Readings for ENVI 522

Below are major texts handed out or referred to in class


Environmental jurisprudence

Midgley article on Duties Concerning Islands
John Rawls Theory of Justice - a summary
Passmore - Man's Responsibility for Nature - mid 1970s Australian environmental philosophy - fascinating comments on climate change as a possible ethical challenge in the far future. See page 82:
"We know at least this much, however. Men will need the biosphere. And it is sometimes suggested that our present level of industrial activity is so heating up the atmosphere that large parts of the earth’s surface will – as a result of the melting of polar ice – eventually be rendered uninhabitable. So, it is concluded, we ought at once, for the sake of posterity, to reduce the level of that activity. The Royal Commission on Environmental Pollution concluded that ‘such eventualities are not only remote: they are conjectural’. But this case serves as a sort of touchstone, an extreme example both in its uncertainty and in the disastrousness of the consequences it envisages, were they to eventuate."

Also discussion of Rawls p86 following.
Geoff Parks "Conservation. Extinction wave or healing tide?" Is conservation too much of a colonial idea imposed on the NZ landscape - and will not achieve its aims - in part because it ignores humans in the landscape?


Constitutional Law
Cabinet manual extracts - authoritative and quick summary of the NZ constitution.
Burrows article - Changing approaches to statutory interpretation - how the Interpretation Act 1999 s5 has altered our approach.
Entick v Carrington case (1765) - old case on the limits to rights of states to interfere with private citizens. Very interesting to revisit in light of modern day internet and privacy issues.


Common law
A quick introduction to common law concepts of importance to environmental law:

• Contract - how a contract comes into being
• Torts - including negligence and nuisance
• Persons - legal and natural persons.
• Land - property law basics

Two important recent cases in nuisance:

• Cambridge Water Co Ltd - chemical soaks in to underground water supply over many years - issue: does harm have to be foreseeable?
• Hunter v Canary Wharf - TV signal interference and dust issues - a good discussion of the limits of modern nuisance.

International Law
Shrimp case - key extracts - when is regulation permissible if it affects trading interests of other states?


Environmental law in NZ
Introduction to the RMA


DG Conservation v Wairoa District Council & very interesting article re environmental offsets - will they work?

Fisheries case

HSNO Act case

2012 SEMINARS

2012 SEMINAR DATES

Here are the dates and topics agreed so far:

1 May		Free slot
1 May		Free slot
8 May		HSNO Act 1996 – explain the current scheme as it affects 1080 and any current issues
8 May		Parliamentary Commissioner for the Environment – powerful watchdog or poodle?
15 May		Aquaculture – what is the current law applying to aquaculture and what are current issues?
15 May		Free slot
22 May		Climate Change Response Act 2002 – what it does currently for industries other than forests?
22 May		Conservation Act 1986 – the schedule 4 and Crown Minerals Act amendment debate
29 May		Climate Change Response Act 2002 – what it does currently for forest land and what issues arise?
29 May		Environmental Protection Agency – what is it and how do Boards of Inquiry work?

27 March 2012 - Interpreting legislation

Basic principles are here:

http://www2.justice.govt.nz/lac/pubs/2001/legislative_guide_2000/chapter_3a.html

http://www.option4.co.nz/Information/mfdefinitions.htm


And this article

http://www.victoria.ac.nz/law/research/publications/vuwlr/prev-issues/pdf/vol-33-2002/issues-3-4/mcgrath.pdf

20 March 2012 - The NZ constitution – sources of law (common law, statute etc)

1. What is the rule of law? Find a succinct definition.

2. Read the attached extract from the cabinet office manual. I will hand it out in class. The full manual is here:
http://cabinetmanual.cabinetoffice.govt.nz/

3. See if you can locate a diagram showing the NZ constitution. See if you can find one for the US constitution.

4. Read the Cabinet office Manual on lawmaking in NZ. Read this description of US lawmaking:
http://idiotsguides.com/static/quickguides/politicalsciencelaw/government_101_how_laws_are_created.html

We will be comparing the degree of complexity and its implications. In particular, in each country:
How do draft laws originate?
What is the system of committees which deal with bills? See if you can find out a bit about standing committees in the US
What procedures are there for public hearings on bills?
What is the system of voting on bills?
In the US - what is reconciliation? Has there ever been a NZ equivalent?
In the US - what is the filibuster? Is there a NZ equivalent?

