Whilst the notions of intergenerational equity and intra-generational equity are not always completely incompatible, the assumption that they are necessarily mutually reinforcing is certainly misguided. The notions of equity as between noncontemporaries and contemporaries can quickly be distinguished. The former requires thought about levels of savings of natural and other assets over time. The latter is inherently connected to distributive politics between contemporaries. The notion of distributive justice between contemporaries is a highly contested area, of course, and presents a great potential constraint on the exercise of the principle of intergenerational equity.
Those who mention the two notions within one breath underemphasise, in this author’s view, the deep-seated potential for conflict between them. If more than lip-service is to be paid to either principle, then they must be distinguished from one another. Legal academics and judges would do better to draw out the distinction between the two terms and consider both their competing and complementary requirements in any given case.
It may be that judges are in some cases forced to delineate a hierarchy between the two competing considerations. Though preferable to decision-making that fails to confront the issue, such a decision would be a fraught task.
One school of tresources away from the needy of the current hought would hold that the quest for intra-generational equity should never trump that of intergenerational equity. This type of approach sees intergenerational equity as anterior to intra-generational equity in the sense that unless certain aspects of the natural environment are preserved for future generations, there will be no patrimony to be distributed geographically within future generations.
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According to this view, there are certain environmental imperatives that must occur even at the expense of some members of the current generation. This is the type of view likely to be associated with deep ecology, but a parallel can be seen in some views of fiscal policy. By contrast, another school of thought holds striving for intergenerational equity through future-oriented redistribution is unjust to the extent that it moves resources away from the needy of the current generation.
Drawing on Rawls’ notion of just savings, Frédéric Gaspart and Axel Gosseries note that transfers of generational (as opposed to purely private) savings to future generations might be regarded as unfair ‘toward the least well-off members of the current generation.’ They put it this way: “Imagine that a given generation anticipates that at the end of its existence a surplus is likely to be transferred to the next generation on top of the equivalent of what the current generation inherited to the previous one. If the constitution of such a surplus is likely, it should benefit the least well-off members of the current generation rather than the next generation as a whole.” It is worth noting that Gaspart and Gosseries do not see this approach as in any way inimical to impartiality between generations; they stress that this argument does not ‘presuppose any priority of intra-generational justice over intergenerational justice.’ It would, however, require intra-generational redistribution of savings as to occur before any intergenerational redistribution: any inequity within the current generation would have to be addressed before generational savings could be put away for future generations. More broadly, there seems to be a failure by those touting the notion of sustainable development to confront the dilemma posed by the (often) contradictory requirements posed by these two ethical aims. Perhaps Gaspart and Gosseries are correct on a theoretical level in suggesting that the attainment of intra-generational equity need not rule out intergenerational equity. However, in the concrete and more bounded situations likely to be heard by judges, in which only the parties before the court have standing in the matter at hand, and in which only the principle of intergenerational is to be applied, it seems likely that some decisions will have to set aside the geographical demands of equity in order to focus on the temporal.
On a final note, while the two concepts roll quite glibly off the tongue together, after a moment’s consideration it seems somewhat odd that the notions of intergenerational and intra-generational equity terms should be associated in the first place. Common law (and other) legal systems are infused to their very core with the notions of equity and fairness between contemporaries. Intergenerational equity, however, offers something different – an attempt to facilitate a level of justice between members of different generations, and in doing so presents a potential key to the instigation of a longer term decision-making process. This is something that common law legal systems have not prioritised in the past (and understandably so: not only is the structure of the common law legal system poorly equipped for such an approach, but also achieving justice between contemporaries is hard enough in itself). However, the long-term nature of complex environmental problems creates the need for innovation within the legal system.
The notion of intergenerational equity, while fraught with challenges, presents an opportunity for the law to take a new approach to justice over the long-term. The fact that Australian judges have taken a cumulative approach to assessing impacts upon future generations indicates an appreciation for the central temporal quality of the principle of intergenerational equity. Administrative Law as Environmental Governance The judgements in Gray, Taralga, and Walker are grounded in administrative law. More specifically, they each deal with administrative decisions concerning environmental impact assessment. They form part of a broader ascension of administrative law as a tool for environmental legal challenge in Australia.
