Adjucating Sustainability: New Zealand\u27s Environment Court

New Zealand\u27s Resource Management Act of 1991 (“RMA”) placed the island nation on the world\u27s cutting edge of environmental management by making sustainability the law of the land. The RMA also presents an opportunity to examine a less heralded New Zealand innovation in environmental governance: a specialized, expert court that is focused exclusively on resolving environmental disputes. The Environment Court is a critical institution in New Zealand\u27s effort to move toward sustainable management of the environment. Exercising broad powers to review most of the fundamental issues arising under the RMA, the Court is the primary arbiter of whether activities and policies affecting the environment meet New Zealand\u27s standard of sustainability. It is a rare institution, a specialized court of law composed of judges and technically-trained laypersons vested with the power of de novo review of government policy and both governmental and private actions affecting the environment. The court issues decisions of binding effect on particular disputes and potentially far-reaching precedential effect on crucial legal, factual and policy issues arising under New Zealand\u27s law of sustainability. New Zealand\u27s experience with its Environment Court is instructive both for nations that have mature traditions of environmental governance and adjudication and for countries that have nascent systems of environmental law. For the United States, this experience represents a road not taken. At the advent of America\u27s era of modern federal environmental statutes, Congress directed the President to analyze “the feasibility of establishing a separate court, or court system, having jurisdiction over environmental matters.” Upon the Justice Department\u27s negative recommendation, no federal environmental court system was established. Rather, environmental disputes continue to be decided by courts of general jurisdiction applying principles of general and administrative law. For other jurisdictions less bound by settled traditions, New Zealand\u27s example might provide a blueprint for environmental governance. In either case, understanding the role of New Zealand\u27s Environment Court within that country\u27s system of environmental governance brings into focus some important policy choices inherent in granting a court of law such sweeping powers under a legal regime based on sustainability. This Article examines the New Zealand model and reflects on the policy choices that it encompasses