Court rules climate change “duty of care” to future generations exists | Hacker News Reader

Court rules climate change “duty of care” to future generations exists

judgments.fedcourt.gov.au

216 pointsBluestein210 comments

Very intersting year for climate court cases. The German constitutional court recently issued a similar ruling, which caused quite the stir:

https://www.theguardian.com/world/2021/apr/29/historic-germa...

And of course there's the Shell case in the Netherlads that was recently discussed here as well:

https://news.ycombinator.com/item?id=27290508

Personally I think it's a good thing that the courts realize that countries and companies shouldn't be allowed externalize the costs their pollution onto future generations.

I think most people agree on the policy. The question in the US, at least, is whether unelected jurists with lifetime appointments are the ones who should be deciding those policies. Generally speaking, the reason for separating the two is that there's no political recourse for the judicial decision. That's how wars are started. In my mind, policy should be made by the legislative branch. These are not always bright lines, but at least in the present case, and what to do about those intergenerational externalities, they are in my mind very plainly matters of lawmaking, which is not the proper role of the US judiciary.

The increasing role of the US judiciary in these matters is probably due in part to the fact that our legislative bodies are effectively non-functional for any remotely controversial matter - and since a significant % of our office-holders insist that climate change isn't real, we generally don't get much legislative action from them. It's unfortunate since it means the pressure to act by any method increases on the people who still have the option to act, like judges (or the president with their Executive Orders).

The article is about australia, not the U.S. And in the U.S. the legislature isn't acting because the public doesn't want it to act. People are not buying into the hysteria and they have no wish to chase even more carbon intensive industries to China, which is now producing more carbon gases than the rest of the world combined, and those emissions are growing at 8% a year. Rational people look at that, look at the dismal track record of these end of the world predictions, and conclude that there doesn't seem to be much point in punishing domestic industries and incentivizing them to move even more production to Asia.

I get that this enrages people who are still clinging to the idea of a global consensus, but China has effectively shut the door on that option, and the consensus was primarily just among elites in the west. So it's understandable that politicians in the west are refusing to act, whereas judges and those insulated from public opinion are free to wring their hands.

Agreed. The US Congress can act when it wants to. The ACA passed, even if altered by subsequent legislatures. The problem the environmental contingent has is that there is not the political will to move their highly controversial legislation, so they are looking to the judiciary to act instead. As I said above, that kind of activism without political recourse leads to some very negative outcomes.

The ACA is the exception that shows exactly how hard it is to pass such a bill.

The ACA passed with 0 republican votes. It only passed because Democrats controlled the House, Senate, and Whitehouse. That still wouldn't have been enough (due to the filibuster), but the Democrats also had a big enough majority (60 of 100) in the Senate to override any filibuster.

I do believe that if Democrats had that much political power today, we would see much more significant climate change billa being passed.

I most assuredly hope the US judiciary does not make rules for Australia.

> there's no political recourse for the judicial decision

That's what amending the constitution is for.

If politicians break constitutional and/or human rights who else than jurists should step in? That is literally their job.

Of course I'd prefer if governments would respect and uphold these laws in the first place, but if they don't having a justice system that can step in is precisely what we have the division of powers for.

(In Germany, the rights of future generations are written into the constitution — the question was only if the government does enough to uphold these rights)

> That is literally their job.

It is literally not their job. Their job is to interpret and enforce the laws passed by the body answerable to the people through elections. At least in the US, there is only a very limited federal common law, and there is no common law precedent for generically prohibiting intergenerational environmental impacts. There are those who argue the "public trust doctrine" should drive these outcomes, but again, no such doctrine has ever been applied to carbon emissions in the US (or even any other form of pollution). That would be judicial lawmaking. The idea that unelected black robes can fundamentally remake the US economy without legislative authorization is literally the antithesis of how it's supposed to work. That's not their job.

My gut feeling is 'wrong'. Justice is concerned with concepts of right and wrong. Politics is concerned with concepts of power and, possibly, public opinion. Lawmaking is concerned with whoever can pay off the politicians most effectively :D

If judges are not at least equally capable of throwing their weight around as politicians and kings and the like, why even have them? They are meant to not ANSWER to kings, Presidents, and legislative authorization. Are they supposed to rule, instead? No, which is why legislation is sometimes a countervailing force. But they sure are not there to act as puppets to the powerful and the politicians.

Please trust you are fundamentally wrong. If Congress plainly acts within the authority granted it by the constitution, then the judiciary is strictly bound. Similarly, the judiciary is strictly bound by the constitution. If there is no statutory or constitutional authority, then there is no law to apply, meaning the petitioner has not carried its burden before the court.

Would that this was true. That would be an originalist reading. The modern activist SCOTUS is able to find "emanations and penumbras" in the Constitution of which the founders never dreamed. [0]

[0] https://en.wikipedia.org/wiki/Griswold_v._Connecticut

It is, perhaps, worth noting that the "penumbra" you're describing is the right to privacy, which was never enumerated anywhere in the Constitution.

Yes, that decision is so controversial precisely because it's one of the rare instances of the court divining constitutional entitlements that did not previously exist. It is in many ways the exception that proves the rule.

We don't need judges to be politicians, because we have politicians. We don't need them to be kings - we got rid of kings for very good reasons.

We need judges to be the referees, not just another set of players in the game.

To compare judges to kings in this case is so absurd as to barely be worth refuting. The court is working within within a legal framework, not wielding supreme executive power granted by divine right and inherited through a dynasty.

But in the post I replied to, Applejinx made exactly that comparison. So don't blame me...

They wield supreme judicial power. The legislative body can then try pass laws to more precisely define the activities involved.

The judiciary can then declare those new laws to be unconstitutional.

That is an active judiciary. It is be deplored. The judiciary in the US is supposed to be the weakest branch of three. The EU is an example of what happens when it's the strongest.

