V. Nascent Jurisprudence on Intergenerational Equity Essay Example

V. Nascent Jurisprudence on Intergenerational Equity Paper Introduction 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. Environmental harm can be long lasting or irreversible, or can remain undiscovered for many years, even after the practices causing it have ceased. In other words, some environmental harm is not only spatially but also temporally disconnected from its causes. Climate change presents a clear example: the harm likely to be caused by climate change in the future will be far removed in time from its causes (which include greenhouse gas emissions dating from the time of the Industrial Revolution). Environmental law has come a long way since its early focus on assigning liability for point source pollution. Nonetheless, a better capacity to deal with the temporally disparate nature of the causes and effects of environmental damage is long overdue. The principle 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. This Chapter’s analysis of the jurisprudence relating to the principle, hitherto underexamined, provides a new focus on the practical implications of the principle of intergenerational equity when enforced by courts. Before going further, it is necessary to define the concept of intergenerational equity, both in its general sense and in the legal context in which it occurs in this Chapter. At its most basic level, a principle of intergenerational equity is a principle that promotes equitable relationships between generations. We will write a custom essay sample on V. Nascent Jurisprudence on Intergenerational Equity specifically for you for only $16.38 $13.9/page Order now We will write a custom essay sample on V. Nascent Jurisprudence on Intergenerational Equity specifically for you FOR ONLY $16.38 $13.9/page Hire Writer We will write a custom essay sample on V. Nascent Jurisprudence on Intergenerational Equity specifically for you FOR ONLY $16.38 $13.9/page Hire Writer 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. 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. While a general definition of intergenerational equity is therefore in essence a framework (an idea discussed further below), several observations can be made about the principle in the abstract. First, in distinction to most principles of equity, a principle of intergenerational equity does not seek to address imbalances within society, but rather to preserve opportunity universally for future generations; it is focused on temporal rather than geographic distributional issues. Second, the timeframe over which a principle of intergenerational equity can be said to operate must, for practical purposes, be limited. The classical economics approach of applying a discount rate to future values is useful for comparing options or impacts over the near future, but becomes problematic over long timeframes, when future lives at any meaningful discount rate become nearly worthless. If the principle of intergenerational equity is to serve a useful purpose, the timeframe over which it is considered must have some inherent relevance to decision-makers (whether legislators or jurors); it must be able to form part of a narrative about what justice requires. Relevant timeframes over which a principle operates therefore could be, for example, sixty years (the rough time lapse between a grandparent’s birth that of her grandchild), or ninety years (the length of a long human life). The exact timeframe relevant to the principle may vary as long as it has some underlying meaning for decision-makers. In a legal context, the definition of intergenerational equity becomes more solid. The most cited definition of intergenerational equity in a legal context is that of Edith Brown Weiss, who presented a theory of intergenerational equity in 1989, writing from an international environmental law perspective. Her premise is that ‘[e]very generation needs to pass the Earth and our natural and cultural resources on in at least as good condition as we received them.’ According to Brown Weiss, three principles of intergenerational equity can be derived from this premise. These principles require that the current generation: ‘Conserv[e] the diversity of the natural resource base so that future generations can use it to satisfy their on values’; ‘Ensur[e] the quality of the environment is on balance comparable between generations’; and Pro vide ‘non-discriminatory access among generations to the Earth and its resources.’ While providing some substance to the concept, Brown Weiss’s definition nonetheless leaves much open to interpretation. Similarly, international law provides a sense of what a principle of intergenerational equity might require, but references to the principle remain vague. For example, Principle 3 of the Rio Declaration on Environment and Development (1992) states that ‘the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.’ Refining the definition further, at a domestic level, Australian law provides the strongest exemplar of the principle; in Australia a single statement of the principle of intergenerational equity exists throughout the state and territory legislation: the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations. This particular formulation makes no explicit statement about the moral status of future generations or the way in which resources should be distributed over time: these esse ntial concerns have been left to the judiciary to determine through case law. At all levels therefore – general and legal, international and domestic – definitions or statements of intergenerational equity provide little more than a framework upon which enforceable requirements might be built. For this reason, it is jurisprudence, the practical application of the principle of intergenerational equity, that provides the strongest insight into its practical implications. 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 on Environment and Development (1992). 