[HN Gopher] Court rules climate change "duty of care" to future ...
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Court rules climate change "duty of care" to future generations
exists
Author : Bluestein
Score : 136 points
Date : 2021-05-28 18:04 UTC (4 hours ago)
(HTM) web link (www.judgments.fedcourt.gov.au)
(TXT) w3m dump (www.judgments.fedcourt.gov.au)
| casefields wrote:
| Same stunt being pulled in American courts except getting slapped
| down. Speaking of future generations, imagine _duty of care_
| being applied to abortion policy...
| Bluestein wrote:
| Ouch ...
|
| ... now -that- would be a can of worms ...
| [deleted]
| [deleted]
| Daishiman wrote:
| The legal argument with regards to climate change has to do
| with lives that will be realized, not that lives that won't.
|
| For those who do live in the future, climate change will impact
| them. If a potential person does not exist in the future
| because it is aborted, it is not subject to suffering due to
| climate change.
| rubyist5eva wrote:
| Life begins at conception.
| seattle_spring wrote:
| No it doesn't.
|
| See what I did there?
| Daishiman wrote:
| Non-sentient life that cannot suffer isn't something I care
| much about.
| rubyist5eva wrote:
| All human lives matter.
| analognoise wrote:
| So charge every woman who gets an abortion with murder. And
| miscarriages should be...what, second degree murder, I
| guess? Be consistent - how long should we jail women for,
| for terminating a pregnancy?
|
| Good luck trying to form your fascist theocracy.
| rubyist5eva wrote:
| The difference between abortion and miscarriage is
| intent, obviously. If not wanting to kill human babies is
| fascism, I don't want to be whatever the alternative is.
|
| I'm an agnostic atheist, btw - so theocracy...not so
| much. My views on abortion are informed by science.
| Daishiman wrote:
| No, because for some reason you prefer to value the lives
| of non-sentient embryos that are not human over, for
| example, extremely sentient non-human lives, unless
| you're also a vegan out of ethical concerns.
|
| If that's your position it has nothing to do with
| science. Value systems are informed by science but
| ultimately determined by subjective values.
|
| I subjectively don't give a rat's ass about an embryo
| that cannot feel anything and that has not experienced
| consciousness. I'd much rather care about sentient non-
| human beings.
| rubyist5eva wrote:
| > for some reason you prefer to value the lives of non-
| sentient embryos that are not human over, for example,
| extremely sentient non-human lives
|
| My, "some reason" being that as a member of the human
| species that members of my species have moral value over
| those that are not my species. Preserving my own species
| is of more importance to me than the preservation of
| sewer rats or farm animals.
|
| Your premise is also flawed: Embryos are human. They have
| distinct, unique human DNA from the moment they are
| conceived.
|
| > unless you're also a vegan out of ethical concerns.
|
| I try not to talk about it unless asked, and I've held
| these view long before I was vegan.
|
| Sentience has very little bearing on my argument, as
| there are humans that exist in early and late stages of
| life that have some kind of disfunction that renders
| them, for all intents and purposes, non-sentient. I do
| not believe it is ethical to kill a 40 year old that is
| in a coma, with no chance of ever waking up, for example.
|
| > If that's your position it has nothing to do with
| science. Value systems are informed by science but
| ultimately determined by subjective values.
|
| This is what I said. I said my views are informed by
| science. It is a scientific statement to say that an
| embryo is a human being because of it distinct DNA.
|
| > I subjectively don't give a rat's ass about an embryo
| that cannot feel anything and that has not experienced
| consciousness. I'd much rather care about sentient non-
| human beings.
|
| These are not mutually exclusive.
| Daishiman wrote:
| I find the premise that we should defend life of beings
| that carry DNA out of that simple fact to have no
| relevance towards my value system. "Human DNA" is not an
| intrinscally valuable characteristic for me. Sentience,
| on the other hand, ranks way up higher.
| pfisch wrote:
| An arbitrary distinction that does not convey the true
| complexity of the issue.
|
| Anyone would destroy millions of embryos vs killing a
| single actual baby. So they are clearly extremely different
| things.
| thaumasiotes wrote:
| I'm pretty sure it's not true that anyone would make that
| choice.
|
| It's not like killing a single actual baby is all that
| unusual.
| mensetmanusman wrote:
| I know it's a controversial topic, but it is philosophically
| interesting that the court would rule about future generations
| and their rights but simultaneously pass on the rights of humans
| about to leave the womb (who are atomistically more real than
| 'future generations').
| Pyramus wrote:
| I don't understand the connection to abortion at all - just
| because they somehow both concern 'future humans' doesn't mean
| there is a logical connection here, in the sense that A leads
| to B or B leads to A. Could you explain?
| mensetmanusman wrote:
| Both involve potentially realizable persons.
| obvthrowaway32 wrote:
| No? One applies to any future person that has been
| "realized", the other is about whether people are being
| "realized" or not. People that never existed in the first
| place don't need to be protected, but generally the two
| questions are just not related at all.
| mensetmanusman wrote:
| I think the confusion relies on whether one asserts that
| 'realized' is a persistent state variable.
| obvthrowaway32 wrote:
| I think what you are getting at is the question of when
| "being realized" begins, and while I know that we could
| be discussing that aspect for days and I would not sway
| you, what remains either way is the fact that there is no
| analogy to the topic at hand here.
|
| If you assert that "realization" begins very early, then
| legislation such as this one applies to the embryo as
| well. If you do not assert that, then legislation that
| applies to living humans does not apply here.
| Bluestein wrote:
| > but it is philosophically interesting
|
| ... very.-
| hobs wrote:
| I think its fair to note, but its still consistent in my mind -
| existing people have rights, we acknolwedge virtual people have
| some rights, and that there's consequentially going to be a
| category of virtual people that are unrealizeable people due to
| rights we grant current people.
