The Role of the Judiciary in Earth Jurisprudence : An Analysis of Judicial Approaches to Standing in Climate Change and Environmental Justice Litigation

The role of the judiciary in common law systems is to create law, interpret law and uphold the law. As such decisions by courts on matters related to ecologically sustainable development, natural resource use and management and climate change make an important contribution to earth jurisprudence. There are examples where judicial decisions further the goals of earth jurisprudence and examples where decisions go against the principles of earth jurisprudence. This presentation will explore judicial approaches to standing in Australia and America. The paper will explore two trends in each jurisdiction. Approaches by American courts to standing will be examined in reference to climate change and environmental justice litigation. While Australian approaches to standing will be examined in the context of public interest litigation and environmental criminal negligence cases. The presentation will draw some conclusions about the role of standing in each of these cases and implications of this for earth jurisprudence.

Legal activism for ensuring environmental justice

This article reviews some of the roles environmental lawyers have played in ensuring environmental justice in Bangladesh. It leans on law and social movement theories to explicate the choice (and ensuing success) of litigation as a movement strategy in Bangladesh. The activists successfully moved the courts to read the right to a decent environment into the fundamental right to life, and this has had the far-reaching effect of constituting a basis for standing for the activists and other civil society organisations. The activists have also sought to introduce emerging international law principles into the jurisprudence of the courts. These achievements notwithstanding, the paper notes that litigation is not a sustainable way to institute enduring environmental protection in any jurisdiction and recommends the utilisation of the reputation and recognition gained through litigation to deploy or encourage more sustainable strategies.

Cents and Sustainability : Securing Our Common Future by Decoupling Economic Growth from Environmental Pressures

The focus of Cents and Sustainability is to respond to the call by Dr Gro Brundtland in the seminal book Our Common Future to achieve, 'a new era of economic growth - growth that is forceful and at the same time socially and environmentally sustainable'. With the 20th anniversary of Our Common Future in 2007, it is clearly time to re-examine this important work in a modern global context. Using the framework of ‘Decoupling Economic Growth from Environmental Pressures’, Cents and Sustainability investigates a range of new evidence and research in order to develop a deeper understanding of how, and under what conditions, this 'forceful sustainable growth' is possible. With an introduction by Dr Jim MacNeill (former Secretary General to the Brundtland Commission, and former Director, OECD Environment Directorate 1978 -1984), the book will carry forewords from Dr Gro Brundtland (former Chair of the World Commission on Environment and Development), Dr Rajendra Pachauri (Chief, Intergovernmental Panel on Climate Change (IPCC), and joint recipient of the 2007 Nobel Peace Prize on behalf of the IPCC), and Dr Kenneth Ruffing (former Deputy Director and Chief Economist of the OECD Environment Directorate 2000 - 2005). Beginning with a detailed explanation of decoupling theory, along with investigation into a range of issues and barriers to its achievement, the book then focuses on informing national strategies for decoupling. Then putting this into action the book focuses on five key areas of decoupling, namely greenhouse gas emissions, biodiversity, freshwater extraction, waste production, and air pollution, and in each case showing compelling evidence for significant cost effective reductions in environmental pressures. The book concludes with a detailed case study of the groundbreaking application of public interest litigation to combat air pollution in Delhi, India.

Public participation, values and interests in the procurement of infrastructure projects in Australia : a review and future research direction

In many countries, the main providers for major infrastructure projects are government or public agencies. Public infrastructure projects includes economic and social infrastructure such as transportation, education and health facilities. Most decision-making models for delivery of public infrastructure projects are heavily weighted towards financial/economic factors. In Australia, public participation is an essential instrument in the procurement of infrastructure and development within Australia. This study reviews the public participation, values and interests in the procurement of infrastructure projects in Australia, and identifies the research direction in this research area in order to improve the decision-making models that capture stakeholder social, economical and environmental concerns in infrastructure projects.

