Method and approach
3.5 Choice of cases Choosing case studies
Researchers have recognised that one of the most challenging dimensions of case study research is how to choose cases to study. Within the social sciences literature, there are an abundance of bases for making decisions about, and a variety of justifications for particular processes of, case selection. For instance, the choice of cases could be based on their similarity and dissimilarity; even their redundancy and variety.114 Cases can be chosen
because they belong to a general ‘class’.115
Some scholars are less relaxed than me about the process and criteria for choosing cases. In recent legal scholarship employing case study method, Gellers116 adopted a quantitative
approach to case study selection, choosing states to compare according to the degree of values alignment among them. This reflected his goal of comparing different ways of constitutional legal responses in a relatively common contextual setting. King et al argue that selection bias can arise from the choice of cases, and urge choosing case studies on the basis of difference in the independent variable.117 The key independent variables for my
case study selection were the subject matter of the laws and the legal jurisdictions of the conflicts. The problem with a more randomised selection of cases is that that is neither satisfying nor appropriate for qualitative research of a small numbers of cases analysed interpretatively.
It is also vital to have some knowledge about the theory and some data before commencing
113 Ibid 13.
114 Stake, above n 71.
115 George and Bennett, above n 77, 69.
116 Joshua C Gellers, ‘Environmental constitutionalism in south Asia: Analyzing the experiences of Nepal and
Sri Lanka’ (2015) 4 Transnational Environmental Law 395.
research proper118 – in order to devise questions and develop a research strategy. Cases
should be chosen because they contribute to the researcher’s research goal. Cases should not be chosen until the researcher knows how and why they are being used. There should be a deliberate, considered and consistent selection process.119 This was so for my research.
I spoke to judges, academics and legal practitioners about key cases before starting the research for this thesis. They led me to the three cases, among others that I discounted for reasons of lack of difference, an absence of community narrators or the cases’ age (having decided to research cases that were current or ongoing at the time of my research
planning).
In the Australian social-legal environmental field, case selection based on detailed knowledge of laws and cases can be seen in the work of Toyne in The Reluctant Nation,120
where the cases were those in which the author had acquired knowledge or impressions through his role at the Australian Conservation Foundation. It is also evident in the book Places Worth Keeping.121 In that book, Bonyhady chose cases that were emblematic,
especially insofar as they were representative of contemporary limits of the law, and often familiar and contentious. They helped him narrate a generational story – his independent variable being time – on the relationship between law, politics and the environment. The cases dealt with questions of law, were situated in valued environmental places and became highly politicised in their time. So, too, were my three cases.
While it is considered inappropriate to choose cases solely on their interestingness and ease of access to data,122 the fact that the cases in this thesis, like most heavily contested
environmental legal conflicts, captured community and media attention, was incidental. Cases were chosen because they offered stories and featured prominent community figures or groups around whom a narrative about the law could be told. The point of critical or
118 Ibid 46. 119 Ibid.
120 Phillip Toyne, The Reluctant Nation: Environment, Law, and Politics in Australia (ABC Books, 1994). 121 Tim Bonyhady, Places Worth Keeping: Conservationists, Politics, and Law (Allen & Unwin, 1993). 122 George and Bennett, above n 77, 69.
discursive environmental law scholarship is to make cases interesting, such that they stand for something; they have a legacy. These cases did have a depth of data – but much of it was not simple to access.
The cases were also chosen because they could be considered representative of particular laws in time and were therefore capable of some lessons.123 The cases tell us about planning
laws at the height of community disgruntlement with them in NSW, environmental assessment laws at a time when government involvement in them was concerning to the community, and forestry and species protection laws clashing as they have over decades in Australia.
They also invited historical or contextual comparison about the approach to a variety of areas of law. As recognised by Bonyhady,124 forestry and the protection of forests from
forestry activities, such as in the Wielangta Forest conflict, have been a regularly recurring matter before Australia’s environmental courts,125 and the environmental issue that
triggered the most intense environmental activism of the 2000s,126 before the rise of
climate activism in Australia. The Orange Waste Project invites insights into the
jurisprudence of the NSW Land and Environment Court and the operation and community rejection of the now repealed Part 3A of the Environmental Planning and Assessment Act 1979 (NSW). Finally, Channel Deepening Project was subject to environmental assessment under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the law heavily scrutinised by scholars, and this nation’s most prominent environmental law.
