Profiles in Sustainability: The Hon. Justice Brian J. Preston, FRSN SC FAAL, Chief Judge of the Land and Environment Court of New South Wales

Justice Brian J. Preston

Introduction

This interview with Justice Preston, conducted by Donna Craig, explores the role of specialist environmental courts in adjudicating environmental disputes and in promoting environmental justice and sustainable development. Justice Preston comments on the evolving nature of environmental law and on trends in environmental legislation and litigation over the past 40 years. Justice Preston has contributed significantly to the development of environmental law, not only as the Chief Judge of the world’s first, and still leading, specialist environmental court, but also as a leading, internationally recognized, environmental judge.

Justice Preston is the Chief Judge of the Land and Environment Court of New South Wales. He is both a practicing and an academic lawyer. Prior to being appointed in November 2005, he was a senior counsel practicing in environmental, planning, administrative, and property law. He is an adjunct professor of law at three Australian universities and is a visiting professor at Durham University, in the United Kingdom. He has lectured in postgraduate environmental law for over 30 years. He is the author of Australia’s first book on environmental litigation and of 150 articles, books, book chapters, blog posts and book reviews on environmental law. He has been involved in a number of international environmental consultancies and capacity-building programs, including with judiciaries throughout Asia, Africa, and the European Union.

You are the Chief Judge of a specialist environmental court, the Land and Environment Court of New South Wales. What is the rationale for a specialist environmental court?

Specialist environmental courts are set up to better adjudicate environmental disputes. This requires the courts to be responsive to environmental disputes. Ceri Warnock has suggested that there are four factors or components that enable a court to engage in responsive environmental adjudication.¹ The first is to identify the distinctive characteristics of environmental disputes. The second is to acknowledge the impact that the distinctive characteristics of environmental problems have for the adjudication of disputes. The third is that through the adjudication of environmental disputes the court can develop environmental law doctrines, procedures, and remedies. By so doing, the court develops environmental jurisprudence. The fourth is that the court needs to be designed with a constitution, competences, and expertise that better enable it to adjudicate environmental disputes and be responsive to the environmental problems. In summary, the rationale for setting up a specialist environmental court is to ensure responsive environmental adjudication.

You said in your answer that a specialist environmental court is better able to respond to the distinctive characteristics of environmental problems. Can you elaborate on the distinctive characteristics of environmental problems?

Environmental problems are complex, polycentric, interdisciplinary, uncertain, and ever-changing. These characteristics are difficult for the law. The law values stability. Stability gives consistency. Consistency generates predictability. People can order their affairs to comply with the law, if they know what the law is. Where environmental problems have their distinctive characteristics, the law is ill-equipped to deal with these ever-changing problems. Liz Fisher refers to environmental problems as involving “hot” situations.² Hot situations are those in which the agreed frames, legal or otherwise, for how society acts and understands the world are in a constant state of flux and contestation.³ She says that for the law to respond to these hot situations, it too must become hot. We need hot law for hot situations.⁴

A characteristic of environmental problems that raise conflict between individuals and the environment is the public interest. Can you briefly address this aspect?

The development of land and its resources can cause environmental problems, affecting both private and public interests. The development of land seeks to further the private interest of the landowner. Private interests of neighboring landowners are affected because development affects neighboring land. The amenity and enjoyment of neighboring landowners may be impacted. Public interests are also affected. McAuslan identifies the public interest as a key ideology of planning law, which regulates the development of land.⁵ The development may adversely affect not only neighboring land but also the local character and amenity of the whole area. Planning law serves to balance these private and public interests.

The public interest is also engaged by development that impacts natural resources that have been classified from Roman times as part of the public trust. These natural resources are part of the commons, which cannot be owned by any individual. They encompass the air, running waters, seashores, and foreshores of lakes. Climate change, for example, impacts on the global commons.

You also said in your answer to the first question that a specialist environmental court can better develop environmental law doctrine, procedure, and remedies. Does this include environmental justice? If so, what aspects of environmental justice?

It does include environmental justice. There are three ways of looking at environmental justice.⁶ The first is distributive justice. The second is procedural justice. And the third is recognition justice.

