The cases described in the preceding section are significant to this Chapter less for their specific outcomes than for the contribution they have made to the elucidation of the principle of intergenerational equity under Australian law (and, potentially, to law internationally). In combination with several other cases and academic writing, these cases have contributed to the beginnings of judicial understanding of the principle of intergenerational equity under Australian law. Five main implications can be drawn from these cases on intergenerational equity. The first three suggest that the principle of intergenerational equity is extending the temporal reach of environmental law. First, the fact that the Australian legal system relies on judges to elaborate the content of the principle of intergenerational equity is profound.The strong judicial role in developing the content of the principle could lead to a requirement of genuine consideration of the interests of future generations in relevant decision-making. This could provide a viable means to overcome the short-term bias so often encountered in legislative attempts to address environmental problems.
The cases indicate that the principle of intergenerational equity requires decision-makers to consider a development’s cumulative impacts on the environment. This seems to indicate a judicial interest in long-term environmental consequences and represents an encouraging departure from myopic interpretations of environmental law. It does however raise the question of how to prioritise future environmental interests against the resource needs of the least well-off members of the current generation.While this Chapter makes no claim to having a solution to this problem, the issues and their implications are discussed. A final, and more procedural (but nonetheless important) implication, can be drawn: the cases underline the propensity for administrative law actions to advance environmental law interests. However, they also raise the question of the extent to which the decisions rely on basic administrative law principles, rather than newer environmental law principles. In other words, if a principle of administrative law had been at odds with the relevant ESD principle, which would have prevailed? Biscoe J’s judgement in Walker in particular gives the impression that administrative procedures lie at the heart of the outcomes of these decisions.
For this reason, the reach of these decisions should not be overstated; instead they should be taken as laying the foundations of a nascent jurisprudence on intergenerational equity.
Intergenerational equity as a judge-made principle
It is important to stress the significance of the strong role judges have in determining the content of the principle of intergenerational equity. As tenured and appointed decision-makers, judges have an enhanced ability to consider the long-term impacts of cases at hand. In this author’s view, the ability of the judges to consider long-term interests when interpreting the principle of intergenerational equity is desirable.
However, the potential scope for the judicial interpretative role here is very wide; as such its implications for democracy are also considered. In an academic article, Justice Ronald Sackville notes the increasing range and depth of Australian judicial lawmaking in recent times. This phenomenon, he argues,
has less to do with the particular reforming proclivities of Australian judges than with the far-reaching changes in Australian society and the structure of the legal system itself… the social welfare state has left a legacy in the form of reliance on legislation as the means of regulation and a source of rights.
Noting that legislation underpins the relatively new legal field of environmental law, Sackville notes that ‘[p]aradoxically perhaps, the greater the degree of legislative intervention, the more extensive the discretionary power conferred on courts and the greater the range of politically sensitive decisions the courts are obliged to make.’This certainly appears to be the case with respect to judges’ discretion about the content of principles of ESD. The simple wording of the principle of intergenerational equity under Australian law provides a wide interpretative scope for judges:
the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
If we consider how judges might, hypothetically, interpret this provision over time, it is clear that there is a wide range of potential outcomes.
On the one hand, the legislative requirement has the potential to create a very onerous burden on current generations. Ensuring that environmental conditions are enhanced, in particular, could be interpreted judicially to require not only that the current generation refrain from taking certain polluting actions, but also that they take positive actions to improve the health, diversity and productivity of the environment.On the other hand, the legislative provision could be interpreted as requiring only a light burden on current generations in order to maintain current environmental conditions, potentially allowing the status quo. As the Australian population grows, this could result in de facto reduced environmental standards for future generations, assuming that a greater population with the same environmental resources results in a lower per capita environmental quality.Furthermore, the principle of intergenerational equity has the potential to be applied in a wide range of legal contexts. While the cases discussed in this Chapter mainly consider the notion of intergenerational equity within the context of determining the adequacy of environmental impact assessment, there is no reason that the judicial application of the principle should be so limited in the future. This is particularly so given that the principles of ESD are foreseen as applicable in a wide range of circumstances under the various schedules of the Intergovernmental Agreement on the Environment.
The nine schedules to the Intergovernmental Agreement provide information on the implementation and application of the principles of sustainable development, including the principle of intergenerational equity. One of these schedules (schedule 3) deals with environmental impact assessments, but the other eight deal with a wide range of situations: (1) data collection and handling; (2) resource assessment; (4) national environment protection measures; (5) climate change; (6) biological diversity; (7) national estate; (8) world heritage; and (9) nature conservation. Presumably, therefore, the principle of intergenerational equity could arise with respect to any of these scheduled contexts.