The ultimate backstop to this is constitutional amendments (in the cases where the issue is actually Constitutional... In the case of, for example, Oracle v Google, the courts declared APIs were copyrightable as a matter of law, which could be altered by legislation).

Many Judges in the USA are elected... 39 out of 50 states elect some of their judges.

Judges interpret and use the law. Yet if you have a constitutional law that says every citizen has to treated with dignity this might mean something entirely different in the year 1800 than it does in 1950, 1990 or 2021. It might include/exclude different people, it might have practically no impact or a lot of impact etc.

Justices can interpret laws in a way that makes sense for the time and surrounding they live in. And they have to do it as long as the law is not 100% clearly written (which it isn't usually)

Despite the PR, judges, in every government, are effectively lawmakers. Their involvement in the legislative process is less direct than legislators, but undeniably their power, and purpose, is to revise laws.

Not sure how you had the idea any of this was about the US? In one of the mentioned examples (Germany) the constitution says that the government has to protect also the rights of the future generations. If any government breaks the constitution (also in the US afaik) constitutional/supreme courts can decide to take on a case brought forward by people affected by this.

I am not an US citizen but your constitution is valid in all of the US isn't it? And if a government breaks one of your constitutional rights you can sue the government in a court of law? Same principle.

European constitutions have a lot of bad stuff in them that's not thought out at all, especially around human rights. The US constitution limits itself to a very small number of matters that are (relatively) well defined, exactly to stop this kind of law making by judges. If it allows court rulings like this one then, the German constitution is not as well thought out, for the reasons well outlined above.

They added the reference to Germany’s constitution after I commented.

There are different laws for different audiences. Many laws - such as constitutions - have the express purpose of restricting lawmakers. I believe that is widely considered one if the core advances of modern democracies in contrast to monarchies.

The details surely differ, but the general principle applies to the US as well as Germany.

Electors.

The judiciary isn't making laws; it's pointing out the ramifications of existing laws and precedent. The judiciary would love the legislature to be in front of such questions, but they can't force another branch of government to legislate, nor is there any legal route for the populace to do so other than voting and hoping politicians will deliver on non-binding commitments.

But that's precisely how it's supposed to work. That there is not (yet) sufficient political will to adopt these policies by statute does not in any way create a duty for the judiciary to act. Congress makes the laws. It's the judiciary's job to interpret them. At least so far, there is no law (in the US) with a generic obligation to protect future generations from environmental harm. I question how such a law could even work given that a great deal of human activity permanently alters the natural environment.

But we're not talking about the US judiciary.

These comments are responding to my original, which was directed to the US judiciary. I understand the linked article is not, but given the large US readership on HN, discussion of how the US works strikes me as germane.

The problem (in Europe anyway) is that the legislatures are creating legally binding targets on carbon reduction, but not creating policies that can plausibly achieve this. When you have a contradiction like this it is the job of the courts to solve it.

If the legislatures don't like it they can repeal the targets or implement policies to meet them.

Legally binding on themselves?

Different countries work different ways, but legislatures can’t force future legislatures hands like that.

For example, many NATO countries have a legal obligation to spend a certain amount of their GDP on defense. But they don’t.

Courts aren’t stepping in - nor should they.

All governments are bound by existing law until it is changed. The alternative is tyranny. The usual limit on binding future legislatures is that you can't pass a law that is impossible to repeal.

Courts don't step in. Complainants bring cases. Who is going to sue the government (at vast expense) over defence spending?

Defense contractors.

And in the US (and I’m pretty sure in the UK/Westminster countries) a goal set by a previous legislature doesn’t force the hand of a future one.

There’s a distinction made between constitutional issues (what some counties call Basic Law) and normal legislation.

Basic/Constitutional law constrains governments preventing tyranny.

Is climate change part of Germany’s basic law?

Sure, defence contractors could do that, but suing your customers isn't such a great idea.

These climate policies are not merely goals. They are laws, and they remain in force until they are repealed. It doesn't matter what kind of law they are. Do you believe that all non-constitutional law is automatically repealed when a new government takes over?

The law can’t bind a future legislature to act. Whether it is repealed when a new government takes over is neither here nor there.

Binding future legislature takes power away from the future and gives it to the present.

This is a great example -previously a legislature could change climate laws depending on the level of political support. Now, they must enact climate laws or repeal another law.

That sounds fine first - but, what happens when they don’t have enough support to meet the goal, but also not enough support to repeal the goal?

That’s exactly this situation.

Legislatures have the right to act. When the legislature chooses not to act, they are drawing on the same authority as when they act.

Other countries probably do things in different ways. In open to hearing why some systems allow legislators bind future legislatures, and how it relates to the overall system of government.

I don't think that a law that can be repealed is binding the legislature. You think it is. We will have to agree to differ.

Edited to add: for all I know, in the legal traditions of our respective countries we may both be right.

In this case it is just a fairly direct interpretation of the law.

> The objects of the EPBC Act include providing for the protection of the environment, especially those aspects of the environment that are matters of “national environmental significance”: s 3(1)(a). Section 3(1)(b) states that a further object is the promotion of “ecologically sustainable development” through the conservation and “ecologically sustainable use” of natural resources.

> The principles of “ecologically sustainable development” are given meaning by s 3A which provides:

> (c) the principle of inter-generational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

Beyond the issue of judicial activism, the idea of a strong legal obligation towards people who don’t exist is suspect.

One of the cornerstones of modern ethics is autonomy - roughly “don’t make moral decisions for other people.”

But creating a strong political obligation towards non existent people frankly violates their autonomy.

Who knows what future generations will want?

For example, perhaps these future people are strongly religious, and object to birth control. Perhaps they are radical right wing climate deniers.

Maybe they are literal Nazis who successfully wiped out everyone who isn’t of a specific racial background.

It might sound sad that future people would be that way, but remember they are all the children of whoever survived and reproduced.