Distributive justice concerns the distribution of environmental goods or benefits and environmental bads or burdens. Distributive injustice occurs when there is an unjust or inequitable distribution of burdens to certain members of the community, and benefits to other members of the community. We can see this particularly in areas where lands or waters have been contaminated or polluted and people are forced to occupy those areas. The contamination or pollution is an externality. It is a cost incurred in the development of land and its resources, but the cost is borne by persons external to the development. The benefits of the development flow to certain members of the community, such as the landowners, the corporations carrying out the development, or the government receiving royalties. The burdens are usually distributed to the people who have to suffer the contamination or pollution.

Procedural justice is concerned with the procedure for providing access to justice. It can be understood in at least three ways. It is concerned with the ability of members of the community of justice to access information concerning the environment, to participate publicly in environmental decision making, and to have access to courts for redress and remedy where there has been an infringement of their substantive or procedural rights.

Recognition justice involves recognition and respect of all concerned. Most commonly, we become aware of recognition justice by its absence. This can occur in at least three ways. One is nonrecognition, where certain individuals, groups, or communities are not recognized in environmental decision making. They are effectively legally invisible. The second is misrecognition, where certain members of the community are disparaged, defamed, or devalued. Finally, there is malrecognition. This involves malignant recognition. An example would be where a particular individual, group, or community is targeted to silence their participation in the polity. Strategic Litigation Against Public Participation (SLAPP suits) is an example of malrecognition.

Does distributive justice include achieving ecological sustainability?

Distributive justice is about the distribution of environmental benefits and burdens between the members of the community. Achieving distributive justice involves achieving ecological sustainability. The unjust distribution of environmental benefits and environmental burdens risks causing overexploitation of the environment, a running down of ecological capital. This leads to ecological unsustainability.

One of the first times the concept of sustainable development was recognized was in the Brundtland Report, Our Common Future, in 1987.⁷ The report defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”⁸

At the Earth Summit in Rio de Janeiro in 1992, the Rio Declaration on Environment and Development enunciated some of the principles of sustainable development.⁹ One of those principles is the precautionary principle.¹⁰ This states that if there are threats of serious or irreversible damage, a lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. A second is that the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision making.¹¹ A third concerns intergenerational equity, but to this should be added intragenerational equity.¹² And a fourth is a cluster of principles that can be grouped together as the internalization of externalities or environmental costs.¹³ These include the polluter pays principle and the user pays principle.

In 2015, the United Nations General Assembly adopted the 2030 Agenda for Sustainable Development.¹⁴ The Agenda includes the Sustainable Development Goals (SDGs). Achieving the SDGs will alleviate environmental injustices.¹⁵ However, David Boyd, the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment, reported in 2022 that any hope of meeting the SDGs is “disappearing like a mirage.”¹⁶ The pledge to “leave no one behind” is unmet. People are being left behind because they live in “sacrifice zones”—zones where they bear a disproportionate burden of the impacts of waste, pollution, the climate crisis, and loss of biodiversity.¹⁷ This is distributive injustice.

Can you give some examples of where the Land and Environment Court has promoted ecological sustainability?

The Land and Environment Court has been at the forefront of explaining and applying the principles of sustainable development.¹⁸ There have been a number of decisions that have applied the precautionary principle, particularly for projects with impacts on biodiversity or climate change.¹⁹ The Court has explained when the precautionary principle is engaged and what precautionary measures should be taken to prevent threats of serious or irreversible damage.²⁰

In relation to the conservation of biological diversity and ecological integrity, the cases concern projects that will have impacts on threatened species and endangered ecological communities.²¹ The Court has explained the need to avoid, mitigate, and compensate for impacts on biodiversity.²²

For intergenerational equity, there have been a number of cases that concern the loss of biodiversity, the impact of climate change, and the loss of heritage, particularly Aboriginal cultural heritage.²³ The Court has said that these impacts will deprive future generations of the ability to enjoy these environmental benefits. Conversely, where the environmental burdens will not be encountered for decades, there can be seen to be an offloading of the burdens to future generations.²⁴ In these ways, we can see distributive injustice being caused by an infringement of the intergenerational equity principle.

