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Very intersting year for climate court cases. The German constitutional court recently issued a similar ruling, which caused quite the stir: https://www.thegua

• hcurtiss 5y ago
  I think most people agree on the policy. The question in the US, at least, is whether unelected jurists with lifetime appointments are the ones who should be deciding those policies. Generally speaking, the reason for separating the two is that there's no political recourse for the judicial decision. That's how wars are started. In my mind, policy should be made by the legislative branch. These are not always bright lines, but at least in the present case, and what to do about those intergenerational externalities, they are in my mind very plainly matters of lawmaking, which is not the proper role of the US judiciary.
  • Isinlor 5y ago
    In this case it is just a fairly direct interpretation of the law. > The objects of the EPBC Act include providing for the protection of the environment, especially those aspects of the environment that are matters of “national environmental significance”: s 3(1)(a). Section 3(1)(b) states that a further object is the promotion of “ecologically sustainable development” through the conservation and “ecologically sustainable use” of natural resources. > The principles of “ecologically sustainable development” are given meaning by s 3A which provides: > (c) the principle of inter-generational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;
  • kevingadd 5y ago
    The increasing role of the US judiciary in these matters is probably due in part to the fact that our legislative bodies are effectively non-functional for any remotely controversial matter - and since a significant % of our office-holders insist that climate change isn't real, we generally don't get much legislative action from them. It's unfortunate since it means the pressure to act by any method increases on the people who still have the option to act, like judges (or the president with their Executive Orders).
    • rsj_hn 5y ago
      The article is about australia, not the U.S. And in the U.S. the legislature isn't acting because the public doesn't want it to act. People are not buying into the hysteria and they have no wish to chase even more carbon intensive industries to China, which is now producing more carbon gases than the rest of the world combined, and those emissions are growing at 8% a year. Rational people look at that, look at the dismal track record of these end of the world predictions, and conclude that there doesn't seem to be much point in punishing domestic industries and incentivizing them to move even more production to Asia. I get that this enrages people who are still clinging to the idea of a global consensus, but China has effectively shut the door on that option, and the consensus was primarily just among elites in the west. So it's understandable that politicians in the west are refusing to act, whereas judges and those insulated from public opinion are free to wring their hands.
      • hcurtiss 5y ago
        Agreed. The US Congress can act when it wants to. The ACA passed, even if altered by subsequent legislatures. The problem the environmental contingent has is that there is not the political will to move their highly controversial legislation, so they are looking to the judiciary to act instead. As I said above, that kind of activism without political recourse leads to some very negative outcomes.
        • shkkmo 5y ago
          The ACA is the exception that shows exactly how hard it is to pass such a bill. The ACA passed with 0 republican votes. It only passed because Democrats controlled the House, Senate, and Whitehouse. That still wouldn't have been enough (due to the filibuster), but the Democrats also had a big enough majority (60 of 100) in the Senate to override any filibuster. I do believe that if Democrats had that much political power today, we would see much more significant climate change billa being passed.
  • bigbillheck 5y ago
    > there's no political recourse for the judicial decision That's what amending the constitution is for.
  • atoav 5y ago
    If politicians break constitutional and/or human rights who else than jurists should step in? That is literally their job. Of course I'd prefer if governments would respect and uphold these laws in the first place, but if they don't having a justice system that can step in is precisely what we have the division of powers for. (In Germany, the rights of future generations are written into the constitution — the question was only if the government does enough to uphold these rights)
    • hcurtiss 5y ago
      > That is literally their job. It is literally not their job. Their job is to interpret and enforce the laws passed by the body answerable to the people through elections. At least in the US, there is only a very limited federal common law, and there is no common law precedent for generically prohibiting intergenerational environmental impacts. There are those who argue the "public trust doctrine" should drive these outcomes, but again, no such doctrine has ever been applied to carbon emissions in the US (or even any other form of pollution). That would be judicial lawmaking. The idea that unelected black robes can fundamentally remake the US economy without legislative authorization is literally the antithesis of how it's supposed to work. That's not their job.
      • Applejinx 5y ago
        My gut feeling is 'wrong'. Justice is concerned with concepts of right and wrong. Politics is concerned with concepts of power and, possibly, public opinion. Lawmaking is concerned with whoever can pay off the politicians most effectively :D If judges are not at least equally capable of throwing their weight around as politicians and kings and the like, why even have them? They are meant to not ANSWER to kings, Presidents, and legislative authorization. Are they supposed to rule, instead? No, which is why legislation is sometimes a countervailing force. But they sure are not there to act as puppets to the powerful and the politicians.
        • hcurtiss 5y ago
          Please trust you are fundamentally wrong. If Congress plainly acts within the authority granted it by the constitution, then the judiciary is strictly bound. Similarly, the judiciary is strictly bound by the constitution. If there is no statutory or constitutional authority, then there is no law to apply, meaning the petitioner has not carried its burden before the court.
