Buying redemption
[ The University of Melbourne Voice Vol. 5, No. 3
8 June - 12 July 2009 ] By David Scott
Climate change solutions must consider our laws and environmental governance as well as science.
When the ordinary Australian voter considers the problem of climate change and global warming, very often any resulting solution is based in science; if we can cool this part of the planet, if we can reduce CO2 output, if we could only switch to renewable energy sources, then perhaps it could all be stopped.
But according to Professor Lee Godden, Director of the Centre for Resources, Energy and Environmental Law within the Melbourne Law School, this completely overlooks how climate change is integral to the manner in which our societies have developed with a focus on growth and consumer ‘desire’ since at least the 17th century. “At that time, European societies first started to organise around these concepts rather than reacting to the widespread threats of plague, famine and death,” Professor Godden says.
“To adequately respond to the cumulative effects of these patterns that manifest as environmental degradation, such as climate change, we need to interrogate how we have constructed our laws and institutions of environmental governance.”
Climate change therefore must be a matter of critical regulatory concern on an international scale and in the national context. Professor Godden is critical of the many areas of law that have not yet reacted to the threat of climate change, but will be required to do so soon if society is to turn around the pervasive patterns of consumption and production that lead to climate change.
“The law has a large role to play well beyond the adoption of the carbon pollution reduction scheme or similar. Legislation is an important first step but it must work in conjunction with a wider range of ‘behavioural change’ and ‘disciplining’ to deal with the ‘sins’ of excess greenhouse gas (GHG) emissions. It will not be sufficient to rely on offsetting, i.e. buying redemption through having other people (nations) reduce their GHG emissions. We need law to give effect to what is known as ‘common but differentiated responsibilities’ to ensure that we meet objectives, such as intergenerational equity – leaving a world no less diminished for future generations.
“We need to set in place significant reforms as to how law safeguards and protects the public interest in common public resources like the environment – atmosphere or biodiversity. The law has built strong safeguards around individual protection, such as human rights, but there are major gaps in protection of commonly held resources and interests. For example, law does not give a polar ice sheet a capacity to seek its own protection!”
Professor Godden highlights public law processes such as Federal biodiversity legislation as examples of these safeguards and an indicator of how such legislation has been used in the past. However there is now much more attention to market mechanisms as a form of regulation. “Thus the rise of so-called reflexive law is about using private law models like exchange, trade and contract (read: ETS) as public policy instruments to achieve policy goals. An ETS, such as the proposed Carbon Pollution Reduction Scheme, can achieve flexibility in meeting GHG emissions reductions, and it is an important legal and policy measure. However many aspects of the current scheme design appear to favour private interest rather than public goals.
“Indeed, many private law models operate without the safeguards of transparency and oversight that have been developed in the public law sphere. Such legal safeguards were built up by regarding public law as based around models of rationality – that is giving people information and the capacity to challenge the decisions of governments. These ideas of open democracies were seen as potential legal counters to the problems of greed and over-consumption and a means to keep the State in check. The implementation of models of property, contract and trade in environmental governance must be accompanied by similar safeguards.”
Professor Godden, previously Director for the University’s Office for Environmental Programs, has a strong interest in the theoretical and grounded aspects of law. Her research interests include environmental law, natural resources management, property law and Indigenous peoples’ land rights. She says her scholarship has been distinguished by an interdisciplinary approach, drawing on her background in law and geography. Her analysis of the climate change issues draws on ideas of ‘limits to growth’ first studied in her geography degree at Melbourne many years ago and now providing insights into how law might respond to current environmental challenges.
With a forthcoming Professorial Lecture “Death, Desire, Sin and Redemption: Climate Change and the Rationality of Environmental Law”, Professor Godden hopes to have the wider community engage with the legal aspects and history of climate change that extend beyond any legislation relevant to the proposed ETS.
“It’s about the moral questions of recognising that Western industrialisation was an attempt to overcome ‘Death’ but it was very selective in which civilisations were able to overcome that problem. We are now faced with the consequences of ‘Desire’, wanting to consume too much and only slowly accepting that as a ‘Sin’.
“The analogy I liken it to is with the medieval church that ‘sold’ or traded redemption i.e. you could buy fake bones of saints to overcome your sin. In effect you were trying to buy redemption. That is what the Western world is still doing, attempting to ‘trade’ or offset its responsibilities – largely to the developing countries that were colonised and which initially were the way Western civilisation overcame the ‘Death’ problem in the first place by consuming the resources of those countries.
“Meanwhile we are still pretty much carrying on ‘desiring’ i.e. consuming. The very low targets set by the Federal Government suggest that.”
Professor Lee Godden will chair a session on Wednesday 17 June at the University’s Festival of Ideas titled “The Suburb Redeemed and the End of the Quarter Acre Dream”. Her talk “Death, Desire, Sin and Redemption” will be held at the Melbourne Law School on 4 November.
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