Judges, Democracy and the Environment
In short, the scope for judicial lawmaking here is wide, and raises the question of whether the judiciary is properly placed to make the decisions that, as the cases show, may involve balancing the competing interests of current and future generations. Judicial lawmaking is, of course, a matter which has often been the cause of deep political debate. In the US, Justice Antonin Scalia has described how judges interpret legislation as ‘a question utterly central to the existence of democratic government.
’ For many, the question as to how and to what extent the current generation should foster the environmental interests of future generations would be best left up to a democratically elected body to decide, rather than to judges, who are unaccountable to the electorate.This is the sort judicial philosophy championed by the some of the US Supreme Court Judges for the early 20th Century, including Oliver Wendall Holmes and Louis Brandeis, whose opposition to judicial lawmaking ‘revolved around the supposed superiority of democratic – that is, legislative – choice mechanisms’. These observations are relevant to the present context, if only because such a preference for democratic environmental decisions might be inferred from the approach that Brown Weiss suggests for the implementation and enforcement of the principle of intergenerational equity.Brown Weiss, whose writing has influenced not only academics but also judges in this field, has argued that each member of the current generation acts as a ‘guardian’ of the planet, holding it on trust for members of the future generation (a concept she refers to as the ‘Planetary Trust’). This approach assumes that all members of the current generations will accept a role as guardian. It also leaves unsaid what should occur if member of the current generation hold different views as to what their guardianship entails. It seems reasonable to deduce that Brown Weiss’s theory would require members of the current generation to take a democratic approach to deciding how best to manage the environment.However, as past and indeed present environmental performance in democratic countries around the world indicates, a democratic approach to management of the environment is by no means a safeguard of the interests of the environment itself.
Legislation is subject to the short-term demands of the political cycle. Once again, climate change provides an apt example: governments around the common law world (with some notable exceptions) have thus far failed to enact comprehensive legislation to reduce greenhouse emissions effectively. The advantages of climate change legislation will be felt over the long-term, but in the short-term, putting a price on carbon dioxide is likely to have the effect of increasing fuel and energy prices. In short, the temporal nature of environmental problems like this one makes them difficult for legislatures to address. A similar difficulty occurs with respect to capital savings for the future; in a range of contexts we search for institutions capable of prioritising the longer-term.In Australia, for instance, the founders of the Future Fund, a large national fund set aside for meeting future public sector pension obligations, has struggled to find a way to protect the fund capital from being used to fulfil short-term needs.
Established by an Act of Parliament, there is nothing to prevent future parliaments from repealing the Future Fund Act and creating a new Act redirecting its capital elsewhere. The Future Fund Act names those responsible for the management of the fund ‘guardians’; this is symbolic, implying a special level of protection or isolation from politics. It is an illusion: the guardians may be removed by whenever ‘the responsible Ministers are satisfied that the performance of the Board member has been unsatisfactory for a significant period.
’ More effective is the creation of conditions that mimic those of senior judges: tenure and independence from political demands. This approach has been taken, for example, with respect to central banks in some countries, where various structural measures are put in place to increase the independence of the bankersWhile legislative decisions about environmental problems are fraught with short-term biases, an approach which leaves environmental decisions to the most vocal or powerful people is no better. The recent attempt by the Australian Government to introduce a tax on mining profits not only saw off Prime Minister Kevin Rudd, but also demonstrated the ability of a tiny but vocal minority of Australians (mining industry leaders) to turn public opinion against an idea that was, at least in theory, to the benefit of the vast majority of Australians. With respect to enforcement of ‘planetary rights’, Brown Weiss has suggested that parliaments appoint a planetary ombudsman who can ensure that the Planetary Trust is upheld: in fact, this has occurred in Hungary and Israel; in neither place has the outcome been as Brown Weiss might have hoped.By contrast, judges, who are reasonably isolated from political pressure through tenured positions, are in a unique position to make decisions that could prove unpopular with vocal members of the community. While the Parliament has little incentive to promote the interests of future generations where they conflict with interests of current constituencies, judges are not beholden to the same concerns.
