Home | Databases | WorldLII | Search | Feedback Otago Law Review

Somerville, Dr Royden KC --- "Book review - Environmental Courts and Tribunals: powers, integrity, and the search for legitimacy by Professor Ceri Warnock" [2022] OtaLawRw 9; (2022) 17 Otago LR 373

Last Updated: 9 March 2024

Environmental Courts and Tribunals

373

BOOK REVIEW

Environmental Courts and Tribunals: Powers, Integrity, and the Search for Legitimacy

Professor Ceri Warnock Professor of Law, University of Otago

Hart Publishing, 205pp + index

Over the last 50 years there has been a significant body of scholarship addressing the philosophy of environmental law and the rule of environmental law. There has also been a dramatic growth in the number of specialist Environment Courts established globally. Currently environmental law and policy is at the forefront of public discourse involving climate change impacts, biological diversity loss, conservation, freshwater and ocean management, and managing the interface of natural and built environments in the context of sustainable development. Professor Ceri Warnock’s excellent book is an invaluable resource addressing the crucial role of these specialist courts adjudicating in disputes involving complex environmental problems.¹

Warnock’s book is centred on her proposition that there is a need for a robust theory to inform an evaluation of the concept of specialist environment courts as normatively legitimate institutions. Those who are familiar with Warnock’s impressive body of scholarship will be aware that she is very alert to how complex environmental dispute resolution can be due to the nature of environmental issues, and to the significant value of the New Zealand Environment Court’s jurisprudence for the development of environmental law which involves values, ethics, principles, policies, discretions, predictions, and legislative facts. Warnock maintains that normative legitimacy (community acceptance) is fostered when institutions operate with integrity by following due process, allowing people to be heard, and evincing public reasoned thoughtfulness.

Because environment courts as institutions raise complex issues of governance and power, and foster competing conceptions of legitimacy, Warnock considers whether three analytical conceptual frames would help establish their normative legitimacy. They are, the “administrative justice-adjudicative pluralism” frame, the “generic instrumentalism” frame, and the “separation of powers” frame. Following an excellent analysis, she is not satisfied that these frames are adequate for the task of evaluating the legitimacy of the powers and functions and normative justifiability of specialist environmental courts. She concludes that they do not address the demands that are placed on environmental

1. Ceri Warnock Environmental Courts and Tribunals: Powers, Integrity and the Search for Legitimacy (Hart Publishing, New York, 2020).

374

Otago Law Review

(2022) Vol 17 No 2

adjudication because of the nature of environmental problems. Warnock believes a new conceptual frame is needed that explains and more properly accommodates environmental adjudication. She opines that such a frame might help tease out the adjudicatory nature of specialist environment courts rather than suppressing their legal nature within a separation of powers discourse or simply subsuming them within the messy administrative justice landscape.²

She then proceeds to develop a theory capable of justifying specialist environmental adjudication. She calls it an interactional theory for normative legitimacy that recognises that responsive environmental adjudication necessitates contextual interaction. Her goal is to develop a theory:³

that justifies and helps construct a more detailed conceptual frame that government, policymakers, the judiciary (where existing law is interstitial, uncertain, or they are empowered to exercise discretion), lawyers and participants in environmental adjudication may refer back to.

She then goes about developing her theory with a scholarly examination of the malleability of environmental adjudication and normative justifiability, and adjudicative integrity. She draws on the scholarship of David Beetham in his book “The Legitimation of Power”.⁴ She addresses the inherent features of environmental problems, namely interaction and change, and the characteristic of uncertainty. She considers how the theory would apply in practice to the task of developing a conceptual frame that adequately addresses the nature and legitimacy of adjudication in environment courts, and the normative justifiability of them. She uses cases decided by the New Zealand Environment Court and the New South Wales Land and Environment Court to help develop and test her theory.

Warnock concludes that:⁵

The interactional theory proposed by this book enables stable frames for environmental adjudication to be developed. If those frames are further articulated and acknowledged, they may provide common ground, enabling us to discuss and debate the appropriate form, functions, duties, and powers of ECs from a shared set of premises.

