Law as if Earth Really Mattered

The Wild Law Judgment Project

Nicole Rogers, Michelle Maloney, Nicole Rogers, Michelle Maloney

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317210573
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book is a collection of judgments drawn from the innovative Wild Law Judgment Project. In participating in the Wild Law Judgment Project, which was inspired by various feminist judgment projects, contributors have creatively reinterpreted judicial decisions from an Earth-centred point of view by rewriting existing judgments, or creating fictional judgments, as wild law. Authors have confronted the specific challenges of aligning existing Western legal systems with Thomas Berry's philosophy of Earth jurisprudence through judgment writing and rewriting. This book thus opens up judicial decision-making and the common law to critical scrutiny from a wild law or Earth-centred perspective.

Based upon ecocentric rather than human-centred or anthropocentric principles, Earth jurisprudence poses a unique critical challenge to the dominant anthropocentric or human-centred focus and orientation of the common law. The authors interrogate the anthropocentric and property rights assumptions embedded in existing common law by placing Earth and the greater community of life at the centre of their rewritten and hypothetical judgments. Covering areas as diverse as tort law, intellectual property law, criminal law, environmental law, administrative law, international law, native title law and constitutional law, this unique collection provides a valuable tool for practitioners and students who are interested in learning more about the emerging ecological jurisprudence movement. It helps us to see more clearly what a new system of law might look like: one in which Earth really matters.

Part I
Standing and wellbeing of non-human species

Chapter 3
Green sea turtles by their representative, Meryl Streef v The State of Queensland and the Commonwealth of Australia

Justice Brian Preston

Judgment 18 February 2032

A: Turtles bring public nuisance proceedings

In 1949, the foresighted forester, Aldo Leopold, in his famous book, A Sand County Almanac, challenged society to reflect on the unsustainable exploitation of the environment and its consequences, including loss of animals and birds. In his essay ‘Goose Music’, Leopold asked:

And when the dawn-wind stirs through the ancient cottonwoods, and the grey light steels down from the hill over the old river sliding softly past its wide, brown sand bars – what if there be no more goose music?¹

In 1962, the eminent zoologist and biologist, Rachel Carson, in her classic book, Silent Spring, described the chronic, bioaccumulative effects pesticides, including DDT, can have up the food chain, particularly on birds, and called for governmental action.² The title ‘Silent Spring’, referred to Carson’s fear that uncontrolled use of pesticides would eventually result in a season in which no birds could be heard because they had all died from exposure to pesticides. The title was inspired by the John Keats poem, ‘La Belle Dame Sans Merci’ which contains the lines:

• The sedge was wither’d from the lake
• And no birds sing.

Today, in 2032, a group of green sea turtles have raised alarm and made a clarion call for governmental action to address a pernicious, pervasive and pressing threat to the environment – climate change’s devastation of the habitat of the turtles. They ask us to reflect on a future where there are no more turtles.

The turtles have issued their call for action in these legal proceedings. They have invoked what the law terms a cause of action in public nuisance against the Commonwealth Government of Australia and the State Government of Queensland. The turtles have brought proceedings by their representative, Meryl Streef. The turtles claim that the governments, by both their actions and omissions to act, have caused a public nuisance. The governments’ actions comprise granting approval, 20 years ago, in 2012, to eight major coal mines in Queensland’s Galilee Basin. These mines together have produced and will produce onshore and offshore greenhouse gas emissions of 29.1 gigatonnes of CO₂ equivalent over the life of the mines from 2012 to 2050. The governments’ omissions to act include their failure to take action to reduce Australia’s greenhouse gas emissions and to mitigate the impacts of climate change on the Great Barrier Reef.

The turtles claim that greenhouse gas emissions from human activities, including the mining and burning of coal, have induced climate change. The evidence before the Court of Dr Jones, a climate scientist, establishes that climate change has caused damage to the Great Barrier Reef in a number of ways: first, a rise in sea levels leading to increased water depth (and associated decreased photosynthesis) and changes in tidal variation and water movements; second, a rise in sea temperatures, leading to coral bleaching and changes in the distribution of sea grasses; third, an increase in severe weather events such as storms and cyclones; and fourth, an increase in CO₂ in coastal waters, causing an increase in carbonic acid in the ocean which has interfered with the coral’s ability to build skeletons.

The turtles depend on the Great Barrier Reef to live, feed and breed. The evidence before the Court of Dr Fuentes, a marine biologist, establishes that the climate change-induced damage to the Great Barrier Reef has impacted directly on the turtles. Sea level rise has affected the significant nesting areas on low-level sand beaches along the coastline adjoining the Great Barrier Reef. Rising temperatures have caused sand temperatures to exceed the upper limit for egg incubation (34°C), leading to reduced numbers of sea turtles hatching. In addition, because sand temperature determines the sex of the hatching turtle, increased sand temperatures have also caused a bias in the sex ratio towards more female turtles. Finally, because coral and sea grasses form the core of the turtles’ diet, damage to these grasses has disturbed the turtles’ feeding patterns, including by forcing them to travel further distances in search of food.

The turtles claim that the governments’ actions and omissions have unreasonably interfered with the interests of the community at large, interests recognised as rights of the general public entitled to protection. The turtles seek the equitable remedy of an injunction. They seek a negative injunction prohibiting further approval of coal mines in the future without imposition of conditions requiring mitigation and offsetting of greenhouse gas emissions, and a positive injunction that the governments offset past and future greenhouse gas emissions from coal mines. They also seek a positive injunction that the governments mitigate the adverse effects of climate change on the Great Barrier Reef which is the habitat of the turtles, in particular, by implementing a relocation programme to ensure the ongoing survival of the turtles.