  • anigbrowl 5y ago
    The judiciary isn't making laws; it's pointing out the ramifications of existing laws and precedent. The judiciary would love the legislature to be in front of such questions, but they can't force another branch of government to legislate, nor is there any legal route for the populace to do so other than voting and hoping politicians will deliver on non-binding commitments.
    • hcurtiss 5y ago
      But that's precisely how it's supposed to work. That there is not (yet) sufficient political will to adopt these policies by statute does not in any way create a duty for the judiciary to act. Congress makes the laws. It's the judiciary's job to interpret them. At least so far, there is no law (in the US) with a generic obligation to protect future generations from environmental harm. I question how such a law could even work given that a great deal of human activity permanently alters the natural environment.
      • lazyasciiart 5y ago
        But we're not talking about the US judiciary.
        • hcurtiss 5y ago
          These comments are responding to my original, which was directed to the US judiciary. I understand the linked article is not, but given the large US readership on HN, discussion of how the US works strikes me as germane.
  • ectopod 5y ago
    The problem (in Europe anyway) is that the legislatures are creating legally binding targets on carbon reduction, but not creating policies that can plausibly achieve this. When you have a contradiction like this it is the job of the courts to solve it. If the legislatures don't like it they can repeal the targets or implement policies to meet them.
    • pyuser583 5y ago
      Legally binding on themselves? Different countries work different ways, but legislatures can’t force future legislatures hands like that. For example, many NATO countries have a legal obligation to spend a certain amount of their GDP on defense. But they don’t. Courts aren’t stepping in - nor should they.
      • ectopod 5y ago
        All governments are bound by existing law until it is changed. The alternative is tyranny. The usual limit on binding future legislatures is that you can't pass a law that is impossible to repeal. Courts don't step in. Complainants bring cases. Who is going to sue the government (at vast expense) over defence spending?
        • pyuser583 5y ago
          Defense contractors. And in the US (and I’m pretty sure in the UK/Westminster countries) a goal set by a previous legislature doesn’t force the hand of a future one. There’s a distinction made between constitutional issues (what some counties call Basic Law) and normal legislation. Basic/Constitutional law constrains governments preventing tyranny. Is climate change part of Germany’s basic law?
          • ectopod 5y ago
            Sure, defence contractors could do that, but suing your customers isn't such a great idea. These climate policies are not merely goals. They are laws, and they remain in force until they are repealed. It doesn't matter what kind of law they are. Do you believe that all non-constitutional law is automatically repealed when a new government takes over?
  • pyuser583 5y ago
    Beyond the issue of judicial activism, the idea of a strong legal obligation towards people who don’t exist is suspect. One of the cornerstones of modern ethics is autonomy - roughly “don’t make moral decisions for other people.” But creating a strong political obligation towards non existent people frankly violates their autonomy. Who knows what future generations will want? For example, perhaps these future people are strongly religious, and object to birth control. Perhaps they are radical right wing climate deniers. Maybe they are literal Nazis who successfully wiped out everyone who isn’t of a specific racial background. It might sound sad that future people would be that way, but remember they are all the children of whoever survived and reproduced. Even more problematic: we are creating the very people we have an oligarion toward by our actions. We could easily invent an international immigration policy that would create the people (and obligations) we want. For example, a EU-rophile could say: “loosened immigration rules have created future generations with a more European wide outlook. Therefore they will need stronger transnational institutions to support them.” Or we just easily say, “People if the future are more likely to want the strong national identity we currently lack, so let’s focus on national policies.”
• deleted 5y ago
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• Isinlor 5y ago
  In this case it doesn't seem to be some creative interpretation of the law, but a fairy direct interpretation. > EPBC Act include providing for the protection of the environment > The following principles are principles of ecologically sustainable development: > (c) the principle of inter-generational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;
  • OJFord 5y ago
    Enacted in 1999, and the 'EP' is 'Environmental Protection'; there's no way they weren't thinking of climate change in writing that. Which makes it slightly curious it hasn't come up before / that it required any interpretation at all?
• woodpanel 5y ago
  Germany, Netherlands, Australia... People who for ideological reasons are cheering for this establishment of a precedent where imagined future victims are enough for current societies to be found guilty, will be dumbfounded once this precedent is used to establish policies they don’t like. Case in point: If the reduction of future GDP leads to constitutional courts demanding policy actions than there is every legal basis to nix any current environmental policy that has direct/near term negative impact on GDP because just going from 3% GDP growth to 2% growth over the course of 100 years means a delta in wealth the size of Mexico-vs-USA.
  • Isinlor 5y ago
    This is just direct a interpretation of the law. You should be upset with Australian legislature for creating this type of laws not with courts that are tasked with interpreting it. > The objects of the EPBC Act include providing for the protection of the environment > The principles of “ecologically sustainable development” are given meaning by s 3A which provides: > (c) the principle of inter-generational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;
• jollybean 5y ago
  The issue is whether or not courts have this kind of jurisdiction.