Bell and McGillivray note that ‘environmental law has not been developed as a self-contained discipline, but has simply borrowed concepts from other areas of law.’ When new types of environmental problem, such as climate change, arise, environmental solutions must take whatever form they can. The use of administrative law as a form of environmental redress has both advantages and limitations in the context of the principle of intergenerational equity. In addition to being a well-established area of law, administrative law has the advantage of offering preventative, rather than reactive, forms of redress. The temporal characteristics of environmental problems can present a particular challenge when it comes to finding an appropriate legal remedy. Environmental solutions conceived under the common law, such tort actions in nuisance or negligence, have traditionally been reactive rather than preventative.
Moreover, with respect to climate change, the temporal disconnection between the causes of global warming (carbon dioxide emissions) and its negative effects (for example, extreme weather events) appears to contribute to the difficulty plaintiffs face in proving causation in negligence suits. By allowing parties to challenge administrative decisions affecting the environment that have failed to consider ESD principles, the administrative law approach facilitates the prevention, rather than the retrospective compensation for environmental harm. This helps to give proper effect to the notion of intergenerational equity, which requires that the interests of future generations be taken into account in decision-making. Administrative law also has a number of limitations as a means for facilitating the principle of intergenerational equity. Generally, judges conducting judicial review of an administrative decision are prevented from reviewing the decision on its merits.
In such cases, judges must restrict themselves to determining the legality of the decision-making process, rather than the merits of the decision itself. The NSWLEC is distinctive in that it has a merits review jurisdiction in addition to its ordinary judicial review jurisdiction. In cases falling under its merits review jurisdiction, the NSWLEC is required to put itself in the shoes of the original administrative decision-maker and to make a new decision. As Biscoe J notes in Walker, most of the NSWLEC’s decision on ESD principles have occurred within the Court’s merits review jurisdiction. While this affords the Court an opportunity to discuss the constitution of ESD principles in depth, it is unclear to what extend decisions made under this special jurisdiction can be deemed to contribute to the development of jurisprudence.
Jagot J notes in Drake-Brockman v Minister for Planning that ‘care must be taken in applying observations about the level or extent of issues found to be appropriate in merits appeals to other contexts.’ In that case, Jagot J refused to accept the Applicant’s argument that Gray stood for a general proposition an environmental impact assessment will be inadequate if it does not include a quantitative analysis of greenhouse gas emissions. Jagot J distinguished Gray on the grounds that, essentially, it was the process of decision-making that had been flawed in Gray, rather than the substance of the decision itself: what appeared to have been critical in Gray was the disjunction between what the Director-General required … and what the Director-General accepted as adequate… Gray does not stand for a general proposition that Pt 3A of the EPA Act requires any particular form of assessment of greenhouse gas emissions for each and every project to which that Part applies. The foregoing suggests one should be cautious about reading too much into the substance of decisions on ESD principles, particularly to the extent that decisions on substance coincide with decisions based on well-established principles of administrative law. By contrast, while merits review is generally overlooked as a source of legal reasoning, Elizabeth Fisher has demonstrated (in the context, particularly, of Australian specialist environmental tribunals) that merits review has more precedential value than is commonly recognised. Fisher argues that while merits review decisions are traditionally seen as lacking a ratio decidendi, ‘the reality is … that in environmental and planning law practice and scholarship merits review decisions are treated as ratios for lawyers and primary decision-makers alike.’ She notes that merits review decisions are often included in volumes of law reports and cited by judges as legal authorities.
This is true of all of the three cases examined most closely in this Chapter, notwithstanding Jagot J’s scepticism in Drake-Brockman v Minister for Planning. While Fisher is sympathetic to Jagot J’s words of caution, and notes that there is great variation between tribunals as to what constitutes the process and impact of merits review, her work nonetheless demonstrates that the merits review decisions cannot be dismissed as extra-legal. Far from it, merits review decisions are helping to develop jurisprudence within environmental law. A separate but related point with respect to constructing a jurisprudence of intergenerational equity through administrative law is that there is a risk that the principle will come to be treated as a procedural step in development decisions rather than a principle of wide applicative scope. In Bentley v BGP Properties Pty Ltd, a case, once again, dealing with the requirements of an environmental impact assessment, Preston J stated that the requirement for prior environmental impact assessment and approval enables the present generation to meet its obligation of intergenerational equity by ensuring the health, diversity and productivity of the environment is maintained and enhanced for the benefit of future generations’.