Environmental justice can involve intragenerational equity. This is where there is an inequitable distribution of the benefits and the burdens between members of the present generations. For example, communities living in areas that are contaminated or polluted are suffering intragenerational inequity. Another example is where the approval of a new project, such as an open cut coal mine, will cause inequity in the distribution of environmental, social, and economic burdens and benefits. The Court has sought to remedy such intragenerational inequity.²⁵

The Sustainable Development Goals, adopted on September 25, 2015 as a part of the 2030 Agenda.

Lush rainforest with ancient trees in Tamborine National Park, Queensland, Australia.

The final principle the Court has adjudicated concerns the internalization of externalities.²⁶ The best-known example is the polluter pays principle.²⁷ This has been applied in sentencing for environmental crime, where the Court has determined that the appropriate sentence should ensure that the polluter pays for the environmental harm caused by the commission of the offense.²⁸

Could you elaborate on the context in which issues around ecological sustainability have occurred? For example, is it in relation to endangered species, or development such as coal mines?

There have been a number of cases involving biodiversity, including the impacts on threatened species of plants or animals and on endangered ecological communities. In assessing the significance of the impacts, the Court has had regard to the principles of sustainable development that I’ve referred to.

A number of the cases have concerned projects that will cause climate change, including fossil fuel extraction and later combustion, such as a coal mine or gas well. There have been cases that have concerned coal-fired power stations, which cause greenhouse gas emissions contributing to climate change.

Pollution as an externality: Coal-fired power station emitting smoke from twin smokestacks and heat from three cooling towers—Yallourn Power Station in Latrobe Valley, Victoria.

Wollongong is a seaside city located south of Sydney in New South Wales, Australia. It is Australia’s tenth largest city and is known for its heavy industry and port activity.

There have also been cases involving the flip side of the impact of climate change on a new development. This particularly occurs in coastal regions. There are areas of the coast in New South Wales, Queensland, South Australia, and Victoria that are increasingly exposed to coastal hazards caused by climate change. The question raised is whether a particular new development should be permitted in those areas prone to coastal hazards. The principles of sustainable development, particularly the precautionary principle and the principle of intergenerational equity, have been taken into account by the courts in deciding whether or not to approve those developments.

How does the Court promote procedural justice?

Procedural justice involves three components.²⁹ The first is access to information on the environment. The second is public participation in environmental decision making. The third is access to the courts to enforce substantive and procedural rights. The Court has made decisions promoting justice in each of these three areas. In relation to access to information, the Court has ensured government decision makers do make available to the public information on the environment as they are required by law to do. The Court itself has made sure that it provides information to people about how to access the Court and to pursue rights through taking action in court.

In relation to public participation, the Court has upheld statutory rights for public participation in environmental decision making. Planning and environmental laws allow the public to make submissions in response to strategic plans and project applications, including commenting on environmental impact statements. Where there has been a failure to comply with the statutory requirements, the Court has been assiduous in remedying past noncompliance and ensuring future compliance.

The third component, access to the courts, is often dependent on the first two components. By ensuring that members of the public have access to environmental information and are able to participate in environmental decision-making, members of the public are better able to exercise their rights to access the courts. In addition, the Court has provided information, including on its website, to explain to people what their rights are to come to the Court and how they can exercise those rights. The Court has sought to lower barriers to public interest litigation. One way has been to adopt court rules that allow public interest litigants not to have to pay costs for certain aspects of the litigation and not to provide an undertaking to pay damages if they are ultimately unsuccessful as a condition of obtaining a temporary injunction restraining harmful conduct.³⁰ In these ways, the Court lowers barriers to access to justice.

How has the Court promoted recognition justice?

Recognition justice is concerned with who is and who is not recognized and valued by the law and in governance.³¹ When the Court upholds both substantive justice and distributive justice, it often will promote recognition justice. But the Court sometimes needs to go further. One example of the Court upholding recognition justice has been in facilitating restorative justice in sentencing for environmental crime.³² There have been two instances where the Court has directed restorative justice conferencing, both concerning offences of damaging Aboriginal cultural heritage.³³ Traditionally, the victims of that crime, the traditional Aboriginal people on whose country the heritage is located, have been excluded from participating in criminal proceedings. The Court, by enabling restorative justice conferencing, gave the victims a voice and thereby recognized them and afforded them respect. Through restorative justice conferencing, the solutions the victims proposed to address the harm caused could be implemented in the Court’s sentence. This is a practical way in which recognition justice can be afforded to the victims of environmental crime.

