):

Any natural or legal person may . . . institute proceedings . . . against a decision which . . . is of direct and individual concern to the former.

In the 1998 case Stichting Greenpeace Council v. European Commission, several individuals and NGOs brought suit in the European court of first instance, contesting the legality of EC funding for two fossil fuel-fired power plants being built by Spain in the Canary Islands. The European Court of Justice denied standing. It said that the plaintiffs were affected only “in a general and abstract fashion and in fact, like any other person in the same situation,” so that “the

Environmental group actions in West Germany, in Fuhr & Roller (eds), PARTICIPATION AND LITIGATION RIGHTS OF ENVIRONMENTAL ASSOCIATIONS IN EUROPE: CURRENT LEGAL SITUATION AND PRACTICAL EXPERIENCE, 1991, and Greve, The non-reformation of administrative law: Standing to sue and public interest litigation in West German environmental law, 22 Cornell Int’l L. J. 197 (1989).15 Greve, supra note 14, at p. 216.16 Case report at NRt 1980, pp. 569 & 575, quoted in Ellen Margrethe Basse, Report from Denmark, in The concept of interest in administrative litigation (personal interest, collective interest, actio popularis), especially in environmental matters, Eighth Colloquium of the Councils of State and Supreme Courts of Justice of Member States of the European Community, Copenhagen, 1982, p. 41, available at http://www.juradmin.eu/colloquia/1982/denmark.pdf.

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applicant is not individually concerned by the act.” The Court also rejected the argument of Greenpeace and others that the right to be informed and consulted in an environmental impact assessment procedure gave it a right to go to court.17

c. “Public concerned”

Article 9(2) of the Aarhus Public Participation Convention requires only that access to justice be available for members of the “public concerned” when the legal issue involves public participation.18 Article 2(5) of the convention defines “public concerned” as “the public affected or likely to be affected by, or having an interest in, the environmental decision-making.”19 This formulation is not a guarantee of standing to sue, but rather a restriction. Article 9(2) permits its Parties to limit even the standing of the “public concerned” to only those who are deemed to have a “sufficient interest” or who can assert “impairment of a right.”20 This allows countries like Germany and Austria that use the most restrictive “legal right” (legal interest) test to continue to do so.

There are, however, two significant limitations on how restrictive a Party to the Aarhus Convention can be with regard to standing in cases involving public participation. First, the convention explicitly requires that nongovernmental organizations (NGOs) “promoting environmental protection” must be given the status of the “public concerned.”21 But this apparent recognition of “NGO standing” is qualified by allowing Parties to impose other “requirements under national law.” On the other hand, these national requirements are not completely at the discretion of individual countries, because such “requirements under national law” must be interpreted “consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention.” Indeed, the entire interpretation of “public concerned” must, in all instances, be interpreted in light of that objective. Despite these mitigating requirements, the convention cannot be said to reflect bet practice because it contains many compromises among different points of view and allows much discretion at the national level.

d. “Injury in fact”—U.S.A. constitutional doctrine

In the United States, the “legal interest” or “legal rights” test held sway throughout the first half of the twentieth century. In 1970, the U.S. Supreme Court interpreted the federal Administrative Procedure Act of 1946 (APA) in a new manner, allowing persons to sue federal agencies without first finding a specific "legal right" to sue. It did so by reading the APA to allow persons who have actual "factual” injuries to sue, without having to have a "legal” injury.22

This concept of injury “in fact” was subsequently extended to include various intangible injuries, 17 Case C-321/95 P, ECR I-1651, decided 2 April 1998, available at http://www.globelaw.com/Climate/ECJ_canaries.htm.18 Aarhus Convention art. 2(5), supra note 9.19 This restriction parallels similar restrictions on whom the convention obligates its Parties to notify for purposes of public participation (Article 6(2) and 6(5)) and who must be allowed access to information on proposed projects (Article 6(6)). 20 Aarhus Convention art. 9(5), supra note 9.21 Id., Article 9(2), read in conjunction with Article 2(5).22 Assoc. of Data Processing Org. v. Camp, 397 U.S. 150 (1970), available at http://www4.law.cornell.edu/supct/cases/397us150.htm.

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including aesthetic injuries to environmental groups.23 While that expansion does contain some beneficial features, the doctrine of factual injuries—or "injury in fact"—as the test for standing was also elevated to a doctrine of constitutional dimension in the United States by judicial interpretation. This “constitutionalization” of restrictions on legal standing—apparently unique in the world—was then used by a conservative judiciary to deny the U.S. Congress the right to expand legal standing. In the absence of injuries that judges are willing to recognize, the legislature is denied the authority to broaden standing.

This constitutionalization of restrictions on standing has been pushed most aggressively by Justice Antonin Scalia of the United States Supreme Court. Prior to ascending to the federal bench, he had been a law professor who, in a 1983 academic article, expressed his intense dislike for law suits brought by public interest environmental lawyers. He wrote that it was desirable to put an end to the federal judiciary's "love affair with environmental litigation."24 After being appointed to the U.S. Supreme Court, Justice Scalia advanced this agenda in several cases. In a majority opinion in Lujan v. National Wildlife Federation in 1990 he ruled for the Court that environmental injury (such as the harm to a person’s desire to visit intact forests) could be asserted in litigation only by a person who had actually paid a visit to a particular plot of land on which assertedly illegal cutting was planned.25 In 1992, he persuaded a plurality (but not a full majority) of his colleagues on the U.S. Supreme Court to rule that even a person who had previously visited an area where the endangered species lived could have standing to challenge illegal actions only if she had firm plans to return, such as possessing an airline ticket for return travel .26 The Court made this ruling despite a clear statute in which the U.S. Congress had stated that “any person” could file a lawsuit to require the federal government to abide by the Endangered Species Act.27 With these and other court decisions, the U.S. has become the only country in the world in which the courts interpret the national constitution to impose limits on a legislature’s desire to broaden standing to sue.

As will be noted in part I-B-3-b of this memorandum, a better practice is for the courts not to impose constitutional restrictions on standing. That is, they should interpret constitutions to allow legislatures to broaden standing for citizens and their organizations, even if there is not the kind of “injury” that a judge might consider necessary. The apex courts of some countries such as Australia, as sell as several individual state Supreme Courts in the United States, have done this, have rejected the notion of imposing restrictions on standing as a matter of constitutional interpretation by judicial fiat.

2. Flexible doctrines

“Sufficient interest standing” grants legal standing to those who are “affected” or whose “interests” are implicated by a government action. This test is less restrictive than a “legal right” or “legal interest” test and has the potential for dramatic loosening of restrictions on standing. It

23 Sierra Club v. Morton, 405 U.S. 727 (1972); Students Contesting Regulatory Agency Procedures (SCRAP) v. Interstate Commerce Commission, 412 U.S. 669 (1973).24 Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L. Rev. 881, 884 (1983).25 Lujan v. National Wildlife Federation, 497 U.S. 871, 887-889 (1990).26 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).27 Id.

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may be considered a “medium-best” practice, although it is dependent entirely upon the attitude of the judiciary. (A better practice is for legislation to make relaxation of standing rules explicit, as discussed in part I-B-3-b and -c of this memorandum.)

a. “Sufficient interest”

As the home of common law, it is perhaps appropriate that much of the early judiciary-led movement to grant access to the courts occurred in England. The changes that took place starting in the early 1970s appeared so dramatic that one American scholar stated:

The House of Lords has all but eliminated the standing requirement, virtually converting the [judicial] review action into an actio popularis, which is available to any citizen who seeks to annul improper administrative action. . . . [T]here has been nothing comparable in the case law on this side of the Atlantic.28

The above quote may seem an excessively ambitious interpretation by someone from the outside. However, it may not be far off the mark. The Supreme Court Act 1981 modified British restrictions on standing to allow lawsuits by those who had a “sufficient interest.”29 The new formulation provided the basis for a more liberalized, uniform rule of standing.30 The House of Lords made just such a holding in 1982 in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses (known as the Fleet Street Casuals case).31 Reversing its more restrictive position of four years earlier in a case known as Gouriet,32 the Law Lords ruled that a group of taxpaying small businesses could sue the tax authorities in complaint against what the authorities were doing with regard to a different group of taxpayers. These small businesses were not specially damaged or "aggrieved" in by the tax ruling because it didn’t apply

28 Professor Bernard Schwartz, LIONS OVER THE THRONE: THE JUDICIAL REVOLUTION IN ENGLISH ADMINISTRATIVE LAW (New York Univ. Press 1987) at p. 6. 29 The revolution in the law of standing can be traced both to the work of Lord Denning in the 1970s and to a revision in the procedure for judicial review of administrative actions in England. Order 53 came into force in January 1978, based largely on the recommendation of the Law Commission. The Commission took the position that a single, unified procedure for judicial review would be preferable to the time-encrusted and sometimes confusing system of "prerogative writs." It indicated that the law of locus standi should be liberalized as well. In Order 53 the issue for judicial review became no longer whether a person was "aggrieved." Instead review would be premised on a party having a "sufficient interest" in the matter sought to be litigated. The Order was given statutory grounding in section 31 of the Supreme Court Act 1981. Supreme Court Act 1981, §31, Application for judicial review:

(1) An application to the High Court for one or more of the following forms of relief, namely—(a) an order of mandamus, prohibition or certiorari;(b) a declaration or injunction under subsection (2); . . .

shall be made in accordance with rules of court by a procedure to be known as an application for judicial review. . . .(3) No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

30 Such a view was expressed in 1980, just before the most important, modern case of standing was rendered by the House of Lords, holding the opposite. P. Cane, The Function of Standing Rules in Administrative Law, 1981 Public Law 332 (1981), reprinted in D.J. Galligan (ed.), ADMINISTRATIVE LAW 303, 326 (1992). The opposite view, which prevailed, was expressed by Lord Denning in THE DISCIPLINE OF LAW 133 (1979). 31 [1981] 2 All ER 93; [1982] AC 617.32 Gouriet v. Union of Post Office Workers and Others [1977] 3 All ER 70; [1978] AC 435.