6. Read the Canterbury Earthquake Response and Recovery Act 2010 (its short). Would it allow 1) use of prison labour for rebuilding Christchurch, 2) use of gravel from a sensitive waterway anywhere in NZ to rebuild Christchurch. 3) What ability is there to legally challenge these actions? 4) Do you think it is a legally appropriate response to the Christchurch situation or disproportionate? (in particular note the date it was passed) WHAT DOES IT TELL US ABOUT WHAT LAW MIGHT BE NEEDED IN FUTURE?

Constitutional structures continued

Had a look at the Canterbury Earthquake Recovery Act – noting the extraordinarily broad powers, with no right to take any matters to court to test the recommendations of ministers.
Noted the references in that legislation to the Interpretation Act 1999 and the Bill of Rights Act 1986 – and their influence on how laws are interpreted.
Also noted the reference to the Constitution Act 1986 – which is an ordinary law passed by simple majority of the Parliament – and for the most part simply restates what the constitutional arrangements are.

In terms of making law, the NZ system sees most law proposed through the government’s law making programme – see cabinet manual for details
Private member bills play a small part
Public right to make submissions and be heard on most bills
Passage of bills is simple through a single legislative house, with a simple majority in favour only required.

Compare this to the US system:

- bills are initiated mostly by private individuals

- a system of committees governs those that get floor of the House and Senate

- hearings are for invited submitters to give sides of the argument ie not a public submitter process

- House and Senate have to pass a common version (reconciliation process)

- Overuse of filibuster threat means that currently most laws require 60% to pass – a very difficult task

- President has limited veto powers

- http://bensguide.gpo.gov/6-8/lawmaking/index.html

- http://en.wikipedia.org/wiki/Filibuster

Supreme Court has the ability to strike down laws, but seems to act very politically.
(see for example the upcoming argument over Obamacare and whether it is constitutional. And Balkinization is a good site to follow Supreme Court: http://balkin.blogspot.co.nz/)

Overall, we see that the US system is more open to private lawmaking initiatives, but has detailed and complex arrangements for passage of legislation. Compare this to the NZ system which is (scarily?) free of checks and balances by comparison. Legislation like the RMA is relatively easily progressed in NZ. Would not really be possible in US (and with the added issue of states rights).

Interesting question – but what about the reach and power of the US Clean Air Act?

Note also constitutional arrangements in Australia: http://www.australiatravelsearch.com.au/trc/law.html

Looked at the court structure. Here is a diagram: http://www.courtsofnz.govt.nz/about/system/structure/diagram

Discussed the difference between these concepts – appeals on matters of law and fact, appeals on matters of law only, judicial review.
Different environmental statutes provide for different approaches. RMA allows for appeals to Environment Court from council decisions on matters of law and of fact. Fisheries legislation does not contain appeal rights, but judicial review actions can be taken to see if a minister applied the law correctly. We will be returning to these.

The place of the Treaty of Waitangi – where statutes mention it directly (eg State Owned Enterprises Act 1986 s9) it has to be given effect to. An example of how powerful that can be is the litigation surrounding the SOE Act 1986. If it is not mentioned, then several court judgments have indicated that it will be relevant to the interpretation of any statute dealing with things important to Maori ie where there is ambiguity, an interpretation will be preferred that gives effect to the Treaty rather than one that does not.

Statutory interpretation – started on it.

13 March 2012 - Environmental law. Origins of our current approach

Some further notes on theories of law

Social contract

What about expanding the social contract so that it includes animals?

I first class we looked at the idea of Rawls theory of justice - and what the situation might be if people in the original postion behind the veil of ignorance did not know what species they were.

I that light – consider this - Animal Welfare Act 1999 - section 85
http://www.legislation.govt.nz/act/public/1999/0142/latest/DLM51206.html#DLM51206

Law and Economics

This theory suggests that good law is economically efficient. It has been a big influence on the RMA. The idea is that environmental law should only regulate activities where there is a market failure ie there are externalities to the activity that society is being asked to bear. In that case regulation would make the polluter pay.

Note also the Coase theorem, which suggests that if rights are clearly assigned to parties to being with, and you reduce transaction costs ie allow a free market to operate easily, then you very efficiently get to the appropriate environmental outcome.

http://en.wikipedia.org/wiki/Law_and_economics
Richard Posner
http://en.wikipedia.org/wiki/Richard_Posner
Ronald Coase
http://en.wikipedia.org/wiki/Coase_Theorem
Ecologics
http://www.elsevier.com/wps/find/journaldescription.cws_home/503305/description#description

Background to our current environmental law

The term “environment” in the sense of the biophysical environment is surprisingly recent.