Property : a regulatory instrument for protecting private and public interests in the environment

Property in an elusive concept. In many respects it has been regarded as a source of authority to use, develop and make decisions about whatever is the subject matter of this right of ownership. This is true whether the holder of this right of ownership is a private entity or a public entity. Increasingly a right of ownership of this kind has been recognised not only as a source of authority but also as a mechanism for restricting or limiting and perhaps even prohibiting existing or proposed activities that impact upon the environment. It is increasingly therefore an instrument of regulation as much as an instrument of authorisation. The protection and conservation of the environment are ultimately a matter of the public interest. This is not to suggest that the individual holders of rights of ownership are not interested in protecting the environment. It is open to them to do so in the exercise of a right of ownership as a source of authorisation. However a right of ownership – whether private or public – has become increasingly the mechanism according to which the environment is protected and conserved through the use of rights of ownership as a means of regulation. This paper addressed these issues from a doctrinal as well as a practical perspective in how the environment is managed.

Property : an instrumental institution for environmental governance

Property in an elusive concept. In many respects it has been regarded as a source of authority to use, develop and make decisions about whatever is the subject matter of this right of ownership. This is true whether the holder of this right of ownership is a private entity or a public entity. Increasingly a right of ownership of this kind has been recognised not only as a source of authority but also as a mechanism for restricting or limiting and perhaps even prohibiting existing or proposed activities that impact upon the environment. It is increasingly therefore an instrument of control as much as an instrument of authorisation. The protection and conservation of the environment are ultimately a matter of the public interest. This is not to suggest that the individual holders of rights of ownership are not interested in protecting the environment. It is open to them to do so in the exercise of a right of ownership as a source of authorisation. However a right of ownership – whether private or public – has become increasingly the instrument according to which the environment is protected and conserved. This article addresses these issues from a doctrinal as well as a practical perspective about how the environment is managed. It does so in five ways: ●considering briefly property as a concept ●reviewing property in its historical context ●analysing property as a human right ●examining property in natural resources ●reviewing judicial approaches to property in natural resources.

Pro bono partnerships in environmental law : enhancing outcomes for universities and CLCs

CLE can be a life-changing event in a law student’s education. It can open their eyes to the day-to-day operation of justice and provide them with examples of possible career paths they may never have thought existed. Yet it can also provide long-term benefits for CLCs and academics. Recent CLE models have moved towards partnerships with external organisations and away from on-site legal clinics. Some examples have exhibited success with a multidisciplinary approach involving students from non-law disciplines to provide a holistic approach to a CLC’s needs. Such a multidisciplinary approach is of particular benefit in community lawyering clinics where students are engaged in social change lawyering. The QUT/EDO partnership presents a new model in the environmental clinic landscape in Australia. Initial feedback suggests that the clinic has assisted students in gaining insight into the access to justice issues arising from mining activities and to raise the level of understanding and awareness among community members of their legal rights to protect the environment. Looking at ways to increase partnerships between universities and CLCs is of vital importance in the future, given recent federal government CLC funding cuts. The legal clinic model has great potential to evolve and contribute in ensuring the continued operation of legal initiatives to protect the environment in the public interest.

Adoption of environmental assurance in pastoral industry supply chains - Market failure and beyond

This paper describes adoption rates of environmental assurance within meat and wool supply chains, and discusses this in terms of market interest and demand for certified 'environmentally friendly' products, based on phone surveys and personal interviews with pastoral producers, meat and wool processors, wholesalers and retailers, and domestic consumers. Members of meat and wool supply chains, particularly pastoral producers, are both aware of and interested in implementing various forms of environmental assurance, but significant costs combined with few private benefits have resulted in low adoption rates. The main reason for the lack of benefits is that the end user (the consumer) does not value environmental assurance and is not willing to pay for it. For this reason, global food and fibre supply chains, which compete to supply consumers with safe and quality food at the lowest price, resist public pressure to implement environmental assurance. This market failure is further exacerbated by highly variable environmental and social production standards required of primary producers in different countries, and the disparate levels of government support provided to them. Given that it is the Australian general public and not markets that demand environmental benefits from agriculture, the Australian government has a mandate to use public funds to counter this market failure. A national farm environmental policy should utilise a range of financial incentives to reward farmers for delivering general public good environmental outcomes, with these specified and verified through a national environmental assurance scheme.