Even more problematic: we are creating the very people we have an oligarion toward by our actions.

We could easily invent an international immigration policy that would create the people (and obligations) we want.

For example, a EU-rophile could say: “loosened immigration rules have created future generations with a more European wide outlook. Therefore they will need stronger transnational institutions to support them.” Or we just easily say, “People if the future are more likely to want the strong national identity we currently lack, so let’s focus on national policies.”

In this case it doesn't seem to be some creative interpretation of the law, but a fairy direct interpretation.

> EPBC Act include providing for the protection of the environment

> The following principles are principles of ecologically sustainable development:

Enacted in 1999, and the 'EP' is 'Environmental Protection'; there's no way they weren't thinking of climate change in writing that.

Which makes it slightly curious it hasn't come up before / that it required any interpretation at all?

Germany, Netherlands, Australia... People who for ideological reasons are cheering for this establishment of a precedent where imagined future victims are enough for current societies to be found guilty, will be dumbfounded once this precedent is used to establish policies they don’t like.

Case in point: If the reduction of future GDP leads to constitutional courts demanding policy actions than there is every legal basis to nix any current environmental policy that has direct/near term negative impact on GDP because just going from 3% GDP growth to 2% growth over the course of 100 years means a delta in wealth the size of Mexico-vs-USA.

This is just direct a interpretation of the law. You should be upset with Australian legislature for creating this type of laws not with courts that are tasked with interpreting it.

> The objects of the EPBC Act include providing for the protection of the environment

> The principles of “ecologically sustainable development” are given meaning by s 3A which provides:

The issue is whether or not courts have this kind of jurisdiction.

I note that out of 8 threads responding to this topic, 4 of them attempt to dispute the outcome by referring to abortion policy, a rate which seems considerably higher than chance.

I'd suggest that when you see red herring arguments that use a highly emotive (but often irrelevant) topic to redirect discussion, you simply don't take the bait.

Wow quite eerie levels of astroturfing considering how recent the post was made.

"Eight teenagers and an octogenarian nun head to an Australian court on Tuesday to launch what they hope will prove to be a landmark case – one that establishes the federal government’s duty of care in protecting future generations from a worsening climate crisis."

Why those eight teenagers and nun specifically? Will they get a large say in the process than anyone else?

Oh damn. Maybe we’ll get a Ministry For The Future earlier than the one in the KSR book of the same name.

You could justify a lot of suffering for people alive today if you weigh the almost uncountable future generations of people against the few people alive today.

Quite possibly, but this ruling relates to children already born.

I have never seen so much... motivated manipulation of discussion in a hackernews thread before. Far out brussel sprout, can we get these people off of here?

As long as we don't have a world government which is enabled, countries will pollute the environment to improve their economy. Also, most politicians in power probably think they won't experience the consequences of destroying the only planet we have. Such rulings are all small drops in the sea and won't stop the inevitable end of humanity.

Horrible idea to allow governments to have more power for this duty to “care” for future generations (as if they did any sort of a good job taking care of the present).

The fact that these battle are being fought in the courts rather than the legislature shows how ridiculous judicial overreach has become.

I am split on the "judicial overreach" issue ...

... if lawmakers / govt. is not doing it for you, and you are aggrieved, aren't courts just another available means at a citizen's disposal, to effect change?

> at a citizen's disposal

sorry but how are courts at my disposal?

... as in, you have them available to you?

Prosecutors and regulators have discretion to ignore any harms you suffer. But you still have the right to file a lawsuit.

The purpose of various government bodies are not simply to all be equal tools for citizen desires. At least in the United States, each branch is "co-equal," and "checked and balanced." This is on purpose. A particular branch has the power to perform certain activities, while other branches don't.

No, courts aren't there to bypass the democratic process when the policy of the country doesn't fit your own politics. They are not elected, are usually pretty much unaccountable. They should not issue laws or make policy.

As far as I can see, the court is not doing here anything else than interpreting the law. Literally, the whole ruling is explaining pieces of the law step by step.

> The following principles are principles of ecologically sustainable development:

You could say the same sentence but replace 'judicial overreach' with 'legislative incompetence'.

I suggest the problem is that the legislature is filled with cognitive dissonance on this issue, prepared to say one thing [in law] - for the votes - and do another - for the votes.

That requires the judiciary to sort out the mess.

That the legislature is not following your wishes does not mean that they are incompetent. They could be reacting to the wishes of the majority of the population, which simply does not view carbon emissions as being particularly important nor do they believe there is any crisis to address here.

You make a separate point.

My point was that the legislature is writing law which is in conflict with itself.

The quote "future generation" hasn't come from the judiciary - it is written into the law, for the judiciary to deal with the consequences.

Similarly, 'judicial overreach' is (most?) often just used to mean 'I don't like the courts decision'.

Especially in a common law country, this terminology is often off target.

Unfortunately, the majority of the population hasn't been born yet.

> They could be reacting to the wishes of the majority of the population

Citation seriously needed.

I don't think its reasonable to demand people pepper every comment with citaitons and links for things that can easily be found with a quick internet search.

Give me a break, I was giving the parent an opportunity to provide evidence. All evidence I have seen is to the contrary:

> In our analysis based on 490 roll calls between 2005 and 2014 in the US House of Representatives, we find strong evidence that representatives are more likely to vote with special interests and against constituency interests when the two are in conflict. Importantly, the latter effect is significantly larger when there is less attention on politics.

Speaking of quick Google searches, the quote is from the first result when you search for “Do politicians vote with people's opinion or special interests”.

http://ftp.iza.org/dp11945.pdf

And why do you have confidence that the judiciary is going to be better able to sort out the mess?

I realize that there are grey areas, but the role of the judiciary isn't to be an legislature-of-last-resort. What are you going to do when the judiciary screws things up? Can't vote them out in most cases.

> but the role of the judiciary isn't to be an legislature-of-last-resort.

