The case of the Speluncean polluters: six themes of environmental law, policy, and ethics.

• Author: Ruhl, J.B.

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. Whetmore lost that lottery and his life, and the others eventually were rescued alive. Following criminal proceedings and convictions against them, this Court, in a divided opinion, upheld their sentences of death.

After their executions, the research notes of one of Whetmore's companions and killers, Grayson Grant, eventually found their way into the hands of Glaxon Corporation, today the world's leading producer of placidium spores and supplier of placidium products. According to the notes, Whetmore Cave, as it had come to be known, contains bountiful supplies of placidium spores -- enough to supply the world's needs for fifty years. This discovery was considered by Glaxon, and by most of the world, as quite fortunate, since Glaxon had announced in June of 4304 that its proven reserves of placidium had dwindled to a twenty-year world supply, and no other producers were in operation. Glaxon had conducted an exhaustive worldwide search for new sources, and had found only the promise of Whetmore Cave by the end of its effort.

Glaxon's discovery was considered quite fortunate -- indeed, on the order of a miracle -- simply because of how dependent our world society has become on placidium for all its essential needs. Placidium, discovered by Glaxon's founder over two millennia ago, is an unusual biological agent possessing unusual qualities. It can be harnessed for energy production in amazing efficiencies. It can easily be chemically converted into a variety of substances that provide, among other things, the raw materials to synthetically produce sources of nutrition, building materials, clothing, medicines, and potable water. It can be used to neutralize pollutants of all varieties, allowing easy recycling of the toxic spent materials and byproducts associated with our highly industrialized society.

Of course, these uses of placidium were not known immediately upon its discovery. Rather, over the centuries Glaxon has advanced its research of placidium time and again to allow society to avoid environmental and social disaster. For example, when in 2040 scientists conclusively showed that the phenomenon then known as global warming would, within ten years from that date, irreversibly destroy the earth's capacity to support life, Glaxon discovered a process using chemicals derived from placidium to reverse the effects. And as world supplies of timber and metal ores dwindled to precariously low levels during the twenty-seventh century, Glaxon produced synthetic building materials using placidium derivatives that surpassed all properties of wood and metals. And in 3010, when widespread fungal infestations destroyed the entire world's crops and seed banks, Glaxon only weeks later developed a process based on placidium to produce an abundant source of nutritious food.

Glaxon's record of pulling society from the breach has continued unblemished through the centuries. Indeed, for the past five centuries, despite the paucity of naturally occurring timber, metal ores, potable fresh water, coal, and petroleum, despite the difficulty of raising crops sufficient to feed all nations' populations, and despite the frequent collapses of fish stocks in our world oceans, our society has prospered to levels never imagined at times when those resources were bountiful in nature, all because of placidium. For the past two hundred years, moreover, we have been able to halt further exploitation of the planet's few remaining preserves of natural and biological resources, and have even made strides in restoring stands of parkland and agricultural land to serve as places of recreational and aesthetic enjoyment as well as scientific research. Only continued supplies of placidium, however, make it easy for society to contain those precious areas from human need.

Hence, Glaxon's interest in Whetmore Cave was understandable. The company purchased the cave in 4305, and began to prepare it for placidium extraction. Placidium is found only in subterranean limestone features. The placidium extraction process involves the repeated injection of various gases into the cave space, which react with placidium spores to make their location and extraction easier. The effect of the gases, however, is to kill all life forms in the cave and to render the cave uninhabitable for many years thereafter. (The placidium is removed by robotic machines.) Additionally, the gases tend to permeate into the surrounding subterranean water and soils, causing their long-term pollution. Of course, placidium could be used to neutralize the pollution, but it is usually destined for other more cost-effective uses. Thus the area around placidium mines generally is left to become a wasteland.

By May of the year 4306, Glaxon had made all the necessary preparations for instituting this process at Whetmore Cave, when the leading environmental group of Newgarth, Earth One, learned of the company's plans and complained to the Environment Agency. Earth One revealed that it had obtained the research notes of another of Roger Whetmore's companions, Lisa LeMaster, a biologist who had recorded an abundance of rare species within the cave. Indeed, Earth One's further research had indicated that Whetmore Cave houses the last known specimens of over two hundred different species of amphibians, invertebrates, snakes, fish, and bats. By all scientific accounts the cave's discovery was a virtual gold mine of new biological information. Obviously, Glaxon's plans for placidium extraction threatened the continued existence of those species.

After Earth One revealed its information, an organization known as Justice! came forward also to register its concerns about Glaxon's plans. Justice! advocates a more equitable distribution of the benefits of our society, and has focused in many other settings on income disparities that exist, Justice! alleges, because of racial, ethnic, and other prejudices of society. In 4305, Justice! had issued a report correlating the locations of Glaxon's placidium mines with high...