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to them. But the House of Lords agreed that they had a “sufficient interest” that allowed them to sue nevertheless.

It took a while for this change in the law of standing in England to be recognized in environmental or similar cases. For example, in 1990 the Rose Theatre case took a more traditional, restrictive view.33 During construction in the center of London in the late-1980s, a contractor digging a foundation struck the remains of the Rose Theatre, at which William Shakespeare had had his plays performed. A group of citizens, scholars, and actors concerned with historic preservation, the Rose Theatre Trust, sprang up to defend this important archaeological find from destruction. The court ruled, however, that this group lacked the requisite locus standi because the court ruled they did not have a “sufficient interest.” In order to have standing, individuals would have to show a greater "interest" than that of the rest of the public, according to the decision. The fact that the members of the Rose Theatre Trust were distinguished scholars and actors who had devoted their lives and careers to Shakespearean work was not enough to show that greater “interest.” Rose Theatre has been aptly termed the “low point of the standing issue” in recent English jurisprudence, however.34

After that case, however, a series of decisions started to expand the right of legal standing, at least in environmental cases. The environmental group Greenpeace achieved standing in the Thorp case four years later to challenge a proposed license for a nuclear power plant. The High Court said that Greenpeace was a "responsible and respected body with a genuine concern for the environment" and held that granting them standing to pursue the litigation would save the court's time in comparison to hearing challenges from numerous individual plaintiffs. Greenpeace would efficiently and effectively represent the interests of 2,500 of its supporters living in the area of the proposed nuclear plant. This may be seen as a kind of “representational standing,” or perhaps third party standing,” in lieu of others who truly would have had traditional standing.35 Judge Otton said:

I reject the argument that Greenpeace is a “mere” or “meddlesome busybody.” . . . I regard the applicants as eminently respectable and responsible and their genuine interest in the issues raised is sufficient for them to be granted locus standi.36

Another English decision in 1997, Ex parte Richard Dixon, continued the liberalization, stating forcefully that public law is about duties, not rights. Justice Sedley wrote:

Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs—that is to say, misuses of public power; and the courts have always been alive to the fact that a person or organization with no particular

33 R. v. Sec. of State for the Environment, ex parte Rose Theatre Trust [1990] 1 QB 504).34 Stephen Grosz, Access to Environmental Justice in Public Law, in Robinson and Dunkley, eds., PUBLIC INTEREST PERSPECTIVES IN ENVIRONMENTAL LAW (Wiley Chancery 1995) at p. 196.35 R. v. Inspectorate of Pollution, ex parte Greenpeace, Ltd. (No. 2) [1994] 4 All E R 329 (High Court, by Justice Otton).36 Quoted in Fiona Darroch, Recent Developments in UK Environmental Law, in A WORLD SURVEY OF ENVIRONMENTAL LAW at pp. 293, 300. Judge Otton said, however, that standing would be granted on a case by case basis, not that all interest groups would automatically be granted standing. This comes under the rubric of “leave to appeal,” something provided in the Supreme Court Act 1981 sec. 31(3). Id.

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stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well-placed to call the attention of the court to an apparent misuse of public power. . . . 37

b. “Public interest”

In Mtikila v. Attorney Genera, the High Court at Dadoma in Tanzania in 1993 made a survey of standing law in England, Nigeria, India, and elsewhere and then stated rules for standing in Tanzania. It concluded:

In matters of public interest litigation this Court will not deny standing to a genuine and bona fide litigant even where he has no personal interest in the matter . . . . [S]tanding will be granted on the basis of public interest litigation where the petition is bona fide and evidently for the public good and where the Court can provide an effective remedy.38

After discussing the social conditions of Tanzania, the history of one-party politics and repression such as detention without trial, the court said further:

Given all these circumstances, if there should spring up a public-spirited individual and seek the Court's intervention against legislation or actions that pervert the Constitution, the Court, as guardian and trustee of the Constitution and what it stands for, is under an obligation to rise up to the occasion and grant him standing.39

While this concept of “public interest standing” has the potential for setting aside legal barriers to standing, it maintains the disadvantage of leaving the decision in the hands of an individual judge.

3. Best practice approaches

a. “Diffuse interests”

In Latin America, the issue of broadened legal standing-to-sue, on behalf of those whose personal interests are not injured in a traditional way, but instead who assert “public interest” (for example, the interest of protection of the environment), has largely been put under the title of “intereses difusas,” or “diffuse interests.” Usually the basis of diffuse interests is statutory or even constitutional. But judges have on occasion stretched the notion of judicial interpretation to find justification for “intereses difusas.”

In Argentina, the late Dr. Alberto Kattan won some pioneering cases broadening standing for environmental cases for all of Latin America.40 The basis of his arguments relied upon Article

37 CO/3410/96 (High Court of Justice, QB Div., Crown Office) (20 April 1997).38 Civ. Case No. 5 of 1993.39 Id.40 Albert Kattan was a law professor at the University of Buenos Aires and human rights lawyer who became a desaparecido during that country’s military dictatorship in the 1970s. Rescued by U.S. President Jimmy Carter after an outcry from human rights lawyers throughout Latin America, he returned to Argentina and began bringing environmental lawsuits against the government.

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33 of the Argentine Constitution which protected his own human rights, and principles of ancient Roman Law that as a citizen he had a duty to protect the “dominio publico,” even though he had not personally seen the wildlife that he was trying to protect. In 1981 Dr. Kattan's seminal case utilizing these arguments was an “accion difusa” to protect penguins. Two years later in Kattan v. Federal State (Secretary of Agriculture) (1983), Dr. Kattan was granted the right to sue the Government of Argentina to challenge a permit that authorized a Japanese company to hunt and capture six dolphins (members of an endangered species). Again, he argued the case on the basis of Roman law. Similar arguments were developed by Dr. Kattan in cases successfully banning pesticides (specifically Agent Orange), prohibiting tobacco advertising on the grounds that tobacco is a toxic substance, and prohibiting pharmaceutical sales in Argentina that are prohibited in the country of origin. In one case Dr. Kattan persuaded a court to block destruction of an architectural masterpiece, a mansion whose picture graced the cover of the standard architectural history of Argentina. The Hyatt Hotels Corporation sought to demolish the building in order to build a high-rise hotel on the site in Buenos Aires. When Dr. Kattan took the case to court, he made an argument that placed the hotel in the realm of a sacred national treasure, part of the patrimony of the nation. He told the court, “Everyone has a right to buy a painting by Van Gogh. But nobody has the right to wrap fish in it.” His right to bring such a suit in the public interest was not disputed.

In Colombia the Popular Actions Act41 provides that standing to sue is open to any person who defends the public interest.

b. Actio popularis and other open standing

The idea of allowing judicial review of government action at the behest of any member of the public, rather requiring that a litigant have a special stake in the matter, is very old. One of the oldest terms for this concept of open standing, dating back some 2,000 years, is the Latin term, actio popularis (people’s legal action). In Brazil this is called an ação populare. In Spanish-speaking Latin America such suits are often called acciones populares, an almost literal translation of the Roman law term.42

In Portugal, section 4 of the Actio Popularis and Participation Procedures Law43 grants the rights both to participate in administrative procedures and to initiate lawsuits to:

Any citizen in full enjoyment of his/her civil and political rights having or not a direct interest in the claim . . . ;

Associations and foundations that fulfill certain requirements . . . .44

41Ley 472 de 1998 (agosto 5), Diario Oficial No. 43.357, de 6 de agosto de 1998, available at http://www.secretariasenado.gov.co/leyes/L0472_98.HTM.42 See, for example, German Sarmiento Palacio, LAS ACCIONES POPULARES EN EL DERECHO PRIVADO COLOMBIANO (2006).43 Direito de participação procedimental e de acção popular, Law 83/95 from 31.08 (DR 201/95, 31.08), reprinted in Nicolas de Sadeleer, Gerhard Roller, & Miriam Dross, Access to Justice in Environmental Matters: Country Reports and Case Studies, Part III, Portugal–United Kingdom (2003), p. 64, available at http://ec.europa.eu/environment/aarhus/pdf/accesstojustice_iii.pdf; also discussed in Milieu, Measures on access to justice in environmental matters (Article 9(3)): Report for Portugal (July 2007), p. 9, available at http://ec.europa.eu/environment/aarhus/study_access.htm.44 Summarized in de Sadeleer, p. 5, and Milieu, p. 9, supra note 43.

