Mary Christina Wood: Nature’s Trust a New Approach to Environmental Law

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MARY CHRISTINA WOOD: Every suit and every administrative petition filed in every state in the country and against the federal government asks for the same relief. And that is for the government, whether it’s the state of Tennessee or the state of Oregon or the federal government to bring down carbon emissions in compliance with what scientists say is necessary to avert catastrophic climate change.

And so the remedy in the suits pending is for the courts to order a plan, simply order the legislatures and the agencies to do their job in figuring out how to lower carbon emissions. So the courts would not actually figure out how to do that. That’s the other branch’s job. It’s just that they’re not doing it. And they probably won’t without pressure before we pass crucial tipping points.

BILL MOYERS: A plaintiff in one of the early suits, 16 years old at the time, sued the federal government, quote, “…for making decisions that threaten our right to a safe and healthy planet.” Now, where does it say anywhere in law that the government serves as the trustee of the atmosphere and that it’s violating its most compelling duties by failing, in the words of this young man, to protect the atmosphere from climate change? Where do you find that?

MARY CHRISTINA WOOD: You find that in case law, going back to the beginning years of this country. The Supreme Court, the US Supreme Court, has announced the public trust doctrine in multiple cases over the years. And again, it’s in every state jurisprudence as well. And so this is not statutory law.

I think people are so accustomed to our statutory system, they always say, as you just did, where can we find it written down in a statute? Well, this is actually the foundation of all laws. Professor Gerald Torres has a wonderful quote in his writings, saying this is the slate upon which all constitutions and laws are written. And that is the approach most courts (in this country and other countries) take in describing the public trust.

BILL MOYERS: It’s clear that you consider the courts the alternative to the streets. That this is the way people, including your 16-year-olds and 17-year-olds who are filing these suits, can seek to redress their concerns about the climate and survival through the democratic process as opposed to taking to the streets.

MARY CHRISTINA WOOD: No. I would never say the two are mutually exclusive. The court is just one– it’s an important branch of government; it’s the third branch of government. It’s crucial to our checks and balances. And so of course you would think that the courts have a role to play.

But street democracy is so powerful. I don’t know of any major movement that has succeeded without street democracy. When hundreds of thousands of people take to the streets, as they did in New York City, exercise their constitutional rights of free assembly; and then when you see, also, almost 100,000 people signing up and pledging to risk arrest if Keystone, the Keystone Pipeline, that would transport tar sands from Canada, those people are pledging to risk arrest if Obama or Congress approves the Keystone Pipeline.

When you see this kind of uprising, that only reinforces the more formal legal approaches that are put forth in the atmospheric trust litigation. The two go very much hand in hand because what is very important for judges is to sense the moral authority of the people. Judges have a finger on the pulse of the American people in a way that I think we don’t really understand that well. Judges can, if they sense the need, move very rapidly and order swift injunctions to force the legislatures or agencies, or both, to create a carbon reduction plan. And as that awareness becomes more acute, as demonstrated in the streets, courts, I believe, will become more receptive to coming in and ordering the legislatures to do their job.

BILL MOYERS: What’s the one thing you want the reader to take away from “Nature’s Trust”?

MARY CHRISTINA WOOD: Most important thing is for citizens to understand that they are needed to promote environmental democracy at this crucial moment in time, that environmental law held a lot of promise but that it’s not working, and that agencies have basically used it to allow almost unfettered destruction of our natural resources.

BILL MOYERS: What agencies are you talking about?

MARY CHRISTINA WOOD: Agencies that span the full realm of natural resources. So the US EPA, the Forest Service, the Bureau of Land Management, the Corps of Engineers, the US Fish and Wildlife Service, the National Marine Fisheries Service; you name it. There are dozens of agencies at the federal and state levels that control environmental resources. And they are supposed to represent the public interest and not corporations or moneyed interests in making those decisions. And we the public assume that the agencies are doing the right thing when they’re implementing environmental laws. Whereas in fact, nothing could be further from the truth. Agencies have become politicized creatures that largely serve industry.

BILL MOYERS: You’re talking about agencies at the federal government, but also at the state level.