Warnock’s insightful work provides an excellent account of what is occurring globally with the development of specialist environment courts. She focuses on the nature of the complexities involved with environmental adjudication in challenging environmental disputes, and disputes over the formation, interpretation and application of environmental policy and planning instruments with statutory force. She also touches on the use of international environmental law principles in judicial reasoning

2. Ibid, 91.
3. Ibid, 6.
4. David Beetham The Legitimation of Power (2^nd ed, Palgrave Macmillan, Hampshire, 2013).
5. Warnock, above n 1, at 23.

Environmental Courts and Tribunals 375

in the New South Wales Land and Environment Court when addressing the inherent features of complex environmental problems. There is a rich body of international environmental law scholarship covering environmental ethics, environmental constitutionalism, and concepts of environmental justice.

The value of Warnock’s proposed theory when addressing the integrity of environmental adjudication and her close analyses of the complex nature of environmental problems and environmental disputes, is very evident when reflecting on the challenges for those involved in developing and applying environmental laws and policies for confronting wicked environmental problems. This well-crafted book contains well-reasoned and coherent analyses of the nature of specialist Environment Courts with their wide-ranging jurisdiction and discretionary powers. It also greatly assists us to understand the reasoning processes environment judges employ when adjudicating in complex environmental disputes. I believe that Warnock’s compelling interactional theory for environmental adjudication informs an effective conceptual analytical frame that we can utilise to undertake a meaningful evaluation of the legitimacy of specialist environmental court adjudication.

This is a very timely book when considering the future role of the New Zealand Environment Court. Notably, in addition to adjudicating in environmental disputes involving the use, development, and protection of natural and physical resources, the Court is also required to consider appeals involving the development and content of proposed local government statutory policy and planning instruments. This quasi- legislative function includes undertaking a regulatory impact analysis that involves cost-benefit and risk-benefit assessments. The Court has the discretionary power to change the content of these proposed instruments after considering the merits of the provisions in contention. This wide jurisdiction and the processes contained in the Resource Management Act 1991 do not appear to be exactly replicated in legislation covering specialist Environment Courts in other countries. Since the enactment of the RMA there has often been an issue raised about whether it is appropriate for a court of record to be adjudicating in disputes concerning the development of policy and planning instruments. Often those debating this issue raise the doctrine of the separation of powers and query whether it is legitimate for the judiciary to exercise such wide powers in a legislative space. Warnock confronts head on this argument that questions the legal and normative legitimacy of the Court with a very persuasive rebuttal.

Warnock’s book will be of immense value to those engaged in the current New Zealand resource management law reform project to replace the RMA with legislative proposals covering natural and built environments, spatial planning, and climate change adaption. The future role of the Environment Court is a significant issue in the context of the proposed legislation. The book will also be an invaluable resource for practising environmental lawyers involved in complex environmental

376

Otago Law Review

(2022) Vol 17 No 2

disputes and seeking to gain an understanding of the reasoning approaches likely to be applied by environment court judges when addressing the issues raised by them. The language and methods used by Warnock when identifying the inherent features and characteristics of complex environmental problems will certainly resonate with environmental lawyers.

Warnock’s insightful exposition of the complex nature of environmental adjudication inevitably raises the question of whether current court structures are appropriate for addressing complex environmental disputes involving existential threats that require urgent and effective environmental law responses. Warnock’s account of the jurisdiction of the New Zealand Environmental Court, as an inferior court, and that of the New South Wales Land and Environment Court, as a superior court, is very informative when considering the powers necessary to address challenging environmental problems. This includes the extent to which specialist environment courts can and should have regard to international environmental law principles.

Tensions between private and public law adjudication in environmental disputes are evident as the ordinary courts consider whether a new cause of action in tort for losses from climate change impacts, would be an effective, meaningful, and sufficiently urgent response to this horrendous threat to the biosphere and to a sustainable future for our shared humanity. The limitations of common law adjudication organised around the doctrines of precedent and stare decisis need to be examined in the context of environmental dispute resolution. Perhaps it is time to imagine a new court structure for addressing the development and application of environmental law in the 21^st century. We look forward to Professor Warnock’s next book when she will hopefully confront some of these vexed issues.

Dr Royden Somerville KC