Climate Change Litigation and the Awfulness of Lawfulness

Preston Brian , ‘Avenues for Litigating the Effects of Climate Change’ (2009) 21 Law Society Journal 55, 58.

Blay Sam and Piotrowicz Ryszard , ‘The Awfulness of Lawfulness: Some Reflections on the Tension Between International and Domestic Law’ (2000) 21 Australian Yearbook of International Law 1. I am indebted to my former colleague Dr Shelley Bielefeld for drawing this phrase to my attention.

Ruddock Kirsty , ‘Does Climate Change Litigation Work?’ National Environmental Law Review Summer (2007) 36, 36.

Preston , above n 1; Millner Felicity and Ruddock Kirsty , ‘Climate Litigation: Lessons Learned and Future Opportunities’ (2011) 36 Alternative Law Journal 27, 27.

Kershaw Baz , Theatre Ecology: Environments and Performance Events (CUP, 2007) 214.

Macquarie Generation v Hodgson [2011] NSWCA 424 (22 December 2011).

Protection of the Environment Operations Act 1997 (NSW).

Section 115.

Gray v Macquarie Generation [2010] NSWLEC 34, [55].

Wood Mary Christina , ‘Nature's Trust: A Legal, Political and Moral Frame for Global Warming’ (2007) 34 Environmental Affairs 577, 592.

Gray v Macquarie Generation [2010] NSWLEC 34, [67].

Macquarie Generation v Hodgson [2011] NSWCA 424, [61].

Ibid [63–5].

Gray v Minister for Planning [2006] NSWLEC 720.

Macquarie Generation v Hodgson [2011] NSWCA 424, [19]

Kershaw , above n 5, 23.

Thompson Edward P , Whigs and Hunters: The Origins of the Black Act (Penguin, 1975) 263.

Ibid 264.

Ibid 265.

Kershaw , above n 5, 273.

Ibid 219

Ibid 259.

Law as masquerade has received some attention from legal philosophers. Drucilla Cornell has written about law erasing the violent foundations of its authority by ‘dress[ing] itself up as justice’ in ‘The Violence of the Masquerade: Law Dressed Up as Justice’ (1991) 11 Cardozo Law Review 1047, 1061.

Tribe Laurence H , ‘Ways Not to Think About Plastic Trees: New Foundations of Environmental Law’ (1974) 83 Yale Law Journal 1315, 1330.

Ibid 1331.

For instance, even wilderness, in New South Wales legislation, is confined to areas which offer opportunities for solitude and self-reliant recreation: Wilderness Act 1987 (NSW) s 6(1)(c).

Kershaw , above n 5, 258.

This phrase is from Thornton James , ‘Our World Needs a New Renaissance’ The Sydney Morning Herald (Sydney), 6–7 June 2009, 16. Thornton argues: ‘our dominant cultural story … is a tale of capital. It reduces people to economic actors seeking profit and pleasures as the goals of life.’

Meadows Donella H , ‘Places to Intervene in a System’ (Winter 1997) Whole Earth.

Frank Richard M , ‘The public trust doctrine: Assessing its recent past and charting its future’ (2011–2012) 45 University of California Davis Law Review 665, 667.

Sax Joseph L , ‘The Public Trust Doctrine in Natural Resources Law’ (1970) 68 Michigan Law Review 471.

Frank , above n 30, 667–8.

See Wood's publications on atmospheric trust litigation at <http://law.uoregon.edu/faculty/mwood/publications>.

Memorandum opinion in Alec L et al v Lisa P Jackson et al and National Association of Manufacturers et al, filed 31 May 2012, 6–7.

Ibid 10.

Letter by Gisela Judge Triana D to Abrams Adam A of the Texas Environmental Law Center and Cynthia Woelk and Nancy Olinger of the Assistant Attorney General's Environmental Protection Division, setting out the Court's findings in Angela Bonser-Lain et al v Texas Commission on Environmental Quality, dated 9 July 2012.

Reese April , ‘“Public Trust” Lawsuit Clears Hurdle in NM’, Greenwire, 20 July 2012.

Available at <http://www.good.is/post/why-16-year-old-alec-loorz-is-suing-the-government/>.

Kershaw , above n 5, 214.

Ibid 101.

Re Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 33 ILM 174.

Turner Victor , The Anthropology of Performance (PAJ Publications, 1987) 168.

In Walker v Minister for Planning [2007] NSWLEC 741, [161], Justice Biscoe stated: ‘Climate change presents a risk to the survival of the human race and other species. Consequently, it is a deadly serious issue.’ Interestingly enough, the game of law has also been described as ‘deadly serious’: Davies Margaret , Delimiting the Law: ‘Postmodernism’ and the Politics of Law (Pluto Press, 1996), 132.

Thompson Claire , ‘The Young and the Restless: Kids Sue Government Over Climate Change’, Grist, 9 December 2011.

McEwan Ian , ‘The Hot Breath of Civilisation’, Sydney Morning Herald (Sydney), 8–9 March 2008, 36.