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Since there is no limitation, it seems apparent that standing to raise questions of failures or inadequacy of public participation would be particularly apt. Similarly, in Portugal, Article 40 of the Framework Law on Environment is said to grant to all citizens the right to file lawsuits.45 In the Promotion of Administrative Justice Act, No. 3 of 2000, section 6 of the act says that any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.46

Economic interests and the national government in Australia have attempted to get the courts there to adopt the same restrictive constitutional interpretation of standing that has been adopted in the United States. The High Court of Australia (the name of that country’s supreme court) decisively rejected this attempt in Truth About Motorways v. Macquarie Infrastructure Management. The court said:

The constitutional context in which those cases were decided is materially different from the Australian context. In particular, the references in art. III to “cases” and “controversies,” as opposed to “matters,” and the somewhat different role of the Executive, means that the United States learning is not of assistance in the resolution of the Australian problem.47

The Supreme Court of the U.S. State of Oregon made a similar ruling under the Oregon state constitution, finding the U.S. federal precedents to be irrelevant.48

A number of statutes in the United States include provisions granting legal standing for “any person” or “any citizen.” These “citizen suit” provisions typically allow open standing for lawsuits against both federal government departments and agencies (a form of judicial review) in the case of violations of mandatory duties49 and against enterprises that are regulated by the environmental statutes (a “private right of action” for citizen enforcement) in the case of violations of clear standards. However, as mentioned and discussed earlier, the U.S. Supreme Court has ruled that a legislative grant of authority to “any person” or “any citizen” is constitutionally invalid if a court decides that the person filing the lawsuit was not “injured” in a way that the courts are willing to recognize. Thus the citizen suit provisions have not markedly expanded standing to sue in actual practice.

c. Standing for NGOs

45 Law 11/87 (DR 81/87, 07.04), available at http://www.diramb.gov.pt/data/basedoc/TXT_LN_21_1_0001.htm, discussed in Milieu, Measures on access to justice in environmental matters (Article 9(3)): Report for Portugal (July 2007), available at http://ec.europa.eu/environment/aarhus/study_access.htm.46 These laws are consistent with the Constitution of Portugal, which provides for an actio popularis. See below.47 High Court of Australia (2000) 200 CLR 591. For more on the Australian jurisprudence, see Hon Justice Peter McClellan, Access to Justice in Environmental Law: An Australian Perspective, Commonwealth Law Conference, London (2005), reprinted in Svitlana Kravchenko and John Bonine, HUMAN RIGHTS AND THE ENVIRONMENT 327 (Carolina Academic Press, USA, 2008).48 Kellas v. Department of Corrections, 341 Or. 471, 145 P.3d 139 (2006).49 Review of discretionary decisions must be accomplished under either the general authority of section 704 of the U.S. Administrative Procedure Act or specific review provisions in various environmental statutes, also mentioned earlier.

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In Europe statutory access to justice has traditionally taken a different approach. Parliaments have increasingly granted groups with registered interests the right to participate in legal actions related to their interests. For example, in Italy, Articles 13(1) and 18(5) of Law No. 349 of 1986 give environmental associations the right to sue in administrative courts if they have been recognized for this purpose in a ministerial decree.50 This model is also mirrored in Germany. Although the German federal government has occupied a special, extraordinary conservative, position in legal doctrine concerning locus standi for some time, the Länder, or States, have been notably more progressive and open toward granting standing to sue, particularly for established environmental nongovernmental organizations (NGOs).

In the Netherlands legislation has taken a slightly different statutory tack, following the model of allowing “anyone” to participate in the consultation process with a public authority, and then affording anyone who has lodged objections at the consultation stage the right to ask a court for judicial review of the decision.51 See the 1994 General Administrative Law Act's (GALA's) Title 3.5, “Extended Public Preparation Procedures.” Additionally, the Netherlands also extends standing to NGOs in civil law suits much like Italy or the German Länder.

d. Constitutional guarantees of standing for environmental rights

The most dramatic and effective expansions in standing to sue are the ones that are embedded in national constitutions. Sometimes these constitutions are explicit in their locus standi provisions. In other instances, courts have found that the constitution embodies implied rights of access to justice. A few examples of both explicit and implicit provisions will be presented here.

(1) Explicit provisions in national constitutions

Some of the more interesting recent decisions have tossed aside old restrictions on standing because the courts became persuaded that amendments to their nation's constitution required broadening of standing to sue. Some of the amendments appear to address standing in so many words, while some do so only indirectly.

Portugal’s constitution guarantees an actio popularis—a right of any person for the protection of diffuse interests including public health, consumers’ rights, quality of life, preservation of the environment and cultural heritage, and other matters.52

50 Fuhr, Gebers, Ormond, and Roller, Access to Justice: Legal Standing for Environmental Associations in the European Union, in Robinson & Dunkley, PUBLIC INTEREST PERSPECTIVES IN ENVIRONMENTAL LAW (Wiley Chancery, London 1995), p. 89. Granting standing to nongovernmental organizations, or NGOs, through legislation originated in Switzerland, in Article 12 of the Federal Nature and Heritage Conservation Act 1966. Id. at p. 79.51 Gerrit Betlem, Environmental Locus Standi in The Netherlands, 3 Rev. of Eur. Comm. & Int'l Envir. L. 238 (1994). (Another article by him appears in A WORLD SURVEY OF ENVIRONMENTAL LAW, edited by Stefano Nespor, published in Milan.)52 Esther Pozo Vera, Nathy-Rass Masson, & Ludwig Krämer, Summary Report on the Inventory of EU Member States’ Measures on Access to Justice in Environmental Matters (Milieu-Environmental Law and Policy, for European Union DG Environment, Sept. 2007), p. 6, available at http://ec.europa.eu/environment/aarhus/study_access.htm. As mentioned above, legislation has also been enacted in Portugal to implement the actio popularis.

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Colombia’s 1991 constitution explicitly states in Article 88 that anyone who has a “collective right” can sue to protect it.53 Other constitutions state forms of actions (such as amparo in Costa Rica and Peru, or recursode protección in Chile) that have been interpreted to allow acciones populares (popular actions by any citizen).

In Africa, the High Court of Uganda at Kampala in 2005 interpreted Article 50 of the Constitution of Uganda, which reads as follows:

(1) Any person who claims that a fundamental or other right or freedom guaranteed under this constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation.

(2) Any person or organization may bring an action against the violation of another person's or group's human rights.54

The court said:

The importance of the above law is that it allows any individual or organization to protect the rights of another even though that individual is not suffering the injury complained of or does not know that he is suffering from the alleged injury. To put it in the biblical sense the Article makes all of us our “brother keeper.”55

(2) Implicit constitutional guarantees of standing

Another basis for the broadening of standing on a constitutional basis is seen in countries whose constitutions do not appear to address standing as such, but in which seemingly substantive constitutional norms have been used to grant the procedural right of access to the courts.

Nepal has embarked on a jurisprudence of widespread citizen enforcement of laws, particularly on issues involving constitutionality. Nepal has done this through explicit provisions in its constitution. Article 88(2) of the Nepalese Constitution provides that the Supreme Court of Nepal shall have the extra ordinary power to issue necessary and appropriate orders to protect rights in suits of “public interest or concern.”56 As one U.S. scholar has noted, under the Nepal Constitution, any citizen may petition the courts, “not only someone harmed under the law in

53 Constitución Política de la República de Colombia de 1991 [con reformas hasta 2005], available at http://pdba.georgetown.edu/Constitutions/Colombia/col91.html.

ARTICULO 88. La ley regulará las acciones populares para la protección de los derechos e intereses colectivos, relacionados con el patrimonio, el espacio, la seguridad y la salubridad públicos, la moral administrativa, el ambiente, la libre competencia económica y otros de similar naturaleza que se definen en ella.

También regulará las acciones originadas en los daños ocasionados a un número plural de personas, sin perjuicio de las correspondientes acciones particulares.

Así mismo, definirá los casos de responsabilidad civil objetiva por el daño inferido a los derechos e intereses colectivos.

54 Constitution of Uganda, available at http://www.parliament.go.ug/images/constitution_1995.pdf.55 Advocates Coalition for Development and Environment v. Attorney General, Miscellaneous Cause No. 0100 OF 2004 (High Court of Uganda at Kampala, Nov. 7, 2005) available at http://www.greenwatch.or.ug/pdf/judgements/ACODEvsAttorneyGeneral.pdf (emphasis in original).

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question or some designated office holder or holders. Few issues are likely to escape the scrutiny of a Court with such wide open standing requirements.”57

In Dhungel v. Godawari Marble Industries,58 the Supreme Court of Nepal said that “as protection of environment is directly related with life of human being, it should be accepted that this matter is included” in the Constitution. Specifically regarding standing, it said that as a consequence, “it needs to be accepted that the applicant has the locus standi for the prevention of the environmental degradation.”

India has long been a leader in finding standing rights implicit in a constitution. The Supreme Court of India has largely abolished restrictions on legal standing in cases that it is willing to recognize as “public interest cases.” The Supreme Court of India decided in 1982, after some preliminary movement toward liberalized standing, that the legal system should no longer be a system for “men with long purses.”59 The dramatic breaking down of barriers to legal standing has been premised in part upon the reasoning of the judges and in part on the mere existence of fundamental rights provisions in the Indian Constitution (not special provisions directly relating to legal standing).

The watershed case for standing is known as the Judges’ Transfer Case.60 The Supreme Court ruled that bar associations of lawyers had the right to sue against transfers of judges during the “Emergency” that had been declared by Prime Minister Indira Gandhi—even though none of the lawyers would actually suffer economic harm from loss of clients by having different judges hear their cases than those originally assigned to a given court. There were a number of opinions, totaling 600 pages, quoting from law journal scholarship and cases from several nations. Among the opinions, that of Justice Bhagwati, who had previously served on a Law Reform Commission that called for looser standing rules, declared that “any citizen who is acting bona fide and who has sufficient interest has to be accorded standing.” Lawyers, who as a profession seek to preserve people's faith in the legal system, were such a group, he decided. He stated that a “public-minded person” or organization can act directly in the Supreme Court “even though they may not be directly injured in their own rights.”

