Warrior Lawyer Profile: Brian Preston

The Judge Who Listened to the Trees

As the first light of dawn stretched across the jungle, a young Brian Preston stood atop the highest Mayan pyramid at Tikal, watching the rainforest come alive below him—toucans swooping through the canopy, monkeys leaping from branch to branch. In that moment, he felt the ancient power of the landscape. 

Years later, as a lawyer and eventually a judge, Preston would feel that same awe, not for ancient ruins, but for the living planet fighting for survival against destruction. As a warrior lawyer, his battleground became the courtroom, where the fate of forests, rivers and the atmosphere would be determined.

From Legal Advocate to Judicial Leader

Preston’s journey into the realm of environmental law began with a Bachelor of Laws from Macquarie University. He then co-founded the Environmental Defender’s Office (EDO) of New South Wales, a pioneering public interest legal centre dedicated to advancing environmental justice. As its inaugural principal solicitor, Preston spearheaded groundbreaking cases that held both corporations and governments accountable for their environmental transgressions. His tenure at the EDO shaped his belief in the law as a tool for environmental protection, but also illuminated the significant limitations of existing legal frameworks.

In 2005, when Preston was appointed Chief Judge of the New South Wales Land and Environment Court, he brought decades of experience in environmental advocacy. The court, recognized as the world’s first environmental court with superior court status, provided a platform for him to influence environmental jurisprudence in ways that reverberated well beyond Australia’s borders. 

The Power of Public Interest Litigation

In his 2022 talk at the inaugural Green Rights & Warrior Lawyers Virtual Academy, Preston characterized public interest litigation as a form of protest — a direct challenge to entrenched power. “Public interest litigation,” he said, “is not just about the legal outcome. It’s about raising awareness, shifting public consciousness and pushing the law forward.” For Preston, even unsuccessful cases can catalyze change.

One of his most notable decisions is Gloucester Resources Ltd v Minister for Planning (2019), in which he courageously rejected a proposed coal mine on climate change grounds, establishing a historic legal precedent. The case was a legal milestone, directly addressing the link between fossil fuel extraction and environmental degradation. The ruling sent shock-waves worldwide, influencing legal decisions in other jurisdictions, including the Supreme Court of Canada. 

Preston views this kind of legal influence as a “ripple effect” — proof that decisive environmental rulings can inspire global change. 

An Active, Not Activist, Court

Preston defies the concept that courts should be merely passive arbiters of disputes. Instead, he advocates for a “responsive court”—one that actively interprets the law to confront urgent environmental challenges. In his vision, the court holds a duty to develop the law in harmony with contemporary scientific understanding and the principles of sustainable development. His influential paper, "The Art of Judging Environmental Disputes," highlights the need for judges to move beyond rigid legal formalism and embrace a holistic approach to environmental cases.

However, this approach does not mean abandoning judicial neutrality. As he says, “Courts are not activists, they are active.” They uphold the law while simultaneously shaping its evolution. Through judgments like Gloucester Resources, Preston has shown that environmental law is not static — it can and must, adapt to the realities of a changing world.

The path to environmental justice is fraught with challenges. Preston has faced criticism from industries resistant to environmental regulations and political pressures that prioritize economic development over conservation. Yet, he stands firm, emphasizing that sustainability and progress are not mutually exclusive but must coexist within the legal system. Another criticism is that the complexity and uncertainty of environmental science should prevent strict legal action in many environmental cases. In response, Preston argues for the precautionary principle, contending that scientific uncertainty is no excuse for inaction. He believes that the legal profession has a responsibility to push for environmental accountability. “Litigation is not just about winning in court,” he reflects. “It’s about helping the court find a way to do the right thing.”

Environmental Justice in Practice

Preston’s commitment to environmental justice extends beyond legal theory, manifesting in his insightful judgments that underscore three interconnected principles: distributive justice, procedural justice and recognition justice. Distributive justice confronts the unfair distribution of environmental burdens, where marginalized communities bear the brunt of pollution and contamination while the benefits of development flow predominantly to corporations and governments. Procedural justice ensures that people have the right to obtain environmental information, participate in decision-making and have effective pathways to seek legal remedies. Recognition justice emphasizes the importance of respecting the voices often excluded from environmental decisions. Preston condemns practices like SLAPP suits (strategic lawsuits against public participation) that seek to stifle dissent. He has prioritized amplifying marginalized perspectives in court.

A powerful illustration of this approach is his application of restorative justice conferencing in cases concerning Aboriginal cultural heritage. By centring Indigenous voices in legal processes, Preston transforms the court into a space for accountability and healing, paving the way for a more just future. 

Shaping the Future of Environmental Law

Preston’s influence is not confined to the courtroom. He has published extensively on environmental law and has played a key role in training judges and lawyers worldwide. Through judicial capacity-building programs, he has helped establish and strengthen environmental courts in countries across Asia, Africa, and Europe.

As Preston himself has said: “If you have a degraded environment, you are impoverished.”

His work is a testament to ensuring that humanity and nature thrive together, recognizing that environmental justice is ultimately a fight for our collective well-being.