True, but in a common law system part of the role of the judiciary is to decide how the laws are interpreted. Civil system have a parallel set of problems; you can push the complexity around but you can't get rid of it.

The role of the judiciary is to clarify the grey areas left open for interpretation by the legislature. While none of these countries have passed "F off young people" laws I don't think it's fair to say the majority of these rulings (except the dutch one - that one is legally interesting) are really a reasonable interpretation of laws on the books.

That all said, times are desperate so if law makers are going to stick-in-the-mud I'm happy to see them overruled by the will of the people. I feel like we've gone past the point where we can reasonably discuss alternative market based solutions to climate change like carbon credits - and most conservative political blocks are still against even such a soft idea.

At least in the German ruling of the constitutional court they could refere to Article 20a of the German constitution

Art20a, Roughly translated: The state, in responsibility for future generations, protects the natural means of subsistence and the Animals in the constitutional order by use of legislative, excecutive and judiciary measures.

Of course this doesn't say verbatim to protect the climate but I think this is enough legislative basis to rule dangerous negligence on the matter of climate change unconstitutional.

> And why do you have confidence that the judiciary is going to be better able to sort out the mess?

I don't. But, they have to decide cases.

Part of the problem is that likely >>50% of people want some action to be taken to prevent climate change; and that likely >>50% of people don't support any particular specific action.

Democratically elected representatives (i.e. legislatures; and in particular two-party legislatures) have internationally failed to resolve this contradiction, and many have effectively passed both sides of this into law, in pursuit of votes.

Now, the judiciary must deal with this ambiguity.

If you don't want this to happen, then pay closer attention when politicians are playing for both sides of an issue, and challenge it more.

I'm unclear what you mean by 'sorted out' - there must ultimately be some outcome, as the judiciary in this case has given us.

Don't like a judiciary's decision? The democratic option is to go back to your representative and work to change the legislation, so that it's no longer ambiguous.

Legislative incompetence is caused by voter incompetence. Why can't the electorate elect competent legislators?

> Why can't the electorate elect competent legislators?

I don't believe this is a realistic goal. It is an idealistic goal, that we should strive for but will never actually happen.

> caused by voter incompetence

I laugh every time I think to myself that my vote can make a difference.

I believe democracy works because we can vote out a government we can see is working against our interest. I don’t think democracy is that important for voting in a party for its policies.

I certainly have never experienced that I can vote in a particular policy I believe in.

Occasionally I think I can vote against a party that is pushing a policy I don’t like, but often the policy comes to fruition anyway (maybe delayed until the next change of government).

And I live in a country with MMP where my vote makes more of a difference than a two party system.

You're playing American Democracy wrong.

You work through your Representative. This requires patience, diligence, and a superhuman capacity to sink disappointment.

Occasionally though, you will see verbiage from one of your letters end up in a bill. So it does work.

We should probably stop using 18th century political technology to manage 21st century problems. Eventually we'll need to move towards a participative form of democracy, a wikiocracy if you will, in which anyone can be legislator and work on any topic, substantive or trivial, but will need to overcome a certain amount of social inertia and semi-automated procedural brakes.

Right now you have an electorate mostly equipped with near-instant communication and responsive to mass information campaigns, governed by a legislature that works at a snail's pace, lacking in adequate transparency, and with no direct linkage between the popular will and the legislative process; effectively a large complex machine which voters are given a limited right to kick every 2-4 years in hopes that this will rearrange the internals enough to make it functional. Individual congresses and executive branch administrations can be good or bad to varying degrees, but the system as a whole is simply not adequate for the governance of the society and economy that has grown up around it.

Hey don’t knock. I recently found myself trapped in a bureaucratic hellscape that literally drove me to tears.

One to my Senator and it all instantly vanished.

Because more than likely, there is no competent legislators on the ballet. The only solution is "voters" need to take a more direct role in politics if they care.

> Legislative incompetence is caused by voter incompetence.

Do you have any evidence for that or is that a guess? Corruption seems to have far more of an effect than just blaming people for not being smarter.

At least in the US and Canada - a big part is because we don't have fair elections.

In the US there is extensive gerrymandering and just this year there's been a wave of anti-democratic voter restriction laws passed to try and prop up a dying party but, bigger than all of that, the lack of some alternative to FPTP[1] has forced extremism in the populace. Even in Canada with a parliamentary system that eschews direct elections of the head of state[2] there is still rampant strategic voting and low voter satisfaction.

We can't elect competent legislators because we don't have competent elections.

1. First-pass the post, i.e. whoever gets the most votes is declared the unanimous winner.

2. Well, the real one - not Queen Elizabeth II

You can add the UK to that list, too. Again, the problem is FPTP.

Gerrymandering doesn't play a real role in Federal elections.

Yes it does, because federal elections are run by the people elected by gerrymandered states. The state legislatures are swung by gerrymandering, and then pass legislation that swings the senate and presidential election votes for their state.

At least in the US Federal elections include the election of House Reps which are absolutely gerrymandered to all heck. In Canada the gerrymandering is much less insane because, honestly, we've still got shame working for us at a societal level keeping people more in line.

Who should I have voted for? Trump doesn't represent my moral values. Clinton kind of represents some of my political leanings, but not all of them and I dislike her for a number of her choices and because she represents a continuation of governance by a select few families. Bernie Sanders has some interesting ideas, but also some that will not work in practice as well as some I don't agree with and also I couldn't vote for him because he was off the ballot by the time my state ran primaries.

I guess I can vote in my local elections. Oh wait, the governer appears to be some kind of supervillian but everyone votes for him because of the (R) next to his name. Any more local and I can't find any information about any of them and just kind of guess what their policies are from what's written in their bios and maybe a newspaper article.

I try to be an informed citizen. Once in a while, someone who will actually make a substantial change locally makes it on the ballot. They always lose because this state votes republican no matter what.

