File Size: 1983 KB
Print Length: 461 pages
Publisher: Cambridge University Press; 1 edition (October 31, 2013)
Publication Date: September 9, 2013
She can feel that the current maze of environmental laws and regulations are becoming so arcane as to be funeste to all but those most steeped in their application and interpretations. It is a narrow group of government administrators, industry lobbyists and lawyers, and a few well organized environmental groups. The state’s traditional role in protecting valuable common assets has been lost amidst this quagmire of acronyms and nebulous restrictions. The uninitiated have no chance at understanding the proper role of their political leaders, and feel disconnected from the procedure. Typically the author feels that the result is a close relationship between administrators and industry, often resulting in “revolving doors” of employment between the two. She postulates that the myriad of regulations passed with the expressed objective of protecting the surroundings (Clean Air Act, Thoroughly clean Water Act, Endangered Species Act, etc. ) have instead become vehicles by which industry obtains enables to slowly degrade the natural resources they were intended to protect. Indeed, Ms. Woods notes that:
“The agencies implementing the environmental laws have become perpetrators of legalized destruction, using permit provisions contained in nearly every statute to subvert the purposes Our elected representatives and state legislatures designed. ”
This specific slow degradation reflects a “politics of scarcity” instead than abundance. Such
“(P)olitics of scarcity focus on creating legal mechanisms to allocate the great things about an ever-declining natural resource. In other words, officials use the strength of the state primarily to divide the final crumbs (allocating those to the most politically powerful individuals). These politics have led society to this perilous point in time. The politics of abundance, by contrast, reach persistently and undauntingly in the direction of safeguarding and building natural prosperity. ”
Politics systems might support national politics of scarcity or abundance, but the Earth’s natural systems can only support the latter.
These short sighted policies reflect a modern society bent on unlimited and unnecessary present indulgence without regard to the entire world left to future generations. A single if the most telling reflections of this goal of unrestrained financial growth, and perhaps the most dangerous, is the present and future a result of climate change. The author presents very persuasive scientific evidence about the threats presented to our environment, and is very critical of the lack of politics action, and in fact the suppression of scientific evidence during the Bush administration. These discussions are almost an e book in by themselves, but the thrust of “Nature’s Trust” is the legal theory which the author advances as providing not just a viable remedy, but an alternative way of thinking which would hopefully move public opinion.
The writer starts with the recitation of a basic basic principle that
“Government, deriving its specialist from the people as a whole, must work as a fiduciary to guard the natural resources saved in trust from damage, as well as from dangerous privatization. ”
This recognizes that land has both a general public and a private element, which governments hold the public interest in basic environmental assets, such as normal water and air, in trust for the benefit for all citizens, both current and future generations. Thus, “***private use and enjoyment of trust property by individuals and corporations remains at all times subject to an antecedent encumbrance in prefer of the public so as to maintain the environmental stability necessary for modern society to thrive. ” This specific doesn’t mean that all private property is susceptible to a public trust, however the writer notes at least four common situations that would activate the public trust:
“(1) where circumstances involve trans-boundary interstate assets (such as an interstate rivers, lakes, subterranean aquifers, migratory wildlife, the air, and atmosphere); (2) where state trustees utterly fail to discharge their fiduciary duties to guard assets within their jurisdiction; (3) where national exigencies demand federal involvement, such as those involving national security, commerce among states, broad ecological or public health threats, or natural catastrophes; and (4) where disputes arise over resources contributed with other nations or tribal sovereigns (such as oceans, fisheries, atmosphere, and the like). ”
Conversely, there are also situations in which governments might alienate land from the trust to private parties. Such exchange could be allowed “(1) where trustees make the grant in aid of navigation, commerce, or other trust purposes; and (2) where the grant will not cause “substantial impairment” to the public interest in the lands and waters remaining. ”
When trust duties arise, the government must assume the traditional commitments of a trustee. It should first ensure the output and health of the asset(s) in trust. Next, it must take action when the trust assets are imperiled. Third, a trustee must exercise wisdom in managing the trust, defined by courts as reasonable care, skill and caution. And fourth, and perhaps most importantly, a trustee bears a stringent duty of loyalty in administering trust assets. If the public trust is acknowledged, then State and Federal governments must fulfill these responsibilities. But who identifies such a trust and imposes such duties?