You’ve described how achieving environmental justice in these ways promotes equity. And that’s central to the objectives of court administration. Other objectives are efficiency and effectiveness. How do you balance these objectives in the formidable task of the administration of the Court?

On one view, it might be thought that these three objectives of equity, efficiency, and effectiveness are competing. But on another view, they’re not. Take efficiency. Efficiency is concerned with ensuring that matters are adjudicated or resolved by the court with minimum delay. The aphorism of “justice delayed is justice denied” is apt. But there is no necessary conflict in achieving efficiency as well as equity. For example, substantive, procedural, and recognition justice all require disputes to be resolved quickly. If there were to be an extensive delay, the injustice would continue for longer. By the court being efficient, ensuring that matters are dealt with quickly, it ensures that matters are dealt with justly or equitably. Similarly, when we look at the objective of effectiveness, effectiveness is concerned with ensuring that the court’s judgment and orders are implemented. Consider the example where the court finds there has been a breach of the law, which causes injustice. If the persons or governments ordered to remedy that breach failed to do so, the court order would not be effective. That would mean that the breach of the law and the injustice continues. Hence, by ensuring that court orders are effective and implemented, we’re also ensuring that the injustice is remedied. Again, we can see that the goal of effectiveness is compatible with the goal of equity.

You’ve mentioned before the rationale for a specialist environmental court. And obviously, that could include the unique remedies the court can order that relate to effectiveness. Is there anything you would like to add to that?

Specialist environmental courts do craft specific remedies. One of the factors contributing to the legitimacy of a specialist environmental court is that it is responsive to the environmental problems that it is charged with resolving. The third of the factors for responsive environmental adjudication is that the court develops environmental law doctrine, procedures, and remedies. I dealt earlier with how the Land and Environment Court has developed environmental law doctrine concerning environmental justice and ecological sustainability, as well as procedures to ensure procedural justice, including access to the Court.

In relation to remedies, a specialist environmental court can be creative in the orders it makes to remedy breaches of environmental law. One creative remedy is restorative justice conferencing in sentencing for environmental crime. Another creative remedy is to make mandatory orders that have an ongoing effect. Courts in India and the Philippines have adapted the traditional prerogative order of mandamus, being an order for specific performance of a duty, to be a continuing mandamus—an order that will continue over time to ensure that the remedy is responsive and adaptive as it is implemented. An example in the Philippines concerned the pollution of Manila Bay. The Supreme Court of the Philippines made a continuing mandamus ordering the Manila Bay Authority to clean up Manila Bay and set specific tasks, time frames, and targets to be achieved, with a requirement for the Authority to report back to the Court as to progress and, as necessary, readjust the tasks, time frames, and targets.³⁴

You have mentioned the advantages of a specialist environment court. Are there disadvantages? In particular, are there limitations in what courts can do in achieving sustainability?

The limitations are perhaps twofold. The first limitation concerns the institutional competence of courts. The institutional competence of courts includes the doctrine of the separation of powers. There are three branches of government: the legislature, the executive, and the judiciary. Each branch of government has functions that they have competence to discharge. The legislature discharges legislative functions, the executive discharges executive functions, and the judiciary discharges judicial functions.

Now, the separation of powers is not pure. There is capacity for each branch of government, in limited circumstances, to exercise functions vested in another branch of government. For example, the judiciary is able to make court rules, which are a form of delegated legislation, thereby exercising a quasi-legislative function. But the court also engages in adjudicative lawmaking. This is interstitial, in that the lawmaking is between the spaces of the existing law laid down by the legislature, by the courts in common law countries. And it is incremental. The lawmaking occurs in the adjudication of each case. Case by case there is a development of legal doctrine on sustainability and other environmental jurisprudence.³⁵ Primarily, however, the judiciary’s role is to exercise its judicial function and not to make law such as the legislature would do, or to make policy such as the executive would do.

Naic, Cavite, Philippines: An extremely polluted beach littered with plastic garbage and other debris, part of Manila Bay.