Etymology of environment
http://www.etymonline.com/index.php?term=environment

See this useful timeline of events:
http://www.worldwatch.org/brain/features/timeline/timeline.htm

A key moment was the release of Limits to Growth - using the World3 computer model:

http://live.simgua.com/World
http://www.chelseagreen.com/authors/donella_meadows/

1972 Stockholm conference on the Human environment
http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503&l=en

At that conference was laid the groundwork for the developing / developed split that continues today into instruments such as the Kyoto protocol.

1987 Brundtland report - Our Common Future
http://worldinbalance.net/intagreements/1987-brundtland.php

1992 - Agenda 21
http://worldinbalance.net/intagreements/1992-rio-agenda21.php?iframe=true&width=100%&height=100%

Note that a key focus of Agenda 21 is the promotion of free trade as the means to boost economic growth in developing countries, so that they may undergo demographic transition and reduce birth rates and their impact on the environment. This transition is meant to happen utilising technologies of developed countries so that the types of pollution of the old industrial revolution do not occur.
A brilliant site to explore the idea of demographic transaction and the stunning speed of transition in some countries. It raises the question, is the idea of developed and developing countries not irrelevant?

Warning, this material is guaranteed to change how you think about the world:

http://www.gapminder.org/

http://www.ted.com/talks/hans_rosling_shows_the_best_stats_you_ve_ever_seen.html
20 minute talk by Hans Rosling.

1992 United Nations Framework Agreement on Climate Change.

http://unfccc.int/essential_background/convention/background/items/1353.php

Note how it preserves the developed/ developing principle

1992 United Nations Framework Agreement on Climate Change.
ARTICLE 2:
OBJECTIVE
“The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, … stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”

http://unfccc.int/essential_background/convention/background/items/1353.php

Text of Kyoto protocol
http://unfccc.int/essential_background/kyoto_protocol/items/1678.php


It is becoming apparent that the current legal scheme is failing to deal with some of the biggest threats to the environment.

See for example:

Anderson paper
http://rsta.royalsocietypublishing.org/content/369/1934/20.full

“There is now little to no chance of maintaining the rise in global mean surface temperature at below 2°C, despite repeated high-level statements to the contrary. Moreover, the impacts associated with 2°C have been revised upwards sufficiently so that 2°C now more appropriately represents the threshold between dangerous and extremely dangerous climate change. “

“Put bluntly, while the rhetoric of policy is to reduce emissions in line with avoiding dangerous climate change, most policy advice is to accept a high probability of extremely dangerous climate change rather than propose radical and immediate emission reductions.”

Ban Ki Moon
http://www.youtube.com/watch?v=6Un1UibQnME
The text is here:
http://www.un.org/News/Press/docs/2011/sgsm13372.doc.htm

The disconnect in cartoon form
https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhUpeOgT5_e-tKm7ZwnpT0TQmV1hHZ9OQpTNAAuF5nrDp_BYahs0UQlIcUItApEYN87Ilev22-o5Dq5jJpKitFn2gvQGWO00AVkH2Bz-s3HsGyeBoZalLWIMwVpqlS21f-9BfShYI2ezQoj/s1600-h/easterbunnyislandCOLOUR.jpg



Conclusion - can law be anything other than anthropocentric?

legal implications

- legally enforced massive change in focus
- enforced limits on personal energy use
- ongoing disaster management
- geoengineering - international mitigation projects

- where does existing law fit?
- what tools/traditions do we have? How do they help, hinder?

The challenges to national and international law

- better recognition of a global commons
- earlier recognition of emerging risks? eg http://www.nature.com/news/specials/planetaryboundaries/index.html#feature
- earlier action on risks - international precaution
- international equity? eg contraction and convergence
- climate refugees
- international enforcement?

At a domestic level?

- big challenges to governance. Go big, or go small? eg:http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context=winston_nagan
eg: Passmore - will democracy be enough? What is it?
eg: Is China’s quasi-dictatorship better prepared for the 21st century than our mess of a democracy? http://www.grist.org/article/2011-01-21-is-chinas-quasi-dictatorship-better-prepared-for-the-21st-centur

The Anthropocene?
http://en.wikipedia.org/wiki/Anthropocene
Can life on earth survive without us? An obligation to fix?

