Ecologically Sustainable Development and the Australian Court - Term Paper Example

Ecologically Sustainable Development and the Australian Court Introduction It was suggested that environmental law evolved from the acceptance of “collective global responsibility” (Chow and Soh, 2009, p 195) that required sustainable development. From creation of framework, shift has been seen towards enforcement and compliance. Likewise, interconnectedness has been credited to have influenced environmental law. From domestic laws, environmental law evolved into bilateral then regional and global legislations. Abbot (2005) earlier argued that the presence of regulatory systems and legal controls on environment cannot minimise activities of regulated entities. Enforcement has been seen to effect lofty environmental goals following deterrence and compliance enforcement strategies. This paper will try to present how an international concept Ecologically Sustainable Development (ESD) has taken root locally with articulation on the precise mechanisms for translating laudable principles into specific actions. It will take into consideration the role of the Court for workable solutions as suggested by Brian Preston, Swearing-In Chief Judge of the Land and Environment Court of New South Wales. Discussion Evolution of Environmental Law The interconnectedness of the natural environment in a global scale has been the focus of international environmental gatherings such as the Kyoto Protocol with emphasis on the cooperation of all nations. As one major player in the international economic scene, Australia has been pressed like all the other industrial nations to ratify an agreement limiting or targeting certain levels of environmental degradation measures in order to meet ESD. Each major economic nations as well as developing and underdeveloped countries, although represented, played their own levels of power in this instance and Australia, one of the major nations remained adamant (Crowley, 2007). As Chow and Soh (2009) emphasized, the action of an individual in one point of the globe provides a profound effect in another thereby prompting nations to enact environmental law. This law has been embedded in various legislative policy frameworks throughout the years. However, the magnitude of global problems has alarmed nations so that global solutions are sought as industrial negligence and significant changes in climate complicate the concern (Chow and Soh, 2009). A collective global responsibility ensued as compliance with frameworks is worked out. Chow and Soh (2009) however, noted the strange shift of primary actors - from local to global and then to corporations. With this, legal and holistic lines are considered. Source: Chow and Soh, 2009 Role of Multinational Corporations The role of multinational corporations (MNCs) on the environment as well as on laws enacted to protect it has grown more significant over the decade. The growing importance of MNCs further complicate the problems on environmental laws as policy after policy between local, national, to international communities are forged. As in the case where MNCs invest in one locality, various forms of protections are already in place through bilateral investment treatises, state contracts, as well as governing bodies like the World Trade Organization (WTO). Investors demand more than what exist in one locality in order to protect their stakes and this has been seen to have added to the MNCs power to exploit even the environment (Tienhaara, 2006). As noted earlier, the early 20th century saw states enacting domestic legislation for the environment as collective action are needed at the state level. The middle of the century had seen the boom of industrialisation so that MNCs’ actions need to be regulated as the environment becomes advertently affected. BY the end of the 20th century, it was realised that the state alone cannot deal with the mounting environmental problems prompting the institution of international regimes to address these problems (Chow and Soh, 2009). As the trend moves, states are now pressured to police their corporations and individuals to abide by acceptable environmental imprints, but more focus has been seen on corporations. The diversity and coverage of MNCs has become so vast and jurisdictional issues has limited the power of environmental law and it was suggested that “other types of law, such as taxation law, trade law, and investment law, will be used to influence the way these MNCs behave,” (Chow and Soh, 2009, p 198). MNCs and local corporations became the primary polluters and criminal sanctions were enforced to corporations for violation of pollution control legislation (Reitze, 2001). This has also shown parallel development with the economy as the amount of economic activity has been directly linked with the degradation of the environment. The environment serves as the main source of industrial activities so that economic growth resulted to increase in natural resource consumption, stress on the environment and pollution. Economic and social lives of peoples were greatly improved but there has been a realisation of a direct impact on health and environment (Chow and Soh, 2009). By 1970, it became inevitable that states need to have a more active role to control pollution and protect its environment. Early Australian Environmental Laws Laws such as the Wildlife Conservation Act, 1950 was passed in Australia with the aim to protect indigenous Australian animals or periodic migrants (Bates, 1992) that signalled the start of modern environmental law protecting the environment through conservation. It restricted the actions of individuals to protect non-humans as criminal penalties were sanctioned against violators. This has been seen as “anthropocentric” as it was enacted to preserve “the environment for mankind’s future enjoyment and exploitation,” (Chow and Soh, 2009, p 199). International Actions on Environment One major and milestone case about the international environmental law is the Trail Smelter. Prior to this case, many states believed that the use of their natural resources and corporate activities within their borders were their own concern. However, with the 1935 case of Trail Smelter, the arbitral tribunal awarded damage suits against Canada for the activities of Consolidated Mining and Smelting Company at Trail, British Columbia that affected the Washington State United Nations, 2006). With this case, nations realised the magnitude of one state’s negligence could result to international damages. The Organisation for Economic Cooperation and Development (OECD) has provided that “transfrontier pollution” physically originating from one state affecting another national jurisdiction becomes subject to the jurisdiction of the originating state (OECD, 1977). Other significant cases that forged international action on environment protection includes the Chernobyl radiation cloud (Wilson, 1999), the publication of Silent Spring by Rachel Carson which helped limit the use of pesticides (Carson, 1962), the case of the Cuyahoga River catching fire in 1969 due to pollution of petrochemical leading to the enactment of the Cllean Water Act of 1972, the acid rain in Canada caused by the release of sulphur dioxide by power stations in the US, oil spills that resulted to the Convention for the Prevention of Pollution of the Sea by Oil in 1954 (Chow and Soh, 2009), and other related cases. The changes in the climate most recently has established the powerlessness of even the wealthiest nations to protect their environment as the continued large use of chloroflourocarbons (CFCs) will eventually lead to the depletion of the earth’s entire stratospheric ozone layer (EPA, 2007). In 1972, the UN responded with the first environmental conference United Nations Conference on the Human Environment, in Stockholm. The Stockholm Declaration and its Principles upheld the “need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment” (UN, 1972). Whilst it was acknowledged that this was a global cooperation, the state still has the vital role to play. The Stockholm conference institutionalised the United Nations Environment Programme (UNEP) and made the issue a global consensus. By 1992 in Rio de Janeiro, the UN Conference on Environment and Development formulated the need to stabilise the climate as well as protect the Earth’s existing plants and animals. In addition, economic and environmental goals were integrated through the concept of “sustainable development.” The global economic activities, however, saw the intensified growth of MNCs and the emergence of new corporate players as cost of labour and wider markets were recognised. The 2002 World Summit on Sustainable Development held in Johannesburg produced the Johannesburg Declaration commitment of participating countries as well as the promotion of corporate responsibility and accountability (UN, 2002). James Gustave (2004, p 145) noted that: economic globalization leads to (1) an expansion of environmentally destructive growth, (2) a decrease in the ability of national governments to regulate and otherwise cope with environmental challenges, (3) an increase in corporate power and reach, (4) the stimulation of particular sectors like transportation and energy that have largely negative environmental side effect, (5) the increased likelihood of economic crisis, (6) the commodification of resources such as water and the decline of traditional local controls on resource use, (7) the spatial separation of action and impact from responsibility, (8) the further ascendancy of the growth imperative, and (9) the rapid spread of invasive species and the resulting biological homogenization. Current Environmental Law Implementation in Australia The above discussion leads to the role of the state, specifically Australia in the implementation of international goals and commitment in the local level. Abbot (2005) has noted the need to address enforcement strategy, range of enforcement tools available to regulators and the courts. This will facilitate compliance with the use if formal and informal administrative tools and sanctions, criminal prosecution and civil litigation. And “enforcement pyramid” has also been suggested by Braithwaite (1985) for a ore sweeping approach as comparable to just one which may fail to address several issues and layers