This view, if read as describing the exhaustive role of the principle of intergenerational equity, greatly diminishes the scope of the principle. A preferable view would be that prior environmental impact assessment is a necessary but insufficient requirement of the notion of intergenerational equity in the specific context of some planning decisions under the relevant legislation. Conclusion The interests of future generations are often at odds with those of the present, particularly in the context of the environment. Legislators, as elected representatives of current generations, have little incentive to make laws that protect the environmental well-being of future generations if those laws in any way restrict the way of life of their living constituency. Even where legislators do enact measures that risk current unpopularity for a future gain, their work may be repealed by a more populist successor; parliaments cannot bind their successors.
On a more local scale, administrative decision-makers are often tempted by similarly short-term incentives. For these reasons, the principle of intergenerational equity is a hopeful addition to environmental law. Though thus far little-used, the principle aims to balance the interests of current and future generations in decision-making, in particular with respect to the environment. In Australian legislation, the definition of the principle of intergenerational equity is vague. Legislators have left the elucidation of the principle to the Courts.
Academic interest in the principle has generally focused on its normative basis; this Chapter has sought to elucidate the practical implications of the principle by examining its appearance in Australian case law, where the jurisprudence on the principle is most developed. The practical impact of the principle of intergenerational equity is potentially far-reaching, and as such judges have been given a wide discretion with respect to the environmental interests of future generations. Given the failure of legislators to protect the environmental interests of future generations where they conflict with the current interests (usually economic) of current constituencies, the tempering potential for the principle of intergenerational equity is profound. Moreover, the tenured and independently appointed judiciary is structurally less beholden to short-term considerations than those in the legislature. An examination of three relevant cases reveals the formation of a nascent jurisprudence on intergenerational equity within Australia.
As the first of its kind globally, the impact of this jurisprudence could influence case law beyond Australia. These cases, all occurring within the context of administrative decisions about planned developments, show that the principle intergenerational equity requires administrative decision-makers to do a number of things. First, decision-makers must consider the cumulative environmental impact of proposed decisions. This is significant in that it attempts to prevent the creeping accumulation of negative environmental impacts, however small individually. Second, it demonstrates the propensity of the judiciary to take a longer term view of environmental management.
Third, the decision in Gray suggests that the principle of intergenerational equity requires more than the mere flagging of environmental issues in an impact assessment, instead it requires a thorough consideration of their impact within the relevant contextual setting. This suggests that judges are unwilling to allow the environmental impact assessment process to become a mere box-ticking exercise. The decision in Taralga moved beyond the environmental impact assessment context to that of energy production and is sweeping in its scope. In this context, the Court found that the principle not only demands that the process of production and use of energy occur in a manner which accounts for the requirements of future generations, but also requires new types of clean energy production to be substituted increasingly for old, emissions-intensive methods. The reach of this finding is potentially great – it seems likely that were it applied to prevent the construction of, for example, a new coal mine, it would spark a legislative reaction.
Perhaps of more general applicability is the Court’s finding in this case that the long-term interests of a community may at times trump the narrow, immediate interests of the present. The jurisprudence on intergenerational equity is of course very limited. This article has aimed to sketch a preliminary picture of the principle to date, and to draw from it implications about the power of the principle to overcome the short-term focus of many environmental projects when left to the legislature. The feature that sets apart the principle of intergenerational equity from other pieces of environmental law is its focus on redressing the imbalance between current and future interests. The Australian legislation has left the development of the principle in the hands of judges, a (perhaps unintentionally) wise decision given the general inability of legislators to make current sacrifices in order to achieve long-term benefits.
In the case of Taralga in particular, the NSWLEC has shown a willingness to genuinely balance narrow current interests with broader future ones, finding in favour of the future. As Preston CJ noted, ‘resolving this conundrum’ is ‘not easy’. Nonetheless, this finding in particular embodies the spirit of the principle of intergenerational equity and offers some hope that its influence may in time play a part in tipping the balance back toward the future. Next Page – VI. Investing in the Future Previous Page – Implications
Intergenerational Versus Intra-Generational Equity. (2017, Nov 30). Retrieved from https://paperap.com/paper-on-intergenerational-versus-intra-generational-equity/
