Chapter V

Chapter V examines the timeframe for decision-making in the public sphere, and argues that the principle of intergenerational equity could provide a means for judges to require administrative decision makers to take a longer term perspective with respect to environmental considerations. It begins by observing that over the last forty years, environmental law (both internationally and in domestic jurisdictions across the world) has increasingly been required to address the special issues created by geographically and temporally disparate damage and causes. While environmental law has become more adept at addressing spatially disparate environmental damage, a better capacity to deal with the temporally disparate nature of the causes and effects of environmental damage is long overdue.

The chapter argues that the principle36 of intergenerational equity, which provides a particular focus on temporal relations, has great potential as means of resolving environmental problems in which current interests conflict with the reasonably identifiable interests of future generations. In order to test the potential of the principle of intergenerational equity, this chapter provides an analysis of the hitherto underexamined case law. In doing so, it provides a new focus on the practical implications of the principle of intergenerational equity when enforced by courts.

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At its most basic level, a principle of intergenerational equity is a principle that promotes equitable relationships between generations. It is based on the notion that justice between generations requires equity between generations. As with any application of equity, what constitutes an equitable relationship in an intergenerational context is essentially a normative question. That is to say, a principle of intergenerational equity should address such issues as whether all people have equal moral status (or, practically speaking, whether and to what extent future generations’ interests should be discounted), and what distributive principles should apply between generations. The chapter goes on to explicate, in some detail, the definition of intergenerational equity. It stresses that what a principle of intergenerational equity would require in any one case is likely to vary; this is why an examination on real case law on the principle is so useful.

Scholarship on intergenerational equity over the years has been largely normative in character – it seeks to explain why a principle of intergenerational equity is desirable. Much less work has been done to understand the practical implications of judges’ application of the principle to factual situations. This Chapter seeks to fill that gap. A review of relevant literature and case law internationally shows that very few cases have addressed the concept of intergenerational equity. Only in Australia does a nascent jurisprudence on the principle of intergenerational equity appear to have formed.

This chapter therefore presents an analysis of the existing jurisprudence on intergenerational equity. The principle is striking in its ambition. As the examination of its definition indicates, it has received attention on the world stage, most notably as a concept informing a number of international conventions, including, most obviously, the Rio Declaration. It is somewhat surprising, then, that it has thus far had limited application in practice. Nonetheless, the ramifications of its application, however infrequent, must not be underestimated. The most significant case law in the field internationally has been generated in Australia; three decisions from the New South Wales Land and Environment Court are examined here: Gray v Minister for Planning,  Taralga Landscape Guardians Inc v Minister for Planning,  and Walker v Minister for Planning. The use of Australian cases to elucidate the nature and requirements of the principle should not be construed as limiting the arguments and implications of this work to the Australian context. On the contrary, the issues raised in this paper are relevant to all common law jurisdictions and go to the heart of humanity’s prospects for addressing long-term environmental problems.

The Australian case law on intergenerational equity raises several salient issues. First, Australia’s legislative provision with respect to intergenerational equity leaves much of the responsibility for determining the content or practical consequences of the principle to judges. Given the difficulty inherent in legislating for long-term goals, these cases highlight the potential for the judiciary, as an independent and tenured branch of government, to develop systematic protection for the interests of future generations. Second, the Australian example suggests that legislative temptation might be overcome by judicial foresight and prudence in this area. If this is true, its implications for democracy should be assessed. Third, the case law indicates that the principle of intergenerational equity requires decision-makers to consider cumulative environmental impact, hinting at a radical change in the way that environmental harm is assessed: it represents a clear departure from earlier interpretations of environmental harm, which were largely concerned with point source pollution (pollution originating an identifiable and discrete time and place). It also underscores a judicial willingness to recognise the long time horizon of many environmental problems.

Fourth, cases on the principle of intergenerational equity may require judges to prioritise the interests of future generations over those of current generations to some extent. As such, an examination of the early case law on intergenerational equity must bring us to question whether intergenerational equity and intra-generational equity are mutually reinforcing, as is often claimed. These points are significant. Finally, a set of implications can be drawn from the fact that all of these cases are all based in administrative law. While the use of administrative law as a form of environmental redress has advantages in the context of the principle of intergenerational equity (in particular, it provides a preventative rather than reactive remedy), it also has several limitations. In particular, the broader applicability of decisions made under the New South Wales Land and Environment Court’s special merits review jurisdiction is somewhat uncertain. Moreover, there appears to be a trend to consider the principle of intergenerational equity as integral to environmental impact assessments; this risks limiting its scope.