of an environmental problem. In this manner, the main basis for compliance will be persuasion, towards layers of enforcement by regulators employing punitive approaches. The range of tools will maximise the regulators’ capacity to leverage cooperation and compliance and deter lack of cooperation from firms. In existence in Australia are command and control systems specifically environmental standards implemented through licences or permits (Abbot, 2005). Licensing system noted in New South Wales is highly sophisticated that serves as backbone of pollution control. Legislation is challenged create powerful economic incentives in the reduction of pollution emission which is at the same time considered cost-effective. Linking license fees to pollution emission has been considered (Abbot, 2005). Compliance with law is a goal of regulatory authorities that becomes a challenge when economic perspectives are considered. As earlier noted, “most pollution is caused by the operation of processes and the production of goods or services, it is the by-product of an economically desirable activity,” (Abbot, 2005, p 163). This usually leads to regulators ignoring compliance where cost of compliance outweighs the benefits of harm prevention. In addition, costs increase in monitoring and enforcement activities thereby prompting the need to balance cost of law enforcement against benefits of such enforcement to society. The goal is then to have optimal enforcement at a lesser cost against its benefits. Kagan and Scholz () also proposed the need to respond to reasons of non-compliance, specifically pointing out three theories of amoral calculator, political citizen and the organisationally incompetent entity. Australian regulators have so far adopted a compliance-based approach. Criminal prosecution has been a last resort as it has been noted that there are variations in policy and cooperative relationships were sought (Grabosky and Brainwaite ___). Incidentally, in Abbot’s study (2005), it was indicated that in NSW, an increase of prosecution from 15 in 1984-85 to 115 in 2002-2003. Whilst this was seen as adversarial approach to enforcement, the peak of cases brought forward in the period 1986-87 with 71, the subsequent dwindle, and the low level outside NSW and within Australia in general indicates a compliance strategy of enforcement (Abbot, 2005). The EPA in Victoria specified that maintaining good relationship with the regulated community as an “overly penal approach to enforcement may have an adverse effect on regulatory cooperation” (interview, Abbot, 2005, p 165). In addition, it was noted that about 90% of Victorian businesses were seen as good corporate citizens who aspire to do the right thing as “majority of incidents resulting not from economic calculation but from stupidity or human error,” (Abbot, 2005, p 165). Where offence is committed, enforcement action may not always involve prosecution (EPA Victoria, 2004) and in fact, discretionary in nature with public interest at the core. Approaches also include education, incentives, and partnerships but prosecution and on-the-spot fines were also in place. It was clearly specified that “a range of responsive enforcement sanctions that escalate in severity as the need arises” (EPA Victoria, 2004, p 4). Administrative notices have also been used. In the period 2002-03, Victoria EPA released 213 pollution and clean-up notices, 370 enforcement notices, as compared with its 30 prosecutions and 1,712 criminal charges against polluters (EPA, Victoria, 2004). The regulating agency is also empowered to revoke or suspend license under the environmental licence. This may involve closing down an entire factory or limiting the output of a manufacturing entity, thereby economic in nature and seen as more severe than prosecution although used sparingly (Abbot, 2005). Abbot (2005) also noted that, “Powers of suspension and revocation also clearly serve a preventative function and are therefore defensible on the grounds of public protection,” (167). The notices serve as “threats” and gains similar results of cooperation. License suspension and revocation is a two-stage process: “full or partial revocation and suspension is pre-empted by the issuing of a notice of intention to proceed with such action,” (Abbot, 2005, p 167). In the period 2002-03, the NSW EPA issued 5 notice of intention to suspend whilst only three were actually suspended. Out of 14 notices to revoke, eight were eventually revoked and this indicates the willingness of the agency to implement revocation (Abbot, 2005). Monetary penalty has also been seen as more acceptable in Australia for environmental breach. Offenders were usually given the chance to compensate for their breaches through payment of specified monetary amount. Penalty notices were used to discourage one-off violators. Implementing legislation usually bears a level of penalty appropriate for the offence. Upon payment of penalties, criminal conviction and record are cleansed. However, the notice recipient may also contend the case in court, but penalty is usually higher upon conviction, thereby discouraging corporations to use this scheme. Aside from the negative