The value of judicial activism in promoting climate resilience Amelia Smillie

The value of judicial activism in promoting climate resilience

Amelia Smillie

It is an incontestable fact that climate change will have a substantial impact on the global environment, and consequently, society. This is already being felt, with an increase in the frequency and intensity of natural disasters such as droughts, flooding, storms and bushfires. Other symptoms are of longer duration, including a rise in sea levels and an increase in temperatures causing variations to local ecosystems and impacting the liveability of many cities. Climate resilience is the ability to anticipate, prepare for, and respond to extreme weather events and/or natural disasters caused directly or indirectly by the change in climate. In Australia, it is imperative that the government at every level understand these risks and adapt their decision making to become more climate resilient. However, if the most severe effects of global heating are to be avoided, other institutions, including the judiciary, have a role to play. The Land and Environment Court of NSW is leading the way in promoting climate change resilience, prompting consideration of the value of judicial activism.

Traditionally, the norm of judicial interpretation in common law countries has been strict formalism. Sir Owen Dixon, an eminent High Court Chief Justice, famously stated ‘there is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’. The value of black letter legal decision making is strong. The principle of responsible government is predicated upon the notion that decisions are made by democratically elected who have been democratically elected. The safeguard to prohibit their tyranny is that if they make disagreeable decisions, the people vote them out. As unelected representatives, this protection does not exist at the judicial level. Further, it is necessary for the integrity of the institution of law that the judiciary be seen as a political, unbiased adjudicator, a notion threatened by ostensible activism.

Judicial activism is a highly contentious practice in Australia, often polarised linear to political factionalism. Whilst most note with approval the activism of the High Court in Mabo v Queensland (No 2) that overturned the prevailing legal fiction of terra nulllius, judicial

activism remains the subject of extensive criticism, especially from conservative commentators. The recent High Court decision in Love v Commonwealth of Australia held that Indigenous Australians cannot be considered ‘aliens’ even if they are born overseas and have never sought Australian citizenship. The Australian, a Murdoch publication, described this decision as ‘a legally bogus exception based on race’ that was made with ‘scant regard to the law’. More persuasively, current High Court Chief Justice Susan Kiefel, in her dissenting opinion, rejected the decision of the majority as ‘antithetical to the judicial function since they involve an appeal to the personal philosophy or preference of judges’. The developing trend in the Australian Courts of legal activism is clearly not uncontroversial or settled.

This leaves society with a significant problem in the field of climate litigation and the ability of the courts to promote climate resilience. Without judicial activism, judges are required to strictly interpret the law that exists. However, in Australia, and specifically in New South Wales, the legislation regarding climate resilience is grossly inadequate. Australia obtained the lowest ranking possible in the 2020 Climate Change Performance Index prepared by a group of reputable international thinktanks. Rather than create policy promoting climate resilience and reducing the contribution of Australia to anthropogenic climate change, Australia continues to support the fossil fuel industry and seeks to avoid meeting the Paris Agreement targets. It is therefore necessary for judges to look beyond the legislation when considering cases in which the impacts of climate change are relevant, or risk creating outcomes that are unjust and inconsistent with the values of contemporary society. Judicial activism is not only inevitable in these circumstances, but necessary and should be encouraged.

The landmark Gloucester Resources Ltd v Minister for Planning (‘Rocky Hill’) case brought to the attention of the nation this tension between strict legalism and the promotion of climate change resilience. After the Department of Planning refused to approve a new coal mine which would produce 21 million tonnes of coal over 16-years, Gloucester Resources Ltd (‘GRL’) appealed to the Land and Environment Court of NSW. The mine was to be located in close proximity to the idyllic town Gloucester, and close to world heritage listed Barrington Tops National Park.

Preston CJ refused to allow the merit appeal in a decision celebrated by activists, environmental scientists and environmental lawyers globally. His Honour found that the proposal would be contrary to the public interest for a number of reasons. Uncontentious amongst those are the negative visual impacts, negative noise impacts and loss of social amenity including the reduction in the tourism and agri-tourism the region attracts due to its status as pristine and untouched. It is common for development proposals to be rejected on these grounds. What makes this decision significant is that Preston CJ held that the greenhouse gas (‘GHG’) emissions of the coal mine and its coal product ‘will increase global total concentrations of GHGs at a time when what is now urgently needed… is a rapid and deep decrease in GHG emissions’. This is the first time that an Australian court has rejected a proposal to harvest fossil fuels on the grounds that the Scope 3 emissions, being emissions that are produced through the use of the mined product, not necessarily in proximity to the mine itself, will be harmful to the environment and consequently contrary to the public interest.

The Rocky Hill decision is clearly within the parameters of existing law, despite being a landmark case. The State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 s 14(2) mandates that downstream GHG emissions must be taken into consideration and the Environmental Planning and Assessment Act 1979 s4.15(1)(e) mandates that the court is required to consider the public interest, which has been taken to include the principles of ecologically sustainable development. Further, Preston CJ pointed to many cases, some decided in Australia and others in other common law jurisdictions, that hold that indirect, downstream impacts are a relevant consideration in fossil fuel planning proposals. His Honour provided detailed legal justification for the decision.

Despite the clear legal basis for the decision, it has been criticised by National Party MP Michael Johnsen as ‘smack[ing] of judicial activism’. In response, the CEO of the Environmental Defenders Office, argues that Preston CJ wasn’t being an activist, as ‘(he doesn’t) accept that using the laws as they exist is a radical or activist thing to do’. Even if the result of activism, the decision was consistent with public sentiment regarding the need to respond to climate change, and necessary to ensure that the law remains consistent with societies changing values. Despite the risks discussed above, the Rocky Hill case elucidates that judicial activism should be encouraged when it serves to promote climate resilience, provided that judges stay within the parameters of the law.