Best Practices-Access to Justice  (Agenda for Public Interest Law Reform)

 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).

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

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.

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).

11 Constitution of Uganda, 1995, id., Chapter Four, Protection and promotion of fundamental and other human rights

and 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, 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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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).

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).

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.

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.

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.

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).

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.

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.

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).

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).

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

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