|
| That's consistent with the fact that we allow current people to
| use resources future people could possibly use, but we are
| trying to strive a balance between those who do and those who
| might exist.
| mensetmanusman wrote:
| They aren't scientifically unrealizable though, which is a
| flaw in this argument.
| djoldman wrote:
| The first paragraph says:
|
| > "whether the Minister for the Environment owes Australian
| children a duty of care "
|
| I read that as not future generations. I read it as the
| children alive today.
| [deleted]
| kirrent wrote:
| How is a federal Australian court able to pass on ruling on
| abortion when, in Australia, those cases relating to state law
| would be heard at state courts?
| Cerium wrote:
| Both situations can be seen as preserving the rights of the
| current generation. In one case the right is deciding to not
| have a child, in the other case the right is deciding to have a
| child (and the required environment for them). Not protecting
| the environment is taking away from the rights of those who
| wish to create future generations.
| mensetmanusman wrote:
| Interesting; in terms of your first point, e.g. preserving
| the rights of the current generation, I have heard people
| argue that we should continue to do what we want with regards
| to the environment because it is within 'our' rights (which
| is the exact opposite conclusion from your premise).
| obvthrowaway32 wrote:
| I don't see how their argument makes sense, it somehow
| implies that "our" generation won't see any ill effects
| yet. That is just trivially wrong if you talk about the
| environment in general, because whether you think that
| climate change will be noticeably during "our" lifetime or
| not, there are things we could do to the environment to
| make life bad for everyone within a few years. So there
| needs to be at least some limit to what "we" can do to the
| environment, assuming we follow that premise in the first
| place.
|
| Going back to climate change specifically, we can
| accelerate or decelerate that as well. Are the people you
| have heard arguing saying that legislation should keep
| climate change in check, but only in so far as it only
| affects generations after the current, however that may be
| defined? Even going with that ridiculous premise, I am not
| sure how that could be implemented.
| ping_pong wrote:
| I believe in strong environmental laws, but the idea that you
| have to protect people from "future harm" is absurd. How exactly
| do you do that? I understand that this is in Australia so their
| laws may be different, but the idea that you can sue someone
| because of possible future damage is legislating predicting the
| future.
|
| In SF, when the DA refuses to prosecute a criminal and that
| criminal goes on to kill another person, did that DA fail to
| protect that victim from future harm? How far does this
| protection from the future go on?
|
| The idea also seems to go in the face of abortion, because a
| fetus will grow into a human. So does that mean that you need to
| protect the fetus from harm now because it will be a person in
| the future?
|
| There are just too many absurd situations that this result opens
| up, I agree that we need strong environmental laws but this is
| going too far into prophecy and fortune telling and opens up a
| lot of unintended consequences of what it means to "protect the
| future".
| temp8964 wrote:
| There is another twist, what if the future generation is doomed
| to die with the solar system, shall we even care "future
| generations exists" or not? Or shall we start spending 90% GDP
| to work on space travel research right now so that the future
| generations can exist? The whole idea of juridical ruling on
| "duty of care" to future generations exists is just ridiculous.
| xbar wrote:
| What about a duty of care for disenfranchised citizens being
| harmed, such as existing children? They are included in the
| "future generations" notion.
| morsch wrote:
| Your hypothetical example is interesting because I'd come to
| the opposite conclusion. If we knew now that the solar system
| would become inhospitably to human life in, say, 500 years,
| no person alive now would be directly affected. But I think
| we'd absolutely have a moral obligation to start spending
| resources now to prevent harm from our descendants. Isn't
| this almost a sci-fi trope?
|
| I think it's hypothetical, either because while we know that
| the solar system has a finite lifetime, the time spans
| involved are absurdly long -- billions of years --, or
| because there are many more imminent problems that need
| solving (which, I suppose, is also related to the large time
| spans, which makes the solar system's death rather non-
| imminent).
| gotostatement wrote:
| wouldn't a philosophical/legal framework like "reckless
| endangerment" apply here? there's a line at which harm to
| future generations becomes reckless
| lurquer wrote:
| The terms being bandied about pertain to intent or
| culpability.
|
| But, there still must be an actual harm. That's a separate
| element.
|
| Western legal systems do not do very well with hypothetical
| future harms.
|
| If I build a big tower on my property that is rickety and
| liable to fall onto my neighbor's house, there is nothing he
| can sue me for (with some exceptions explained below) until
| the tower falls and causes harm. When the harm occurs, we
| then get into whether I need to have been "negligent" or
| "reckless" or "malicious" or even "strictly liable" to be
| held responsible: different torts have different standards.
|
| That being said, the legislature can step in to address
| future harm. In my hypo, it may be through a building code
| which gives neighbors the right to petition the structure be
| removed before it hurts someone. There's also the concept of
| "nuisance" which night give the adjoining neighbor the right
| to go to court arguing that the tower -- due to its rickety
| nature and likelihood of causing damage -- is reducing his
| property value.
|
| But, generally, future harm is a legislative concern. A
| legislator can outlaw drinking and driving due to its
| propensity to cause harm. But, a citizen can't sue a driver
| for racing through his streets while drunk unless and until
| he smashes into you.
|
| (Finally, there are some remedies for "imminent harm"...
| protective orders and the like. But, by "imminent" we means
| an immediate risk of a serious injury. Climate change does
| not cut it; a deranged ex-boyfriend making threats, however,
| might.)
| gotostatement wrote:
| interesting thanks for writing this out
| Bluestein wrote:
| > philosophical/legal framework like "reckless endangerment"
|
| You are onto something here, I think.
