Justice Brian Preston Q & A

Following a discussion on how climate change affects and is affected by legal thinking, Justice Preston took some interesting questions from the audience. 

Please find the audience questions and Justice Preston’s responses below:

1.    Do you agree that it is dangerous for the executive to dominate developments in environmental law (as the UK’s new Environmental Bill may entail)?

Whilst I would not use the word ‘dangerous’, I agree that any one branch of government, such as the executive, should not dominate at the expense of other branches of government. The separation of powers doctrine, whilst imperfect in theory and practice, nevertheless does embody the idea that there should be checks and balances on all branches of government. Good environmental governance calls for the legislature to enact good environmental laws, including setting legal parameters within which and performance standards with which the executive should exercise its discretionary powers, and for the judiciary to uphold and enforce the executive’s compliance with those laws.

2.   Should the government be doing more to promote the sales of reusable masks given the environmental impact of disposable ones?

Sustainable development involves improved valuation, pricing and incentive mechanisms, so that environmental factors should be included in the valuation of assets and services. This approach includes the polluter pays principle, where those who generate pollution and waste should bear the cost of containment, avoidance or abatement, and the user pays principle, where users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste.
A problem with disposable masks is that their low price does not reflect the full life cycle of costs of providing the masks, including factoring in the costs of disposal. If the price was increased to reflect the full life cycle costs, sales of reusable masks would increase as they would become cost competitive with disposable masks.

3.    Since the UK does not have a constitutional court (at least in the sense that many other countries with codified constitutions do), does this make it more difficult for the UK judiciary to raise climate consciousness?

A constitutional court as such is not needed in order for a court to raise climate consciousness. All courts have opportunities, in the proper discharge of their duties and applying proper legal method, to make decisions that reflect and raise climate consciousness. It is not, therefore, the institutional structure – whether a court is constituted as constitutional or not – that is important. It is how the court, however constituted, goes about its business that matters. Much more important are the laws that the courts are tasked to uphold, apply and enforce. If these laws provide the courts legitimate opportunities to decide cases in ways that reflect and raise climate consciousness, any court can do so, whether constructed as a constitutional court or not. 

4.    Governments around the world want to reduce the amount of diesel cars on the road and increase the amount of electric ones. But electric cars tend to be much more expensive. Is there a way to legally decrease the costs of electric cars?

The differential pricing between diesel cars (cheaper) and electric cars (more expensive) is again evidence of what economists refer to as externalities. Diesel cars are more polluting and produce more greenhouse gas emissions than electric cars. The costs of pollutants and GHG emissions of diesel cars are borne by people other than the owners of the cars (the people who suffer from ill-effects of the pollution and GHG emissions) and by the environment. Addressing these externalities requires that these costs be internalised into the price of diesel cars, so that the user and polluter pays for the costs of reducing as far as practicable the pollution and emissions of diesel cars and repairing and compensating for the harm caused by residual pollution and emissions. Incorporating these costs will increase the price of diesel cars, possibly so as to make them more expensive than electric cars. Consumer demand may thereby shift in favour of electric cars at the expense of diesel cars.
This mechanism of internalisation of costs in the pricing of diesel cars is preferable to subsiding the costs of electric cars, so as to make their price cheaper.

5.    I found the examples of litigation cases with youth plaintiffs to be a really interesting part of your talk. Do any countries in particular stand out as putting the rights of future (i.e. unborn) generations on an especially firm footing? In countries that do not, how far can the courts go in establishing such ‘rights’?

Cases involving youth plaintiffs have been widespread around the world. One of the earliest cases was Oposa v Factoran, a Philippines case involving children challenging government decisions to issue logging licences to log more forests than there were existing in nature. The Supreme Court of the Philippines upheld the standing of the children on the basis of inter-generational equity. Other cases involving youth plaintiffs have been filed in India, Pakistan, Colombia, the USA, Canada, Australia, New Zealand, Belgium, Sweden and Norway. Actions by youth plaintiffs often have a constitutional basis, such as a general right to life or a particular right to a clean and healthy environment in a constitution or statute; a basis in other human rights, such as a right to respect for private and family life, which can include people’s lifestyle and enjoyment of the environment; a basis in constitutional or common law doctrines such as the public trust, the duty on the government to hold and manage communal natural resources in trust for the benefit of the public; or a basis in statutes that promote the principles of sustainable development, including the principle of inter-generational equity. Actions by youth plaintiffs are more prevalent in countries that have laws that enable legal actions on these bases.