Chapter V concludes by noting that the interests of future generations are often at odds with those of the present, particularly in the context of the environment. Legislators, as elected representatives of current generations, have little incentive to make laws that protect the environmental well-being of future generations if those laws in any substantial way restrict the way of life of their living constituency. Even where legislators do enact measures that risk current unpopularity for a future gain, their work may be repealed by a more populist successor; parliaments cannot bind their successors. On a more local scale, administrative decision-makers are often tempted by similarly short-term incentives.

For these reasons, the principle of intergenerational equity is a hopeful addition to environmental law. Though thus far little-used, the principle aims to balance the interests of current and future generations in decision-making, in particular with respect to the environment. This Chapter seeks to elucidate the practical implications of the principle by examining its appearance in Australian case law, where the jurisprudence on the principle is most developed. The practical impact of the principle of intergenerational equity is potentially far-reaching, and as such judges have been given a wide discretion with respect to the environmental interests of future generations. Given the failure of legislators to protect the environmental interests of future generations where they conflict with the current interests (usually economic) of current constituencies, the tempering potential for the principle of intergenerational equity is profound. Moreover, the tenured and independently appointed judiciary is structurally less beholden to short-term considerations than those in the legislature.

Chapter VI

Chapter VI brings together the issues from the first three papers by conceptualising intergenerational equity in resource management as an issue of long-term investment. Long-term investment is generally described within the context of financial markets; this Chapter associates the strategies for and barriers to long-term investing in the financial world with long-term natural resource management. In doing so, it draws extensively upon Brown Weiss’s seminal treatise on the virtues of an intergenerational perspective for the environment and considers her proposed ‘planetary trust’ – an institutional solution to the problem of governing long-term commitment. Central to the argument presented in this Chapter is the suggestion that Brown Weiss’ solution looks very much like the governing structure of a defined benefit pension plan – an institution that carries obligations to different generations, with time-horizons as long as 80-100 years. The problem, though, is that these types of institutions have struggled to be effective long-term investors.

Crucially, the trustees of these institutions often fail to balance the competing interests of current and future beneficiaries, typically focussing on short-term rather than long-term outcomes. Where they succeed, they remain vulnerable to intervention by the state on behalf of current generations (who are, of course, political constituents). The planetary trust notion, while conceptually useful in the context of resource management, is flawed in theory, just as its resemblant institutions are in practice. The theoretical insights gained through a critique of the planetary trust concept are then tested within the practical context of water management in Australia’s Murray Darling Basin. This Chapter characterises the Murray Darling Basin Authority (the Authority) as an institution that adopts some of the planetary trust’s essential features as an independent (trustee-like) institution charged with managing Australia’s most significant freshwater resources over the long-term; likewise, it faces many of the challenges that we predict in our critique of the planetary trust.

The management of water over the long-term involves the interests of current and future generations. Rainfall patterns differ from year to year, leading to highly variant ecological pressures over the short-term. Over the longer-term, population growth and development are expected to put an increasing strain on water resources globally. If current rates of growth continue, global annual water use is expected to increase to 6.9 trillion cubic metres (2 trillion more than in 2010). This is 40% more than current water sources can provide. Climate change presents additional uncertainties to the availability of water across space and time over the next century. In these circumstances, the gradual depletion and degradation of river systems could lead to significantly compromised access to water resources for future generations in some regions. The management of water for the future becomes, increasingly, an immediate concern.

The Chapter begins by conceptualizing long-term investment as a means to strive for intergenerational equity. In order to do so, it is necessary to return briefly to the notions of intergenerational justice and equity, which were discussed in Chapter V, before detailing the concept of long-term investment and the barriers obstructing its realisation: adherence to long-term aims, whether in investment or in management of resources, often proves difficult to achieve. The next section begins by describing Brown Weiss’s notion of Planetary Trust as a rare attempt to produce an instrumental means for facilitating justice between members of different generations. The Planetary Trust concept is flawed, however; this section continues with a critique of both the theoretical underpinnings and the practical implications of the Planetary Trust concept. In particular, it notes the similarities between the Planetary Trust and the defined benefit pension fund – an institution whose limitations are now clear.

The Chapter then relates the Planetary Trust concept to the practice of water management in Australia’s Murray Darling Basin, arguing that the Murray Darling Basin Authority has a role with respect to the long-term management of water that can be categorized as analogous, in its essential features, to that of the Planetary Trust. The section outlines the role and structure of the Authority, its recent findings with respect to the long-term environmental requirements of water use in the Basin, and finally the political reaction to these findings. In short it is argued that the stated reasons for the government and other stakeholders’ negative reception of the Authority’s findings, couched in fantastical demands for a ‘triple bottom line’ approach, in fact demonstrate the most fundamental theoretical flaw of the Planetary Trust: the impossibility, in a political context, of protecting long-term interests from the meddling hands of the present.