The tennis courts are probably the only enterprise equipped to do so. This can entail courts telling administrative agencies or even legislatures what they must do to protect trust assets. Such tensions trigger our basic principles of separation of powers. Nevertheless the author notes these and other examples where the courts have successfully ordered appropriate remedies when other governmental entities performed not fulfill their appropriate duties. In New Jersey the State Supreme Court placed that “each town in the state held a express constitutional duty to provide a “fair share” of affordable housing. ” In Oregon the Federal the courtroom fashioned a remedy when the National Fisheries Marine Service failed to attract up an enough plan to protect Endangered salmon in the Columbia Water. Although rare, such steps are supported by precedent.
Utilizing this public trust cortège, in 2011 a non-profit organization known as the Children’s Trust, for young adults who are used a healthy future, started litigation in all the states seeking a announcement of a sovereign obligation to protect the atmosphere sufficiently to reduce carbon dioxide emissions and so counteract the potentially disastrous effects of global warming. They hold that such action is important to protect the atmosphere needed by the youngsters and future generations for their long-term survival. Typically the cases have not had much initial success. As the author notes:
“Unfortunately, a lot of the current judges show distaste and fatigue at the chance of managing the complex details of a meaningful treatment. They may hastily write off trust claims on step-by-step grounds, or characterize the trust issue as a political question committed to the other branches of government. This, indeed, is the result of some (but not all) of the lowest-court rulings in Atmospheric Trust Litigation. ”
NOTE-Since publication there has been a success of sorts in Washington State where the trust doctrine was recognized, however the court held that the Legislature was taking appropriate steps. The Children; s Trust also recently started litigation against the Obama Administration in the Federal District Court of Oregon. (My reading info in the papers. )
So , with so little prospect of success, and with a political environment where global warming is questioned, and much of public opinion is directed in the direction of extended private property rights and against the idea of “the commons”, or the common public interest in a beneficial use of the land, what will the author see with this legal theory? From my reading, I do not perceive Ms. Wood as the least bit naive. She certainly hopes that the litigation will have some success, but the girl acknowledges that the actual struggle to save the surroundings, and the planet as we know it, will depend on a shift in general public opinion, not just here, but worldwide. She hopes that the public trust doctrine might rekindle the sense of commons that has recently been present in our country since the days of the Founders. She also desires that a similar difference in attitude takes place in other parts of the world, and does cite favorable attitudes.
This book is a very complete legal discussion, but the one which can be digested by a lay down person willing to take the time. (I do have the benefit of being a retired lawyer. ) This also is far more than a book on the potential legal remedies for climate change. It is usually a basic primer on technology of climate change, and a literal expose of the corporate and political corruption that so threatens the earth. This is a serious book that demands a serious read. Much like many books of this sort that We have read and examined, I also feel that its message could have been conveyed more succinctly, but all of the information is relevant and informative. It certainly covers in detail the nature and extent of environmental destruction that should be of concern to all of all of us., The publication of Nature’s Trust: Environmental Law for a New Ecological Age group by Professor Mary Christina Wood is the greatest landmark to date on the trail to achieve environmental protection. Professor Wood illuminates a powerful and effective tool to achieve rapid and lasting safety for Earth’s life support systems. Her explanation of the jurisprudence that supports the evolution of the public trust doctrine gives hope there may yet be time enough to salvage Nature on her own sake and that of humanity.
As a philosophical justification for empowering and challenging jurists, lawyers, and citizens alike this treatise ranks with Aldo Leopold’s Sand County Almanac and Rachael Carson’s Silent Early spring, with the added push of Edward Abbey’s meaningful outrage in the direction of the enemies of Nature and maids of mammon., Nature’s Trust: Environmental Law for A new new Ecological Age.