Conclusion - can law be anything other than anthropocentric?

Faking nature? Analogy with a Rembrant and a nail - painting is deteriorating, and other areas will be restored.

6 March 2012 - Theories of law, where does environmental law fit?

Aims of the course

1 Understanding what law is, what lawyers do and what environmental law is composed of, and how law shapes debates about management of the environment. As part of that, discussing the challenges facing environmental law. Can it cope? Is new law or are new theories of law required?

What has happened is simple enough to understand. We have made a mistake. We found a way to get at the sun's stored energy to drive our society. It has allowed massive expansion of our global society and huge increases in personal well being. But it had a cost which we were at first dimly but are now certainly aware of. The cost has come up fast. The mitigation required requires unprecedented global action and co-operation, or if not unprecedented, at least on the scale of the efforts during world wars. The question is, can our current systems of law cope? They seem hopelessly outdated. Hopelessly naive. Is a new jurisprudence required, or will this one suffice? There is huge danger in something new. The possibility that we will throw out the useful as well as the unhelpful, unleash the worst in us, or overlook some further issue that awaits us just around the corner.

From the standpoint of governance, what is at stake is our ability to use the rule of law as an instrument of human redemption. After all has been said and so little done, the truth about the climate crisis — inconvenient as ever — must still be faced.
http://www.nytimes.com/2010/02/28/opinion/28gore.html?pagewanted=3

2 Understanding where professionals (scientists, policy analysts, experts) sit within the framework of environmental law and their duties and responsibilities

Example of a planner employed to assess a large government project who asked “is it true the government has power to do pretty much what it wants?”. This lack of understanding about how the legal system and environmental law works affects how that professional will act within the system, with important consequences. The may given an expert opinion that is qualified or affected by a mistaken view of their role.

It is interesting to note how recent some of the language is in this area.

How recent is the word “environment” in the sense of a reference to the natural world and its limits?http://www.etymonline.com/index.php?allowed_in_frame=0&search=environment&searchmode=none

How old is the word “scientist”?
http://www.etymonline.com/index.php?term=scientist

http://en.wikipedia.org/wiki/Scientist

Social roles that partly correspond with the modern scientist can be identified going back at least until 17th century natural philosophy, but the term scientist is much more recent. Until the late 19th or early 20th century, those who pursued science were called "natural philosophers" or "men of science".[3][4][5][6]

English philosopher and historian of science William Whewell coined the term scientist in 1833, and it was first published in Whewell's anonymous 1834 review of Mary Somerville's On the Connexion of the Physical Sciences published in the Quarterly Review. Whewell's suggestion of the term was partly satirical, a response to changing conceptions of science itself in which natural knowledge was increasingly seen as distinct from other forms of knowledge. Whewell wrote of "an increasing proclivity of separation and dismemberment" in the sciences; while highly specific terms proliferated—chemist, mathematician, naturalist—the broad term "philosopher" was no longer satisfactory to group together those who pursued science, without the caveats of "natural" or "experimental" philosopher. Members of theBritish Association for the Advancement of Science had been complaining about the lack of a good term at recent meetings, Whewell reported in his review; alluding to himself, he noted that "some ingenious gentleman proposed that, by analogy with artist, they might form [the word] scientist, and added that there could be no scruple in making free with this term since we already have such words as economist, and atheist—but this was not generally palatable".

For a great discussion of science in this period see: Holmes, Richard, The age of wonder : How the romantic generation discovered the beauty and terror of Science
http://en.wikipedia.org/wiki/The_Age_of_Wonder

This creation of names continues even today. Should philosophy be renamed ‘ontics’?
http://opinionator.blogs.nytimes.com/2012/03/04/philosophy-by-another-name/?ref=opinion

What is law?

Produced by an institution?
What about religious norms? Social norms?
Does it need to be enforceable to be law?
Definition of law: http://dictionary.reference.com/browse/law

Theories of law
- Positivism. “"In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits." http://en.wikipedia.org/wiki/Legal_positivism

Has its dangers. Victor Klemperer “I Shall Bear Witness”. But does positivism always mean that “the validity of a law can never depend on its morality”? Raz

- Natural law. Does it ultimately make any sense as a theory of law if you consider for example our place in the universe, and random asteroids that could end life on this planet at virtually any time?