Lawyers have even been regularly recognized as entitled to act themselves, as both petitioner and attorney, on behalf of a public interest. For example, Indian lawyer M.C. Mehta has sued in his own name to have hundreds of children released from jails; to prevent employment of children in dangerous match factories,61 to protect the Taj Mahal from air pollution; and to clean up the length of the Ganges River from industrial and municipal pollution,62 to protect groundwater, to gain compensation for residents living new a "toxic hell," and many subsequent decisions. In another of his many cases the Supreme Court of India has 56 Article 88(2)-The Constitution of the Kingdom of Nepal 1990. Cited in e-mail message from Prakash Mani Sharma, Forum for Protection of Public Interest (Pro Public) Nepal, Nov. 20, 1996, on file with author.57 Richard Stith, Unconstitutional Constitutional Amendments: The Extraordinary Power of Nepal's Supreme Court, 11 Am. U.J. Int'l L. & Pol'y 47, 52 (1996).58 Dhungel v. Godawari Marble Industries (Nepal), Supreme Court of Nepal (Full Bench), WP 35/1992 (31 October 1995), available at http://www.elaw.org/node/1849.59 S. P. Gupta v. Union of India, AIR 1982 SC 149 (known as the Judges' Transfer Case).60 Id.61 M.C. Mehta v. State of Tamil Nadu and others, 1 SCC 283 (1991).62 M.C. Mehta v. Union of India, 4 SCC 463 (1987).

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ruled that any citizen could sue to remedy harm from a leak of chlorine gas.63 Similarly, law professors and lawyers have filed cases on behalf of mistreated mentally ill women,64 journalists have sued on behalf of women in the Bombay Central Jail,65 and suits by motivated citizens have sued to protect orphans being sent abroad for adoption and possible enslavement.66 On the other hand, the courts have been equally alert to deny public interest standing to a plaintiff who, in reality, was pursuing a case for purely personal reasons.67 A thorough study of the most important cases can be found in Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan, and Bangladesh (2004).68

In Europe, some courts have found that the constitutional rights to a safe environment embody implied rights of access to justice. As the emerging democracies of Eastern Europe rewrote their constitutions in the early 1990s in the wake of the fall of Communism, several included the right to a safe or healthy environment. The Constitutional Court of Slovenia has stated that the right to a healthy environment guarantees at least the right of access to the courts—an abolition of restrictions on standing to sue in environmental matters. Section 162 of the Constitution of Slovenia provides that “[a]ny person who can show a proper legal interest, as determined by statute” may bring a case before the Constitutional Court. As recently as 1993, the Constitutional Court had explicitly rejected the idea of an actio popularis that could allow any person to bring a case based upon an interest in upholding the rule of law. The question remained whether a statute, explicitly or implicitly, has provided a person with a “legal interest.” The Constitutional Court of Slovenia granted standing in a case brought by the Association of Ecologists of Slovenia, a national NGO and 25 individuals. The NGO achieved standing in large part because the Environmental Protection Act, which came into effect in 1993, provided that the protection of the environment is the responsibility of, inter alia, professional and other NGOs committed to environmental protection. The court therefore concluded that the NGO could bring lawsuits based on its stated purposes. Individuals were also granted standing to sue. The Constitutional Court recognised the “legal interest” of an individual in such a matter for the first time, on the basis that article 72 of the Constitution contains the right to a healthy environment in which to live. The Court ruled that a person’s interest is not limited only to the environment close to the place where he or she lives. Essentially, a right that on its face is substantive was converted by the Court into a procedural right giving access to the judicial process, which is a useful and creative approach to the use of constitutional environmental rights to liberalize standing.69

II. Overcoming Economic Barriers

63 M.C. Mehta v. Union of India, 2 SCC 176 (1986); 2 SCC 325 (1986); 1 SCC 395 (1987).64 Uppendra Baxi v. State of Uttar Pradesh, 2 SCC 308 (1983). 65 Sheela Barse v. State of Maharashtra, 1983 AIR (SC) 378.66 Lakshmi Kant Pandey v. Union of India, 1984 AIR (SC) 469.67 Subhash Kumar v. State of Bihar, 1 SCC 598 (1991).68 A list of hundreds of such cases can be found at http://www.elaw.org/assets/word/JDESAContent.doc. Summaries of all of those, plus the full text of many of the cases can be found at http://www.elaw.org/resources/regional.asp?region=Asia. Some observers have asserted that the courts in India have recently been less receptive to public interest standing, but this author has not been able to verify that impression with environmental lawyers practicing in India. See, e.g., e-mail communication to the author from Indian lawyer Leo Saldanha, Nov. 30, 2008, on file with author.69 The case is discussed in HANDBOOK ON ACCESS TO JUSTICE (S. Stec, ed., 2001).

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Experts recognize that the primary barrier to access to justice is economic.70 Litigating is expensive work. Citizens do not normally have adequate funds to pay lawyers to enforce the law. Public and private funders usually fail to provide such resources. Justices of Supreme Courts and Constitutional Courts from Eastern Europe, Caucasus, and Central Asia, noted this aspect of the problem in 2003 in a declaration that they issued at the conclusion of a meeting in Ukraine. They acknowledged “the important role played by citizens and their organisations in bringing matters before the courts” and identified “the need for financial and other support for: . . . lawyers to assist citizens and their organisations to apply to the courts to defend environmental rights.”71

Similarly, the Task Force on Access to Justice under the Aarhus Public Participation Convention72 said in 2005 that it had “identified that financial obstacles are a concern of the public and a potential impediment to effective access to justice.” It noted that the cost and financial risk included factors “such as lawyers’ fees, court fees, cost of experts, bond payments and the possible practice that the loser of the proceedings bears the costs . . . .”73

A potential litigant who simply wants environmental laws to be applied or enforced will normally not benefit financially through the litigation, yet litigating a case to protect the environment can be prohibitively expensive. The fees charged by lawyers and expert scientific witnesses can be enormous. The risk is often beyond all reason if a person or NGO is in a legal system that requires losing parties to pay the lawyers on the other side of the case.74

Although there are several types of costs that limit public interest litigation, this paper confines itself to the question of funding for lawyers and the possibility of having to pay the costs of one’s opponent in case of a lost case. Other financial issues are beyond the scope of this paper, including court filing fees and the obligation to pay a deposit (make an undertaking) as a condition of receiving a temporary injunction during the time a case is pending.

A. Lack of funding for lawyers for citizens and NGOs

Best practice for overcoming financial barriers to justice does not consist of relying upon volunteers. The only sustainable options are funding by the government, funding by private, philanthropic foundations, or self-funding by a few dedicated “private public interest” lawyers.

1. In-country government funding

70 The problem of legal costs as a barrier to justice has been noted by scholars for 30 years. See, e.g., Mauro Capelletti & Bryant Garth, Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective, 27 Buff. L. Rev. 181, 186-88 (1978).71 The Lviv Judges Declaration, approved by 15 Chief Justices and senior judges from Supreme and Constitutional Courts from 11 countries of Central/Eastern Europe, Caucasus and Central Asia (the EECCA Region), available at http://www.iucn.org/themes/law/pdfdocuments/Lviv%20Statement%20FINAL.pdf. (emphasis added).72 Aarhus Convention, supra note 9.73 Report on the Third Meeting of the Task Force on Access to Justice ¶¶ 25, 26, U.N. Doc. No. ECE/MP.PP/WG.1/2005/5/Add.1 Nov. 24, 2004), available at http://www.unece.org/env/documents/2005/pp/wg.1/ece.mp.pp.wg.1.2005.5.add.1.e.pdf. 74 In countries with the “loser pays” policy, the person or NGO thinking about filing a lawsuit to enforce the law must also evaluate the possibility of losing and being responsible for the attorney fees of the winning side.

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In some countries, the encouragement of public interest litigation is considered to be a job of the government and therefore the government provides funding. Such “legal aid” has long been a tradition in many countries. Its extension to environmental matters is relatively new, however. Best practices exist in Australia and Spain.

Legal aid for environmental cases can take a variety of forms. In Australia most state governments support “Environmental Defenders Offices” (EDOs).75 The lawyers in these offices are expected to represent the interests of the diffuse public in environmental matters. They bring cases against state bodies and private enterprises for violations of environmental laws. In England, lawyers can apply to government-funded Legal Aid schemes when their clients are in poverty, although this is not financially very rewarding. In addition, public interest environmental lawyers in England report that such funding has never been very available and is now increasingly restricted.76 In Denmark a party with economic need may apply, in an important case, to the State for financial assistance with lawyers’ fees as well as court fees.77 In Spain new legislation adopted in July 2006 to bring the country into compliance with the Aarhus Public Participation Convention78 will set up a mechanism for legal aid for environmental cases.79 Change may eventually come to other parts of Europe and Central Asia as well. Forty-two countries, mostly in Europe, have committed themselves80 under the Aarhus Convention81 to “consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.”82 It is not clear, however, whether any except Spain have taken any steps in that direction.

2. Domestic and foreign charitable funding

In the United States a solid base of private, philanthropic foundations provide financial support for some NGO law firms to litigate on behalf of the environment.83 Personal financial contributions from individual “members” and tax-deductible donations by some relatively wealthy persons also play some role. This is a best practice, although in most of the world such sources of support appear to be rare or non-existent.