The second limitation flows from the requirement for the court to be responsive to the problems it is charged with resolving. In most jurisdictions throughout the world—an exception might be in some of the countries in the Indian subcontinent—a court can only be responsive to the matters that are brought before it and has no agenda to seek out and adjudicate cases on its own initiative. The court is dependent on people bringing disputes before it.

Now with those limitations also comes an opportunity. The court, when matters are brought before it, exercises its judicial functions. In adjudicating the disputes, the court engages in adjudicative lawmaking. It upholds the doctrine of the separation of powers. This involves the judiciary keeping the legislature and the executive accountable. If, for example, the executive fails to implement the laws made by the legislature, the core function of the judiciary is to uphold the legislative will and order the executive to comply with the law. Equally, the court can ensure that the legislature complies with the limitations on legislating. In most countries, there will be a constitution. The constitution forms an overarching law with which the legislature must comply. If, for example, the legislature passes legislation that does not comply with the constitution, it is the task of the judiciary to strike down that legislation as being unconstitutional.

You mentioned that the judiciary can hold the legislature and the executive accountable for their environmental action or inaction. Has this occurred with climate change? Have the courts held governments accountable for reducing greenhouse gas emissions to meet the Paris Agreement targets?

Yes, this is increasingly occurring. I’ll give two examples. The first is where the judiciary held the legislature accountable. I mentioned that one of the overarching laws is a constitution and that the legislature’s responsibility when passing legislation is to comply with the constitution. A case in Germany, Neubauer,³⁶ involved the German federal legislature passing a Climate Change Act that failed to set meaningful emissions reduction targets in the short term. Not making greenhouse gas emission reductions in the short term results in having to make much greater reductions in the future in order to meet the temperature targets in the Paris Agreement. The consequence of the legislature’s inadequate present-day emissions reductions was that the burden of achieving those reductions was offloaded to future generations. The German Constitutional Court said that infringed future generations’ rights because by requiring future generations to make greater reductions in emissions, that would curtail their future freedoms. Hence, it was unconstitutional. The German Constitutional Court struck down the legislation and remitted the matter to the legislature to remake the Climate Change Act with greater emissions reductions in the short term. That’s one of many examples of a court keeping the legislature accountable.

Federal Constitutional Court in Leipzig, Germany.

The second example is where the judiciary has held the executive accountable. In New South Wales, there is a pollution legislation, which requires the regulatory agency, called the Environment Protection Authority (EPA), to develop environmental quality objectives, guidelines, and policies to ensure environment protection.³⁷ That obligation is a statutory duty enforceable by the courts. A climate change action group brought proceedings in the Land and Environment Court to compel the EPA to develop climate change policies. The question was, what was the meaning of that statutory duty? Did the phrase “develop environmental quality . . . policies to ensure environment protection” include developing policies to ensure protection of the environment from climate change? The Court held that it did.³⁸ The Court examined whether the EPA had complied with the statutory duty. It found that it had not. It therefore ordered the EPA to develop policies to ensure protection of the environment from climate change.³⁹

What has been the response of governments to the courts’ decisions?

The response has varied. But in the two examples I just gave, the governments complied with the courts’ orders. In the second example, the New South Wales Government announced, immediately after the Court ordered the EPA to develop policies to ensure protection of the environment from climate change, that it would not be appealing the decision and that it would implement the decision. And indeed, the EPA did so. It prepared a climate change policy, which it put on public exhibition. Earlier this year, the EPA promulgated the policy to ensure that the environment is protected from climate change.⁴⁰ In the first example, the German federal legislature took into account the German Constitutional Court’s decision by remaking the Climate Change Act with much greater emissions reductions targets, including in the short term, as required by the Court. There has been another challenge by environmental nongovernmental organizations to the remade legislation, but that has not yet been successful.

Has there been a response in other jurisdictions? Are judicial decisions in one jurisdiction having an influence on litigation and judicial decisions in other jurisdictions?

