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.