|
| To avoid ridiculous situations very clearly codify a line, a
| threshold ...
| ping_pong wrote:
| How can you prove that expanding the mine actually caused any
| damages to the environment? With a chemical plant, if it
| leaks waste and poisons a nearby river, the damages are very
| real and easy to understand.
|
| Expanding a mine that doesn't directly cause damages but
| increases CO2 doesn't have direct damages that you measure
| because it's global. Even with something like Fukushima, you
| can measure the damage it did to Japan, but what about all
| the radioactive waste it is leaking into the Pacific? How do
| you measure that catastrophe? Can you even prove that it has
| done any damage, even though it's obvious?
| TheSpiceIsLife wrote:
| You're on very shaky ground here.
|
| It doesn't seem like you're trying very hard to respond to
| the strongest possible interpretation of the topic at hand,
| but rather some very finely sliced minutiae.
|
| And besides, we _can_ measure one minutes contribution, and
| we can, if we choose, apply proportional mitigation factors
| or costs or penalties.
|
| We can look at past failures and use those to adjust our
| course.
|
| What exactly are you arguing against here?
| tshaddox wrote:
| > How can you prove that expanding the mine actually caused
| any damages to the environment?
|
| How can you prove that someone committed a murder? It's a
| difficult question, and there's probably no method that
| makes mistakes impossible, but the solution is not to throw
| up our hands and say "there's nothing we can possibly do to
| improve the situation."
| gotostatement wrote:
| it seems like its a pragmatic question, almost an
| engineering question about how the legal system can work,
| and Im hopelessly out of my depth there
| rlpb wrote:
| There are plenty of situations where it isn't absurd at all.
| I'd like for it to be criminal for someone to set a bear trap
| in a children's playground. Even if spotted before a child got
| hurt, the behaviour should still be criminal on the basis of
| "future harm".
|
| > How far does this protection from the future go on?
|
| That's a subjective decision. The judiciary is experienced at
| dealing with subjectiveness. They make a judgement call. This
| situation is no different. The fact it's subjective does not
| make it absurd.
| rektide wrote:
| > the idea that you have to protect people from "future harm"
| is absurd
|
| there's a lot of very logical, legalistic, explanatory, replies
| refuting this, but i feel like a moral reply is also due here.
|
| of course the government's job is to insure the welfare of it's
| people. not just today, not just for tomorrow, but ongoingly.
| the whole purpose of government is to serve the welfare of the
| people, and, thankfully, people care about their children, and
| their children's children.
|
| preventing future harm is very much the point of government.
| DocTomoe wrote:
| We already have the concept of "future harm" in law, though.
| You today are culpable if your negligence today kills people
| three weeks from now.
|
| The only really new aspect in this ruling is the timeframe.
| ping_pong wrote:
| You aren't culpable today. You are culpable when the people
| die. You can't be charged for negligence causing death if
| those deaths haven't happened yet.
| Pyramus wrote:
| You definitely can. If you catch me poisoning your water
| and the water has been poisoned I will most certainly be
| charged with attempt to commit manslaughter. I wouldn't
| even need to actually have poisoned the water.
| beerandt wrote:
| Which is criminal- and codified via legislation. You can
| not, however, file a civil wrongful death case, or
| similar, until the person is actually injured/killed.
|
| Common law courts of equity require the damages/injury
| (for which you sue to seek equity) to be real and
| committed, not hypothetical or likely.
| thaumasiotes wrote:
| Attempted crimes aren't the most theoretically coherent
| part of the law. But they're better than you're making
| them out to be; you can't be guilty of "attempt to commit
| manslaughter" by virtue of your _negligence_.
| teachingassist wrote:
| On the other hand - if I poison someone with a slow-acting
| poison, is that not "future harm"? Are you claiming that this
| should therefore not be considered a crime?
|
| The court's 'catchwords' summary here focuses on present-day
| injury to living children rather than the 'future generations'
| in the HN editorialised title.
| Benjamin_Dobell wrote:
| > _the idea that you can sue someone because of possible future
| damage is legislating predicting the future._
|
| Aren't the _vast majority_ of laws about preventing potential
| future harm?
|
| Building codes, speed limits, gun control etc. You don't need
| to wait for a building to collapse and kill someone, or someone
| to have a head-on before you stop them and penalise the
| reckless behaviour.
| gruez wrote:
| >Building codes, speed limits, gun control etc
|
| But those are all explicitly legislated, as opposed to this
| lawsuit which is based on a vague idea of harm. Suppose we
| don't have statues against speeding. Would it be fair for you
| to get sued for speeding but haven't harmed anyone?
| Benjamin_Dobell wrote:
| The judgement references 12 Acts and over one hundred cases
| were cited. The judgement would seem to indicate that this
| _is_ legislated. Perhaps not explicitly, but Australia
| practices common law, so this is the normal process. That
| said, I 'd expect something like this to be appealed to the
| High Court.
| bcrosby95 wrote:
| Building codes, at least in my state, aren't explicitly
| legislated. There is a carveout for a governmental
| department that determines them.
|
| For better or worse most of the rules of a government
| aren't explicitly legislated - usually they create the
| ability for some governmental department to exist and make
| them instead.
| xbar wrote:
| Weird. In my state, there are laws, not just departmental
| rules.
| MeinBlutIstBlau wrote:
| They are instituted as is and must be regarded from that
| point forward. Not enacted with intent that any judiciary can
| interpret simply because they overlooked something that
| wasn't required or a law at the point. Otherwise, how do you
| know if you're being moral or ethical if the government can
| incriminate you for not following an never-made-yet law? This
| goes down to personal ethics and everyone's is different.
| Legislating morality as we see with any religious country
| shows it's just a means of governmental control.
