mary christina wood's
NATURE'S TRUST
reviewed by
JEREMY BRECHER
________________________________________________
Jeremy
Brecher (www.jeremybrecher.org) is the author of more than a
dozen books on labor and social movements, including the just-published
Climate Insurgency: A Strategy for Survival (Paradigm Publishers,
2015).
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.
The
basic principles of public trust law were set out in the 1892
US Supreme Court decision Illinois Central Railroad Co. v. Illinois.
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
naturalenvironment,
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.
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.
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.
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 morecomplex 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 privateproperty — 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 thereforecarry 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.
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, r 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 isnot 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.
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