MARY CHRISTINA WOOD: And the local level. Local, state, and federal level, across all natural resource regulatory areas. And I would never say that environmental law has done nothing. It has stopped a few things. Lead was taken out of gasoline, PCBs were banned, those things. But industry would like no regulation at all. It would like a free-for-all across all resource systems. So we are at a very dangerous situation in this country where the very life systems that support us are now imperiled and in jeopardy.

BILL MOYERS: What has happened to all those great laws passed in the 1970s? I mean, I was around for the first Earth Day in 1970. And then there came all of those promising laws out of Congress, which even President Nixon supported. There was so much optimism, so much promise.

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MARY CHRISTINA WOOD: It’s a huge disappointment. There was a lot of promise. The Americans thought they had solved the problem by getting these laws passed. What they didn’t realize was that industries got inside the agencies through various means, through campaign contributions, through pressure on the system over and over again. And so one thing we have to keep in mind is we’re nearing the end of our resources. And there are laws of nature that we have to comply with.

And those laws are supreme. And they determine whether we will survive on this planet. And they will determine the future conditions for our children. And so right now, our environmental laws are out of whack with the laws of nature. They are allowing destruction, whereas they should be structuring society to create a balance with the natural systems that support our lives.

BILL MOYERS: This paragraph leaped out at me, I’m quoting directly: “…it matters little what new laws emerge, for they will develop the same bureaucratic sinkholes that consumed the 1970s laws. Only a transformative approach can address sources of legal decay.” What’s the heart of this transformational approach?

MARY CHRISTINA WOOD: Well, the heart of the approach is the public trust doctrine. And it says that government is a trustee of the resources that support our public welfare and survival. And so a trust means that one entity or person manages a certain wealth, an endowment, so to speak, for the benefit of others. And in the case of the public trust, the beneficiaries are the present and future generations of citizens. So it is a statement of, in essence, public property rights that have been known since Roman times.

In fact, this was articulated by the Chief Justice of the Pennsylvania Supreme Court in a landmark public trust decision last year. And the decision basically overturned a statute that the Pennsylvania Legislature had passed to promote fracking. And the Chief Justice of the Pennsylvania Supreme Court, Chief Justice Castille, said this violates the public trust. And he began his opinion by saying that citizens hold inalienable environmental rights to assure the habitability of their communities.

And that these are ensconced in the social contract that citizens make with government. They cannot be alienated. They are inherent and reserved. So they are of a constitutional nature. And the point of the public trust is that the citizens hold these constitutional rights in an enduring natural endowment that is supposed to support all future generations of citizens in this country. It is so basic to democracy; in fact, the late Joseph Sax said the trust distinguishes a society of citizens from serfs.

BILL MOYERS: Well, that will strike some people as socialist.

MARY CHRISTINA WOOD: It inures in democracy. Now, if they believe that is socialism, then we have quite a conversation ahead, because this has been a part of our legal system since the very earliest years of our country. The Supreme Court of the United States in a landmark case called Illinois Central Railroad in 1892 said that the Illinois Legislature couldn’t just give away the shoreline of Chicago, the shoreline along Lake Michigan, to a private railroad company, because the citizens needed that shoreline for fishing and navigation and commerce. This is really nothing new. It’s certainly not socialism. It is the heart of popular sovereignty to expect that the citizens have enduring rights to the resources that support their very survival.

"penguin and ice cube" photo by K. J. Legry
“penguin and ice cube” photo by K. J. Legry

MARY CHRISTINA WOOD: Climate is not just an environmental issue. This is a civilizational issue. This is the biggest case that courts will get in terms of the potential harm in front of them, the population affected by that harm, and in terms of the urgency. Climate is mind-blowing. It can’t be categorized any longer as an environmental issue.

Legislators are trustees with constitutional obligations to the citizens. So just to put it out there, the public trust is designed for precisely the situation we have today. Now, whether or not I expect political reinforcement, I would say absolutely at the local level. These cases are finding reinforcement at the local level. In fact, in Eugene, Oregon, Our Children’s Trust organized a group of youth and they went before city council, month after month after month, and testified, asking the city council to really take action on climate and to make Eugene, Oregon a carbon-neutral place.

And after month after month after month, when the city councilors looked those children in the eyes and saw what I describe as just the moral authority of these youth, they passed the most aggressive climate ordinance in the country. And I think that is the power of the youth. The youth have to now step up, come before their legislators, pack the courtrooms in these atmospheric trust cases, meet with the agency people.