For this reason, judges have a more realistic potential to protect the interests of future generations, who, though addressed in the legislative principle of intergenerational equity, are unable voice their concerns in the political arena. It was this line of reasoning that led Justice Weeramantry of the International Court of Justice to say in the Nuclear Tests Case that ‘this Court must regard itself as a trustee of the interests of an infant unable to speak for itself’.As it currently stands, judges have the main role in shaping the character of the principle of intergenerational equity in Australia. For now judges have the opportunity to give effect to the principle of intergenerational equity, and in doing so may shift the balance in environmental responsibilities between current and future generations in ways that prove to be unpopular with some members of the community. It remains to be seen at what point Parliament would intervene. More broadly, the effects of judicial interpretation of the principle of intergenerational equity may have force beyond the courtroom; they may play a role in the formation of social norms with respect to the timeframe of interests considered in environmental decision-making. As Marcia Mulkey notes, ‘the judiciary’s upholding of appropriate and well-grounded environmental protection laws and actions to implement them adds materially to their acceptance by society at large.’
Cumulative Impact: a longer timeframe?
The principle of intergenerational equity is fundamentally different to other principles of ESD (and indeed other legal principles more generally) in that its focus is on justice not between contemporaries but between members of different generations.
Its temporal insistence is its essential feature. Whilst the precautionary principle requires decision-makers to act prudently with respect to potential future environmental problems, the principle of intergenerational equity is the only ESD principle that requires the balancing of future generations’ interests with those of the current generation. The notion of cumulative impact emphasizes the principle’s long-term focus: cumulative impact is, by nature, significant over either a wider space or a longer timeframe. Cumulative impact is, by definition, not relevant to a specific site, but rather becomes relevant in a broader context. The notion of cumulative impact represents a shift from a site-specific, spatially and temporally narrow view of environmental harm, to a more universal view of environmental impact.
The treatment of the principle of intergenerational equity in Gray, Traralga and Walker, and other Australian cases, reveals a judicial view that the principle of intergenerational equity requires administrative decision-makers to consider the cumulative impact on future generations of proposed developments. In Gray, Justice Pain argued that in an
environmental impact assessment which takes into account the principle of intergenerational equity…, one important consideration must be the assessment of cumulative impacts of proposed activities on the environment. As I stated in BT Goldsmith, failure to consider cumulative impact will not adequately address the environmental impact of a particular development where often no single event can be said to have such a significant impact that it will irretrievably harm a particular environment but cumulatively activities will harm the environment.
Chief Justice Preston echoed this line of reasoning in Taralga, arguing that in the context of energy production, the principle of intergenerational equity requires:
as far as is practicable, to increasingly substitute energy sources that result in less greenhouse gas emissions for energy sources that result in more greenhouse gas emissions, thereby reducing the cumulative and long-term effects caused by anthropogenic climate change. In this way, the present generation reduces the adverse consequences for future generations. [Emphasis added]
The idea of cumulative impact within the principle of intergenerational equity has appeared outside of the three major cases examined in this Chapter as well.
For instance, Pain J argued that intergenerational equity required cumulative impact assessment in the context of cultural impact in Anderson and Anor v DirectorGeneral of the Department of Environment and Conservation, stating in that case that the principle of intergenerational equity requires ‘an assessment of the cultural significance of a particular area in the context of whether its destruction would mean there was less opportunity for future generations of Aboriginal people to enjoy the cultural benefit of the site’. Part of Justice Pain’s reasoning concerned ‘the need to assess the cumulative impact of allowing the destruction of aboriginal objects in a particular area.’ It should be noted that the relevance of cumulative impact assessment may be limited in cases where the relevant cumulative impact includes impacts that are ‘hypothetical’ or ‘potential’.Despite these caveats, the endorsement by several judges of the importance of cumulative impact to the principle of intergenerational equity is significant in that it indicates an awareness of the long-term impact of multiple instances of environmental damage, something which is highly relevant to the interests of future generations. It is all the more significant as it appears to depart from the (mistaken) assumption that some legal academics (and to a lesser extent, members the judiciary) take in asserting that the principle of intergenerational equity and the principle of intra- generational equity are mutually reinforcing. This view appears to originate from principle 3 of the Rio Declaration, which states that ‘the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.
’The conflation of interests of current and future generations was not, however, carried forth into the Intergovernmental Agreement on the Environment. It is worth noting that the tendency to bundle together in an unproblematic fashion these two notions of equity appears to afflict legal academics more than others such as economists, presumably because it is lawyers who have replicated the wording of the Rio Declaration in judgments and academic Chapters.Next Page – Intergenerational Versus Intra-Generational EquityPrevious Page – International Legal Sources of Intergenerational Equity