54 ELR 11058 ENVIRONMENTAL LAW REPORTER 12-2024
PROTECTING THE RIGHT
TO ENVIRONMENT: THE ROLES
OF JUDICIAL COMMISSIONS
AND SPECIAL MASTERS
by Umair Saleem
This Article addresses the pressing need for six “green states”—New York, Hawaii, Illinois, Massachusetts,
Montana, and Pennsylvania—to adopt quasi-judicial mechanisms for enforcem ent of their constitutional right
to environment. It analyzes the challenges and limitations of traditional litigation in enforcing this right, and
compares the special master system in the United States with environmental judicial commissions in Pakistan.
It advocates for an expanded role of special masters in environmental li tigation with diverse functions, includ-
ing investigation, mediation, environmental monitoring, technical and scientific advisory, public participation,
and consensus-building among different stakeholders, to ensure comprehensive and effective environmental
protection. It argues that courts in these green states could pioneer this approach, set ting a precedent for
other jurisdictions internationally and ultimately strengthening environmental protection globally.
SUMMARY
Dr. Umair Saleem has an S.J.D. and LL.M. in environmental law from
Pace University’s Elisabeth Haub School of Law.
The right to a clean, healthy, and sustainable envi-
ronment (the “rig ht to environment”) is recognized
in its various forms as a funda mental human right
across the globe. In 2022, the United Nations General
Assembly adopted this right and obliged its Member coun-
tries to recognize and protect it.1 In the United States, six
states—New York, Hawaii, Illinois, Massachusetts, Mon-
tana, and Pennsylvania (the “green states”)—have already
recognized this right in their state constitutions.2
1. G.A. Res. 76/300, U.N. Doc. A/RES/76/300 (July 28, 2022) (“the human
right to a clean, healthy and sustainable environment”).
2. N.Y. C. art. I, §19 (in force since 2022) (“right to clean air and wa-
ter, and a healthful environment”); H. C. art. XI, §9 (granting
“the right to a clean and healthful environment”); I. C. art. XI, §2
(granting “the right to a healthful environment”); M. C. art. XCVII
(granting “the right to clean air and water, freedom from excessive and un-
However, the right to environment is not self-executing
without an eective legal remedy for its enforcement. e
maxim “where there is a right, there is a remedy” under-
scores the necessity for practical remedies to enforce this
right. Further, the complexity of modern environmental
issues demands multifaceted a nd innovative remedies that
extend beyond traditional litigation and incorporate strate-
gic and globally recogniz ed methods for eective protection
of this right. In that context, th is Article identies environ-
mental judicial commissions (EJCs or commissions) as a
unique remedy for enforcing the right to environment, rec-
ommends adapting this approach in common-law coun-
tries and the U.S. green states, and compares it to U.S.
courts’ existing s ystem of special masters.
Globally, two primary models of these commissions
have emerged, shaped by the legal traditions and gover-
nance structures of dierent regions. In one version in
common-law countries, “public inquiry commissions” are
established by either the executive or legislative branch of
government to address complex environmental issues. For
example, in 1974, the government of Canada appointed
necessary noise, and the natural, scenic, historic, and esthetic qualities of
their environment”); M. C. art. II, §3 (granting “the right to a
clean and healthful environment and the rights of pursuing life’s basic ne-
cessities”); P. C. art. I, §27 (granting “a right to clean air, pure water,
and to the preservation of the natural, scenic, historic and esthetic values of
the environment”).
Author’s Note: I extend my sincere gratitude to Prof.
Nicholas A. Robinson for his invaluable guidance and sup-
port throughout the development of this Article. His insight-
ful advice and constructive feedback have significantly
shaped this work. I am also thankful to Dr. Parvez Hassan
for providing me with the opportunity to participate and
assist him in several environmental judicial commissions in
Pakistan. His pioneering contributions and leadership in
these commissions have inspired the analysis presented in
this Article. Their combined wisdom and encouragement
have been instrumental in bringing this work to fruition.
Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org.
12-2024 ENVIRONMENTAL LAW REPORTER 54 ELR 11059
Justice omas R. Berger as commissioner in the Mack-
enzie Valley Pipeline Inquiry to consider environmental,
social, and economic impacts of the proposed gas pipeline.3
In another instance, in 20 09, Canad a’s governor general in
council established the Commission of Inquiry and des-
ignated a judge of the Supreme Court of British Colum-
bia, Honorable Bruce I. Cohen, as sole Commissioner to
conduct an inquiry into the decline of sockeye salmon in
the Fraser River.4 And the United Kingdom government
appointed Honorable Ju stice Kenneth Parker as head of the
Windscale Inquiry in 1977 to conduct a local inquiry into
the environmental impacts of a plant for reprocessing irra-
diated oxide nuclear fuel s.5
In the second model, EJCs are appointed by judges dur-
ing ongoing complex litigation concerning the right to
environment. Although this practice is obser vable in both
India and Pakistan, the Supreme Court and high courts
in Pakistan have innovatively utilized these commissions
for diverse functions, including investigation, mediation,
environmental monitoring, technical and scientic advis-
ing, public participation, and consensus-building a mong
dierent st akeholder s. is A rticle recommends a dopting
this approach in common-law countries and the U.S. green
states as a strategic response in complex litigation for pro-
tection and enforcement of the right to environment and in
achieving susta inable environmental outcomes.