| dudeinjapan wrote:
| What about people who live in freezing climates, like Sweden
| or Alaska? Aren't we reducing harm to those people?
| datameta wrote:
| If you truly want to look at it that way then it has to be
| a utilitarian net harm calculation.
| Y-bar wrote:
| I live in one of those areas and climate change is
| _harming_ us today, here a couple of examples:
|
| - Milder winters mean more ticks and pests survive to eat
| lumber and spread disease, causing personal harm as well as
| economic.
|
| - Warmer and drier summers decrease agricultural output
|
| - A grater variety of rainfall cause mudslides and property
| damage increases
|
| - Snakes can survive further north, to the mountains eating
| birds eggs which have never needed to understand the danger
| of them
|
| - Boars survive winters better, causing destructions to
| agriculture.
|
| - Higher frequently of forest fires.
|
| - Algae at the coast bloom more intensely, preventing
| tourism and suffocates other species.
| actually_a_dog wrote:
| Take a look at the map in this article:
| https://nerdist.com/article/global-warming-video-
| earth-4-deg...
|
| Everywhere that isn't green will be uninhabitable under a
| worst case 4C warming scenario. How do you think that
| balances out?
|
| For the sake of accuracy, I should note that the map leaves
| off Antarctica, a substantial portion of which will become
| habitable under this scenario.
| jayspell wrote:
| So that article admits right at the outset that it is
| extremely speculative. You could just as easily post an
| extremely speculative article that shows the entire world
| will be jungle with the rise in temperatures.
| actually_a_dog wrote:
| The only speculation is whether or not the 4C scenario is
| the one we're in. The map itself is derived from climate
| models, which have been shown to be accurate in
| reproducing current conditions, when fed correct levels
| of atmospheric greenhouse gasses. I can dig up the paper
| that says this if anyone would care to read it.
| ghostwriter wrote:
| > The map itself is derived from climate models, which
| have been shown to be accurate in reproducing current
| conditions
|
| how do you know that the models show accurate results
| that match and predict real measurements? Where is the
| code to verify that there's no post-factum editing and
| fitting the results into the desired interpretations? Who
| is performing verification? Is it made open-source for
| independent reviews?
| zardo wrote:
| Turning the permafrost to mud is definitely not helpful.
| ska wrote:
| > but the idea that you have to protect people from "future
| harm" is absurd.
|
| Is it though? It shows up in the legal system in lots of places
| already.
|
| If you are shown to be professionally negligent, depending on
| the specifics you can be charged or sued (or both) even if
| nobody yet was harmed; you've only created a risk.
| ping_pong wrote:
| But the harm hasn't happened yet.
|
| That's like prosecuting Tesla right now for their Autopilot
| before anyone has been killed because of their faulty
| software.
| tshaddox wrote:
| What's odd about that? Isn't it illegal to sell a car
| without seat belts, and wouldn't you run into legal trouble
| _before_ anyone bought the car and was injured in an
| accident?
| bombcar wrote:
| It's the idea behind "no ex-post-facto laws" part. It's
| illegal to sell a car without seat belts, not because
| someone may be injured in an accident, but that there is
| a law requiring seat belts.
|
| Otherwise all activities could be found to be harming
| after the fact. Note that this doesn't apply to civil
| suits.
| ska wrote:
| > Otherwise all activities could be found to be harming
| after the fact.
|
| Right, but that's not the case here - that's not what the
| court is doing. If they were levying a fine for past
| damage based on todays knowledge, it would be ex-post-
| facto.
|
| Agree the tesla example isn't great, if that's all you
| were responding to.
| ska wrote:
| So if I design and build a bridge using sub-standard
| materials and the city discovers it before it collapses and
| kills people, you shouldn't be able to charge me?
|
| There are lots of areas of law where this concept, or
| similar ones, crop up - that's all I'm saying. Pretending
| it "doesn't make sense" is illogical, because we've made
| (legal) sense of it.
| xbar wrote:
| Agreed. This a very well understood and legislated
| concept.
| laurent92 wrote:
| > When the DA refuses to prosecute a criminal and that criminal
| goes on to kill another person, did that DA fail to protect
| that victim from future harm?
|
| Ahem, didn't he? In France we have a regular pattern of freeing
| the criminals or excusing them for their behavior for various
| "background" reasons, and they go on committing crimes. Judges
| and the state are both responsible for this situation and fail
| to protect the citizens. If it weren't a pattern, one could say
| they can't predict the future, but, like discrimination, having
| a steady trend is proof of negligence.
|
| Same for global warming. One might by mistake pollute, but once
| they know their consequences, it becomes intentional.
| [deleted]
| vecinu wrote:
| > In SF, when the DA refuses to prosecute a criminal and that
| criminal goes on to kill another person, did that DA fail to
| protect that victim from future harm?
|
| Yes, of course is the answer to your question. Chesa Boudin is
| guilty of causing harm to a large number of people for failing
| to secure the livelihood of people living in SF!
|
| That's the major reason why I left last year, I couldn't take
| the level of crime and apathy from police regarding criminals.
| Am I going to let the city's governance play Russian roulette
| with my life? No thanks, I'm a free citizen in a liberal
| democracy so I can take my life elsewhere.
| ping_pong wrote:
| He's morally responsible, but is he criminally responsible?
| Not according to the law. Plus, the direct analogy is that he
| would be responsible at the time of releasing the prisoner,
| before someone gets killed. That's why to me this verdict is
| ridiculous.
| ragnese wrote:
| Your abortion thought experiment may be backwards: aren't we
| protecting the fetus from future harm by aborting it before it
| can comprehend or experience the multitude of harms it's bound
| to experience in life?