123 Stake, above n 71. 124 Bonyhady, above n 121, x.
125 The High Court has resolved questions of law relating to forests: see, eg, Richardson v Forestry Commission
(1988) 164 CLR 261 and Queensland v Commonwealth (1989) 167 CLR 232. The NSW Forestry Commission has been a regular respondent in cases before the NSW Land and Environment Court, particularly on
environmental impact assessment matters: see, eg, Jarasius v Forestry Commission of NSW (No 1) (1988) 71 LGRA 79. The Victorian Supreme Court has heard cases brought against VicForests for breaches of laws and logging processes: see, eg, Environment East Gippsland v VicForests (2010) 30 VR 1.
126 See, eg, Greg Buckman, Tasmania’s Wilderness Battles (Allen & Unwin, 2008). Amanda Lohrey,
‘Groundswell: The rise of the Greens’ (2002) 8 Quarterly Essay 1 demonstrates the contribution of forestry conflicts to the evolution of the Australian Greens political party and movement.
Exploring variations and experiences through case studies
In their book exploring how social (environmental) movements influence national
environmental governance and outcomes, Dryzek et al127 sought variation in circumstances
and outcomes in their case studies.128 They acknowledged, however, that in advance of
conducting research one cannot be sure that there will be the expected variation in outcomes. In their minds, what was important is that ‘one should not pick only cases with similar outcomes’.129 For me, the outcome itself is less important than the process that was
followed, and the law that was involved. Nonetheless, I looked for cases with different bases for outcomes, even though invariably in environmental law outcomes are generally the same – a controversial project is approved, an aggrieved community is left aggrieved. I also looked for different contexts and subject matter.
I was hopeful of learning that the participants’ perspectives of the outcomes of each case were variable: that is, that there was subjective difference in outcomes even if the legal determination of each case may have been similar. In this respect, Tyler130 notes a broader
shift in research interest from the objective to a more subjective evaluation of experiences with the law and subjective evaluations of fairness and justice. This research is part of this shift of interest.
As explained above, I attempted to choose for difference – on the basis of laws, subject matter, status of the antagonists, expected views about outcomes and outcomes; however, the cases proved to be more alike than I had expected. While the processes followed were very different, the recalled experiences were similar, claims about unfairness had a
universality and the trust in the legal system and distrust in the political system was shared. I was aware of each case while they were in train – from news reports, my own involvement
127 John Dryzek et al, Green States and Social Movements: Environmentalism in the United States, United
Kingdom, Germany and Norway (Oxford University Press, 2003).
128 George and Bennett, above n 77, 23 counsel against selecting cases based on their particular outcome. 129 Ibid 17.
130 Tom R Tyler, ‘Justice and power in civil dispute processing’ in Bryant G Garth and Austin Sarat (eds), Justice
or the advice of others to pay attention.131 For each I had preconceptions, and for each I was
surprised.132 For instance, I was long certain that the Blue Wedges were destined not to
succeed in their opposition because of the strength of commitment of the Victorian government to do the Channel Deepening Project and I expected opposition to dwindle. However, I was surprised by how long the case dragged on and how a disempowered group battled. I was surprised by the initial outcome in the case between Bob Brown and Forestry Tasmania, in particular that Brown’s legal team could convince the Federal Court of the environmental impact of the forestry activities and of the inapplicability of the forestry exemption in the Environment Protection and Biodiversity Conservation Act 1999 (Cth). I also did not expect to hear about the affinity that Forestry Tasmania staff have with the forests they work in. I expected the frustration of the Molong community to the Part 3A process. I expected the opponents to mount a second court challenge, but they did not. This was put in perspective when I learnt about the dramatic changes that had been made to the project by the City of Orange to secure its approval from the New South Wales Minister for
Planning.
The contextual influence of the law
Another feature of the legal context is important to highlight at this point. The three case studies researched and analysed in this thesis do not exist in isolation.133 Rather, they are
part of a broader jurisprudence that incorporates many more cases, judgments about which have been placed on the public record. They also intersect with matters of environmental politics and policy. Each case contributed to legal change – either explicitly or indirectly. The advantage of law over other social sciences is that many cases are written about.
Dissatisfying as they are for being more technical and confined than inquisitorial and narrative, legal analysis of many cases exists and the three case studies in this thesis are positioned within that contextual analysis. Hence, conclusions or inferences made in this thesis are not simply drawn from the detailed analysis of the case studies, but may also be drawn from, compared with and contrasted to the many other conflicts recorded in
131 I am particularly grateful to Brian Preston for alerting me to the Orange Waste Project. 132 Flyvbjerg, Five Misunderstandings, above n 82, 235.
judgments of the courts of the country and in the words and arguments made by
parliamentarians. The prospect for bias and of limitations arising from the selection of three cases is therefore significantly diminished.