75 See http://www.edo.org.au. The early history of the EDO movement in Australia can be found at http://www.edo.org.au/edonsw/site/background.asp. 76 E-mail communication to the author from U.K. lawyer Phil Michaels, May 15, 2006, on file with author.77 E-mail communication to the author from Denmark Professor Veit Koester, June 12, 2006, on file with author.78 Aarhus Convention, supra note 9.79 The legislation was approved in July 2006. LEY 27/2006, de 18 de julio, por la que se regulan los derechos de acceso a la información, de participación pública y de acceso a la justicia en materia de medio ambiente (incorpora las Directivas 2003/4/CE y 2003/35/CE, BOE núm. 171, p. 27109 (Miércoles 19 julio 2006), available at http://www.boe.es/boe/dias/2006/07/19/pdfs/A27109-27123.pdf. See also http://www.mma.es/secciones/medios_comunicacion/prensa/notas_pre/2006/06/aprobacion_ley_aarhus.pdf and http://www.ecologistasenaccion.org/IMG/_article_PDF/article_5363.pdf. 80 Status of Ratifications, available at http://www.unece.org/env/pp/ratification.htm.81 Aarhus Convention, supra note 9.82 Id. at Article 9, paragraph 5. The Parties also agree to make court procedures “free of charge or inexpensive.” Id. at Article 9, paragraph 1. Reducing the cost of court procedures is important but is beyond the scope of this article.83 The earliest and longest-running support by private philanthropic foundations has been that provided by the Ford Foundation, which helped launch the first public interest environmental law firms in the United States, supported anti-apartheid public interest law in South Africa, and has been responsible for a host of other initiatives. See FORD FOUNDATION GRANTEES AND THE PURSUIT OF JUSTICE, available at http://www.fordfound.org/publications/recent_articles/docs/lawgrantees.pdf.

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It appears that almost every NGO law firm in Latin America has to rely on grants from philanthropic foundations in the U.S.A. For example, support for the law program of the Instituto Socioambiental (ISA) of Brazil is entirely from three funding sources in the United States.84 Similarly, 86% of the funding of El Centro de Derechos Humanos y Ambiente (CEDHA) in Argentina in 2004 came from two foundations in the United States, with similar support in previous years.85 Fundación Ambiente  y Recursos Naturales (FARN) in Argentina received 84% of its funding from funders outside Argentina, down from 94% three years earlier.86 El Centro Mexicano de Derecho Ambiental (CEMDA) in Mexico has received funding from 17 sources in the United States or Canada and from 7 in Mexico (some of which themselves receive most of their funding from the United States or Europe).87 Unless some major Latin American philanthropic foundations have a dramatic change of heart it seems likely that foundation funding for the enforcement of environmental laws by citizens will remain the work of only U.S. philanthropies. The same is largely true for public interest environmental law NGOs in Eastern Europe. As for Western Europe, it is hard to find any philanthropic foundations providing any funding at all for access to justice.

3. Pro bono versus the “private public interest bar”

Some may believe that citizens seeking access to information or public participation can rely on lawyers who will represent them pro bono publico (for free). There is no evidence to support this theory and much evidence to the contrary. Private environmental lawyers who are dedicated to the public interest are busy just struggling to survive and have to seek payment for their services. Environmental lawyers in business law firms, on the other hand, will not donate significant time to representing citizens and NGOs, in part because the firms’ business clients simply will not allow it.88 In a few countries private lawyers devoted to the public interest can earn a living doing private cases that do not cause conflicts with their public interest work. But the numbers of such lawyers is nowhere near the level of need for such representation.89

B. Obligation to pay winning side’s costs (the “loser-pays” rule)

The best practice with regard to responsibility for paying the costs of attorneys in winning or losing litigation is a one-way shifting of fees to benefit public interest litigants. It is discussed in part II-C of this paper.

84 Ford Foundation, Rainforest Foundation-United States (RFUS), and Rainforest Foundation of Norway (RFN), available at http://www.socioambiental.org/prg/pol.shtm. For ISA’s non-legal work, 72% of funding comes two U.S. sources: Gordon & Betty Moore Foundation of California (52%) and Environmental Defense of Washington, D.C. (20%). BKR—Lopes, Machado Auditores, Instituto Socioambiental Financial Statements 13 (April 25, 2006), available at http://www.socioambiental.org/inst/docs/rel_ativi/relatFin2005_port.pdf. Funding for lawyers is not separately listed.85 Financiamiento de CEDHA , available at http://www.cedha.org.ar/es/financiamiento/. 86 See various linked pages at Financiamiento, http://www.farn.org.ar/farn/financiamiento.html. 87 Financiamiento, available at http://www.cemda.org.mx/financiamiento.php. 88 See John E. Bonine, The New Private Public Interest Bar, 1 J. of Envir. L. & Litig. 1 (1986). 89 In the only country for which the author has been able to compile data, there are no more than 350 “private public interest environmental lawyers” in the United States of America, as compared to 20- to 30,000 environmental lawyers working for business and industry. Data on file with author.

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1. The attorney costs problem in its worst dimensions

The “loser pays” policy90 is a “worst practice.” It applies in one form or another throughout much of Latin America, Europe, Asia, and Africa91 (although not in the United States, with one exception). In nations such as Argentina, Brazil, France, Mexico, and Sweden the policy is clearly stated in legislation.92 The policy is a significant barrier to access to justice when it is applied as a routine matter. It discourages potential middle-class plaintiffs more than others, because they have something to lose personally but no equivalent personal benefit to gain from winning a lawsuit whose purpose is not for economic compensation but to demand compliance with the law.93 As for the supposed positive side, even the lawyers for the environmental plaintiffs cannot count on an award of their fees at the end of a successful case if the award is discretionary with the court and the court rules, as it may do in public interest litigation, that each party is to bear its own costs because public interest lawyers should not “profit” from their cases.

An environmental lawyer from the United Kingdom has explained how bad this policy can be for access to justice:

90 There are various terms for this policy, including “loser pays,” “fee-shifting,” and “costs follow the event.91 According to one scholar, some of the countries that follow the policy that costs follow the event include Australia, Austria, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Dominican Republic, France, Germany, Greece, Hungary, India, Italy, Iran, Luxembourg, Mexico, the Netherlands, New Zealand, Portugal, Romania, Switzerland, Turkey, and Yemen. John Yukio Gotanda, Awarding Costs and Attorneys' Fees in International Commercial Arbitrations, 21 Michigan Journal of International Law 1 (1999) at n. 20, http://www.cisg.law.pace.edu/cisg/biblio/gotanda.html#20, citing John Y. Gotanda, SUPPLEMENTAL DAMAGES IN PRIVATE INTERNATIONAL LAW, pp. 146-73 (1998) (containing a survey of national laws on the awarding of costs and fees) (hereinafter Gotanda). Many other countries not listed in Gotanda also follow the policy. For example, in Kenya it is provided in the Civil Procedure Act § 27 (Kenya). E-mail communication to author from Michael Ochieng Odhiambo, Resource Conflict Institute, May 15, 2006, on file with author. Malaysia provides that if a court makes an order regarding costs, “the Court shall . . . order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.” Order 59, Rule 3(2), Rules of the High Court 1980 (Malaysia). Poland follows this policy in its civil courts. E-mail communication to the author from Poland law professor Jerzy Jendroska, June 15, 2006, on file with author.92 Gotanda, supra note 91 at p. 143, citing New Code of Civil Procedure in France, art. 696 (Francoise Grivart de kerstrat & William E. Crawford trans., 1978); Código de Processo Civil [C.P.C.] (Braz.) art. 20; Zivilprozeßordnung [ZPO] § 91(1) (F.R.G.), translated in Simon L. Goren, Code of Civil Procedure Rules of the Federal Republic of Germany of January 30, 1877 and Introductory Act for the Code of Civil Procedure Rules of January 30, 1877 as of January 1988 (1990) (“failing party shall bear the costs of the lawsuit”); Swedish Code of Judicial Procedure ch. 18, § 8, translated in THE SWEDISH CODE OF JUDICIAL PROCEDURE 73 (Anders Bruzelius & Krister Thelin eds., rev. ed. 1979) (1968) (awarding the winning party all costs “reasonably incurred” during the proceeding); Cód.Com. art. 1084 (Mex.) (costs shall always be imposed against the losing party and against a party that does not submit sufficient proof to support a claim). 93 See Thomas D. Rowe, Jr., American Law Institute Study on Paths to a "Better Way": Litigation, Alternatives, and Accommodation (Background Paper) (noting risks to middle class), 1989 Duke L.J. 824, 888; Susanne Di Pietro & Teresa W. Carns, Alaska's English Rule: Attorney's Fee Shifting in Civil Cases, 13 Alaska L. Rev. 33, 84 (1996) (data suggesting that middle class is more discouraged than others by the “loser pays” policy that is in effect in the State of Alaska).