|
| Taken to the extreme, this idea of preventing harm would
| _compel_ us to have abortions. Of course, that 's just not what
| anyone is saying anyway. Like with many legal constructs, there
| is an implied "within reason". For example: the U.S.
| constitution's first amendment and "shouting fire". You're
| reading way too literally into the concept of "duty of care" or
| "future harm".
| schoen wrote:
| > Of course, that's just not what anyone is saying anyway.
|
| Except David Benatar and Sarah Perry, maybe?
| tshaddox wrote:
| I also don't know anything about Australian law, but what you
| describe doesn't sound crazy to me. We do have reliable methods
| of predicting the future in certain cases, and many basic
| features of legal systems rely on those methods (two very
| obvious example: any regulations about food and drug safety or
| occupational safety). There's nothing mystical or strange about
| this, provided there are reasonable legal standards for
| culpability.
| Bluestein wrote:
| See also: -
| https://www.theguardian.com/environment/2021/mar/02/a-duty-o...
|
| "Eight teenagers and an octogenarian nun head to an Australian
| court on Tuesday to launch what they hope will prove to be a
| landmark case - one that establishes the federal government's
| duty of care in protecting future generations from a worsening
| climate crisis."
| golemiprague wrote:
| I don't understand the meaning of it, can't whatever government
| just say that whatever their policies are the best for taking
| care of the future generations?
| [deleted]
| anigbrowl wrote:
| I note that out of 8 threads responding to this topic, 4 of them
| attempt to dispute the outcome by referring to abortion policy, a
| rate which seems considerably higher than chance.
|
| I'd suggest that when you see red herring arguments that use a
| highly emotive (but often irrelevant) topic to redirect
| discussion, you simply don't take the bait.
| andrewclunn wrote:
| You owe it to the unborn to not use cheaply available fossil
| fuel, but not to avoid having them chopped up or chemically
| euthanized.
| tick_tock_tick wrote:
| The fact that these battle are being fought in the courts rather
| than the legislature shows how ridiculous judicial overreach has
| become.
| Isinlor wrote:
| Where do you exactly see the overreach?
|
| I'm reading the ruling and I see there only interpretation of
| the Australian law.
|
| Things like:
|
| 150 The objects of the EPBC Act include providing for the
| protection of the environment, especially those aspects of the
| environment that are matters of "national environmental
| significance": s 3(1)(a). Section 3(1)(b) states that a further
| object is the promotion of "ecologically sustainable
| development" through the conservation and "ecologically
| sustainable use" of natural resources. Each of those terms used
| in s 3(1)(b) is defined. Section 528 provides the meaning of
| "ecologically sustained use" as the "use of the natural
| resources within their capacity to sustain natural processes
| while maintaining the life-support systems of nature and
| ensuring that the benefit of the use to the present generation
| does not diminish the potential to meet the needs and
| aspirations of future generations". The principles of
| "ecologically sustainable development" are given meaning by s
| 3A which provides:
|
| Principles of ecologically sustainable development
|
| The following principles are principles of ecologically
| sustainable development:
|
| (a) decision-making processes should effectively integrate both
| long-term and short-term economic, environmental, social and
| equitable considerations;
|
| (b) if there are threats of serious or irreversible
| environmental damage, lack of full scientific certainty should
| not be used as a reason for postponing measures to prevent
| environmental degradation;
|
| (c) the principle of inter-generational equity--that the
| present generation should ensure that the health, diversity and
| productivity of the environment is maintained or enhanced for
| the benefit of future generations;
|
| (d) the conservation of biological diversity and ecological
| integrity should be a fundamental consideration in decision-
| making;
|
| (e) improved valuation, pricing and incentive mechanisms should
| be promoted.
| Bluestein wrote:
| I am split on the "judicial overreach" issue ...
|
| ... if lawmakers / govt. is not doing it for you, and you are
| aggrieved, aren't courts just another available means at a
| citizen's disposal, to effect change?
| dominotw wrote:
| > at a citizen's disposal
|
| sorry but how are courts at my disposal?
| Bluestein wrote:
| ... as in, you have them available to you?
| fshbbdssbbgdd wrote:
| Prosecutors and regulators have discretion to ignore any
| harms you suffer. But you still have the right to file a
| lawsuit.
| cm2187 wrote:
| No, courts aren't there to bypass the democratic process when
| the policy of the country doesn't fit your own politics. They
| are not elected, are usually pretty much unaccountable. They
| should not issue laws or make policy.
| nathanaldensr wrote:
| The purpose of various government bodies are not simply to
| all be equal tools for citizen desires. At least in the
| United States, each branch is "co-equal," and "checked and
| balanced." This is on purpose. A particular branch has the
| power to perform certain activities, while other branches
| don't.
| [deleted]
| Isinlor wrote:
| As far as I can see, the court is not doing here anything
| else than interpreting the law. Literally, the whole ruling
| is explaining pieces of the law step by step.
|
| > The objects of the EPBC Act include providing for the
| protection of the environment, especially those aspects of
| the environment that are matters of "national environmental
| significance": s 3(1)(a). Section 3(1)(b) states that a
| further object is the promotion of "ecologically sustainable
| development" through the conservation and "ecologically
| sustainable use" of natural resources.
|
| > The following principles are principles of ecologically
| sustainable development:
|
| > (c) the principle of inter-generational equity--that the
| present generation should ensure that the health, diversity
| and productivity of the environment is maintained or enhanced
| for the benefit of future generations;
| teachingassist wrote:
| You could say the same sentence but replace 'judicial
| overreach' with 'legislative incompetence'.
|
| I suggest the problem is that the legislature is filled with
| cognitive dissonance on this issue, prepared to say one thing
| [in law] - for the votes - and do another - for the votes.