publicity associated with the case elevation in court, the penalty is much larger. Cases were noted in NSW when in 2003, about one thousand notices were sent but only 50 have chosen to be prosecuted in court. Australian Court’s Role in the Implementation of Ecologically Sustainable Development (ESD) Basing on the speech provided for and by Brian Preston, environment and planning jurisprudence have been developed ever since the resolution of the case BGP Properties Pty Limited v Lake Macquarie City Council in 2004. This led to the development of the application of ESD as well as the extent of possible precautionary principle for application with compliance to the Rio Declaration of 1992. Most importantly, the case also established to uphold conservation of biological diversity and ecological integrity “where there is a lack of scientific certainty the precautionary principle,” (an introductory speech, Supreme Court of New South Wales, 2005, p 4). In the same instance, Preston acknowledged the truthfulness of architect Frank Lloyd Wright’s observation that “You will find the environment reflecting unerringly the society,” (Supreme Court of New South Wales, 2005, p 11). Preston’s holistic approach towards addressing environmental concerns also reflects Wright’s own influence Ralph Waldo Emerson who promoted that “life requires appropriate respect, sensitivity and caring, whether in culture or nature,” (Preston in Supreme Court of New South Wales, 2005, p 12). Preston encouraged the Court: to develop environmental jurisprudence, to have the capability of foreseeing and forestalling environmental degradation, to have a role in shaping the concepts of justice and law with sensitive consideration of delivering justice to the marginalised, and to engage with and explicate international concepts and principles. Crowley (2007) however, sees an opposite Australian reaction to ESD through the Kyoto Protocol by stating that “Australia is therefore faking its commitment to meeting its target by not cutting energy emissions and by relying on land use change and ineffective voluntary and spending programs to meet its Kyoto and BAU (business as usual) targets,” (p 119). Together with the United States, Australia is the only other two who failed to ratify the Kyoto Protocol. Aside from economic reasons being a carbon-intensive economy, Australia has the highest greenhouse gas emissions among the industrialised nations. It releases 27.5 tonnes per person and 32% higher than the US (Crowley, 2007). Australia has argued its special case as a developing nation with various reasons for stalling the ratification: “heavy reliance on fossil fuels for energy, the transport issues associated with its size as the sixth largest country in the world, its above OECD average population growth, its still changing land use patterns and its export-based economy,” (Crowley, 2007, p 120-121). Crowley challenged whether Australia’s seen self-interest in the Kyoto Protocol ratification has affected its internal climate change policy. This is undermined by reasons that Australia is an export economy, it is dominated by coal in its domestic energy production, and its position as world’s largest coal exporter (Crowley, 2007). Prioritising jobs and employment over environmental concerns, policy has been lax when it came to environment as seen during the Howard administration (Crowley, 2007). The recent changes in politics, however, indicate positive development with regards to environment issues in Australia as the public expressed their dissatisfaction and lack of trust on the government over environmental concerns (Crowley, 2007). In effect, “Economically rational policymaking and free market ideology have certainly dominated as the language of the business community, the fossil fuel lobby,” (Crowley, 2007, p 124). Conclusion Australia as Crowley has successfully observed, was divided in its implementation of ESD. The Court under the stewardship of Preston may be marching towards a different direction as its local politics was going but differences certainly affect policy creation and implementation. Existing laws and regulation provides a clear stance on the matter: cooperation. Whilst regulatory practices of cooperation is ideal in the local context, more pressing issues will continue to manifest within Australia: one was migration due to rising levels of water, climate change and its health and economic effects, and the fast-changing global economic trends that has caused crisis in the US and the European Union. Australia may stall its actions for the environment and this will be reflected in its laws and regulations, but the environment is definitely not waiting. Reference: Abbot, Carolyn. 2005. “The regulatory enforcement of Pollution control laws: The Australian Experience. Journal of Environmental Law. 17, 2. 101-180. Bates, Gerry.1992. Environmental Law in Australia 267-68 (3d ed. 1992); U.S. Fish & Wildlife Serv. 1992. Braithwaite, J. 1985. To Punish or Persuade: Enforcement of Coal Mine Safety. State University of New York Press, 1985. Carson, Rachel. 1962. Silent Spring. Houghton Mifflin. 1962. 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