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The risk of paying the costs of the other parties is a major barrier to access to justice in this country. If a case is lost then the NGO (or citizen) can be at risk of paying very large sums of money for the Government's lawyers and sometimes for the developer's (private company's) lawyers. These can range from £10,000 up to more than £100,000 (roughly USD20,000 to USD200,000).94

In the United Kingdom the policy is in theory available to citizens who win a lawsuit, but it reality it is sometimes applied against citizens with little mercy, leading them to be afraid even to start litigation. For example, in a case in U.K. challenging a governmental decision that would be destructive of farmland, in order to provide an access road to a college, the lawyers for the college informed the individuals challenging the decision that by the time the case had reached the High Court they had already incurred costs of £127,000. The individuals were at risk of losing their houses if they continued. They did continue, and they ultimately won the case,95 but others are not likely to be so brave. Colleagues have characterized this policy as “the major barrier” in U.K.96

Colleagues in Africa and Asia also cite the policy not as a benefit, but as a substantial barrier to seeking justice in environmental cases. For example, colleagues in Kenya consider it to be “the greatest disincentive to pursuing environmental cases both against private companies and against governmental bodies”97 and those in Malaysia state that it is “a financial barrier which contributes to why many cases are not taken up and many communities refuse to go to court.”98

A huge amount has been written about it in the U.K. during the last few years and the tide is (slowly) changing. Of particular interest because (1) it is recent; (2) it is written by a group including a High Court judge; and (3) it makes good progressive suggestions, is the report of the Working Group on Access to Environmental Justice.99 Another useful report is one by Capacity Global in 2004100 and of course the 2004 report of the Environmental Justice Project.101

94 E-mail communication to author from U.K. lawyer Niall Watson, on file with author.95 Pamela Castle, Martyn Day, Carol Hatton, and Paul Stookes, A Report by the Environmental Justice Project ¶65 at p. 41 (2004) (hereinafter Environmental Justice Project), available at http://www.wwf.org.uk/filelibrary/pdf/envirojustice.pdf.96 E-mail communication to author from U.K. lawyer Phil Michaels, Friends of the Earth U.K., May 15, 2006, on file with author. If an ordinary citizen has been granted “legal aid” by the government because of poverty, the situation is better. Ordinarily the courts in the U.K. will not order such a person to pay the other side’s costs when he or she loses. (Mentioned in Steel and Morris v. the United Kingdom, Application no. 68416/01, European Court of Human Rights Judgment Feb. 15, 2005, on file with author.) However, the grant of legal aid in environmental cases in U.K. is rare, according to Michaels.97 E-mail communication to author from Kenya lawyer Michael Ochieng Odhiambo, Resource Conflict Institute, May 15, 2006, on file with author.98 E-mail communication to author from Malaysia lawyer Theiva Lingam, Consumer Association of Penang, May 16, 2006, on file with author.99 Ensuring access to environmental justice in England and Wales, available at http://www.wwf.org.uk/filelibrary/pdf/justice_report_08.pdf.100 Maria Adebowale, Using the Law: Access to Environmental Justice - Barriers and Opportunities (Capacity Global, 2004), available at http://www.defra.gov.uk/environment/enforcement/pdf/ejureport.pdf and http://www.capacity.org.uk/downloads/EJUsingtheLaw009Capacity04.pdf.101 Environmental Justice Project, supra note 95.

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2. Moderating the worst with protective costs orders in U.K.

In an attempt to know in advance whether they may have to pay the other side’s attorneys’ fees if they lose, some individuals and NGOs in Britain apply for “protective cost orders” in public interest cases. Such an order establishes in advance that an NGO will not have to pay attorneys’ fees to the other side if it loses (and sometimes that it will receive fees if it wins). A recent U.K. case, Corner House Research,102 has set the parameters for appropriate issuance of such “protective costs orders.” The Court of Appeals decided that such an order should be issued if the NGO or individual “has a real prospect of success and that it is in the public interest to make the order.” The Court explained its principle:

The overriding purpose . . . is to enable the applicant to present its case to the court with a reasonably competent advocate without being exposed to such serious financial risks that would deter it from advancing a case of general public importance . . . .103

3. Exceptions to the loser-pays rule in Latin America

In Latin America the loser pays policy exists, but various exemptions and practices often limit the adverse effects of this policy, while at the same time providing few or none of the supposed benefits of the policy. In Ecuador, for example, judges might not award attorneys’ fees to a winning party if there was reasonable doubt about the outcome of the case (that is, if it was not frivolous), if the litigation has been conducted well, if the winning party succeeded on less than its full claim, or if the parties did not take actions that delayed the case.104 Similarly, in Chile a court may not require the losing party to pay the attorney fees of the winning party if there was a plausible reason for litigating, among other possibilities. Furthermore, the amount of fees that a court would award is often rather low.105 The “partial victory” policy also exists in Argentina.106

In Costa Rica an Executive Decree states the “loser pays” policy and also indicates the percentages that should be paid to the winner in accordance with the amount that is granted in the court decision). The “good faith” of the losing party, however, can be a ground for the judge to make no award of attorney fees to the winning party. In some areas of law the loser is often exempt, such as cases involving labor law or family law.107 Similarly, in Guatemala a judge will make no award to the winner if the losing party litigated in “good faith,” in divorce cases, or if

102 R (Corner House Research) v Secretary of State for Trade & Industry [2005] EWCA Civ 192.103 Id. at ¶ 76 (iii).104 E-mail communication to author from Ecuador lawyer Silvana Rivadeneira, Ecolex, May 22, 2006, on file with author.105 E-mail communication to author from Chile lawyer Miguel Fredes, July 21, 2006, on file with author.106 See Civil and Commercial Procedural Code of Argentina art. 68:

[Principio General] La parte vencida en el juicio deberá pagar todos los gastos de la contraria, aun cuando ésta no lo hubiese solicitado. Sin embargo, el juez podrá eximir total o parcialmente de esta responsabilidad al litigante vencido, siempre que encontrare mérito para ello, expresándolo en su pronunciamiento, bajo pena de nulidad.

107 E-mail communication to author from Costa Rica lawyer Ruth Ester Solano Vasquez, Justicia para la Naturaleza, May 24, 2006, on file with author.

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the judge has other reasons to deny an award based on how the trial was conducted and evolved. Furthermore, judges may grant an exemption from the policy more often than they apply it.108

4. Abolition of the loser-pays rule in public interest or administrative court cases

Sometimes the courts in the common law countries mitigate the negative threat of the “loser pays” policy by not requiring the losing party to pay the attorneys’ fees for the winning party in cases that they determine are “public interest cases.” The Privy Council in London, the highest court in the Commonwealth of Nations, ruled in a case in 2004, where environmental NGOs lost an appeal from the Court of Appeal of Belize, that nonetheless “because this was a public interest case there should be no order as to costs of the appeal.”109

Australia has a similar exception for public-interest cases. In 1998, the High Court of Australia (the nation’s highest court) ruled that a trial judge need not award attorney costs under the normal loser-pays policy if the litigation is seeking to ensure obedience to environmental law and the suit can be characterized as “public interest litigation.”110 That decision was followed by another in 2008, where Australia’s High Court itself refused to award costs against a coalition of 65 community and environmental groups that had lost its High Court appeal, even though some clients were also small businesses motivated by economic reasons.111 The Court noted that the condition of the bay that motivated the lawsuit was “a matter of high public concern,” that the sole practitioner representing the groups went up against five barristers for government bodies, that compliance with law is a matter in the public interest, and that the application raised novel questions of general importance.112 In determining whether the litigation is “public interest litigation,” the Land and Environment Court of New South Wales, Australia, has explained that a court will consider such factors as whether the interest involves a significant number of members of the public or only private interests, whether the lawsuit seeks to enforce obligations imposed by public law, whether the primary motivation of the lawsuit is to uphold the public interest and the rule of law, and whether the litigant has no pecuniary (financial) interest in the outcome.113 Thus even if they lose, a litigant may not have costs assessed against them.

An exception for public-interest cases has also been created by the Supreme Court of the State of Alaska. Unlike other jurisdictions in the United States, the State of Alaska follows the European policy of “loser pays” (or “two-way fee-shifting”), based on its State civil procedure rules.114 However, the rules specifically allow a court to make exceptions based on consideration

108 E-mail communication to author from Guatemala lawyer Jeanette Noack, May 22, 2006, on file with author.109 Belize Alliance of Conservation Non-Governmental Organizations v. Dept. of the Environment & Belize Electricity Co., Privy Council Appeal No. 47 of 2003 (letter from Registrar of Apr. 2, 2004, containing draft order), available at http://www.elaw.org/assets/pdf/be.FinalOrderNoCosts.pdf. The main case is at [2003] UKPC 63, [2003] 1 W.L.R. 2839 (July 30, Aug. 13, 2003).110 Oshlack v Richmond River Council (1998) 193 CLR 72, 91. See K. Edwards, Costs and Public Interest Litigation after Oshlack v. Richmond River Council (1999) 21 Sydney Law Review, 681, 682. See also Save the Ridge, Inc., v. Commonwealth (2006) 230 ALR 411 (discussing departures from the ordinary costs rule in public interest cases).111 Blue Wedges, Inc., v. Minister for the environment, Heritage and the Arts, [2008] FCA 8 (15 January 2008).112 Id. at ¶¶ 68-75.113 Engadine Area Traffic Action Group Inc v Sutherland Shire Council & Another (No. 2) [2004] NSWLEC 434 (13 August 2004).114 Alaska R. Civ. P. 82 (a)-(b).

