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Discovering a Legal Tool to Curb Climate Change

A new book champions the commons-based Public Trust Doctrine for saving the earth

A drawing from the People in the Face of Climate Change art contest, sponsored by Russia’s Young Peacekeepers Movement and the United Nations. (Photo courtesy the United Nations Development Program under a Creative Commons license )

Corporations are created by state-issued charters. Where corporations are violating their duty to the public trust — for example by pouring climate-destroying greenhouse gasses into the atmosphere — governments have an obligation, to stop them from doing so or to revoke their charters.

On Mother’s Day, 2011 a legal campaign was launched in fifty states and in Federal court arguing that global warming violated the rights of the plaintiffs — young people and their posterity. The actions were based on an innovative application of an ancient legal principle known in the US as the “public trust doctrine.” They asserted that, under the public trust doctrine, governments serve as trustees of the atmosphere for the true beneficiaries, current and future generations, and that they are violating their most compelling duties by failing to protect it from devastating climate change. Successful or not, these cases may transform public discourse on the role of government in protecting the environment. The ideas underlying them, which go far beyond these climate cases per se, have now been laid out in a new book by Mary Christina Wood called Nature’s Trust: Environmental Law for a New Ecological Age (Cambridge University Press, 2014).

Mary Christina Wood is a professor at the University of Oregon School of Law and founding director of its Environmental and Natural Resources Law program. She has written widely on environmental issues, ranging the gamut from Pacific salmon recovery to protecting the environmental rights of Native Americans. Nature’s Trust is a comprehensive presentation of a new legal paradigm aiming to extend the public trust doctrine to serve as a foundation for environmental protection. Eloquent and closely but clearly reasoned, Nature’s Trust requires careful attention but not legal training to understand.

The captive environment

The first third of Nature’s Trust describes our existing system of environmental law as an enabler of the world’s current wild rush to environmental catastrophe. Our extensive environmental law, most of it embodied in statutes passed between 1960 and 1980, aimed to implement the popular clamor for a clean, safe environment. Their strategy was to create state and federal agencies that would issue regulations requiring corporations and other polluters to stop polluting. But these agencies have in most instances been captured by the very polluters they were supposed to regulate. As a result, escalating environmental destruction — from unbridled development to catastrophic climate change — is actually authorized by the thousands of permits issued annually by the agencies that are supposed to prevent it.

The problem is not a shortage of environmental laws and regulations, but their interpretation and implementation by officials accountable to private interests that have huge fortunes to gain from degrading the environment. The regulatory process is based on the political discretion of those officials. Environmental officials choose or are forced to operate on the basis of a “political reality” in which the dominant political power is held by corporations whose profitability is augmented by environmental destruction. They use their immense wealth to finance the careers of politicians who, in turn, regularly appoint these corporations’ officials to head the very agencies that are supposed to protect the public from them. However dedicated the scientists and staff of the agencies, these political appointees control their jobs and careers and often pressure them to do the bidding of their corporate principals. The results are regulations that allow corporate pollution, permits that authorize it, and enforcement procedures that, even when occasionally invoked, provide little more than a slap on the wrist.

Democratic government is supposed to provide means for correcting such usurpation of power. Under the US Constitution, the three branches of government provide checks and balances on each other’s authority. But Congress has largely abandoned oversight of executive branch environmental agencies except to pressure them to bend the knee to polluters, often backed by appropriations riders that override environmental statutes on their behalf. The courts have largely abandoned their responsibility to ensure that environmental law actually protects the environment, based on the “deference doctrine” which holds that environmental protection involves technical decisions in which courts should defer to the agencies. The ultimate resistance to illegitimate power in a democratic system lies with the people, but the complexity of the environmental regulation process has rendered it largely incomprehensible to the public, and its effective domination by corporate polluters has made citizen intervention so frustrating that even those directly affected by environmental degradation often respond less with activism than with despair.

Nature’s Trust analyzes this process with many examples revealing how it works in detail. Perhaps the most devastating was the domination of climate policy by high officials of the fossil fuel industries in the administration of George W. Bush — starting with oilmen George W. Bush and Dick Cheney. But it shows that regulatory capture long precedes them and continues under the Obama administration, and that it is prevalent in state governments as well.

