Courts and expertise in environment dispute resolution: a tale of two models

Pistora and Aravindakshan write about two specialized courts, the National Green Tribunal of India (NGT) and the Council of State in the Netherlands. The NGT was established by statute on the recommendation of the Indian Supreme Court. Organized into five panels located in major cities throughout India, it consists of an equal number of judicial and scientific members. The NGT has original jurisdiction in some environmental cases and appellate jurisdiction in others. It sets its own procedures, is authorized to conduct investigations and can consult external experts in addition to relying on the expertise of its members. The Dutch Council of State's administrative court is advised on environmental matters by Stichting Advisering Bestuursrechtspraak voor Milieu en Ruimtelijke Ordening (STAB), an independent body of experts. While these are both promising judicial innovations, each suffers from problems that have emerged during the course of its operation. The government of India has tended to choose administrative officials with knowledge of only one delimited field as the scientific expert members of the NGT. As a result, the NGT panels often resort to ad hoc committees whose membership and role are not readily available for public scrutiny. The STAB has been more effective, but the decision to consult it lies entirely within the discretion of the Council, which has apparently referred a mere 3 percent of its environmental cases to the STAB. Moreover, once the STAB has issued its report to the Council, the parties have no opportunity to comment on it, even though it may be the decisive factor in the court's decision.