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of a variety of factors.115 The Alaska Supreme Court interpreted this to include “public-interest cases,” so that a losing public-interest plaintiff does not have to pay attorney costs of the other side.116 At the same time, the Alaska Supreme Court later ruled that such public-interest plaintiffs are eligible to claim attorney fees if they do win.117

In various civil law countries, the courts often markedly reduce, or even abolish, fees that can be claimed by government lawyers when an NGO loses a judicial review of an administrative action. Kärt Vaarmari, an environmental lawyer in Estonia has explained:

In Estonia, if a person or NGO sues a public authority and loses, the “loser pays” principle will be applied. But according to law, the judge can decrease the sum to be paid to the reasonable extent. In administrative cases, judges usually do not make persons or NGOs to pay the whole sum for opposite party's attorney, because the sums are quite big (unreasonably big). . . . For example, in one case from year 2005 where NGO sued the government, government asked for about 12800 Euro (costs for attorneys), but the court asked NGOs to pay only ca 2200 Euro. . . . In administrative cases, the person suing government is considered to be "weaker party", but in civil court proceedings, principle of "competing parties" is applied. However, the environmental cases are mainly administrative cases.118

Attorney Vaarmari writes further:

The mentioned legal provisions come from Estonian Code of Administrative Court Procedure, Section 92 subsection 1 and Section 93 subsection 5. The provisions apply in all administrative proceedings, there are no specific provisions for environmental cases or cases in which NGO or individual is a party.

This Code is available in English in 2005 redaction only, but the text of sections 92 and 93 has been fully changed in 2006 (though the main principles have not changed, only specified in details - but one important amendment has also been made so that also the costs of third party must be borne by the loser.119

115 Id. at § b(3).116 Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974) (“denial of attorney’s fees might be appropriate in a proper case where the public interest is involved”). The State Legislature in 2003 tried to modify this rule so that losers in public-interest cases would have to pay the costs of attorneys for the government, but this was ruled unconstitutional by a lower court in Native Village of Nunapitchuk v. State. No. 1JU-03-700 CI, slip op. at 3 (Alaska Super. Ct. Apr. 6, 2004). The decision has been appealed but no decision has been made by the Alaska Supreme Court. E-mail communication to author from Alaska attorney Tom Waldo, May 15, 2006, on file with author.117 Anchorage v. McCabe, 568 P.2d 986, 990-991 (Alaska 1977) (public-interest litigant can serves as a “private attorney general” to enforce significant legislative policies and numerous people can receive benefit from the litigation). The Court has also ruled that public interest litigants are entitled to full attorney’s fees awards on all public interest issues whether or not they prevailed on all of the claims. Dansereau v. Ulmer, 955 P.2d 916 (Alaska 1998). See generally Abizer Zanzi, The Constitutional Battle over the Public Interest Litigant Exception to Rule 82, 21 Alaska L. Rev. 329 (2004), available at https://www.law.duke.edu/journals/alr/downloads/alr21p329.pdf.118 Email from Kärt Vaarmari, Keskkonnaõiguse Keskus (Estonian Environmental Law Center), September 16, 2008 (on file with author).119 Email from same, September 18, 2008 (on file with author).

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Also at the level of “medium practice,” in Spain a losing litigant in the administrative court of first instance has no obligation to pay the fees of the government attorneys on the winning side, except in cases of bad faith or temeridad,120 but if the plaintiff loses to the government in the first instance, appeals the decision, and then loses again, the person must normally pay the government attorneys’ fees. A court may decide, however, not to require them.121

Similarly, in its Administrative Judicial Procedure Act, Finland explicitly provides that a plaintiff is not normally liable for paying the costs of government attorneys even when the plaintiff loses his or her case. The law states, “A private individual shall not be held liable for the costs of a public authority, unless the private individual has made a manifestly unfounded claim.”122

Plaintiffs losing to the government also need not pay attorney costs in Costa Rica.123

C. Government-pays/polluter-pays rules (and “Modified American Rule”)

An even larger stride is to provide financial incentives for filing lawsuits against the government and other violators of the environmental laws as several jurisdictions have done. This deserves to be regarded as a “best practice.”

A best practice is shown in administrative law cases in Poland. If the government authorities lose a case they must pay the winner’s court fees and attorney fees, but if the

120 Article 139, Administrative-Court Procedure Act/Ley 29/1998, de 13 de julio, de la Jurisdicción Contencioso-Administrativa:

En primera o única instancia, el órgano jurisdiccional, al dictar sentencia o al resolver por auto los recursos o incidentes que ante el mismo se promovieren, impondrá las costas, razonándolo debidamente, a la parte que sostuviere su acción o interpusiere los recursos con mala fe o temeridad. No obstante lo dispuesto en el párrafo anterior, se impondrán las costas a la parte cuyas pretensiones hayan sido desestimadas cuando de otra manera se haría perder al recurso su finalidad.

121 Id.2. En las demás instancias o grados se impondrán al recurrente si se desestima totalmente el recurso, salvo que el órgano jurisdiccional, razonándolo debidamente, aprecie la concurrencia de circunstancias que justifiquen su no imposición."

122 The full provision for compensation of costs in litigation in Finland provides:(1) A party shall be liable to compensate the other party for his legal costs in full or in part, if especially in view of the resolution of the matter it is unreasonable to make the latter bear his own costs. The provisions in this section and section 75 on a party may be applied also to the administrative authority that made the decision.(2) When assessing the liability of a public authority, special account shall be taken of whether the proceedings have arisen from the error of the authority.(3) A private individual shall not be held liable for the costs of a public authority, unless the private individual has made a manifestly unfounded claim.

Administrative Judicial Procedure Act, Chapter 13–Costs, Section 74–Liability for costs (Act 586/1996; amendments up to 435/2003 included; none after that). Unofficial translation by Finland Ministry of Justice, available at http://www.finlex.fi/en/laki/kaannokset/1996/en19960586123 E-mail communication to the author from Ruth Ester Solano Vasquez (on file with author).

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authorities win, they are not entitled to claim their costs.124 Similarly, if the government loses in Spain, it may have to pay the successful outside litigant.125

In Slovakia a person or NGO that sues a public authority in an administrative law case and loses does not have to pay the public authority for compensation of costs, but if the plaintiff is successful costs can be awarded against the public authority. The part of the Civil Procedure Code that applies to judicial review of administrative acts provides for compensation of costs only for a plaintiff in such a case:

(1) If the plaintiff had a success fully or partly, the court shall award him a right to full or partial compensation of costs of the proceeding. The court may decide that compensation of costs will be not awarded fully or partly, if special reasons exist.126

Slovak environmental lawyer Peter Wilfling explains that the government (administrative authority) has no right to obtain compensation of costs because no such right is given in any legislation to the defendant in administrative cases, and the quoted provision of law makes provision for compensation of costs only for the plaintiff.127 This interpretation is also accepted in case law. For example, in a case decided in 2008 the Supreme Court of Slovakia stated:

The court did not award compensation of costs to plaintiffs according to § 224/1 and § 250k/1 of the Civil Procedure Code, because plaintiffs did not have a success in the proceeding and the defendant has not a right to obtain a compensation of costs according to the law.128

Both the federal courts in the United States of America and the courts of every State except for Alaska follow a completely different policy from the “loser pays” policy that is prevalent in much of the world. Under the so-called “American Rule”129 losing individuals, NGOs, and businesses are ordinarily not obligated to pay the costs of the attorneys on the winning side. This policy has been in effect since the founding of the country.130 In the Alyeska

124 Arts. 199 - 202 of the Administrative Courts Procedure Act of 30 August 2002 (Official Journal of Laws of 2002 No 153 item 1270 as amended), according to e-mail communication to the author from Prof. Jerzy Jendroska (on file with author).125 Article 139, Administrative-Court Procedure Act/Ley 29/1998, de 13 de julio, de la Jurisdicción Contencioso-Administrativa. 126 Translation provided by Peter Wilfling. The original in Slovak provides:

(1) Ak mal žalobca úspech celkom alebo sčasti, súd mu proti žalovanému prizná právo na úplnú alebo čiastočnú náhradu trov konania. Môže tiež rozhodnúť, že sa náhrada trov celkom alebo sčasti neprizná, ak sú na to dôvody hodné osobitného zreteľa.

Civil Procedure Code § 250k /1, available at http://jaspi.justice.gov.sk/jaspiw1.127 Emails to author from Peter Wilfling, Citizen and Democracy Association (Bratislava), September 17 and 22, 2008 (on file with author).128 Emphasis added. In the original:

Náhradu trov odvolacieho konania účastníkom nepriznal podľa § 224 ods. 1 O.s.p. a § 250k ods. 1 O.s.p., keďže žalobcovia v konaní neboli úspešní a žalovanýpodľa zákona nemá nárok na náhradu trov konania.

Judgment of the Supreme Court No. 8 Szo 81/2008 (11th September 2008).129 A more accurate name would be the “USA rule” or “USA policy,” but it is embedded in U.S. legal terminology as the “American rule.”130 John F. Vargo, The American Rule on Attorney Fee Allocation: The Injured Person's Access to Justice, 42 American University Law Review 1567 (Summer 1993) (hereinafter Vargo).

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decision, an environmental case more than 30 years ago, the U.S. Supreme Court restated this 200-year old legal doctrine:

“In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” 131

The Court had blocked the construction of the Trans-Alaska Oil Pipeline because of violations of federal laws and the environmental NGO that brought the case asked the court to order the government to pay its legal costs in the litigation. The Supreme Court refused.132 It noted that the “American rule” policy can be modified by statutes that specifically provide for attorneys' fees or by actions taken by the other side in bad faith, but ruled these conditions were not present in the Alyeska case.133 The groups initially saw the result as an economic defeat. In reality, however, it was a great victory because it meant that they would not have to pay companies in the future when the environmental groups were unsuccessful.

