Justice Brian Preston, the Chief Judge of the Land and Environment Court of New South Wales addresses the GPOD fellows
Justice Brian Preston, the Chief Judge of the Land and Environment Court of New South Wales on climate consciousness and the law, delivered a fascinating talk on the impact of climate consciousness on law, where he began his address by describing to the audience, the interrelationship between climate consciousness and the law. It implies how climate consciousness can influence the making and content of the law, and in return how law can influence climate consciousness. The footing cause of bringing this relationship was the report on the climate crisis, released on January 2020 where concerns about the rapid increase of greenhouse gas emissions were declared which has increasingly damaging effects on the Earth’s climate. This report was also listed as a sign of climate emergency that the world should be aware of.
Accompanied by this, the Judge revealed to us about the difference between climate consciousness and climate blindness, where the former is awareness of climate change and its consequences and considering that there is an immediate need to demand actions to mitigate and adapt to climate change. However, the latter concept remains indifferent to the same.
Climate consciousness has had an influence on law at international, national, and sub-national levels. For instance, when we converse about law at the international level, there have been examples that prove to us that how law is being impacted by the climate such as the UN framework convention on Climate Change(1992), Kyoto protocol(1997) and the very recent one Paris agreement (2015). On the latter one, Justice Brian remarked a comment as to how US ex-President Trump walked out of the agreement stating that the US did not affect the climate, which would highlight climate blindness on his part, in comparison to President Biden, who raises climate consciousness. Apart from this, he forced us to think that agreements at the international level would not be of any use till the time we do not make changes at the national tier.
One interesting argument raised by Justice Brian was that the laws that are now being framed concerning climate change are more of protesting laws instead of sustainable law, thus implying that these laws are being enforced via the medium of civil society protests, public interest litigation. For this reason, the question that leaves us here is how enduring these laws are in the first place. It is well noted that the climate consciousness of society influences the court, which brings us to the conclusion that societal changes ultimately drive legal changes.
To retort this question, Justice Brian drives our focus to the influence these societal changes bring on legal changes. These are now segmented into easy cases and hard cases. Easy cases are cases that have no dispute about what the law says or how it applies to a peculiar set of facts and the legislation is normative. Meanwhile, hard cases are those where there is a tiff about what is relevant law or what relevant legislation means or whether and how the relevant legislation applies to a particular set of facts implying that is no legal law here. Hard cases are usually succeeded by two approaches. One being Hla Hart’s Approach, where judges make the law concerning the societal changes, and the other being the Dworkin’s approach where judges find the law out of the present law.
The second constituent of the lecture talked about the influence of law on climate consciousness. Justice Brian talked of two sources of law, the legislature and the judiciary and how they can raise or lower climate consciousness, and how the executive can also do the same. The legislation is normative and dictating in their action according to the norms in legislation. However, we do notice that the legislation shapes people’s and official’s normative attitudes and conduct over the years. On coming to the judiciary, he said that the courts uphold, oblige, declare and uphold the law, and also sanction and breach the law. It is they who enhance democracy. To support his other argument, Justice Brian gave examples of different cases such as Urgenda Foundation v The Netherlands, Our Children’s Trust case v USA, etc. Last but not the least, the executive’s role which is responsible for the implementation and enforcement of the law affirms and publicizes the norms in the law, was highlighted by the speaker.
In his parting note, he babbled emphasized on the urgent need to alter our mindset towards climate change. The climate crisis necessitates urgent and ambitious action to mitigate and adapt to climate change.
As Mahatma Gandhi said once, “we need to be the change we want to see, the actions we take will be defined by the mindset we have before we take action.”
About the GPODS fellowship:
The Global Policy, Diplomacy and Sustainability (GPODS) is a program for public policy practitioners, business professionals, energy and climate change experts, entrepreneurs, academicians, scholars and strategic analysts to act as a launchpad for their careers. Currently we have fellows from five different countries namely USA, France, UK, Israel, Italy and 40+ world leaders as mentors from 15 different countries.
About the speaker:
Justice Preston is the Chief Judge of the Land and Environment Court of New South Wales. Prior to being appointed in November 2005, he was a senior counsel practicing primarily in New South Wales in environmental, planning, administrative and property law. He is an Official Member of the Judicial Commission of NSW, Fellow of the Australian Academy of Law, Fellow of the Royal Society of NSW, Honorary Fellow of the Environment Institute of the Australia and New Zealand and also a member of various international environmental law committees and advisory boards. He is currently an Adjunct Professor at the University of Sydney and at Western Sydney University.