I write emails to my governer and congress people once in a while. I always get a form letter back about how whatever the highest ranking republican wants is obviously the best course of action. I keep writing anyway so I can at least say I tried.

I don't have the time or the money or the influence to do anything but fill in the circles that don't make me nauseous.

I don't think voting is a very good idea. I live my ideals by not voting for anyone.

Voting makes sense if you're trying to decide where to eat dinner in a group of five. It doesn't make sense to pick leaders to represent you in incomprehensibly complicated sets of unknown decisions.

Using the last election as an example, take Trump and Biden, and just consider one single choice, like their respective positions on the Iran nuclear deal. If I wanted to make an intelligent choice between Trump and Biden on this issue it seems like I'd have to know what they were likely to do regarding the Iran nuclear deal, and I don't trust either of them to tell me. I'd have to actually know what a good solution to the Iran nuclear deal is - but that seems like a question for intelligence analysts and geopolitical strategists to discuss likely implications of various choices. I'd have to weigh the morality of sanctions that hurt Iranian citizens versus the increased risk of regional or global nuclear war - which seems almost impossible to do. I'd have to be able to put the importance of the Iran nuclear deal into context against the broader set of foreign and domestic issues facing the would be President known and unknown to come up with something like "I like Trump's position on Iran but Biden has a better position on X, Y, and Z, and together those things are more important..."

It doesn't strike me as believable that most or even more than a negligible amount of voters are making informed choices like that. I think mostly people just vote the way their friends and family do, or vote for the person they like better, or vote based on the political and rhetorical games, or for the taller person, etc.

Because the cost of finding out who the most competent legislators are is much higher than the benefit I get from casting my vote, which has a one in several million impact on the outcome of the election.

It's why most people vote for who is the most recognizable, or who is the tallest, or who had the most ads on TV, or who their family and friends vote for. The cost of informed voting is much higher than the benefit. It's just one example of the market failure of the political system. In other words, everyone does what's in their own self-interest, and we're all worse off as a result.

The legislature is made up of hundreds of representatives who answer to the people regularly and reflect their opinion. Their rulings represent (ideally) what the majority of the population wants.

A judgeship is made up of one dipshit in robes. He represents his own opinion and may not have ever been elected by the people. If he “legislates” something into law like this, it’s tantamount to indirect despotism.

> who answer to the people regularly and reflect their opinion

Really? In a huge number of legislative districts in my country, only one party is competitive, and there is little organized intraparty effort to mount a challenge at the primary stage.

The judiciary is an antimajoritarian institution. There are times when what the majority wants isn't a good thing, and also times when what it wants isn't implemented by the legislature.

Also, plenty of judges aren't dipshits. Plenty of legislators are.

Point is: arguing from the first principles of political structure isn't terribly convincing since political reality doesn't actually match those principles.

A judgeship is made up of one dipshit in robes

I bet you're actually a smart person who is quite familiar with the appeals process, precedent, the distinction between common and statute law, and so forth. But for some reason you've chosen to field this sort of well-poisoning argument instead.

I would just rather the people be represented than decided for. As such, I don’t like that Roe v. Wade was decided for the US by nine dipshits and I don’t like that nine new dipshits may strike it down in the near future, none of whom were even indirectly elected.

Why do you consider my argument well-poisoning?

Not indirectly elected? Many, many U.S. conservatives voted for Republican senatorial and presidential candidates specifically having in mind that they would shape a Supreme Court willing to strike down Roe. Trump promised to only appoint justices who would do so.

That's the constitutional order that prevails in the US and most republics/parliamentary democracies have something pretty similar. I'd be fascinated to hear about alternative proposals, but if you're just going to go on and on about 'dipshits' then you're probably not here for an actual discussion.

> I don’t like that Roe v. Wade was decided for the US by nine dipshits

It wasn't, not really. And this is exactly my point:

Most countries have successfully legislated abortion law. The USA's federal legislature failed to do so directly and left it to their supreme court to decide something from their ambiguity: as is their job.

This decision can still today be written clearly into law, in either direction, by representatives. So, it's an ongoing failure of the legislature.

I disagree that they failed to do so. It was left up to the states, as it should have been.

That's not what cognitive dissonance means.

That's called being a two faced lier.

Cognitive dissonance requires psychological stress as a driver of change in attitude.

Politicians seem incapable of changing their beliefs, typically because most of them are narcissistic.

Narcissism, self absorption general, and a lack of empathy, better explains why ploticians espouse differing beliefs depending on who and when the audience is.

Edit: fixed a word

Or, even simpler, they don't actually believe what they say they believe. They have some beliefs, but it's hard to say what exactly - publicly, they present whatever opinions they need people to see at any given moment.

Yes, political theatre.

A spectacle?

(Paging 'dredmorbius; I'm way past my bedtime, and he knows this stuff better anyway.)

The purpose of a performative action is what it does.

To paraphrase Stafford Beer.

It's reasonable to be this cynical about politicians, and I certainly find this to be true in two-party systems.

But, it's easily possible for democratic representation to result in a set of contradicting laws without any dishonesty.

Suppose laws A, B and C are incompatible, but any pair is reasonable.

35% of representatives fundamentally support A and B [and not C];

35% support B and C;

30% support A and C.

All three such laws will pass with majority support, with everyone holding true to their represented beliefs - but the system is still at fault.

I think it depends how you view the relationship between the judiciary and the rest of government. For example, the judiciary can be seen in part as the voice of the past— they're appointed by previous generations of politicians, part of their role is to apply and interpret the laws accumulated by previous governments, and they're free from having to pander to voters every election cycle.

If the present day government has become ineffective or gridlocked, then it makes sense to me that the judiciary may have a role to play not in setting new policy, but at least in recognizing the intent of past leaders as encoded in existing laws.

No, what it shows is how incapable the legislature is of dealing with a crisis.