Environmental microbiology for public health: capturing international developments in the field

Environmental microbiology is an evolving science. This is in part driven by the development of new analytical techniques that are becoming more varied and powerful. Before they are applied, emerging techniques need to be critically evaluated by scientists, technical professionals, practitioners and students.

Environmental performance policy indicators for the public sector: The case of the defence sector

Journal of Environmental Management, nº 82 p. 410–432

Evaluation of cumulative externality: environmental economics, oligopoly and the private provision of public goods

This paper evaluates environmental externality when the structure of the externality is cumulative. The evaluation exercise is based on the assumption that the agents in question form conjectural variations. A number of environments are encompassed within this classification and have received due attention in the literature. Each of these heterogeneous environments, however, possesses considerable analytical homogeneity and permit subscription to a general model treatment. These environments include environmental externality, oligopoly and the analysis of the private provision of public goods. We highlight the general analytical approach by focusing on this latter context, in which debate centers around four issues: the existence of free-riding, the extent to which contributions are matched equally across individuals, the nature of conjectures consistent with equilibrium, and the allocative inefficiency of alternative regimes. This paper resolves each of these issues, with the following conclusions: A consistent-conjectures equilibrium exists in the private provision of public goods. It is the monopolistic-conjectures equilibrium. Agents act identically, contributing positive amounts of the public good in an efficient allocation of resources. There is complete matching of contributions among agents, no free-riding, and the allocation is independent of the number of members within the community. Thus the Olson conjecture—that inefficiency is exacerbated by community size—has no foundation in a consistent-conjectures, cumulative-externality, context (212 words).

Regulatory and enabling approaches to corporate law enforcement : patterns of litigation 1986-2002 and the effect of recent reforms in New Zealand, Australia and the United Kingdom

Enforcement of corporate rights and duties may follow either a ‘regulatory’ or ‘enabling’ model. If a regulatory approach is taken, enforcement action will generally be undertaken by regulatory agencies such as, in New Zealand, the Registrar of Companies and Securities Commission, the Australian Securities and Investments Commission (ASIC) or the Department of Trade and Industry (DTI) in the United Kingdom. If an enabling approach is chosen, enforcement action will more often be by private parties such as company shareholders, directors or creditors. When New Zealand's company law was reformed in 1993, a primarily private enforcement regime was adopted, consisting of a list of statutory directors' duties and an enhanced collection of shareholder remedies, based in part upon North American models and including a statutory derivative action. Public enforcement was largely confined to administrative matters and the enforcement of the disclosure requirements of New Zealand's securities law. While the previous enforcement regime was similarly reliant on private action, the law on directors' duties was less accessible, and shareholder action was hindered by the majority rule principle and the rule in Foss v Harbottle. This approach is in contrast with that used in Australia and the United Kingdom, where public agencies have a much more prominent enforcement role despite recent and proposed reforms to directors' duties and shareholder remedies. These reforms are designed to improve the ability of private parties to enforce corporate rights and duties. A survey of enforcement litigation in New Zealand since 1986 indicates that the object of a primarily enabling enforcement regime seems to have been achieved, and may well have been achieved even without the 1993 reform package. Private enforcement has, in fact, been much more prevalent than public enforcement since well before the enactment of the new legislation. Most enforcement action both before and after the reform was commenced by shareholders and shareholder/directors, and most involved closely held companies. Public enforcement was largely undertaken in areas such as securities law, where the wider public interest was affected. Similar surveys of Australian and United Kingdom enforcement litigation reveal a proportionally much greater reliance on public bodies to enforce corporate rights and duties, indicating a more regulatory approach. The ASIC and DTI enforced a wider range of provisions, affecting both closely and widely held companies, than those subject to public enforcement in New Zealand. Publicly enforced provisions in Australia and the United Kingdom include directors' duties and provisions dealing with disqualification from managing companies, as well as securities law requirements.