There has been an interjurisdictional response, what might be described as a ripple effect. We can think of dropping a stone in one part of a pond, causing ripples that travel across the pond and interact at other points in the pond. This ripple effect occurs when a decision in one jurisdiction is picked up by plaintiffs who want to bring similar litigation, and by courts, in other jurisdictions.⁴¹

One of the more well-known climate change cases is the litigation brought by the Urgenda Foundation in the Netherlands. At three levels in the judicial hierarchy in the Netherlands, The Hague District Court, The Hague Court of Appeal, and the Netherlands Supreme Court, there was an upholding of the plaintiffs’ claim that the Dutch government had breached the law by setting inadequate greenhouse gas emission reduction targets.⁴² At first instance, the breach of law that was upheld was of the Dutch Civil Code in hazardous negligence. At the Court of Appeal and the Supreme Court levels, the breach of law that was upheld was a breach of human rights under the European Convention on Human Rights. Those decisions of the Dutch Courts were then picked up by plaintiffs in other jurisdictions. In jurisdictions with like law, such as Belgium, the litigation was almost identical. In other jurisdictions around the world where the law is not the same, there needed to be an adaptation of the cause of action to suit local law. Nevertheless, the Urgenda decisions inspired litigation based on human rights. That illustrates how litigants are picking up on what has happened in one jurisdiction.

We also are seeing courts observing what is being decided in other jurisdictions, and considering how those judicial decisions could be adapted and applied in their jurisdiction. For example, in Australia, a number of decisions of the Land and Environment Court of New South Wales⁴³ and the Land Court of Queensland⁴⁴ have referred to decisions overseas, including the Urgenda decisions and decisions in environmental litigation in the United States and India. So, there is this ripple effect across the boundaries of jurisdictions.

You have been involved in environmental law for over 40 years. What improvements and achievements have you seen in environmental law and justice over this period?

It helps to take a step back and have a look at the change in environmental law that has occurred over that 40-year period. What I see is a globalization and a harmonization of environmental law.⁴⁵ Globalization, because there is a spreading of concepts and principles of environmental law, both from the international level to the domestic level of nation states, and between the domestic jurisdictions of nation-states. When I went through law school, there was much greater division between the world’s legal systems. There was a sharp division between common law jurisdictions and civil law jurisdictions, and common law jurisdictions rarely had regard to what was occurring in civil law jurisdictions, and I’m sure the same occurred in reverse.

What has happened over the last 40 years is that there is now a much greater sharing of environmental law concepts and principles across jurisdictional boundaries. That is evident between international and national levels because of the growth of environmental law treaties. We have treaties in many different areas, including world heritage, wetlands, biodiversity, climate change, and pollution. Each of those treaties is domesticated, that is, incorporated into domestic law. This leads to the spread of international law into domestic law. We’re also seeing this spread between the domestic laws of nation-states, so that one jurisdiction will look to another jurisdiction’s laws to see whether they can be adapted to be suitable to the particular local jurisdiction. We also see a spread of knowledge and information through judicial dialogue, as well the sharing of judicial decisions between the judiciaries around the world.

What is the consequence of this globalization? It’s leading to harmonization. We are starting to see uniformity in environmental law across boundaries. Where there were stark differences between, for example, common law jurisdictions and civil law jurisdictions, we are no longer seeing those stark differences. This harmonization facilitates the exchange of information and the ability of one jurisdiction to have regard to judicial decisions in another.

Climate change increases the incidence and intensity of bushfires.

Katoomba, Three Sisters, New South Wales, Australia.

You have played a crucial role internationally in judicial capacity building and developing environmental law resources to improve judicial decision making. There is so much that needs to be done within national jurisdictions. Why do you promote international and comparative environmental law and policy?

I have identified that a change I’ve seen in the last 40 years is the globalization and harmonization of environmental law. In order to do that, there needs to be capacity building. The fact is that there are countries, often referred to as developed countries, in which the judiciary has greater capacity to adjudicate environmental disputes than the judiciary in less developed countries has. There still are environmental disputes in those countries that need to be adjudicated. Environmental problems are not restricted to any particular country or jurisdiction. They are often transboundary. That’s especially true with the problems of climate change, loss of biological diversity, and pollution—the triple planetary crises. There is, therefore, a need for people who have greater knowledge and skills to share these by engaging in capacity building in those jurisdictions that do not yet have such a developed level of knowledge and skills. I see this capacity building as critical to the globalization and harmonization process, but also for solving the planetary crises of climate change, loss of biodiversity, and pollution.

