A recent ruling by a court in Australia is garnering international attention for considering the impact on climate change as a factor in its dismissal of an appeal by a coal mining company against a decision denying its application to establish an open-cut coal mine.
The decision, Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, referred specifically to the impact that increased greenhouse gas emissions (GHG) would have on climate change, noting that “the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided.” Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, para. 699.
While the impact of GHG emissions on climate change was not the sole factor relied upon by the court in issuing its decision, the inclusion of GHGs’ impact is noteworthy. In an article on Bloomberg, Martijn Wilder, an environmental lawyer at Baker McKenzie, noted that this was “one of the first times a mine has been rejected on climate grounds.” James Thornhill, Coal Developers Take Note: Climate Change Killed This Coal Mine, Bloomberg (Feb. 8, 2019), https://www.bloomberg.com/news/articles/2019-02-08/coal-developers-take-note-climate-change-killed-this-coal-mine.
David Morris, the chief executive of the Environmental Defenders Office which had joined the case noted that while this is a “case-specific” judgment that will not be binding on future decisions, “it will weigh heavily on the minds of decision makers [who assess fossil fuel projects]”. Michael McGowan and Lisa Cox, Court rules out Hunter Valley coalmine on climate change grounds, The Guardian (Feb. 7, 2019), https://www.theguardian.com/australia-news/2019/feb/08/court-rules-out-hunter-valley-coalmine-climate-change-rocky-hill.
Judge Preston, who authored the decision, also notably rejected the “market substitution” assumption, an argument that was rejected by the 10th Circuit as irrational in WildEarth Guardians v. US Bureau of Land Management, 870 F.3d 1222 (10th Cir., 2017). The market substitution assumption is an assumption that approving the proponent’s coal leases “would not result in higher national GHG emissions than… declining to issue the leases because the same amount of coal would be sourced from elsewhere even if the leases were not issued.” Gloucester Resources Limited at para. 542. Judge Preston noted that
“[There is a] logical flaw in the market substitution assumption. If a development will cause an environmental impact that is found to be unacceptable, the environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact.” Id. at para. 545.
For more on climate change litigation, see Alice Venn, Courts can play a pivotal role in combating climate change, The Conversation, (Oct. 12, 2018), https://theconversation.com/courts-can-play-a-pivotal-role-in-combating-climate-change-104727 and check out the following:
Sophie Marjanac, Lindene Patton, Extreme Weather Event Attribution Science and Climate Change Litigation: An Essential Step in the Causal Chain?, 36 J. Energy & Nat. Resources L. 265 (2018).
Marc Zemel, The Rise of Rights-Based Climate Litigation and Germany’s Susceptibility to Suit, 29 Fordham Envtl. L. Rev. 484 (2018).
Daniel Bodansky, Jutta Brunnée and Lavanya Rajamani, International Climate Change Law (Oxford Univ. Press, 2017).
As you have undoubtedly read, Special Counsel Robert Mueller’s investigation did not establish that members of the Trump Campaign coordinated or colluded with the Russian government in its election interference activities. What the investigation did establish was that the Russian government interfered in the 2016 Presidential election. The report described Russia’s two prong approach to election interference: spreading disinformation through social media; and hacking into computers to gather and to disseminate information to influence the election. If you are interested in learning more about disinformation campaigns and their influence on society, the library has several resources for you. Listed below are a few of those titles.
Robert N. Spicer, Free Speech & False Speech: Political Deception & It’s Legal Limits (or Lack Thereof) (2018).
This book examines the history of the legal discourse around political falsehood and its future in the wake of the 2012 US Supreme Court decision in United States v. Alvarez through communication law, political philosophy, and communication theory perspectives. As United States v. Alvarez confirmed First Amendment protection for lies, Robert N. Spicer addresses how the ramifications of that decision function by looking at statutory and judicial handling of First Amendment protection for political deception. Illustrating how commercial speech is regulated but political speech is not, Spicer evaluates the role of deception in politics and its consequences for democracy in a contemporary political environment where political personalities, partisan media, and dark money donors bend the truth and abuse the virtue of free expression
Authoritarianism Goes Global: The Challenge to Democracy (Larry Diamond et al. eds., 2016).
Over the past decade, illiberal powers have become emboldened and gained influence within the global arena. Leading authoritarian countries—including China, Iran, Russia, Saudi Arabia, and Venezuela—have developed new tools and strategies to contain the spread of democracy and challenge the liberal international political order. Meanwhile, the advanced democracies have retreated, failing to respond to the threat posed by the authoritarians.
As undemocratic regimes become more assertive, they are working together to repress civil society while tightening their grip on cyberspace and expanding their reach in international media. These political changes have fostered the emergence of new counter-norms—such as the authoritarian subversion of credible election monitoring—that threaten to further erode the global standing of liberal democracy.
In Authoritarianism Goes Global, a distinguished group of contributors present fresh insights on the complicated issues surrounding the authoritarian resurgence and the implications of these systemic shifts for the international order. This collection of essays is critical for advancing our understanding of the emerging challenges to democratic development.
Jukka Rislakki, The Case for Latvia. Disinformation Campaigns Against a Small Nation: Fourteen Hard Questions and Straight Answers about a Baltic Country (2014).
Finnish journalist and author Jukka Rislakki examines charges spread by Russian media and provides an outline of Latvia’s recent history while attempting to separate documented historical fact from misinformation and deliberate disinformation. His analysis helps to explain why the Baltic States (population 7 million) consistently top the enemy lists in public opinion polls of Russia (143 million). His knowledge of the Baltic languages allows him to make use of local sources and up-to-date historical research. He is a former Baltic States correspondent for Finland’s largest daily newspaper, Helsingin Sanomat, and the author of several books on Finnish and Latvian history. As a neutral, experienced and often critical observer, Rislakki is uniquely qualified for the task of separating truth from fiction.
Paul Todd, Jonathan Bloch & Patrick Fitzgerald, Spies, Lies, and the War on Terror (2009).
This book traces the transformation of intelligence from a tool for law enforcement to a means of avoiding the law–both national and international. The “War on Terror” has seen intelligence agencies emerge as major political players. “Rendition,” untrammeled surveillance, torture and detention without trial are becoming normal. The new culture of victimhood in the US and among partners in the “coalition of the willing” has crushed domestic liberties and formed a global network of extra-legal license. State and corporate interests are increasingly fused in the new business of privatizing fear. The authors argue that the bureaucracy and narrow political goals surrounding intelligence actually have the potential to increase the terrorist threat.
Robert B. Laughlin, The Crime of Reason: And the Closing of the Scientific Mind (2008).
According to Nobel Laureate Robert Laughlin, acquiring information is becoming a danger or even a crime. Increasingly, the really valuable information is private property or a state secret, with the result that it is now easy for a flash of insight, entirely innocently, to infringe a patent or threaten national security. The public pays little attention because this vital information is “technical”—but, Laughlin argues, information is often labeled technical so it can be sequestered, not sequestered because it’s technical. The increasing restrictions on information in such fields as cryptography, biotechnology, and computer software design are creating a new Dark Age: a time characterized not by light and truth but by disinformation and ignorance. Thus, we find ourselves dealing more and more with the Crime of Reason, the antisocial and sometimes outright illegal nature of certain intellectual activities.
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