The public trust alternative

Nature’s Trust presents an alternative paradigm for environmental law, one not based on the political discretion of government officials but on their constitutionally-grounded legal duty to protect the common property rights of the people. Its basis is the ancient principle known in American law as the public trust doctrine.

The origins of this principle trace back to public property rights expressed in the Institutes of Justinian, issued by the Roman Emperor in 535 A.D. The code defined the concept of “res communes” (common things). “By the law of nature these things are common to mankind – the air, running water, the sea and consequently the shores of the sea.” The right of fishing in the sea from the shore “belongs to all men.” The Justinian code distinguished such “res communes” from “res publicae,” things that belong to the state. The principle has roots and analogues in ancient societies in Europe, East Asia, and Africa, Islamic and Native American cultures, and British and American common law.

In line with the Justinian Code’s protection of “res communes,” governments have long served as trustees for rights to property held in common by the people. In any government that owes its powers to the consent of the governed, public property rights are reserved through the social contract between the government and the people. In American law this protection is defined by the public trust doctrine under which governments serve as public trustee on behalf of present and future generations. Even if the government holds title, the public is the “beneficial owner,” entitled to the benefit of the asset. As trustee, the state has a “fiduciary duty” to the owner — a legal duty to act with absolute, exclusive loyalty to the owners’ interest with “the highest duty of care.”

The basic principles of public trust law were set out in the 1892 US Supreme Court decision Illinois Central Railroad Co. v. Illinois. The Illinois legislature had conveyed its title to the Chicago shoreline of Lake Michigan to the Illinois Central Railroad, one of the richest and most powerful corporations of its day. The Court ruled that the legislature had no power to do so, because the state was not the owner of the property, but rather the trustee for the citizens, the present and future generations of the public. “Such property is held by the state, by virtue of its sovereignty, in trust for the public.” The reason is that the ownership of the navigable waters of the harbor and the lands under them is “a subject of public concern to the whole people of the state.” Therefore, “the trust with which they are held” is “governmental, and cannot be alienated.”

The public trust doctrine limits the power of government based on the fundamental principles of constitutional democracy. As the US Supreme Court wrote in 1896 in another formative case, Geer v. Connecticut, “The power or control lodged in the State, resulting from this common ownership, is to be exercised, like all other powers of government, as a trust for the benefit of the people, and not as a prerogative for the advantage of the government as distinct from the people, or for the benefit of private individuals as distinguished from the public good.” As Wood explains, “government trustees may not allocate rights to destroy what the people rightly own for themselves and their posterity.”

To the extent that the public trust doctrine is applied across the natural environment, it would redefine environmental protection not as a choice to be made at the discretion of political officials, but as a legal duty of government and a legal right of all people. The suits being brought by young people to protect the climate aim to enforce those duties and rights.

Nature’s trust

Courts have traditionally applied the public trust doctrine to only isolated natural assets and to only certain kinds of depredations against them. In order to provide protection for the full range of environmental rights on which the people depend, thereby correcting the failure of current environmental law, Nature’s Trust expands the public trust doctrine in a number of ways.

The public trust doctrine has been used primarily to challenge government attempts to sell or give away rights to rivers and coastal waterways. Such resources are, as the Supreme Court put it in Illinois Central, “a subject of public concern to the whole people.” In recent decades it has been extended in some states to include access to shoreline needed for recreational purposes and to protect the natural function of tidelands, wetlands, and waterways. But surely many other natural resources, starting with air and water, form a “subject of public concern to the whole people.” Nature’s Trust argues for the extension of the public trust to include whatever aspects of the natural world are necessary for the wellbeing of present and future generations of the public.

The public trust doctrine has frequently been used to determine who can use and have access to public trust assets. Nature’s Trust extends its focus to protection of the ecological value of natural resources. Here it draws on the law that governs private trusts, which emphasizes that trustees have “an active duty of vigilance to ‘prevent decay or waste’ to the asset” — “waste” meaning “permanent damage.”

It also draws on the modern understanding of natural ecologies, in which ecological communities function as interacting biological wholes, cutting across lines of property and governmental jurisdiction. To prevent waste to ecological assets requires protection of this network of interacting natural entities and forces. Nature’s Trust therefore extends the reach of the public trust doctrine to include all those aspects of the environment, whether publicly or privately held, that represent “a subject of public concern to the whole people.” That makes it both possible and necessary to use the doctrine to address new problem areas such as climate change. A factory that pours climate-destroying pollutants into the atmosphere is committing waste on the public trust even if the land on which it sits is private property.