Environmental lawyers must engage in a process of continuous learning, as revealed by your four decades of experience. As part of that, we have to constantly reappraise the appropriateness of current norms and values. What are the most important lessons that you’ve learned personally?

Learning environmental law involves developing two types of expertise: contributory expertise and interactional expertise.⁴⁶ Contributory expertise is expertise that contributes to thinking and acting in a particular discipline of knowledge. For a lawyer, contributory expertise is legal expertise—how to think and act like a lawyer. Interactional expertise is expertise that allows interaction between one discipline of knowledge, law in my case, and other disciplines of knowledge that are relevant to environmental problems. These include the sciences, such as the natural, social, and political sciences. What I have learned over the more than 40 years I have been working in environmental law is that I need to continuously learn and develop both contributory and interactional expertise.

Developing contributory expertise involves learning not only the ever-evolving environmental law but also all other bodies of substantive and adjective law. Adjective law encompasses the law on procedure, evidence, and remedies.⁴⁷ Environmental problems cannot be neatly pigeonholed in categories of environmental law, but instead raise issues in constitutional, administrative, human rights, tort, contract, corporations, consumer, trade practices, and tax law. There is a need to develop expertise in all these bodies of law.

Developing interactional expertise involves learning the basics of other disciplines of knowledge. The goal is not to become an expert in these disciplines, but to develop a literacy—a working knowledge—in the disciplines. Such literacy assists in identifying the distinctive characteristics of environmental problems and ways to resolve environmental problems.

I have, therefore, sought to develop contributory expertise by developing intradisciplinary expertise within the law and interactional expertise by developing interdisciplinary expertise in the other disciplines of knowledge of relevance to environmental problems.

Disclosure Statement

No potential conflict of interest was reported by the authors.

Additional information

Notes on contributors

Donna Craig

Donna Craig is an honorary professor, Te Piringa Faculty of Law, University of Waikato, New Zealand.

Notes

1 Ceri Warnock, Environmental Courts and Tribunals: Powers, Integrity and the Search for Legitimacy (Hart, 2020), 5.

2 Elizabeth Fisher, “Environmental Law as ‘Hot’ Law,” Journal of Environmental Law 25, no. 347 (2013): 350–54.

3 Ibid., 347–48.

4 Ibid., 348–54.

5 Patrick McAuslan, The Ideologies of Planning Law (New York: Pergamon Press, 1980).

6 Brian J. Preston, “The Effectiveness of the Law in Providing Access to Environmental Justice,” in P. Martin et al., eds., The Search for Environmental Justice (Cheltenham, UK: Edward Elgar, 2015), 23–42.

7 World Commission on Environment and Development, Our Common Future (New York: Oxford University Press, 1987).

8 Ibid., 44.

9 Rio Declaration on Environment and Development; Statement of Forest Principles: The final text of agreements negotiated by governments at the United Nations Conference on Environment and Development (UNCED), 3–14 June 1992, Rio de Janeiro, Brazil (http://efaidnbmnnnibpcajpcglclefindmkaj/https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151_26_Vol.I_Declaration.pdf).

10 Ibid., principle 15.

11 Ibid., principle 7.

12 Ibid., principle 3.

13 Ibid., principle 16.

14 United Nations General Assembly, Transforming Our World: the 2030 Agenda for Sustainable Development, GA Res. 70/1, UN Doc A/RES/70/1 (21 October 2015, adopted 25 September 2015).

15 David R. Boyd, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc. A/77/284 (10 August 2022) [8].

16 Ibid., [11].

17 Ibid., [21].

18 Brian J. Preston, “The Judicial Development of Ecologically Sustainable Development,” in Douglas Fisher, ed., Research Handbook on Fundamental Concepts of Environmental Law (Cheltenham, UK: Edward Elgar, 2016), 475–523.

19 Brian J. Preston, “The Judicial Development of the Precautionary Principle,” Environmental and Planning Law Journal 35 (2018): 123.

20 Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10.

21 Preston, note 17, 448–51.

22 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347.

23 Preston, note 17, 443–48, and Brian J. Preston, “What’s Equity Got to Do With the Environment?,” Australian Law Journal 92 (2018): 257.