ere are three primary challenges associated with tra-
ditional environmental litigation in the context of enforc-
ing the right to environment. First, given that these rights
belong to the public, many people and st akeholders may
be unable to participate due to the high cost and lengt hy
process associated with environmental litigation. Second,
as judges are often presented with dicu lt questions of
balancing economic and environmental interests, judicial
expertise about environmental matters may be limited and
an expert or technica l assistance is often required. ird,
courts often focus on lega l, tech nical, and nancial aspects
of the case rather than prioritizing the protection of the
environment as a fundamental right; as a result, some
stakeholders or environmentalists may disagree with the
decisions because the outcomes may not fully address t he
environmental concerns at the heart of the dispute.
is Article argues that courts in common-law coun-
tries and the U.S. green states must anticipate these issue s
and adopt an innovative and structured approach for
resolving complex litigation concerning the right to envi-
ronment. EJCs have demonstrated three key benets that
could address the chal lenges faced by traditional litiga-
3. See Government of Canada Publications, e Report of the Mackenzie Val-
ley Pipeline Inquiry, https://publications.gc.ca/collections/collection_2015/
bcp-pco/CP32-25-1977-1-eng.pdf (last visited Nov. 8, 2024).
4. See National Library of Canada, Commission of Inquiry Into the Decline of the
Sockeye Salmon in the Fraser River, https://epe.lac-bac.gc.ca/100/206/301/
pco-bcp/commissions/cohen/cohen2012-eng/cohen2012-eng.htm (last vis-
ited Oct. 17, 2024).
5. K P, T W I: R H. M.
J P, P S S E-
26 J 1978 (1978), https://archive.org/details/wind-
scaleinquiry0002grea/page/n1/mode/2up (Justice Parker recommended to
grant permission for such plant under specic conditions).
tion. First, EJCs have provided technical, scientic, inves-
tigative, monitoring, and advisory functions in a variety
of public interest litigation, such as claims related to nui-
sance, water conservation, air protection, waste manage-
ment, endangered species conservation, and environmental
management. Second, some EJCs have organized hearings
to ensure public participation in ongoing environmental
disputes without the barriers of expensive and lengthy lit-
igation. ird, EJCs are used as a mecha nism to engage
and build cooperation and consensus among var iou s stake-
holders—including t he public, gover nment departments,
nongovernmental organizations (NGOs), legal and envi-
ronmental experts, and scientists —in collaborative eorts.
With these functions and benets, EJCs represent a multi-
faceted and strategic response to the evolving demands of
environmental dispute resolution.
Some functions and judicial practices of EJCs are
already present in the special master system in the United
States. U.S. courts appoint individuals as special masters
to manage complex disputes that are not exclusively con-
ned to environmental issues. Although appointment of
special masters in environmental matters is rare in the
green states, their use presents an intrig uing counterpart
and parallel to the rst function of EJCs. Special masters
play a pivotal role in conducting evidentiary proceeding s,
managing complex environmental litigation, facilitating
settlements, and ensuring compliance with court orders
and environmental laws in complex disputes. However,
special masters have not been appointed to build coopera-
tion and consensus among dierent stakeholders or ensure
public part icipation.
As environmental crises and litig ation become more
complex and persistent, the signicance of quasi-judicial
bodies like EJCs and special ma sters becomes increas-
ingly paramount. ese bodies oer va luable lessons and
a unique strategy for resolving environmental disputes
worldwide. However, despite their critical role in complex
litigation and potential as a signic ant tool in right to envi-
ronment litigation, there is a notable deciency in academic
literature on both EJCs and special masters, a nd there is no
literature comparing both these approaches and discussing
their role in enforcement of the right to environment.
A few scholars have examined the Boston Harbor
cleanup litigation, empha sizing the innovative judicia l
approach of a special master that facilitated t he judicial
process with technical expertise and prompted legislative
and executive actions.6 Stuart P. Feldman also advocates
for this approach in complex environmental disputes and
discusses the role of special ma sters in enforcing environ-
menta l laws post-jud gment.7 Robert H. Freilich provides an
overview of his experiences as a spe cial master in managing
a complex case involving hazardous wa ste, highlighting the
eciency of having environmental expertise to guide the
6. Charles M. Haar, Boston Harbor: A Case Study, 19 B. C. E’ A.
L. R. 641 (1992).
7. Stuart P. Feldman, Curbing the Recalcitrant Polluter: Post-Decree Judicial
Agents in Environmental Litigation, 18 B. C. E’ A. L. R. 809
(1991).
Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org.
