At a two-day United Nations conference in Malaysia, one of the ideas floated is a special 'green bench' system to determine environmental cases. If it sounds creepy and open to abuse, that's because it is - but environmentalists contend they will be doing us all a favor if they take environmental cases out of crowded courts and just go ahead and do the work with their own special judges.
You might not think the ACLU would side against their progressive brethren in the environmental movement on this one, but it would be too big and too important not to fight - and too open to abuse. What environmental activists often forget is that policy is not static. If they run nuclear power out of the country, something else will take its place and it could be worse (so, thanks for global warming) and a shift in policy could lead to an instance where, instead of environmentalists always winning court cases - and let's be honest, that is what they want - they always lose, which is twice as bad.
The core issue in this kind of effort becomes a love for big government versus a love for independence. As it stands, the polluting giant in China is under no obligation to curb any emissions because a world body said they were too economically fragile to have any limitations, but a country like Germany can be penalized even though they are trying to keep the Euro together and can't afford any economic landmines. It makes no sense and was instead an effort to impose an artificial economic mandate. That's why efforts like the Kyoto agreement have failed.
Is there a constitutional right to a certain level of CO2 emissions?
There is a reason the EU does not have a Constitution - special interests. While the US Constitution began with 7 Articles outlining the powers of government and then 10 Amendments outlining the rights of the people, the EU proposed constitution grew to 70,000 words of legal jargon - because everything was a right, so there were bizarre additions like 'children have a right to be heard' whatever that means, and the rest was so vague no one in the mass public could read it, and so they were against it.
A climate tribunal, as outlined at the UN Environment Programme (UNEP) at the current meeting, will have a fuzzy agenda including "Interpretation of constitutional rights - including rights to life and a healthy environment" and "Judicial reasoning in environment-related cases, including the importance of traditional values and ideas". So if a tradition in a 'developing' country is they use the rivers as toilets, that is okay, but in England a world environmental court may decide companies are in violation of British 'right to a healthy environment' for far less pollution. That's not how law works.
The WTO model for climate?
Bakary Kante, Director of UNEP's Division of Environmental Law and Conventions, says they need to be something more like a World Trade Organization (WTO) because of "arguments that international environmental governance is incoherent because there are so many layers of bureaucratic fragmentations between multilateral environmental agreements and has evolved as a system that is too loosely connected. The heart of the incoherence problem is the very fact that the primary international organization responsible for environment, the United Nations Environment Programme, is solely an 'environment' organization and does not place environment in the context of overall sustainability (economic and social). ...(U)ntil this fundamental flaw is fixed in the IEG (international environmental governance) systems, progress towards environmental sustainability cannot be achieved."
But the WTO exists to take down barriers in trade, not to put them up - and UNEP is solely a punitive organization and wants authority to impose standards. The WTO has no such power; no country agrees to let the WTO mediate anything unless they know they will like the result. WTO policies are also voted on by governments - if governments do that for climate, how will things be any different? It's odd that they would invoke the WTO model, since historically environmental groups have set out to undermine the WTO. Those protests happening at WTO meetings were not Economist subscribers.
University of Edinburgh Law Professor Alan Boyle says the human needs to be minimized in 'human rights', if it will help the environment. "Simply put ... should we continue to think about human rights and the environment within the existing framework of human rights law, in which the protection of humans is the central focus ... - or has the time come to talk directly about environmental rights -- in other words, a right to have the environment itself protected? Should we transcend the anthropo-centric in favour of the eco-centric?"
The WTO also has zero enforcement power, so will activists be happy with a nebulous governing body handing down a decision which is then ignored? A regular court decision is law in the 28 countries on the planet that have an actual legitimate democracy and legal system, so they don't need more laws, but in the other hundred-plus countries remaining they could be ignored anyway.
The UNEP brief of the core precepts is the kind of vague mumbo-jumbo we have come to expect from pointless bureaucratic endeavors:
- Environmental laws should be clear, evenhanded, implementable and enforceable
- Environmental information should be shared with the public
- Affected stakeholders should be afforded opportunities to participate in environmental decision-making
- Environmental decision-makers, both public and private, should be accountable for their decisions
- Roles and lines of authority for environmental protection should be clear, coordinated and designed to produce efficient and non-duplicative program delivery
- Affected stakeholders should have access to fair and responsive dispute resolution procedures
- Graft and corruption in environmental program delivery can obstruct environmental protection and mask results and must be actively prevented
Clear? Even handed? Was the EPA under Reagan clear and even-handed? What about Obama now? Information sharing? That isn't done now? Is anyone, literally anyone, on planet Earth not aware of climate change by now? Authority for environmental protection means what, exactly? The French will obey the rules and the Chinese will not.
The only part that might be workable, dispute resolution, won't be workable because, unlike the WTO, the whole point of UNEP is to create barriers and restrictions, not take them down. No one will agree to dispute resolution when they are sure to lose because the judge has been trained in advocacy rather than law.
If environmentalists believe the courts cannot possibly understand a complex issue like climate change and the environment, why not have special courts for doctors as well, with judges that are doctors? And special courts for priests with judges that are trained by churches?
The law works because it is not customized for special interests - we may not always like the decisions but at least they are designed to make every special interest equally unhappy as often as possible in the hopes of getting it right for society.