Drawing on the principles of private as well as public trust law, Nature’s Trust elaborates the obligations the government must meet as a public trustee. It has an active duty to protect the trust; not to allow waste of its assets; to maximize the societal value of trust assets; to restore damaged assets; and to recoup damages from third parties that do harm to them. While US court decisions leave open the possibility of making public trust assets available to private parties, that is only permitted to serve the public purposes of the trust and if it does not “substantially impair” remaining assets.

Trust principles require government agencies to act solely on their responsibility as public trustees, not as servants of political masters. And they require the application of the precautionary principle — to take no action that may prove harmful to the asset.

These principles apply to all parts of government. Executive branch agencies need to base regulation exclusively on the duty to protect the public trust, not on some purported balance with private economic interests represented in the political system. Congress needs to clean its own house, ending its domination by polluters manipulating the political process through corporate campaign donations and other corrupters of democracy; only thus can it eliminate the divided loyalty that currently violates its fiduciary duty to the public.

While the courts need not micromanage environmental policy, they do need to play their proper role in enforcing the responsibilities of the other two branches, rather than simply deferring to them on the grounds that environmental protection is a “political” or “technical” question. Courts should review legislation to ensure that it does not breach government’s public trust duty. They should intervene and supervise agencies that are systematically failing to protect the public trust. Where agencies have become dysfunctional due to fragmentation of authority, courts can and should impose necessary cooperation.

Co-trustees

Wood argues that something like this trust framework applies to all governments where the people are the ultimate source of authority. The principle is recognized today in both common law and civil law systems in countries ranging from South Africa to the Philippines and from the United States to India. It is applicable to any level from local to global. But what happens when there is more than one sovereign government — states, nations, or tribes, for example — that exercise authority over the same trust asset?

Here again Wood uses principles drawn from private as well as public trust law to show the way. Where there is more than one beneficiary of a trust asset, they are regarded as co-tenants. The trustees of their property are co-trustees. By logical extension, when a public trust asset crosses the boundaries of sovereign governments, all sovereigns with jurisdiction over the natural territory of the asset have legitimate property claims to the resource on behalf of those they represent. So in the case of the global atmosphere, all people are “co-tenants” and all nations are “co-tenant trustees.”

Two legal duties arise from this relationship. First is the duty that each government, as trustee, has to its own citizens: to preserve their trust assets. Second is the duty of each nation to its co-trustees, other sovereign governments: to preserve their common assets.

Violation of these duties can lead to two legal claims. “Citizen beneficiaries” can bring actions against their governmental trustees for failing to protect their natural trust. And one sovereign trustee can bring actions against others for committing waste to common property.

These mutual responsibilities are particularly important for assets like the earth’s atmosphere, where all nations are contributing to climate destruction and where none can effectively protect the asset without the collaboration of their other co-trustees. International law has so far utterly failed to make sovereign governments protect their own and each others’ peoples from climate catastrophe; an approach grounded in their absolute duty as sovereign governments to protect their own and each others’ public property provides an alternative way to define and enforce global responsibilities.

Rethinking property

The public trust doctrine is based on property rights belonging to the public. Systems of property rights exist in most societies, whether simple or complex, to avoid continuous conflict over who can use what resources, among other reasons. But property rights are far more complex than a simplistic view of private property that asserts “I can do what I want with what is mine.”

Property consists of what is often described as a “bundle of rights.” The rights to access a piece of property, to exclude others from it, to determine its use, to have the benefits of its use, to modify it, and to convey it to others can be distributed among different individuals, groups, and institutions. Property may be private, public, or common; held individually or jointly; held for oneself or in trust. Even the simplest property ownership involves obligations like paying taxes and not violating the rights of your neighbors. Property rights are dependent on the state — without its system of laws and law enforcement they would be meaningless. And property rights evolve over time. Landowners once had rights to the space above their land “all the way up” — but the coming of airplanes put an end to that. One of the greatest and most venerable forms of property, slavery, was simply abolished — though it took an abolitionist movement and a civil war to do it.

