Environmental Governance, Hollow Environmentalism, and Adjudication in South Africa

Abstract

In this paper my thought experiment leads me to posit that South Africa's environmental governance often results in what I term "hollow  environmentalism". This term describes the inevitable long-term outcome of promulgating laws and policies that are idealistic  and seem symbolic and that at times fail to achieve their intended objectives or environmental promise. On a narrower scale, hollow  environmentalism can also manifest when such symbolic environmental laws and policies lead to judicial decisions that lack substantive  ecological justifications, perhaps even resembling symbolic judgments. I substantiate this argument through four key considerations. I  commence with a reality check on environmental governance, emphasising that the state is not a neutral actor, necessitating closer  scrutiny of state decisions. This leads me to the conclusion that governance stands at a critical juncture. I argue that the symbolic nature  of our environmental laws, broadly speaking, often makes it challenging for the state to fully meet the lofty ideals it presents, thereby  also complicating court decisions in these matters. Next, I align my thoughts with recent literature on adjudication in the context of the  climate crisis. This literature stresses the need for courts to be bold and innovative in their judicial roles, given the precarious nature of  stabilising environmental disputes. In the penultimate section I bring the discussion to a close by suggesting two interconnected possibilities to address hollowness in the face of climate change: "sunsetting" and "substitution".