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ABSTRACT
Exploring cases of gas and coal extraction in Australia and the U.S.A., this paper considers instances in which legal and political frameworks have been used to prioritise development interests and minimise opportunities for community objection. Two case studies illustrate the role of law and the influence of politics on environmental conflict, conflict resolution, and participation in decision-making associated with resource extraction. A range of barriers to meaningful community participation in land-use decision-making are exposed by combining legal and non-legal concepts of equity and justice with ideologies of democracy and representation. These include asymmetry in information and resources available to parties; instances of misrecognition of weaker participants; and examples of malrecognition, where community attempts to engage democratic rights of public participation were thwarted by the strategic and deliberate actions of both industry and government. This paper illustrates the limits of current legal approaches to addressing land-use conflict and contributes to the developing scholarship of environmental justice as an analytic framework for addressing complex environmental and social justice issues.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
* In 1994, leading U.S. environmental justice lawyer Luke Cole characterised environmental justice lawsuits as “another stone in David’s sling” (Cole Citation1994). In 2013, during a plenary session at an Australian conference on “Mining in a Sustainable World”, author Sharyn Munro noted that recently amended planning policies in New South Wales, Australia (which are discussed further in this paper), provided the mining industry “Goliath” with “more muscle”, remarking that “ … they [the Government] don’t even want David to keep his slingshot” (http://www.une.edu.au/humanities/peace-studies-conference.php#recordings). This paper uses these comments as a springboard for considering how theories of environmental justice might be applied to understanding current cases of extractive resource development, community concern and ongoing land-use conflict in Australia and the U.S.A.
1. For example, NIMBYs: “Not In My Backyard”; BANANAs: “Build Absolutely Nothing At All Near Anything”; LULUs: “Locally Unwanted Land Uses”; FRUITs: “Fear of Urban Revitalisation, Urban Infill and Towers”.
3. The Land and Environment Court has no direct parallel in the U.S. context. Established in 1980 as the first formed specialist environmental court, it conducts judicial reviews, prosecutions, appeals, and claims regarding legislation associated with planning, environmental protection, mining, and resource extraction. See: www.lec.justice.nsw.gov.au.
4. Kenyon-Slaney also had a private meeting with then NSW Premier, Barry O’Farrell, which The Global Mail unsuccessfully attempted to uncover via freedom of information requests (Lagan Citation2013). In New South Wales, the Freedom of Information Act 1982 provides a right to request access to documents held by government ministers and agencies, but access may be refused if documents are exempt or if their release is considered contrary to the public interest.
5. Following a brief period of public consultation, the changes to the Mining SEPP were adopted in early November 2013.
6. In April 2014, before the fate of the appeal decision was known, the proponent lodged two requests for Director-General environmental assessment requirements (DGRs) with the NSW Minister for Planning for separate project applications: the Mount Thorley Continuation Project and the Warkworth Continuation Project. These development applications were described as “substantially similar” to the original application (Nichols Citation2014, Rio Tinto Citation2014).
7. Where a PAC public hearing has been held at the request of the Minister, merits-based appeals of project approvals are precluded under 23F of the Environmental Planning and Assessment Act. Thus, because a public hearing was held, the outcome of the eventual determination could not be challenged in the Land and Environment Court (as the BMPA had done previously). It has been expressed that Ministerial requests for PAC public hearings have been utilised to circumvent merits appeals from PAC determinations to the Land and Environment Court (Higginson Citation2014).
8. Chemicals used in the fracturing fluid have been held as proprietary secrets. However, in June 2010, the Pennsylvania Department of Environmental Protection made publicly available the list of chemicals and additives used in hydraulic fracturing, including carcinogens, volatile organic compounds, and endocrine disruptors, many of which have been linked to cancer, as well as respiratory, nervous system, immune system, and cardiovascular health problems (Vidic et al. Citation2013, Kascotis et al. Citation2016).
9. Domestic natural gas production is sold on global markets, and by 2018 the U.S.A. is anticipated to be a net global exporter of natural gas (U.S. Energy Information Administration Citation2014).
10. An archived copy can be found at: http://www.propublica.org/documents/item/pennsylvania-intelligence-bulletin-no.-131-aug.-30-2010.
11. See full text at: http://gdacc.wordpress.com/2011/03/16/gasland-creator-responds-to-nazi-attack/.
13. Robinson Township v. Commonwealth of Pennsylvania, No. 104 MAP 2014 (Pa. 28 September 2016).