The youth have to come forward because they have no money. They have no voting rights. But they have got something that no one else has, and that is the moral authority. That is the future. And the obligations we naturally feel towards our own children, towards children we love, they all come to the surface when we can– when we actually speak to youth about the future they face.

"penguin and no ice cube" photo by K. J. Legry
“penguin and no ice cube” photo by K. J. Legry

MARY CHRISTINA WOOD: If we love our children and nieces and nephews and grandchildren, we cannot be pessimistic. We have to do everything possible at this moment in time. And we have to forge ahead with courage and optimism. And ultimately, we have to be guided by the moral principles that were responsible for the founding of this nation. So no, I’m not a pessimist.

BILL MOYERS: The book is “Nature’s Trust: Environmental Law for a New Ecological Age”.

natures-trust-book-cover-201x300Mary Christina Wood is the Philip H. Knight Professor of Law and Faculty Director of the Environmental and Natural Resources Law Center at the University of Oregon School of Law. She has taught law for more than twenty years, specializing in property law, environmental law and federal Indian law. She founded the school’s top-ranked Environmental and Natural Resources Law Program. Wood is the co-author of a textbook on natural resources law and another on public trust law.
The following is an an excerpt from Mary Christina Wood’s book Nature’s Trust: Environmental Law For a New Ecological Age.

Arising primarily from statutes passed in the 1970s, the field of environmental law stands as a failed legal experiment. The administrative state vests agencies with breathtaking power that came justified by one simple assumption: officials will deploy public resources and invoke their technical expertise on behalf of the public interest. Instead, too many environmental agencies today use their power to carry out profit agendas set by corporations and singular interests. As Part I of this book explained, environmental agencies have fallen captive to the industries they regulate. Consequently, they use the laws’ permit provisions to legalize the very damage the statutes were designed to prevent. Nearly across the board, environmental statutory processes do not prohibit harm: they permit it.

The problem lies not in the statutes themselves but in the frame governing environmental law. As a political frame, it continually bends agencies into serving those parties holding the most political power, which in today’s world often means corporations rather than the general public. In many US agencies, decisions flow from what the politics will allow, not what the statutes say. High-ranking political operatives use their discretion to favor the industries they continue to serve from inside the agency. Staff scientists and permit writers operating within highly charged political cultures suffer varying degrees of pressure to fall in line with the agency’s political agenda. These pressures remain obscured from the public, taking place in procedural fortresses made nearly impenetrable by their sheer complexity.

In a three-branch system of government, courts and legislatures should provide meaningful checks and balances to rein in the executive branch and its agencies. But Congress, more susceptible to corporate influence than ever before, deadlocks over environmental policy. Its minimal involvement typically consists of appropriations riders passed to legalize industry behavior that would otherwise violate statutory mandates. Courts, while positioned to force agency compliance with statutory mandates, play a weak role because of a deference doctrine, which accords agency technical decisions a presumption of validity. Absent effective oversight by the other two branches of government, a dangerous amount of power accumulates in the executive branch, both on the federal and state levels. While legal structures vary considerably among different nations, the untrammeled power of agencies, wherever located, can create an administrative tyranny over nature and a menace to environmental democracy .

Any trust relies on strong judicial enforcement of fiduciary duties. Without a robust judiciary, there exists no trust – only tyranny. This book devoted a chapter to judicial enforcement, outlining steps that judges could take immediately, within their realm of authority and judicial tradition, to restore integrity to environmental law and enforce the property rights of citizen beneficiaries. It argued for judicial review of legislative action under fiduciary standards of loyalty to the public. It underscored the need for judicial remedies to address the institutional dysfunction of agencies in their management of resources. When faced with long-standing agency incompetence, corruption and dereliction of duty, courts prove effective only by intervening (either temporarily or for protracted periods) directly into the agency’s processes. We also detailed the elements of structural injunctions and described institutional remedies that could promote effective judicial supervision. While these types of remedies have ample precedent and remain well within the realm of equitable authority, courts have not yet used them widely in environmental law.

Link to the full: Bill Moyers book review for Mary Christina Wood: Natures Trust New Approach Environmental Law

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