Methodology

Much of the research required by Chapters III and V of this thesis was conducted using case law analysis. The perspective underlying the research sympathises with the legal realist perspective that ‘law making and adjudication [should be approached] strategically with an eye toward difficulties in implementation.’ This position is not necessarily inconsistent with legal positivism (which sees the law as that which has been posited, decided or allowed; or as Leslie Green puts it ‘in a more modern idiom, positivism is the view that law is a social construction’), to the extent that both perspectives see the law as a matter of social fact. In contrast to natural law theory (which sees law as deriving its authority from a higher power, such as God) the legal realist perspective generally holds that ‘what is law’ is demonstrated by the practice of judges and courts. As such, this thesis has looked at the letter of the law, but has drawn conclusions more strongly from the outcomes of cases. For example, Chapter III notes that fiduciary duty requires trustees to act in the best interests of beneficiaries. However, the Chapter concludes that in practice, courts, lawyers and commentators treat fiduciary duty as requiring trustees to do as other trustees do, thereby ingraining an already-present tendency toward herding.

Chapter V finds little help from the wording of the law in determining the meaning of ‘the principle of intergenerational equity’ – instead it is necessary to look at how judges have interpreted the law. The findings in Chapter V are further complicated by the administrative (merits) review nature of the cases presented – in merits review cases, judges put themselves in the shoes of the original decisionmaker. Arguably, judges conducting merits review are acting outside their judicial capacity, and many have argued that decisions made in merits review cases cannot be applied as precedents in future cases. This is not necessarily true, but nonetheless adds an interesting dimension to the view that law is demonstrated by practical outcomes. In the case of the principle of intergenerational equity, the law appears as a patchwork of implications whose precedential value is, if still relevant, far from obvious.

While this thesis is based most firmly in legal methodology, it has been necessary to move beyond the law as a point of analysis, particularly with respect to the more practical studies presented in Chapters IV and VI. The environment is a complex issue. The language of the law is not yet fully equipped to deal with the environment’s dynamism, particularly its spatial and temporal dimensions, which appear to be unintuitive to orthodox legal problem-solving. It is for this reason that it was necessary to draw upon other disciplines in the search for answers. In particular, the literature review sets out the temporal problems posed by climate change; while this thesis makes no claim at conducting any scientific inquiry, it is nonetheless necessary to draw on the scientific literature that is so essential to this field. Likewise, the study of timeframes can be greatly clarified by literature appearing outside of legal academia. In particular, psychology and philosophy have provided relevant background reading here. Once again, the thesis makes no claim to have conducted any primary research in these fields. Rather, it finds them essential to help in the analysis of the primarily legal problems explored.

Much has been said about the opportunities, and the pitfalls, present in interdisciplinary research. This thesis has had to confront the difficulties of interdisciplinary research, keeping in mind Posner’s60 views on the topic:

interdisciplinary scholarship looms very large, and if it continues to grow as fast as it has in the last thirty years … it will come eventually to dominate academic law… [I]ts future, which is threatened by problems of quality arising from the peculiar and inadequate institutional structure of interdisciplinary legal scholarship, depends on the ability of the practitioners of this scholarship to influence practice, rather than merely to circulate their ideas within the sealed network of a purely academic discourse.

It is essential that in reaching beyond law to offer legal solutions to the problems posed by climate change, this thesis also reach beyond the language of the law, creating proposals about the environment which are comprehensible inside, and outside, of law. Only in this sense can the work done here be truly interdisciplinary, and truly effective.

Limits of inquiry

Several things should be said about the limitations to this thesis. The concepts and cases considered occur within three countries: Australia, the UK and the US. There are several reasons for this. The first is purely personal: the author is a citizen of the US and Australia, attended law school in Australia, and has written this DPhil in the UK; law in these jurisdictions is therefore of particular personal relevance. The second is practical: having learnt to research legal concepts within the common law system, a focus on the chosen jurisdictions is a natural way to be able to enter quickly into researching the issues that matter, rather than focusing on the basics of a legal system. The third is contextual: the trust institutions studied here are creatures of the common law – conceived in trust law and shaped by the concerns of an educated and economically liberal work force, the discussion of pension funds, the Planetary Trust and the environment is well-suited to a common law context. Finally, the concept of intergenerational equity, the subject of the penultimate Chapter of this thesis, has found most traction in Australian law.

The central legal concepts selected – fiduciary duty and intergenerational equity – represent only two of what are undoubtedly many ways of responding to the question of how the law can help to extend the timeframe for environmentallyrelevant decision-making. Nonetheless, these concepts are extremely important and to consider them in any less detail would have been to discount their value. As it was, there was no room for the consideration of other potential responses to the research questions.

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