The Case of the Speluncean Polluters: Six Themes of Environmental Law, Policy, and Ethics

Article excerpt

In the Supreme Court of Newgarth, 4310 A.D. The parties, having participated in the administrative proceedings of the Environment Agency and in the judicial review proceedings of the District Court and Intermediate Court below, brought these appeals, and we granted review. The facts sufficiently appear in the opinion of the Chief Justice.

Ms. Chief Justice Cosben, with whom Mr. Justice Riscanlys and Ms. Justice Regulado join, delivered the following opinion.

It was only ten years ago that the demise of Roger Whetmore at the hands of his fellow spelunkers, in what is now known is Whetmore Cave, led to sharp divisions of opinion between the former members of this Court about the correct application of Newgarth criminal law. Now we find ourselves again with Whetmore Cave at the center of controversy, this time in the context of environmental law and policy.

Since its discovery in the year 2000 A.D. and for the past two millennia, the Poroxisis blarissium spore, known commercially as placidium, has served to enhance our society in many fashions. Its molecular energy and strange biological properties have provided a seemingly boundless supply of clean and efficient power sources. Its various chemical applications have allowed us to avoid or reverse many environmental maladies and to feed many impoverished peoples. With each instance of concern over the relentless depletion of yet another natural resource, such as timber, coal, petroleum, metal ores, and potable fresh water, some application of placidium's miraculous qualities has provided a solution which allowed our continued economic and social prosperity despite the continued loss of that resource.

Alas, placidium, with all its benefits, has also led to a complacency that puts us in the quandary of this case. As a society we have developed highly advanced technologies that provide all our needs, with placidium having served as both the source of technological advance and the solution to the pernicious side effects of technology such as pollution and resource depletion. But we have used placidium faster than it regenerates in nature, and have found no way to reproduce it in the laboratory, or to synthesize its molecular structure. Our skill in finding it, ingenuity in transforming it, and dependence on using it have led to its near depletion from the face of the planet. We find ourselves now having exhausted all known sources of placidium except for what is found in Whetmore Cave. We are thus faced with the decision of what to do with Whetmore Cave, which very much involves the decision of what to do with society.

Unfortunately, the complacency of the last two millennia has also led to an atrophy of legal processes for making such decisions. Because placidium has made all other resource depletions and technological side effects virtually irrelevant and costless to our society, or seemingly so, we have had no occasion in the past two thousand years in which we were forced to allocate and balance competing environmental and social resources. We appear thus to have forgotten how to do so. It is incumbent upon this Court, therefore, to strike a paradigm of environmental law and policy for the future where none exists today.

I

The factual and procedural background of this case is not complicated, but leads to complicated issues.

A

The story of Roger Whetmore's demise is well known in Newgarth and provides the genesis of this case. In May of 4299. he and fellow spelunkers entered the interior of a limestone cavern of the type found in the Central Plateau of this commonwealth. The companions became entrapped in the cave after a rockslide, and efforts to rescue them were severely hampered. Faced with imminent death, and over Whetmore's advice against the plan but with his consent to participate, the group agreed to draw lots to determine whose life would be taken to provide nourishment for the others until rescuers could reach them. …