The paradigm proposed by Nature’s Trust represents an evolution of today’s property rights system. It does not aim to abolish private property — indeed, Wood touts private property as a protection for the private sphere of life. But it argues that some critical elements of the “bundle of rights” that define property must be retained by the people, as represented by government.

Such crucial public rights include “survival resources” which are necessary for the lives of present and future generations. For example, a society that lets water be monopolized by private interests puts its members’ lives and freedom in jeopardy. Crucial public rights also include “hazard resources” that threaten the public’s health and wellbeing. Private property rights must not include, for example, the right to extract and burn fossil fuels in a way that destroys the present and future life and wellbeing of humanity. In short, the public retains the right to access and use crucial natural resources and to protect them against harm.

At present, the main threats to public trust assets come from institutions with a particular form of property rights — private for-profit corporations. Such corporations use their purported rights as “corporate persons” both to monopolize resources needed for social wellbeing and to destroy the environment. Corporations are created by state-issued charters, however. Wood argues that they therefore carry the fiduciary responsibilities of the governments that created them. Where corporations are violating their duty to the public trust — for example by pouring vast quantities of climate-destroying greenhouse gasses into the atmosphere — governments have a right, and indeed obligation, to stop them from doing so or to revoke their charters.

A movement for safety and security

As compelling as the nature’s trust argument may be, it is easy to imagine that many courts will refuse to force governments to meet their obligations. The sad fact is that virtually all the governments on earth – and their legal systems — are deeply corrupted by the very forces that gain from looting and destroying pubic trust assets. They exercise illegitimate power without regard to their obligations to those they claim to represent, let alone to the common rights of beneficiaries of other nations and future generations to whom they also owe “the highest duty of care.”

But protecting the public trust is not just a matter for governments. Ultimately it is a duty we all, as members of the public, owe each other and future generations. As the Supreme Court of India put it, “Today, every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long term and enjoyment by future generations.”

Wood maintains that the nature’s trust paradigm provides a “moral language” that can help unify a global movement to prevent destruction of our common home. Its core values include protecting future generations; securing the benefits of nature for the public; ensuring the highest use for natural resources; and ensuring that nature itself has the right to exist and flourish. It provides a “moral covenant” that transcends boundaries of nations, cultures, and generations. Indeed, it can provide the basis for a new form of “planetary patriotism.”

Wood writes that the fiduciary obligation of all governments, as trustees, to protect the atmosphere as a commonly shared asset is “enforceable by the citizen beneficiaries of the trust representing present and future generations.” But that assumes a functioning democracy and legal system through which citizens can enforce their rights. Wood stops short of addressing the situation where that is not the case. But today the question is inescapable: If the courts fail to provide such protection, have not “citizen beneficiaries” a right and duty to enforce that obligation by other means?

The answer may lie in the writings of John Locke, cited in passing in Wood’s book. In his Second Treatise of Civil Government, perhaps the single greatest influence on the shaping of American government, Locke wrote that “whenever the legislators endeavour to take away, and destroy the property of the people” they “put themselves into a state of war with the people,” who are thereupon “absolved from any farther obedience” and are “left to the common refuge, which God hath provided for all men, against force and violence.” When legislators “either by ambition, fear, folly or corruption, endeavour to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people” by their “breach of trust” they “forfeit the power the people had put into their hands for quite contrary ends.” Then that power “devolves to the people,” who have a right to “resume their original liberty”, and, “by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security.”

Surely today the halting of climate change is necessary for the people to “provide for their own safety and security.”

Observing the growing civil disobedience among citizens oppressed by their governments as well as despotic corporations, Wood postulates that the future may hold a “global uprising against multinationals.” She cites sociologist Frances Fox Piven’s statement that social movements can acquire the power to change history by “refusing co-operation in the routines that institutionalized social life requires” like “the power that workers wield when they walk off the job” or that “urban crowds exert when they block streets and highways.” While not discussed in the book, legitimating the exercise of that kind of people power may ultimately be the most important role of nature’s trust — and of Nature’s Trust.

Jeremy Brecher is a founding member of the Labor Network for Sustainability. He is a historian and leading commentator about the commons. Brecher is the author of more than a dozen books on labor and social movements. His most recent book, Save the Humans? Common Preservation in Action published by Paradigm Publishers, addresses how social movements make social change.

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