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 Chapter 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 difficult y inherent in legislating for long-term goals, these cases highlight the potential for the judiciary, as an independent and tenured political branch, 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 princi ple 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 toward viewing the principle of intergenerational equity as an element environmental impact assessment, rather than a broad principle of environmental law; this risks limiting its scope. The Chapter proceeds as follows. The first section outlines where the principle of intergenerational equity is situated within both international law and domestic jurisdictions. The second section looks at how courts have given effect to the principle in practice, focusing on the Australian context, where the most relevant cases appear. Three cases from the Land and Environment Court in New South Wales are analysed: Gray v Minister for Planning, Taralga Landscape Guardians Inc v Minister for Planning, and Walker v Minister for Planning, all of which have contributed to the nascent practical formulation of the principle of intergenerational equity. The final section discusses the implications of these decisions for environmental law both in Australia and beyond. What is intergenerational equity? The concept of interge nerational equity (which is sometimes described as a principle, and other times merely a concept or theory) presents a potential legal solution to environmental problems whose effects are likely to be spread unevenly over time, or across generations, because of its explicit reference (in the legislation relevant to this Chapter) to needs or benefit of future generations. Before wading into the legal potential of the concept, however, it is worth briefly tracing its relevance in philosophy and economics, as these have direct bearing on its use in law. Part of the failure of law to facilitate justice effectively over extended time periods within the context of the environment is a product of the difficulty more generally of constructing a satisfactory regime for determining justice between individuals who are not contemporaries. Only relatively recently have Western philosophers included the question of justice between generations in more detailed and sophisticated theories of justice . In doing so, they have addressed questions arising from the wider notion of justice between generations: how do we know what future generations will want or need? How do we determine what is just for people who do not yet exist? And how do we prioritise justice for future generations when there is an abundance of injustice within the current generation? Many philosophers, including John Rawls, see justice between generations as reliant on a sort of intergenerational social contract. Brown Weiss relies on a similar notion of intergenerational obligation to justify her ‘Planetary Trust’ argument, which states that each generation holds the planet on trust for the next. By contrast, others have argued that a comprehensive understanding of intergenerational justice must find foundations outside of the notion of social contract. For example, some have situated a basis for cultivating intergenerational justice within individuals’ self-interest, or within the vulnerab ility of future generations vis-Ã  -vis current generations. It is beyond the scope of this Chapter to evaluate these competing theoretical bases for determining justice between generations. However, it is worth stressing that for some, the questions raised above suggest that justice between generations can be achieved by the attainment of equity between generations. It is this approach, largely through the influence of Brown Weiss and the Rio Conference, that has influenced the cases examined in this Chapter, and the development of much legal thinking on the topic more generally. Economists have also addressed the concept of intergenerational equity, focussing largely on how discount rates should be set in order compare policies whose effects will be felt over long timeframes, by many generations. The setting of a discount rate has deep ethical implications. As Derek Parfit and Tyler Cowen note, with a discount rate of 10 percent, one life today is worth the equivalent of one mill ion lives in 145 years. Moreover, the setting of a discount rate relies on a series of uncertain assumptions about the future. It does, however, have practical value for policy evaluation. For example, according to the Organisation of Economic Cooperation and Development, the Netherlands and Norway use ‘generational accounts’ in order to help determine the fiscal sustainability of current government projects. The United Kingdom and the United States have the ability to produce generational accounts, but have recently stopped doing so. In generational accounting, the ethical implications of discount rates become practical. Not surprisingly, as Paul Portney and John Weyant note, ‘even the best minds in the [economic] profession’ feel a sense of ‘unease’ about discounting. The difficulty that economists face in selecting an appropriate discount rate is a testament to the complex ethical and practical issues surrounding the concept of intergenerati onal equity. In law, the concept of intergenerational equity remains largely in the realm of theory; we are unsure, often, of what it signifies in practice. This is partially due to the definitional vagueness of the concept. For example, the terms of the concept, as they appear in Principle 3 of the Rio Declaration (‘the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations’), are so wide that they give little insight into how they might be applied in a particular factual situation. This formulation of the concept immediately raises a number of questions, including what ought to happen if members of different generations prefer different outcomes to the same problem; the Rio Declaration’s notion of intergenerational equity disregards the potential for conflict within a generation. The question of how effect might be given to such terms, and whether they indicate something more than m ere aspiration, is addressed below. As Birnie et al. note: ‘the essential point of the theory [of intergenerational equity], that mankind has a responsibility for the future, and that this is an inherent component of sustainable development, is incontrovertible, however expressed. The question then becomes one of implementation.’ More than anything the ambiguity surrounding the real implications of the concept have to do with its infrequent application to factual situations. This section examines the legal sources of the concept of intergenerational equity, drawing upon international law material and domestic legislation. While the term ‘intergenerational equity’ per se does not appear in any international agreement, references to concern for future generations in some international agreements suggest that a concept (and perhaps even a principle) of intergenerational equity exists. The term intergenerational equity also appears infrequently within domestic legislation in several jurisdictions around the globe. Australia is one country in which the term has found its way into a number of domestic legislative instruments. In Australian legislation, the concept is referred to as ‘the principle of intergenerational equity’, and that terminology is adopted when referring to the Australian context. Next Page – International Legal Sources of Intergenerational Equity Previous Page – Legal Context