Conflict of interest in policing and the public sector

Conflicts of interest are a key factor in the contemporary decline of trust in government and public institutions, eroding public trust in government and democratic systems. Drawing on two unique empirical studies involving policing and the broader public sector, this paper explores the meaning and dimensions of conflict of interest by examining public complaints about conflict of interest and providing distinctive insights into the nature of conflict of interest as a problem for public sector ethics. The paper analyses and explores appropriate regulatory and management approaches for conflict of interest, focusing on three elements: (1) dealing with private interests that are identifiably problematic in the way they clash with the duties of public officials; (2) managing conflicts as they arise in the course of public sector work (manifested in preferential and adverse treatment, and other problematic areas); and (3) developing ethical and accountable organisational cultures. It is concluded that effective and meaningful public sector ethics in the pursuit of the public interest must be based on an ethos of social accountability and a commitment to prioritise the public interest in both fact and appearance.

Workshop on public participation in international negotiations on environmental matters: Panel on environmental justice and access rights for sustainable development in Latin America and the Caribbean

This publication was prepared with financial support from the United Nations Development Account and the project “Addressing critical socio-environmental challenges in Latin America and the Caribbean ”

Q method factor analysis of stakeholder social perspectives of the effectiveness of Environmental Impact Assessment public participation in the Western Cape, South Africa

Public participation is an integral part of Environmental Impact Assessment (EIA), and as such, has been incorporated into regulatory norms. Assessment of the effectiveness of public participation has remained elusive however. This is partly due to the difficulty in identifying appropriate effectiveness criteria. This research uses Q methodology to discover and analyze stakeholder's social perspectives of the effectiveness of EIAs in the Western Cape, South Africa. It considers two case studies (Main Road and Saldanha Bay EIAs) for contextual participant perspectives of the effectiveness based on their experience. It further considers the more general opinion of provincial consent regulator staff at the Department of Environmental Affairs and the Department of Planning (DEA&DP). Two main themes of investigation are drawn from the South African National Environmental Management Act imperative for effectiveness: firstly, the participation procedure, and secondly, the stakeholder capabilities necessary for effective participation. Four theoretical frameworks drawn from planning, politics and EIA theory are adapted to public participation and used to triangulate the analysis and discussion of the revealed social perspectives. They consider citizen power in deliberation, Habermas' preconditions for the Ideal Speech Situation (ISS), a Foucauldian perspective of knowledge, power and politics, and a Capabilities Approach to public participation effectiveness. The empirical evidence from this research shows that the capacity and contextual constraints faced by participants demand the legislative imperatives for effective participation set out in the NEMA. The implementation of effective public participation has been shown to be a complex, dynamic and sometimes nebulous practice. The functional level of participant understanding of the process was found to be significantly wide-ranging with consequences of unequal and dissatisfied stakeholder engagements. Furthermore, the considerable variance of stakeholder capabilities in the South African social context, resulted in inequalities in deliberation. The social perspectives revealed significant differences in participant experience in terms of citizen power in deliberation. The ISS preconditions are highly contested in both the Saldanha EIA case study and the DEA&DP social perspectives. Only one Main Road EIA case study social perspective considered Foucault's notion of governmentality as a reality in EIA public participation. The freedom of control of ones environment, based on a Capabilities approach, is a highly contested notion. Although agreed with in principle, all of the social perspectives indicate that contextual and capacity realities constrain its realisation. This research has shown that Q method can be applied to EIA public participation in South Africa and, with the appropriate research or monitoring applications it could serve as a useful feedback tool to inform best practice public participation.