One expert has explained the “American Rule” policy in this way:

The United States Supreme Court, which adopted the American rule in 1796, has set forth three reasons in support of it. First, in many cases the result of the litigation is uncertain and, as a result, it is unfair to penalize a losing party by assessing costs and fees for merely defending or prosecuting a lawsuit. Second, if losing parties were forced to bear their opponents' costs and fees, "the poor might be unjustly discouraged from instituting actions to vindicate their rights." Third, claims for costs and fees would likely increase "the time, expense and difficulties of proof" in any given case and "would pose substantial burdens for the administration of justice."134

The Court in Alyeska left the issue to the legislature, saying that the policy “is deeply rooted in our history and in congressional policy; and it is not for us to invade the legislature’s province by redistributing litigation costs . . . .”135 It left open the possibility, however, that the legislature could modify the American rule as much as it desired.

Since the time of the Alyeska decision, a great deal of legislation has modified the rule, particularly in environmental, social justice, health, and civil rights laws. These laws, in combination with the American Rule, constitute the best practice on the topic of fee-shifting. They provide that government authorities must pay the attorney fees of individual persons, nongovernmental organizations, or small businesses who win in litigation against the government.136 In the same laws, however, the government is not normally given authority to collect fees from others, even if the government wins the lawsuit.137 Approximately 200 federal

131 Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975) (hereafter Alyeska).132 Id. at 259.133 Id. at 258-262.134 Gotanda, supra note 91 (citations omitted).135 Alyeska, supra note 131 at 270-271.136 See William A. Bradford, Public Enforcement of Public Rights: The Role of Fee-Shifting Statutes in Pro Bono Lawyering, in THE LAW FIRM AND THE PUBLIC GOOD 125, 129-30 (Robert A. Katzmann ed., 1995).

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statutes provide for such attorney fee awards, usually against the government.138 Approximately 2,000 statutes in individual States of the U.S. do so as well, usually also on this same “one-way” basis.139 The U.S. Supreme Court has observed “that the encouragement of private action to implement public policy has been viewed as desirable in a variety of circumstances.”140 This combination of the traditional American Rule with the legislation providing for one-way attorney fees may appropriately be called the “modified American Rule.”

This policy of one-way attorney fee awards provides financial incentives to bring cases to the courts concerning government (public authority) violations of the law, while still preserving the principle that the government cannot demand the costs of its attorneys when it wins. Notable examples of federal “fee-shifting” statutes include all the major environmental statutes (starting with the Clean Air Act in 1970141), the Freedom of Information Act as amended in 1974,142 and the Civil Rights Attorney Fees Award Act of 1976. As explained in one summary,

The Civil Rights Attorney's Fees Awards Act of 1976 was adopted to alleviate the situation created by [Alyeska] in which the Supreme Court rejected the private attorney general theory for awarding attorneys' fees and thus restricted the circumstances in which attorneys' fees may be recovered in federal courts, in the absence of statutory authorization. Moreover, the Act was designed to encourage private enforcement of federal civil rights and to attract competent attorneys as a means of insuring enforcement of federal civil rights.143

This trend eventually culminated in the Equal Access to Justice Act of 1980,144 which applies to litigation between the government and a private person or corporation (or NGO) in all fields, including both successful suits against a government body and suits where the government

137 A useful explanation of how the modified American Rule works in practice under federal legislation is provided in Alan Hirsch and Diane Sheehey, Awarding Attorneys’ Fees and Managing Fee Litigation (Monograph, Federal Judicial Center, 1994), available at http://www.fjc.gov/public/pdf.nsf/lookup/attyfees.pdf/$File/attyfees.pdf. More recent guidance from the U.S. Supreme Court is found in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001) (where, during the litigation, the government agency gives the litigants a victory without a court order, the courts are sometimes not allowed to award attorney fees to the successful litigant).138 See 1 Mary F. Derfner & Arthur D. Wolf, COURT AWARDED ATTORNEY FEES, Table of Statutes, TS1-TS36 (1992). Many of these laws at the federal level were enacted after Alyeska, supra note 131. In Alyeska, the Supreme Court had listed only 25 federal statutes “granting or protecting various federal rights” that provided for the loser to pay the winner’s costs. Most applied only to cases where it was the federal government that lost and had to pay. Id. 260-261 at n. 33. It appears “[m]ost of the statutes authorizing fee shifting were enacted after” Alyeska. Robert V. Percival & Geoffrey P. Miller, The Role of Attorney Fee Shifting in Public Interest Litigation, 47 Law & Contemp. Problems 233 n.2 (1984).139 Note, State Attorney Fee Shifting Statutes: Are We Quietly Repealing the American Rule?, Law & Contemp. Probs., Winter 1984, at pp. 321, 336 (discussing state fee-shifting statutes, which are mostly one-way).140 Alyeska, supra note 131 at 270-271.141 Clean Air Act, § 304(d), as added, Pub. L. No. 91-604, 84 Stat. 1706, currently codified as 42 U.S.C. § 7604(d). See also id., § 307(f), 42 U.S.C. § 7607(f).142 Amendments to Freedom of Information Act, Pub.L. No. 93-502, § 1(b)(2), 88 Stat. 1561 (amending 5 U.S.C. § 552(a))143 Construction and Application of Civil Rights Attorney's Fees Awards Act of 1976 § 2[a], 43 A.L.R. Fed. 243 (citations omitted).144 Equal Access to Justice Act, Public Law 96-481; 94 Stat. 2325 et seq., 28 U.S.C. 2412 (d). Cf. also Civil Rights Attorney's Fees Awards Act of 1976, Pub. L. 94-559, 90 Stat. 2641, 42 U.S.C. 1988.

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sues a private person in an enforcement action but loses. In both types of cases the federal courts can award attorney fees to the non-government party. The notion of "equal" access to justice is that the upper classes don't need to recover fees against the government, so the Act allows awards only to middle- and lower-income persons (net assets below $2 million), small and medium NGOs (fewer than 500 employees), and small businesses (fewer than 500 employees and net assets below $7 million).145

The “American Rule” removes one of the largest negative risks and economic barriers to access to justice, while the “modified American Rule” provides a positive incentive to citizen enforcement of environmental laws. With such legal policies government authorities will be more likely to obey the law because they know that their transgressions are more likely to be caught by the courts. The individual, NGO, or small business that does this work is compensated for performing a service that benefits the broader public.146

D. Human rights guarantees.

The question of financial barriers to access to justice deserves analysis under the Aarhus Public Participation Convention, the European Convention on Human Rights, the American Convention on Human Rights, and the African (Banjul) Charter on Human and Peoples' Rights. The following notes may provide a starting point for investigation.

The Aarhus Convention provides in Article 9, paragraphs 1 and 2, that a person who claims a denial of information or participation must have “access to a review procedure” in a court or other independent and impartial body. Similarly, paragraph 3 states that a person claiming that national environmental laws have been violated by private parties or public authorities must “have access to administrative or judicial procedures to challenge acts and omissions.”147 It is worth asking whether a person has such “access” if he or she must pay an excessive fee to gain that access, or risks losing a house or other assets if the case is lost. The answer is apparently that access is not available if costs raise a barrier, because paragraph 4 explicitly provides that the remedies in paragraphs 1, 2, and 3 must not be “prohibitively expensive.”148 In addition, paragraph 5 requires that each Party to the Aarhus Convention must “consider the establishment of appropriate assistance mechanisms to remove or reduce financial . . . barriers to access to justice.”149

The European Court of Human Rights ruled in 2005 that two citizens who were sued by McDonald’s Corporation for Defamation were denied the right to a fair trial and freedom of expression under Articles 6 and 10 of the European Convention on Human Rights because the Government of the United Kingdom refused to provide funding for their lawyers to defend

145 Id.146 In the United States, such cases are called “public interest” cases. A famous jurist long ago coined the term “private Attorneys General” for the legislative authorization of persons to file lawsuits on behalf of the public interest. Associated Indus. Of New York v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943). In Latin America such lawsuits are often called “acciones difusas” (diffuse actions). 147 Aarhus Convention, supra note 9.148 Id.149 Id.

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them.150 In response, the Joint Committee on Human Rights of the House of Lords and House of Commons asserted that the Government’s guidance under the Access to Justice Act 1999 (which provides the statutory framework for civil legal aid in U.K.) “should make reference to the need to ensure that denial of legal aid would not disproportionately interfere with Article 10, taking into account the Strasbourg jurisprudence and Steel and Morris in particular.”151

The Inter-American Court of Human Rights rendered an advisory opinion in 1990 that inability to hire legal counsel for financial reasons could exempt litigants from the duty to exhaust domestic remedies before coming to the Inter-American Court.152

150 European Court of Human Rights, Steel and Morris v. United Kingdom, App No 6841601, Judgment of 15 February 2005151 Joint Committee on Human Rights, Implementation of Strasbourg Judgments: First Progress Report (2005), available at www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/133/133.pdf. 152 Exceptions to the Exhaustion of Domestic Remedies (Art. 46(1), 46(2)(A) And 46(2)(B)American Convention on Human Rights, Advisory Opinion OC-11/90 of August 10, 1990, available at http://www.corteidh.or.cr/docs/opiniones/seriea_11_ing.pdf (English) and http://www.corteidh.or.cr/docs/opiniones/seriea_11_esp.pdf (Spanish).

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