|
| That requires the judiciary to sort out the mess.
| TheSpiceIsLife wrote:
| That's not what cognitive dissonance means.
|
| That's called being a two faced lier.
|
| Cognitive dissonance requires psychological stress as a
| driver of change in attitude.
|
| Politicians seem incapable of changing their beliefs,
| typically because most of them are narcissistic.
|
| Narcissism, left absorption general, and a lack of empathy,
| better explains why ploticians espouse differing beliefs
| depending on who and when the audience is.
| rsj_hn wrote:
| That the legislature is not following your wishes does not
| mean that they are incompetent. They could be reacting to the
| wishes of the majority of the population, which simply does
| not view carbon emissions as being particularly important nor
| do they believe there is any crisis to address here.
| ska wrote:
| Similarly, 'judicial overreach' is (most?) often just used
| to mean 'I don't like the courts decision'.
|
| Especially in a common law country, this terminology is
| often off target.
| jbay808 wrote:
| Unfortunately, the majority of the population hasn't been
| born yet.
| glial wrote:
| > They could be reacting to the wishes of the majority of
| the population
|
| Citation seriously needed.
| etrabroline wrote:
| I don't think its reasonable to demand people pepper
| every comment with citaitons and links for things that
| can easily be found with a quick internet search.
| teachingassist wrote:
| You make a separate point.
|
| My point was that the legislature is writing law which is
| in conflict with itself.
|
| The quote "future generation" hasn't come from the
| judiciary - it is written into the law, for the judiciary
| to deal with the consequences.
| gwright wrote:
| And why do you have confidence that the judiciary is going to
| be better able to sort out the mess?
|
| I realize that there are grey areas, but the role of the
| judiciary isn't to be an legislature-of-last-resort. What are
| you going to do when the judiciary screws things up? Can't
| vote them out in most cases.
| ska wrote:
| > but the role of the judiciary isn't to be an legislature-
| of-last-resort.
|
| True, but in a common law system part of the role of the
| judiciary is to decide how the laws are interpreted. Civil
| system have a parallel set of problems; you can push the
| complexity around but you can't get rid of it.
| munk-a wrote:
| The role of the judiciary is to clarify the grey areas
| left open for interpretation by the legislature. While
| none of these countries have passed "F off young people"
| laws I don't think it's fair to say the majority of these
| rulings (except the dutch one - that one is legally
| interesting) are really a reasonable interpretation of
| laws on the books.
|
| That all said, times are desperate so if law makers are
| going to stick-in-the-mud I'm happy to see them overruled
| by the will of the people. I feel like we've gone past
| the point where we can reasonably discuss alternative
| market based solutions to climate change like carbon
| credits - and most conservative political blocks are
| still against even such a soft idea.
| eulenteufel wrote:
| At least in the German ruling of the constitutional court
| they could refere to Article 20a of the German
| constitution
|
| Art20a, Roughly translated: The state, in responsibility
| for future generations, protects the natural means of
| subsistence and the Animals in the constitutional order
| by use of legislative, excecutive and judiciary measures.
|
| Of course this doesn't say verbatim to protect the
| climate but I think this is enough legislative basis to
| rule dangerous negligence on the matter of climate change
| unconstitutional.
| teachingassist wrote:
| > And why do you have confidence that the judiciary is
| going to be better able to sort out the mess?
|
| Part of the problem is that likely >>50% of people want
| some action to be taken to prevent climate change; and that
| likely >>50% of people don't support any specific action.
|
| Democratically elected representatives (i.e. legislatures;
| and in particular two-party legislatures) have
| internationally failed to resolve this contradiction, and
| many have effectively passed both sides of this into law,
| in pursuit of votes.
|
| Now, the judiciary must deal with this ambiguity.
|
| If you don't want this to happen, then pay closer attention
| to when politicians are playing for both sides of an issue.
|
| I'm unclear what you mean by 'sorted out' - there must
| ultimately be _some_ outcome, as the judiciary in this case
| has given us.
|
| Don't like a judiciary's decision? The democratic option is
| to go back to your representative and work to change the
| legislation, so that it's no longer ambiguous.
| [deleted]
| [deleted]
| jimbob45 wrote:
| The legislature is made up of hundreds of representatives who
| answer to the people regularly and reflect their opinion.
| Their rulings represent (ideally) what the majority of the
| population wants.
|
| A judgeship is made up of one dipshit in robes. He represents
| his own opinion and may not have ever been elected by the
| people. If he "legislates" something into law like this, it's
| tantamount to indirect despotism.
| anigbrowl wrote:
| _A judgeship is made up of one dipshit in robes_
|
| I bet you're actually a smart person who is quite familiar
| with the appeals process, precedent, the distinction
| between common and statute law, and so forth. But for some
| reason you've chosen to field this sort of well-poisoning
| argument instead.
| GavinMcG wrote:
| > who answer to the people regularly and reflect their
| opinion
|
| Really? In a huge number of legislative districts in my
| country, only one party is competitive, and there is little
| organized intraparty effort to mount a challenge at the
| primary stage.
|
| The judiciary is an antimajoritarian institution. There are
| times when what the majority wants isn't a good thing, and
| also times when what it wants isn't implemented by the
| legislature.
|
| Also, plenty of judges aren't dipshits. Plenty of
| legislators are.
|
| Point is: arguing from the first principles of political
| structure isn't terribly convincing since political reality
| doesn't actually match those principles.
| ALittleLight wrote:
| Legislative incompetence is caused by voter incompetence. Why
| can't the electorate elect competent legislators?
| robocat wrote:
| > caused by voter incompetence
|
| I laugh every time I think to myself that my vote can make
| a difference.