The governments have defended the turtles’ claim.

For reasons I will explain, I find for the turtles. They have established their claim that the governments have caused a public nuisance. It will be necessary to hold a further hearing to determine the appropriate injunctive relief.

B: Nature of the public nuisance claim

A public nuisance is an unreasonable interference with a right common to the general public. The origins of the public nuisance doctrine are found in interferences and infringements of the rights of the British Crown, which were applied to any actions that produced an inconvenience or some kind of harm to members of the public. A public nuisance was regarded as a crime, and it came to be defined as:

an unlawful act, or omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property or comfort of the public or by which the public are obstructed in the exercise or enjoyment of any right common to all Her Majesty’s subjects.³

There are three primary questions to be answered in resolving the turtles’ public nuisance claim:

• Have the governments caused an interference with a public, as opposed to a solely private, right?
• Was the interference unreasonable?
• Have the turtles sustained the kind of unique or special injury that differentiates their harm from that suffered by the general public so as to be entitled to remedies for the interference?

I: Interference with a public right

I will start with the first question. This involves two aspects: first, has there been an interference with a public right, and second, did the governments cause that interference?

The essence of the tort of public nuisance is interference with interests of the community at large – interests that are recognised as rights of the general public entitled to protection. The class that is the general public has traditionally been comprised only of humans, in particular the citizens of the country concerned. The rights, therefore, have been rights of humans. However, the legislature has the power to extend the class of rights holders. In this case, sometime prior to 2032, the Federal and State legislatures have enacted environmental protection legislation extending the rules of standing to allow non-human members of the community of life on earth, including the turtles, to bring proceedings to enforce public rights, including to arrest and abate public nuisances. This statutory extension of standing has effected an enlargement of membership of the class of the general public and consequently of the content of the rights of the general public which are protected.

Traditionally, the rights of the public entitled to protection from interference include the life, health, safety, morals, peace, comfort and convenience of the public and the public’s rights to use, enjoy and preserve the aesthetic and ecological values of public places and common natural resources. Interferences with these public rights can constitute public nuisances.

The public also has an interest in certain common natural resources such as the air, waterways and forests, which are held in trust by the government for the benefit and use of the general public. This is the concept of the public trust that the earth’s natural resources are held in trust by the present generation for future generations. The government, as trustee, is under a fiduciary duty to deal with the trust property, being the common natural resources, in a manner that is in the interests of the general public. Thus, the government should not alienate or harm the trust property unless the public benefit that would result outweighs the loss of the public use or social wealth derived from the natural resources.

In this case, the climate change-induced effects have significantly interfered with the lives, health, safety, comfort and convenience of the turtles who, by the statute, have become members of the public. The evidence of Dr Jones and Dr Fuentes establishes that the turtles’ lives and health are threatened. But there are also effects on the public rights of humans. Turtles are of cultural significance for Aboriginal and Torres Strait Islander people. Turtles also have high value to the tourism industry. Interference with the turtles diminishes public use, enjoyment and recreation of the public area and the natural resources of the Great Barrier Reef.

Having established interference with public rights, the next step is to determine whether the governments’ conduct (their actions and omissions) has caused this interference. The governments’ conduct is a link in the chain of causation resulting in the interference with the public rights.

The governments approved the Galilee Basin coal mines in 2012. The approvals made the coal mining lawful. The coal mining results in onshore and offshore greenhouse gas emissions of considerable magnitude. Altogether, 29.1 gigatonnes of carbon dioxide equivalent is estimated to have been and will be emitted between 2013 and 2050.

The governments have also failed to take action to reduce or mitigate Australia’s greenhouse gas emissions. Together, the greenhouse gas emissions from the mining and burning of coal and from Australia generally are contributors to climate change. Dr Jones estimates that the combined emissions from the Galilee Basin coal mines will raise global temperature by 0.012°C. This comprises 0.4 per cent of the global mean warming anticipated by 2100 and 0.5 per cent of the 2.2°C temperature increase anticipated by 2050. This incremental warming is contributing to the adverse effects on the Great Barrier Reef. These include contributing to the estimated 30km 2 of Great Barrier Reef coral reef habitat being critically bleached now, increasing to 60km 2 by 2050 and 90km 2 by 2100. Thus, the emissions are having a material and measurable impact on the ecology of the region, and the habitat of the turtles.

A similar causal chain connecting the plaintiff’s injuries and the defendant government’s conduct was accepted by the United States Supreme Court in Massachusetts v Environmental Protection Agency⁴ (concerning lack of governmental regulation of greenhouse gas emissions from motor vehicles) and by the United States Court of Appeals for the 5th Circuit in Comer v Murphy Oil USA⁵ (concerning lack of governmental regulation of greenhouse gas emissions contributing to global warming, including the ocean’s temperature, which caused sea level rise and increased ferocity of Hurricane Katrina, damaging the plaintiff’s coastal Mississippi property).

It is true that the governments’ conduct is not the sole cause of greenhouse gas emissions globally or of climate change. There are, of course, other causes. However, the fact that there are other causes does not negate the governments’ conduct as being a cause. As with pollution of public wat...