McLeod-Kilmurray, Heather --- "Lowering Barriers to Judicial Enforcement: Civil Procedure and Environmental Ethics" [2011] ELECD 316; in Paddock, Lee; Qun, Du; Kotzé, J. Louis; Markell, L. David; Markowitz, J. Kenneth; Zaelke, Durwood (eds), "Compliance and Enforcement in Environmental Law" (Edward Elgar Publishing, 2011)

Book Title: Compliance and Enforcement in Environmental Law

Editor(s): Paddock, Lee; Qun, Du; Kotzé, J. Louis; Markell, L. David; Markowitz, J. Kenneth; Zaelke, Durwood

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448315

Section: Chapter 12

Section Title: Lowering Barriers to Judicial Enforcement: Civil Procedure and Environmental Ethics

Author(s): McLeod-Kilmurray, Heather

Number of pages: 24

Extract:

12. Lowering Barriers to Judicial
Enforcement: Civil Procedure and
Environmental Ethics *
Heather McLeod-Kilmurray**


1. INTRODUCTION

In response to the environmental challenges facing society, an increasing array of
legal institutions, principles and rules has been created. There is considerable
agreement that after decades of translating lofty ambitions into environmental
laws and treaties, what is needed now is enforcement of these rules and principles
to achieve practical results. Among all the institutions involved in enforcement of
environmental law, courts are among the most powerful. They are important not
only in resolving concrete disputes but also in the larger enterprise of developing
principles and substantive rules of environmental law. Yet in order to understand
how judicial enforcement works, it is necessary to understand the importance of
the rules of civil procedure, and particularly how courts interpret them. Because
procedural rules contain considerable discretion, judges need a framework of
environmental ethics and principles to guide their interpretation and application
of procedural rules in the environmental context.
Procedure in environmental cases is crucially important to how the litigation is
played out, and to its substantive outcome. When procedural barriers such as
standing or class action certification impede access to justice, or refusals of pre-
trial injunctions prevent effective protection of environmental resources, judicial
enforcement of environmental law can be delayed, weakened, or prevented
altogether. The existence of discretion in these rules provides judges with the
opportunity to make choices, and it is in considerable degree the nature of their
values or judicial dispositions that ...