The ruling by the german constitutional court was definitely not judicial overreach.

For one because rejecting laws on constitutional grounds is the main purpose of that court.

But more importantly, the court started it's argument with the observation that the german goverment and parliament committed themselves to the goal of co2 reduction, by signing and ratifying the kyoto protocol.

From that follows that it is quite unfair (unconstitutional even) to put the major portion of reductions towards the end of the deadline, effectively pushing the burden on younger generations.

Measured by their own standards and all that...

Where do you exactly see the overreach?

I'm reading the ruling and I see there only interpretation of the Australian law.

Things like:

150 The objects of the EPBC Act include providing for the protection of the environment, especially those aspects of the environment that are matters of “national environmental significance”: s 3(1)(a). Section 3(1)(b) states that a further object is the promotion of “ecologically sustainable development” through the conservation and “ecologically sustainable use” of natural resources. Each of those terms used in s 3(1)(b) is defined. Section 528 provides the meaning of “ecologically sustained use” as the “use of the natural resources within their capacity to sustain natural processes while maintaining the life-support systems of nature and ensuring that the benefit of the use to the present generation does not diminish the potential to meet the needs and aspirations of future generations”. The principles of “ecologically sustainable development” are given meaning by s 3A which provides:

Principles of ecologically sustainable development

The following principles are principles of ecologically sustainable development:

(a) decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations;

(b) if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

(c) the principle of inter-generational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

(d) the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making;

(e) improved valuation, pricing and incentive mechanisms should be promoted.

These decisions can easily be legislated either way completely invaliding most "judicial overreach" after the fact. It's just the legislation branch in a lot of countries are quite happy to not be involved in these kind of big decisions.

If you watch close and have a look at the demografics of germany, than this is not judical overreach but a reminder for the baby boomer generation (over 40% of voters) that they indeed have to take care not to leave an unlivable planet.

The young generations (below 35) have basically no real demografic power and are underrepresented in politics. You saw that with covid and who was impacted the most and who will pay at the end of the day.

Off topic: I love that you're using an "f" in the word demografic (standard spelling is demographic). I've been learning a lot about how all the weird spelling exceptions came into the English language and the fact that we still use "ph" to make an "f" sound is just super interesting to me. It's mostly present in words that came from Greek through Latin, which represents the sound of the Greek letter "phi" as "ph". Then, as far as I can understand, the spelling remained unchanged even after all those words began to be pronounced with our current "f" sound.

I believe in strong environmental laws, but the idea that you have to protect people from "future harm" is absurd. How exactly do you do that? I understand that this is in Australia so their laws may be different, but the idea that you can sue someone because of possible future damage is legislating predicting the future.

In SF, when the DA refuses to prosecute a criminal and that criminal goes on to kill another person, did that DA fail to protect that victim from future harm? How far does this protection from the future go on?

The idea also seems to go in the face of abortion, because a fetus will grow into a human. So does that mean that you need to protect the fetus from harm now because it will be a person in the future?

There are just too many absurd situations that this result opens up, I agree that we need strong environmental laws but this is going too far into prophecy and fortune telling and opens up a lot of unintended consequences of what it means to "protect the future".

wouldn't a philosophical/legal framework like "reckless endangerment" apply here? there's a line at which harm to future generations becomes reckless

> philosophical/legal framework like "reckless endangerment"

You are onto something here, I think.

To avoid ridiculous situations very clearly codify a line, a threshold ...

How can you prove that expanding the mine actually caused any damages to the environment? With a chemical plant, if it leaks waste and poisons a nearby river, the damages are very real and easy to understand.

Expanding a mine that doesn't directly cause damages but increases CO2 doesn't have direct damages that you measure because it's global. Even with something like Fukushima, you can measure the damage it did to Japan, but what about all the radioactive waste it is leaking into the Pacific? How do you measure that catastrophe? Can you even prove that it has done any damage, even though it's obvious?

it seems like its a pragmatic question, almost an engineering question about how the legal system can work, and Im hopelessly out of my depth there

> How can you prove that expanding the mine actually caused any damages to the environment?

How can you prove that someone committed a murder? It’s a difficult question, and there’s probably no method that makes mistakes impossible, but the solution is not to throw up our hands and say “there’s nothing we can possibly do to improve the situation.”

You're on very shaky ground here.

It doesn't seem like you're trying very hard to respond to the strongest possible interpretation of the topic at hand, but rather some very finely sliced minutiae.

And besides, we can measure one minutes contribution, and we can, if we choose, apply proportional mitigation factors or costs or penalties.

We can look at past failures and use those to adjust our course.

What exactly are you arguing against here?

The terms being bandied about pertain to intent or culpability.

But, there still must be an actual harm. That’s a separate element.

Western legal systems do not do very well with hypothetical future harms.

If I build a big tower on my property that is rickety and liable to fall onto my neighbor’s house, there is nothing he can sue me for (with some exceptions explained below) until the tower falls and causes harm. When the harm occurs, we then get into whether I need to have been “negligent” or “reckless” or “malicious” or even “strictly liable” to be held responsible: different torts have different standards.

That being said, the legislature can step in to address future harm. In my hypo, it may be through a building code which gives neighbors the right to petition the structure be removed before it hurts someone. There’s also the concept of “nuisance” which night give the adjoining neighbor the right to go to court arguing that the tower — due to its rickety nature and likelihood of causing damage — is reducing his property value.

But, generally, future harm is a legislative concern. A legislator can outlaw drinking and driving due to its propensity to cause harm. But, a citizen can’t sue a driver for racing through his streets while drunk unless and until he smashes into you.

(Finally, there are some remedies for “imminent harm”... protective orders and the like. But, by “imminent” we means an immediate risk of a serious injury. Climate change does not cut it; a deranged ex-boyfriend making threats, however, might.)

interesting thanks for writing this out

We already have the concept of "future harm" in law, though. You today are culpable if your negligence today kills people three weeks from now.