|
| I believe democracy works because we can vote out a
| government we can see is working against our interest. I
| don't think democracy is that important for voting in a
| party for its policies.
|
| I certainly have never experienced that I can vote in a
| _particular_ policy I believe in.
|
| Occasionally I think I can vote against a party that is
| pushing a policy I don't like, but often the policy comes
| to fruition anyway (maybe delayed until the next change of
| government).
|
| And I live in a country with MMP where my vote makes more
| of a difference than a two party system.
| salawat wrote:
| You're playing American Democracy wrong.
|
| You work through your Representative. This requires
| patience, diligence, and a superhuman capacity to sink
| disappointment.
|
| Occasionally though, you will see verbiage from one of
| your letters end up in a bill. So it does work.
| anigbrowl wrote:
| We should probably stop using 18th century political
| technology to manage 21st century problems. Eventually
| we'll need to move towards a participative form of
| democracy, a wikiocracy if you will, in which anyone can
| be legislator and work on any topic, substantive or
| trivial, but will need to overcome a certain amount of
| social inertia and semi-automated procedural brakes.
|
| Right now you have an electorate mostly equipped with
| near-instant communication and responsive to mass
| information campaigns, governed by a legislature that
| works at a snail's pace, lacking in adequate
| transparency, and with no direct linkage between the
| popular will and the legislative process; effectively a
| large complex machine which voters are given a limited
| right to kick every 2-4 years in hopes that this will
| rearrange the internals enough to make it functional.
| Individual congresses and executive branch
| administrations can be good or bad to varying degrees,
| but the system as a whole is simply not adequate for the
| governance of the society and economy that has grown up
| around it.
| throwaway3699 wrote:
| Because more than likely, there is no competent legislators
| on the ballet. The only solution is "voters" need to take a
| more direct role in politics if they care.
| tolbish wrote:
| > Legislative incompetence is caused by voter incompetence.
|
| Do you have any evidence for that or is that a guess?
| Corruption seems to have far more of an effect than just
| blaming people for not being smarter.
| munk-a wrote:
| At least in the US and Canada - a big part is because we
| don't have fair elections.
|
| In the US there is extensive gerrymandering and just this
| year there's been a wave of anti-democratic voter
| restriction laws passed to try and prop up a dying party
| but, bigger than all of that, the lack of some alternative
| to FPTP[1] has forced extremism in the populace. Even in
| Canada with a parliamentary system that eschews direct
| elections of the head of state[2] there is still rampant
| strategic voting and low voter satisfaction.
|
| We can't elect competent legislators because we don't have
| competent elections.
|
| 1. First-pass the post, i.e. whoever gets the most votes is
| declared the unanimous winner.
|
| 2. Well, the real one - not Queen Elizabeth II
| tick_tock_tick wrote:
| Gerrymandering doesn't play a real role in Federal
| elections.
| lazyasciiart wrote:
| Yes it does, because federal elections are run by the
| people elected by gerrymandered states. The state
| legislatures are swung by gerrymandering, and then pass
| legislation that swings the senate and presidential
| election votes for their state.
| M2Ys4U wrote:
| You can add the UK to that list, too. Again, the problem
| is FPTP.
| pfisch wrote:
| > Why can't the electorate elect competent legislators?
|
| I don't believe this is a realistic goal. It is an
| idealistic goal, that we should strive for but will never
| actually happen.
| [deleted]
| mikepurvis wrote:
| I think it depends how you view the relationship between the
| judiciary and the rest of government. For example, the
| judiciary can be seen in part as the voice of the past--
| they're appointed by previous generations of politicians, part
| of their role is to apply and interpret the laws accumulated by
| previous governments, and they're free from having to pander to
| voters every election cycle.
|
| If the present day government has become ineffective or
| gridlocked, then it makes sense to me that the judiciary may
| have a role to play not in setting new policy, but at least in
| recognizing the intent of past leaders as encoded in existing
| laws.
| vkou wrote:
| No, what it shows is how incapable the legislature is of
| dealing with a crisis.
| wvenable wrote:
| These decisions can easily be legislated either way completely
| invaliding most "judicial overreach" after the fact. It's just
| the legislation branch in a lot of countries are quite happy to
| not be involved in these kind of big decisions.
| notanormalnerd wrote:
| If you watch close and have a look at the demografics of
| germany, than this is not judical overreach but a reminder for
| the baby boomer generation (over 40% of voters) that they
| indeed have to take care not to leave an unlivable planet.
|
| The young generations (below 35) have basically no real
| demografic power and are underrepresented in politics. You saw
| that with covid and who was impacted the most and who will pay
| at the end of the day.
| Corazoor wrote:
| The ruling by the german constitutional court was definitely
| not judicial overreach.
|
| For one because rejecting laws on constitutional grounds is the
| main purpose of that court.
|
| But more importantly, the court started it's argument with the
| observation that the german goverment and parliament committed
| themselves to the goal of co2 reduction, by signing and
| ratifying the kyoto protocol.
|
| From that follows that it is quite unfair (unconstitutional
| even) to put the major portion of reductions towards the end of
| the deadline, effectively pushing the burden on younger
| generations.
|
| Measured by their own standards and all that...
| Sol- wrote:
| Very intersting year for climate court cases. The German
| constitutional court recently issued a similar ruling, which
| caused quite the stir:
|
| https://www.theguardian.com/world/2021/apr/29/historic-germa...
|
| And of course there's the Shell case in the Netherlads that was
| recently discussed here as well:
|
| https://news.ycombinator.com/item?id=27290508
|
| Personally I think it's a good thing that the courts realize that
| countries and companies shouldn't be allowed externalize the
| costs their pollution onto future generations.
