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A right to sustainable litigation

Published in Insights, The New Zealand Initiative’s newsletter, 29 November 2019

On Monday, Lawyers for Climate Action (LfCA) launched in the New Zealand Parliament. It was the silk-wearing equivalent of protesting school children. It also showed the same enthusiasm for handing government more power.

To be clear, protecting the environment is a laudable goal. But while a certain degree of naïveté may be endearing in young people, it is embarrassing for a profession that likes to call itself “learned”.

There was nothing learned in the LfCA’s call for a new ‘Right to a Sustainable Environment’ in the Bill of Rights Act. Its members should go back to Law School and take some jurisprudence classes.

The phrasing of their new proposed right goes like this: “Everyone has the right to a sustainable environment that is protected for the benefit of present and future generations.”

From a legal theory perspective, there is so much wrong with this, it is hard to know where to begin.

A good start would be to point out that bills of right typically protect citizens from the state. Historically, such lists of rights defended individuals from the coercive powers of the sovereign or government more generally. Lawyers call these protections ‘negative rights’.

In contrast, the right to a sustainable environment is a ‘positive’ right. A positive right makes it the government’s duty to provide something to its citizens. These are much harder to define. It is easy to compel government not imprison you without trial (negative right). But what does it mean, for example, to have a right to education? Is that kindergarten, high school or a doctorate?

Similarly, what is a ‘sustainable’ environment? It is in the eyes of the beholder. You will get different answers from Greta Thunberg or an oil magnate.

Bills of right are usually clear who is the bearer of a right. Superficially, the proposal grants a right to “everyone”. Yet, on closer inspection the right holders are the beneficiaries from environmental protections. These include people, some of whom might not have been born yet. This is muddled thinking which aims to give legal rights to people who cannot logically hold or exercise rights.

What is worst, this new right will supersede existing rights. The right to enjoy one’s property could easily be voided by the right to a protected environment. None of this would be predictable, making it a rule of law nightmare.

What the LfCA propose is thus a right to limitless billable hours for future generations of lawyers.

Once the lawyers are back from their jurisprudence classes, perhaps they should think about how one could also, and more effectively, protect the environment. Property rights, anyone?

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