The only really new aspect in this ruling is the timeframe.

You aren't culpable today. You are culpable when the people die. You can't be charged for negligence causing death if those deaths haven't happened yet.

You definitely can. If you catch me poisoning your water and the water has been poisoned I will most certainly be charged with attempt to commit manslaughter. I wouldn't even need to actually have poisoned the water.

Which is criminal- and codified via legislation. You can not, however, file a civil wrongful death case, or similar, until the person is actually injured/killed.

Common law courts of equity require the damages/injury (for which you sue to seek equity) to be real and committed, not hypothetical or likely.

Attempted crimes aren't the most theoretically coherent part of the law. But they're better than you're making them out to be; you can't be guilty of "attempt to commit manslaughter" by virtue of your negligence.

On the other hand - if I poison someone with a slow-acting poison, is that not "future harm"? Are you claiming that this should therefore not be considered a crime?

The court's 'catchwords' summary here focuses on present-day injury to living children rather than the 'future generations' in the HN editorialised title.

> the idea that you can sue someone because of possible future damage is legislating predicting the future.

Aren't the vast majority of laws about preventing potential future harm?

Building codes, speed limits, gun control etc. You don't need to wait for a building to collapse and kill someone, or someone to have a head-on before you stop them and penalise the reckless behaviour.

>Building codes, speed limits, gun control etc

But those are all explicitly legislated, as opposed to this lawsuit which is based on a vague idea of harm. Suppose we don't have statues against speeding. Would it be fair for you to get sued for speeding but haven't harmed anyone?

The judgement references 12 Acts and over one hundred cases were cited. The judgement would seem to indicate that this is legislated. Perhaps not explicitly, but Australia practices common law, so this is the normal process. That said, I'd expect something like this to be appealed to the High Court.

Building codes, at least in my state, aren't explicitly legislated. There is a carveout for a governmental department that determines them.

For better or worse most of the rules of a government aren't explicitly legislated - usually they create the ability for some governmental department to exist and make them instead.

Weird. In my state, there are laws, not just departmental rules.

What about people who live in freezing climates, like Sweden or Alaska? Aren't we reducing harm to those people?

Turning the permafrost to mud is definitely not helpful.

Take a look at the map in this article: https://nerdist.com/article/global-warming-video-earth-4-deg...

Everywhere that isn't green will be uninhabitable under a worst case 4C warming scenario. How do you think that balances out?

For the sake of accuracy, I should note that the map leaves off Antarctica, a substantial portion of which will become habitable under this scenario.

So that article admits right at the outset that it is extremely speculative. You could just as easily post an extremely speculative article that shows the entire world will be jungle with the rise in temperatures.

The only speculation is whether or not the 4C scenario is the one we're in. The map itself is derived from climate models, which have been shown to be accurate in reproducing current conditions, when fed correct levels of atmospheric greenhouse gasses. I can dig up the paper that says this if anyone would care to read it.

> The map itself is derived from climate models, which have been shown to be accurate in reproducing current conditions

how do you know that the models show accurate results that match and predict real measurements? Where is the code to verify that there's no post-factum editing and fitting the results into the desired interpretations? Who is performing verification? Is it made open-source for independent reviews?

Would you like to read the paper? If you say you will actually read it, I will find the reference. The answers to your questions are mostly there. For the ones that are not, I'm sure you can contact the researchers, ask them, and report back.

I would like to see sources of the models first, similarly to how implementations of RSA could be found on Github prior finding papers describing principles of RSA and verified by everyone interested in the topic of cryptography. If there's a paper claiming that the models consistently predict observable climate numbers in the future, the models have to be published openly in full, as it would be a pre-requisite for verifying reproducibility of the results.

Alright, well, I guess you don't want what I have to offer, so, have fun on your own.

I doubt you had anything to offer in the first place. If you had it, you would have shared a link, as I can do for cryptography projects with strong claims.

You're free to be wrong.

I'm simply not willing to spend effort digging up a reference for someone who won't read it. Literally all you had to say was "I'd like the reference please, so I can read it," but you did not. So, it seems I was right. Given your attitude, I don't even believe you intended to do what you said you were going to do in good faith.

Have a nice day.

If you truly want to look at it that way then it has to be a utilitarian net harm calculation.

I live in one of those areas and climate change is _harming_ us today, here a couple of examples:

- Milder winters mean more ticks and pests survive to eat lumber and spread disease, causing personal harm as well as economic.

- Warmer and drier summers decrease agricultural output

- A grater variety of rainfall cause mudslides and property damage increases

- Snakes can survive further north, to the mountains eating birds eggs which have never needed to understand the danger of them

- Boars survive winters better, causing destructions to agriculture.

- Higher frequently of forest fires.

- Algae at the coast bloom more intensely, preventing tourism and suffocates other species.

The only thing proven is slightly milder winters. Agriculture output has done nothing but increase every year. Forest fires on the decline. We've been getting warmer since the last ice age for sure, more so the last forty years but not at a dire rate. Sea level rise has varied between 1.5 and 3mm per year since useful records started, again, that rate of change is easy to handle. Humans have and will adapt with very little hardship. The panicked masses fed by headline grabbing media and climate 'modeling' that fails basic back testing are just as bad as the outright deniers.

They are instituted as is and must be regarded from that point forward. Not enacted with intent that any judiciary can interpret simply because they overlooked something that wasn't required or a law at the point. Otherwise, how do you know if you're being moral or ethical if the government can incriminate you for not following an never-made-yet law? This goes down to personal ethics and everyone's is different. Legislating morality as we see with any religious country shows it's just a means of governmental control.

> but the idea that you have to protect people from "future harm" is absurd.

Is it though? It shows up in the legal system in lots of places already.

If you are shown to be professionally negligent, depending on the specifics you can be charged or sued (or both) even if nobody yet was harmed; you've only created a risk.