| [deleted]
| hcurtiss wrote:
| I think most people agree on the policy. The question in the
| US, at least, is whether unelected jurists with lifetime
| appointments are the ones who should be deciding those
| policies. Generally speaking, the reason for separating the two
| is that there's no political recourse for the judicial
| decision. That's how wars are started. In my mind, policy
| should be made by the legislative branch. These are not always
| bright lines, but at least in the present case, and what to do
| about those intergenerational externalities, they are in my
| mind very plainly matters of lawmaking, which is not the proper
| role of the US judiciary.
| kevingadd wrote:
| The increasing role of the US judiciary in these matters is
| probably due in part to the fact that our legislative bodies
| are effectively non-functional for any remotely controversial
| matter - and since a significant % of our office-holders
| insist that climate change isn't real, we generally don't get
| much legislative action from them. It's unfortunate since it
| means the pressure to act by any method increases on the
| people who still have the option to act, like judges (or the
| president with their Executive Orders).
| rsj_hn wrote:
| The article is about australia, not the U.S. And in the
| U.S. the legislature isn't acting because the public
| doesn't want it to act. People are not buying into the
| hysteria and they have no wish to chase even more carbon
| intensive industries to China, which is now producing more
| carbon gases than the rest of the world combined, and those
| emissions are growing at 8% a year. Rational people look at
| that, look at the dismal track record of these end of the
| world predictions, and conclude that there doesn't seem to
| be much point in punishing domestic industries and
| incentivizing them to move even more production to Asia.
|
| I get that this enrages people who are still clinging to
| the idea of a global consensus, but China has effectively
| shut the door on that option, and the consensus was
| primarily just among elites in the west. So it's
| understandable that politicians in the west are refusing to
| act, whereas judges and those insulated from public opinion
| are free to wring their hands.
| hcurtiss wrote:
| Agreed. The US Congress can act when it wants to. The ACA
| passed, even if altered by subsequent legislatures. The
| problem the environmental contingent has is that there is
| not the political will to move their highly controversial
| legislation, so they are looking to the judiciary to act
| instead. As I said above, that kind of activism without
| political recourse leads to some very negative outcomes.
| bigbillheck wrote:
| > there's no political recourse for the judicial decision
|
| That's what amending the constitution is for.
| atoav wrote:
| If politicians break constitutional and/or human rights who
| _else_ than jurists should step in? That is literally their
| job.
|
| Of course I'd prefer if governments would respect and uphold
| these laws in the first place, but if they don't having a
| justice system that can step in is precisely what we have the
| division of powers for.
|
| (In Germany, the rights of future generations are written
| into the constitution -- the question was only if the
| government does enough to uphold these rights)
| hcurtiss wrote:
| > That is literally their job.
|
| It is literally _not_ their job. Their job is to interpret
| and enforce the laws passed by the body answerable to the
| people through elections. At least in the US, there is only
| a very limited federal common law, and there is no common
| law precedent for generically prohibiting intergenerational
| environmental impacts. There are those who argue the
| "public trust doctrine" should drive these outcomes, but
| again, no such doctrine has ever been applied to carbon
| emissions in the US (or even any other form of pollution).
| That would be judicial lawmaking. The idea that unelected
| black robes can fundamentally remake the US economy without
| legislative authorization is literally the antithesis of
| how it's supposed to work. That's not their job.
| Applejinx wrote:
| My gut feeling is 'wrong'. Justice is concerned with
| concepts of right and wrong. Politics is concerned with
| concepts of power and, possibly, public opinion.
| Lawmaking is concerned with whoever can pay off the
| politicians most effectively :D
|
| If judges are not at least equally capable of throwing
| their weight around as politicians and kings and the
| like, why even have them? They are meant to not ANSWER to
| kings, Presidents, and legislative authorization. Are
| they supposed to rule, instead? No, which is why
| legislation is sometimes a countervailing force. But they
| sure are not there to act as puppets to the powerful and
| the politicians.
| anigbrowl wrote:
| The judiciary isn't making laws; it's pointing out the
| ramifications of existing laws and precedent. The judiciary
| would love the legislature to be in front of such questions,
| but they can't force another branch of government to
| legislate, nor is there any legal route for the populace to
| do so other than voting and hoping politicians will deliver
| on non-binding commitments.
| hcurtiss wrote:
| But that's precisely how it's supposed to work. That there
| is not (yet) sufficient political will to adopt these
| policies by statute does not in any way create a duty for
| the judiciary to act. Congress makes the laws. It's the
| judiciary's job to interpret them. At least so far, there
| is no law (in the US) with a generic obligation to protect
| future generations from environmental harm. I question how
| such a law could even work given that a great deal of human
| activity permanently alters the natural environment.
| lazyasciiart wrote:
| But we're not talking about the US judiciary.
| ectopod wrote:
| The problem (in Europe anyway) is that the legislatures are
| creating legally binding targets on carbon reduction, but not
| creating policies that can plausibly achieve this. When you
| have a contradiction like this it is the job of the courts to
| solve it.
|
| If the legislatures don't like it they can repeal the targets
| or implement policies to meet them.
| Isinlor wrote:
| In this case it doesn't seem to be some creative interpretation
| of the law, but a fairy direct interpretation.
|
| > EPBC Act include providing for the protection of the
| environment
|
| > The following principles are principles of ecologically
| sustainable development:
|
| > (c) the principle of inter-generational equity--that the
| present generation should ensure that the health, diversity and
| productivity of the environment is maintained or enhanced for
| the benefit of future generations;
| OJFord wrote:
| Enacted in 1999, and the 'EP' is 'Environmental Protection';
| there's no way they weren't thinking of climate change in
| writing that.
|
| Which makes it slightly curious it hasn't come up before /
| that it required any interpretation at all?
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