24 Gloucester Resources Limited v Minister for Planning (2019) 234 LGERA 257 at [415], [416], [498], [696].

25 Preston, note 17, 447, and Gloucester Resources Limited v Minister for Planning (2019) 234 LGERA 257 at [413]–[414].

26 Preston, note 17, 451–55.

27 Brian J. Preston, “Sustainable Development Law in the Courts: The Polluter Pays Principle,” Environmental and Planning Law Journal 26 (2009): 257.

28 Preston, note 17, 454–55, and Bankstown City Council v Hanna (2014) 205 LGERA 39 at [152]–[153].

29 Preston, note 5, 34–38.

30 Land and Environment Court Rules 2007, r 4.2.

31 Preston, note 5, 38–40.

32 Brian J. Preston, “The Use of Restorative Justice for Environmental Crime,” Criminal Law Journal 35 (2011): 136.

33 Garrett v Williams (2007) 151 LGERA 92, and Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291.

34 Metropolitan Manila Development Authority v Concerned Residents of Manila Bay Nos. 171947–48 (Supreme Court of the Philippines, 18 December 2008). For further discussion, see B. J. Preston, “Enforcement of Environmental And Planning Laws in New South Wales,” Local Government Law Journal 16, (2011): 84–85.

35 Brian J Preston, “Leadership by the Courts in Achieving Sustainability,” Environmental and Planning Journal 27 (2010): 321.

36 Neubauer et al v Germany, Bundesverfassungsgericht [German Constitutional Court], 1 BvR 2656/18, 24 March 2021. See also Petra Minnerop, “The ‘Advance Interference-Like Effect’ of Climate Targets: Fundamental Rights, Intergenerational Equity and the German Federal Constitutional Court,” Journal of Environmental Law 34, no. 1 (2022): 135.

37 Protection of the Environment Administration Act 1991 (NSW), s 9.

38 Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1 at 20.

39 Ibid., 37.

40 NSW Environment Protection Authority, EPA Climate Change Policy (January 2023), https://www.epa.nsw.gov.au/-/media/epa/corporate-site/resources/climate-change/23p4264-climate-change-policy.pdf, and NSW Environment Protection Authority, Climate Change Action Plan 2023–26 (January 2023), https://www.epa.nsw.gov.au/-/media/epa/corporate-site/resources/climate-change/23p4265-climate-change-action-plan-2023-26.pdf?la=en&hash=9EC85B32AB55A627762F61FCDF67973AF30513CD.

41 See Brian J. Preston, “The Influence of the Paris Agreement on Climate Litigation: Causation, Corporate Governance and Catalyst (Part II),” Journal of Environmental Law 33 (2021): 227, 247–55; Brian J. Preston, “Changing Climate Law and Governance: A Multi-Level Perspective,” Global Policy (2023), 1-12 https://doi.org/10.1111/1758-5899.13196; and Natasha Affolder, “Contagious Environmental Lawmaking,” Journal of Environmental Law 31 (2019): 187, 187–212.

42 Urgenda Foundation v The State of the Netherlands (ECLI:NL:RBDHA:2015:7196, The Hague District Court, 24 June 2015); The State of the Netherlands v Urgenda Foundation (ECLI:NL:GHDHA: 2018:2610) (The Hague Court of Appeal, 9 October 2018); (ECLI:NL:HR:2019:2007) (Supreme Court of the Netherlands, 20 December 2019).

43 Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10; Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; and Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257.

44 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21.

45 Brian J. Preston and Charlotte Hanson, “The Globalisation and Harmonisation of Environmental Law: An Australian Perspective,” Asia-Pacific Journal of Environmental Law 16 (2013): 1–36.

46 Brian Preston, “The Many Facets of a Cutting Edge Court: A Study of the Land and Environment Court of New South Wales,” in Elizabeth Fisher and Brian Preston, eds., An Environmental Court in Action: Function, Doctrine and Process (Hart, 2022), 11–12.

47 Karl Llewellyn, The Bramble Bush: On Our Law and Its Study (Dobbs Ferry, NY: Oceana Publications, 1960), 7. For a further discussion of adjective law, see also B. J. Preston, “Mainstreaming Climate Change in Legal Education,” paper delivered to Te Piringa Faculty of Law, University of Waikato and IUCN Academy of Environmental Law Webinar, 6 July 2023.