And what about this:? http://www.theatlantic.com/technology/archive/2012/01/what-happened-before-the-big-bang-the-new-philosophy-of-cosmology/251608/
I will make one comment about these kinds of arguments which seems to me to somehow have eluded everyone. When people make these probabilistic equations, like the Drake Equation, which you're familiar with -- they introduce variables for the frequency of earth-like planets, for the evolution of life on those planets, and so on. The question remains as to how often, after life evolves, you'll have intelligent life capable of making technology. What people haven't seemed to notice is that on earth, of all the billions of species that have evolved, only one has developed intelligence to the level of producing technology. Which means that kind of intelligence is really not very useful. It's not actually, in the general case, of much evolutionary value. We tend to think, because we love to think of ourselves, human beings, as the top of the evolutionary ladder, that the intelligence we have, that makes us human beings, is the thing that all of evolution is striving toward. But what we know is that that's not true. Obviously it doesn't matter that much if you're a beetle, that you be really smart. If it were, evolution would have produced much more intelligent beetles. We have no empirical data to suggest that there's a high probability that evolution on another planet would lead to technological intelligence. There is just too much we don't know.

Custom law. Eg Maori custom law. Point to ponder. What is custom law versus any other type of law? Isnt it all custom of one form or another? Or is the difference the fact that it is “a right enjoyed through long custom rather than positive law”?http://en.wikipedia.org/wiki/Custom_(law)

- Religious law. The Pope! Islam. Theocracies.

- Social Contract. The Mayflower - a classic social contract: http://americanhistory.about.com/od/colonialamerica/a/may_compact.htm

"Having undertaken, for the Glory of God and advancement of the Christian Faith and Honour of our King and Country, a Voyage to plant the First Colony in the Northern Parts of Virginia, do by these present solemnly and mutually in the presence of God and one of another, Covenant and Combine ourselves together into a Civil Body Politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute and frame such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the general good of the Colony, unto which we promise all due submission and obedience."

A good discussion of a social contract theory of law is contained in John Rawls “A Theory of Justice”:http://en.wikipedia.org/wiki/A_Theory_of_Justice

"no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance."

What if the parties dont know:
- when they will be born - now or in the future?
- whether they are human or some other species?

Would that extend the idea of the social contract in a useful way so as to consider environmental issues?

Indeed, without such extensions, does Rawl’s theory assist environmental law making in any way? In other words, could you argue that sound environmental law cannot come out of the Rawl’s model with the extensions suggested? In which case, is this also a way of saying that our current legal system cannot generate sound environmental law? It is too anthropocentric?

(Interesting side debate here: how can law be anything other than anthropocentric? Take the phrase, “intrinsic values of ecosystems”. Is that non-anthropocentric or not? See Animal Welfare Act 1999 section 85 Restrictions on use of non-human hominids:
http://www.legislation.govt.nz/act/public/1999/0142/latest/DLM51206.html#DLM51206

FOR DISCUSSION - POSITIVISM AND LAWS THAT BADLY DAMAGE THE ENVIRONMENT?

What if the Fiji government passed a law that, by any measure, would do untold harm to the environment of that country. Say, cut down all trees on one of the larger islands as a bizarre kind of Easter Island imitation. Is it law?

1)Under the positivist theory has it been validly made? (hint - google Fiji and rule of law)
2) Does the positivist theory allow for any consideration of the moral content of the law? (start with wikipedia on legal positivism and this comment: "Raz has also argued, contrary to Hart, that the validity of a law can never depend on its morality." http://en.wikipedia.org/wiki/Legal_positivism

FOR DISCUSSION - WHAT IF WE TRIED TO DEVELOP A NEW VERSION OF NATURAL LAW?

What about a theory of law which we might call the “Holocene Ethic” - that is, taking all steps to preserve the basic conditions of the planet that generated and have sustained the human species for the past 10,000 years or so. Maintaining the ethic would include responsibilities like keeping the planet in the Holocene state in terms of stable atmosphere, managing pollution etc. Also diverting or destroying asteroids on a collision course. And possibly - at a much later date - eventually preventing the expansion of the Sun.

What sort of theory of law should we have in relation to other bodies in our solar system and elsewhere? Are we entitled to terra form other planets? There are serious discussions about terra forming Mars (eg http://quest.nasa.gov/mars/background/terra.html) Should we do that or treat it as a kind of Antarctica? What if we find extreme forms of life on Mars? How should we treat them?

Are we entitled to interfere with the sun - to save the earth? There is already a movie raising that ethical issue:http://en.wikipedia.org/wiki/Sunshine_(2007_film)