In her brilliant new book, Mary Christina Wood, a noted environmental law scholar at the University of Oregon, Eugene, courageously sweeps aside the bland half-truths and evasions about environmental law. In Nature’s Trust: Environmental Law for a New Ecological Age (Cambridge University Press), Wood argues: “That ancient membrane of law that supposedly functions as a system of community restraint [is] now tattered and pocked with holes.” Our current regulatory system will never solve our problems. She continues:
"A major source of administrative dysfunction arises from the vast discretion [environmental] agencies enjoy – and the way they abuse it to serve private, corporate and bureaucratic interests. As long as the decision-making frame presumes political discretion to allow damage, it matters little what new laws emerge, for they will develop the same bureaucratic sinkholes that consumed the 1970s laws. Only a transformational approach can address sources of legal decay."
Wood’s mission in Nature’s Trust is to propose a new legal framework to define and carry out government’s ecological obligations. For Wood, a huge opportunity awaits in reinvigorating the public trust doctrine, a legal principle that goes back millennia. She explains how the doctrine could and should guide a dramatically new/old approach to protecting land, water, air and wildlife.
In 1970, Professor Joseph Sax inaugurated a new era of legal reforms based on the public trust doctrine with a famous law review article. For a time, Sax’s essay sparked energetic litigation to protect and reclaim waters that belong to everyone. The focus was especially on beachfronts, lakes and riverbanks, and on wildlife. But as new environmental statutes were enacted, some courts and scholars began to balk and backtrack and hedge. They complained that the public trust doctrine should take a backseat to environmental statutes. Or that the doctrine should apply only to states. Or that it applies only to water and wildlife, and not to other ecological domains. And so on.
But there is no reason in its history or application that public trust doctrine principles cannot be used to achieve “a full paradigm shift in environmental law,” by Wood’s reckoning. She writes:
“With roots extending back to early Roman law, the doctrine rests on a civic and judicial understanding that some natural resources remain so vital to public welfare and human survival that they should not fall exclusively to private property ownership and control….Public trust law demands that government act as a trustee in controlling and managing critical natural assets. Held to strict fiduciary obligations, government must promote the interests of the citizen beneficiaries and ensure the sustained resource abundance necessary for society’s endurance.”
Historically, the public trust doctrine has acted as a curb on the power of legislatures to give away natural resources that belong to the public. It has been an expression of the popular sovereignty of the people, as enforced by the courts.
Nature’s Trust begins with a lengthy, rigorously argued account of the failures of the administrative state to protect the environment. Wood’s “regulatory autopsy” reveals that politics routinely intrudes into administrative decisionmaking and scientific expertise. As countless examples have shown, regulation is mostly a façade designed to legalize abuses of the environment. It elevates the role of scientists, lawyers and lobbyists – many of whom have obstructionist motives -- while marginalizing the public’s role.
Professor Wood proposes that we look to the “Nature’s Trust paradigm” to try to re-imagine environmental law. Government is a sovereign authority with responsibilities to its citizens. As such, it has strict legal obligations to protect the environment that are “obligatory, inalienable and fundamental to sovereignty itself.” She argues that the whole of our natural assets – air, atmosphere, oceans, rivers, wetlands, aquifers, forests, wildlife, soils, and more – should be regarded as an “ecological res [thing] that government must protect.” Such obligations cannot be shed simply because of shifting political winds.
While Wood has written an avowed “populist manifesto,” her arguments for the “sovereignty trust obligation” are carefully argued in strict and respectable legal terms. No posturing or table-pounding is needed, if only because the history of the public trust doctrine is so clear. Seen in this fresh perspective, the Nature’s trust framework provides “a new way of thinking, a fresh characterization of normative values and a robust set of legal footholds by which citizens can hold their government officials accountable.”
But wait, there’s more! Wood and a small army of scholars, litigators and activists have taken the next step: litigation to apply the public trust doctrine more broadly.
Pursued chief through an advocacy group, Our Children’s Trust, the project has filed dozens of lawsuits collectively known as “Atmospheric Trust Litigation,” or ATL. The goal is to persuade courts to invoke the public trust doctrine to force the government to uphold its duty to protect the atmosphere.
ATL litigators have brought lawsuits and petitions on behalf of youth in every state in the U.S., and against the Obama administration. They are also initiating lawsuits in other countries as well, to force government trustees to carry out carbon reduction. All of these lawsuits and petitions make the identical requests to the states and federal government: adopt plans to implement a carbon reduction pathway, as developed by an international team of scientists, led by Dr. James Hansen, so that a climate equilibrium of 350 ppm carbon can be achieved. The suits also call for a 6% annual global reduction, starting in 2013 (when the suits were filed).
So far, while most lower courts have dismissed the suits on procedural grounds (often arguing that climate is a “political question” that the courts must avoid), a few states have not gone that route and may well entertain the cases on the merits. The federal case is pending at the D.C. Court of Appeals. In a recent case brought to fight hydro-fracking, a Pennsylvania state court resoundingly affirmed the public trust doctrine and the duties of the trustee [government]. It also affirmed that air is a trust resource. The case is now the most comprehensive judicial iteration of the trust doctrine.
Now public-interest litigators are contemplating a new stage of litigation: using the public trust doctrine to establish the government’s duty to recover damages for injury to trust assets. This is called NRD, for Natural Resource Damages, litigation.
As Wood explains, “A trustee is obligated to seek what are called natural resource damages for injury to natural resources. The government regularly seeks such damages in the context of oil spills (think BP and Exxon Valdeez, for example). Under trust law, these damages MUST be used to restore the resource (which helps the trustee carry out the duty of restoration).”
Here is a fascinating recent account of NRD litigation by Dawn Reeves at Environmental Newsstand:
“Environmentalists and their supporters are crafting a strategy for bringing potentially multi-billion-dollar natural resource damages (NRD) claims against industrial polluters as the next step in strategic climate litigation, after common law nuisance cases against emitters failed and atmospheric public trust cases against states have faltered.
“The new effort – which supporters say is intended in part to pressure political leaders, including those involved in pending international climate talks – is likely to be aided by a recently released report that traces atmospheric greenhouse gas (GHG) emissions to 90 of the world's largest emitters over the last 150 years, a finding that advocates say provides proof of causation, a key test for NRD claims.
“Sources studying the strategy are also considering building a public campaign prior to pursuing litigation, with one idea being delivering ‘invoices’ of atmospheric damages to major emitters as a way to spread the idea that the companies are responsible. One source says such a campaign is currently being discussed among potentially interested parties with experience in other advocacy.”
If Nature’s Trust has a core message, it is that law – especially the public trust doctrine – can still provide a great deal of leverage in making government protect the environment. The pending litigation strategies will test this claim. As we await rulings, read the important legal history, rationales and prospects for this approach. Amidst the morass that is environmental policy and law, Nature’s Trust is a clarion call of inspired legal scholarship that points toward a promising path forward.