But the harm hasn't happened yet.

That's like prosecuting Tesla right now for their Autopilot before anyone has been killed because of their faulty software.

What’s odd about that? Isn’t it illegal to sell a car without seat belts, and wouldn’t you run into legal trouble before anyone bought the car and was injured in an accident?

It's the idea behind "no ex-post-facto laws" part. It's illegal to sell a car without seat belts, not because someone may be injured in an accident, but that there is a law requiring seat belts.

Otherwise all activities could be found to be harming after the fact. Note that this doesn't apply to civil suits.

> Otherwise all activities could be found to be harming after the fact.

Right, but that's not the case here - that's not what the court is doing. If they were levying a fine for past damage based on todays knowledge, it would be ex-post-facto.

Agree the tesla example isn't great, if that's all you were responding to.

So if I design and build a bridge using sub-standard materials and the city discovers it before it collapses and kills people, you shouldn't be able to charge me?

There are lots of areas of law where this concept, or similar ones, crop up - that's all I'm saying. Pretending it "doesn't make sense" is illogical, because we've made (legal) sense of it.

Agreed. This a very well understood and legislated concept.

> When the DA refuses to prosecute a criminal and that criminal goes on to kill another person, did that DA fail to protect that victim from future harm?

Ahem, didn’t he? In France we have a regular pattern of freeing the criminals or excusing them for their behavior for various “background” reasons, and they go on committing crimes. Judges and the state are both responsible for this situation and fail to protect the citizens. If it weren’t a pattern, one could say they can’t predict the future, but, like discrimination, having a steady trend is proof of negligence.

Same for global warming. One might by mistake pollute, but once they know their consequences, it becomes intentional.

> In SF, when the DA refuses to prosecute a criminal and that criminal goes on to kill another person, did that DA fail to protect that victim from future harm?

Yes, of course is the answer to your question. Chesa Boudin is guilty of causing harm to a large number of people for failing to secure the livelihood of people living in SF!

That's the major reason why I left last year, I couldn't take the level of crime and apathy from police regarding criminals. Am I going to let the city's governance play Russian roulette with my life? No thanks, I'm a free citizen in a liberal democracy so I can take my life elsewhere.

He's morally responsible, but is he criminally responsible? Not according to the law. Plus, the direct analogy is that he would be responsible at the time of releasing the prisoner, before someone gets killed. That's why to me this verdict is ridiculous.

Sometimes it takes a while for the law to catch up to what the populace wants.

Imagine if leaders felt pressure to actually do the right thing in most cases because they would otherwise be criminally prosecuted for their incompetence.

Your abortion thought experiment may be backwards: aren't we protecting the fetus from future harm by aborting it before it can comprehend or experience the multitude of harms it's bound to experience in life?

Taken to the extreme, this idea of preventing harm would compel us to have abortions. Of course, that's just not what anyone is saying anyway. Like with many legal constructs, there is an implied "within reason". For example: the U.S. constitution's first amendment and "shouting fire". You're reading way too literally into the concept of "duty of care" or "future harm".

> Of course, that's just not what anyone is saying anyway.

Except David Benatar and Sarah Perry, maybe?

I also don’t know anything about Australian law, but what you describe doesn’t sound crazy to me. We do have reliable methods of predicting the future in certain cases, and many basic features of legal systems rely on those methods (two very obvious example: any regulations about food and drug safety or occupational safety). There’s nothing mystical or strange about this, provided there are reasonable legal standards for culpability.

There are plenty of situations where it isn't absurd at all. I'd like for it to be criminal for someone to set a bear trap in a children's playground. Even if spotted before a child got hurt, the behaviour should still be criminal on the basis of "future harm".

> How far does this protection from the future go on?

That's a subjective decision. The judiciary is experienced at dealing with subjectiveness. They make a judgement call. This situation is no different. The fact it's subjective does not make it absurd.

> the idea that you have to protect people from "future harm" is absurd

there's a lot of very logical, legalistic, explanatory, replies refuting this, but i feel like a moral reply is also due here.

of course the government's job is to insure the welfare of it's people. not just today, not just for tomorrow, but ongoingly. the whole purpose of government is to serve the welfare of the people, and, thankfully, people care about their children, and their children's children.

preventing future harm is very much the point of government.

There is another twist, what if the future generation is doomed to die with the solar system, shall we even care "future generations exists" or not? Or shall we start spending 90% GDP to work on space travel research right now so that the future generations can exist? The whole idea of juridical ruling on “duty of care” to future generations exists is just ridiculous.

What about a duty of care for disenfranchised citizens being harmed, such as existing children? They are included in the "future generations" notion.

Your hypothetical example is interesting because I'd come to the opposite conclusion. If we knew now that the solar system would become inhospitably to human life in, say, 500 years, no person alive now would be directly affected. But I think we'd absolutely have a moral obligation to start spending resources now to prevent harm from our descendants. Isn't this almost a sci-fi trope?

I think it's hypothetical, either because while we know that the solar system has a finite lifetime, the time spans involved are absurdly long -- billions of years --, or because there are many more imminent problems that need solving (which, I suppose, is also related to the large time spans, which makes the solar system's death rather non-imminent).

What if escaping the solar system requires billions of years of efforts?

If I tell you that I'll kill you next Monday, that's a crime today. Are you arguing that it is absurd to consider punishing me for my possible future action?

Or inaction, rather!

I very much believe ignoring the evidence and refusing to act is criminal or at least unethical.

Same stunt being pulled in American courts except getting slapped down. Speaking of future generations, imagine duty of care being applied to abortion policy...

Ouch ...

... now -that- would be a can of worms ...

The legal argument with regards to climate change has to do with lives that will be realized, not that lives that won't.

For those who do live in the future, climate change will impact them. If a potential person does not exist in the future because it is aborted, it is not subject to suffering due to climate change.

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