By Mary Christina Wood*
Overview of Part I “Hospice for a Dying Planet”
By Harry Palmer
In Part We of the seminal work, Professor Wood describes universal social values that acknowledge the essential nature of healthy ecological systems for preserving life. That recognition is expressed in the avertissement to think about the effects of governance choices on the next seven generations, for example. This, and other fundamental tenets of Local American culture, inspired the Founders as they cast The Constitution of the United States. Ancient Both roman law is also part of the foundation of our modern government. Typically the Romans, too, recognized that responsible stewardship of the natural endowments shared by all citizens is a fundamental, organizing principle of representative government.
The author chronicles the flowering of the environmental movement in the 1970s, a robust response to threats imposed by industrial civilization. Symbolized by Planet Day, there is a demand for protection of general public assets such as clean air to breath, entry to safe food and uncontaminated water, as well as the aesthetic enjoyment of a thriving, natural environment. In response, Congress passed the Endangered Species, Clean Atmosphere and Water Acts, among others. Within an astounding exercise of executive power, the Nixon Administration also created the Environmental Protection Organization to manage some of these carefully crafted statutes.
It was a time when, in response to the will from the citizens, our elected authorities reaffirmed their ancient obligation to govern in order to protect crucial natural assets, thus insuring they would be saved in trust for the benefit for present and future generations.
However, attentive people now recognize a rapid deterioration in the quality of the global ecosystem. Evidence of the failure of the 1970s model of environmental law includes a rapidly energizing atmospheric system, the startling disappearance of ice everywhere, and swiftly rising, acidic seas. Typically the natural birthright in our children and grandchildren is succumbing to the global frenzy of extraction and usage wielded by the seriously industrialized system of business capitalism.
In fact, the laws passed to protect the treasured legacy of our own, and our children’s natural resources are becoming tools used for making them up, and then delegating management of each portion to a specific agency. These agencies, from the Fish and Animals Service to the Bureau of Land Management, are engaged in the constant development of extraordinarily confusing regulations. These complex webs of rules are widely-used to determine how much, when, and who will be authorized to exploit the assets under their jurisdiction.
Therefore, a system initiated with a really good intentions, illuminated by the bright promise of early environmental movement, has become opaque to both the public and, by choice, the judiciary branch of government, as well.
Nevertheless, this misleading labyrinth is easily negotiated by the corporate interests that condition its ongoing design. Elected and appointed officials are exposed to a variety of impacts, including offers of opportunities to leave public service for lucrative job in private industry. Experience during these company jobs, combined with the knowledge gained while providing in government, produce skilled, highly motivated lobbyists who further refine the artwork of swaying their former congressional and agency co-workers. Many actually go back to government service by executive scheduled appointment, often to lead the agencies that are in charge of regulating the very same industry they now represent.
Just about all elected and appointed authorities in public service have solemnly sworn to support The US Constitution as they discharge the tasks of their office. Typically the truth is that, unfortunately, many of these people no longer personify the pursuits of current and future generations of Americans.
Portion II, “The People’s Natural Trust”
Simply I, Professor Wood described the sabotage, agitation, destabilization of environmental laws designed to protect and save natural resources, permitting the destruction of the principal in Nature's Trust rather than wisely managing its preservation. This style of governance now puts the complete global life-support system in danger.
In “The People’s Natural Trust”, she provides the sound, legal basis for the foundational changes the girl proposes. Her reasoning is ‘radical’ in the very best sense of the word, which is derived from radix, meaning the main, or the inherent characteristics of a thing.
Typically the supreme authority of nations with representative types of government is rooted in popular sovereignty. Consequently , one of the most essential reasons such governments is “protecting crucial natural assets for the survival and wellbeing of citizens. ” Individuals natural assets—resources that both born and unborn users of the state will require for their continued good health and happiness—constitute the principal held in the public trust that is the subject of the book. Elected officials are empowered to represent the interests of their constituents and are, therefor, in charge of insuring the protection of the trust assets. These authorities of government will be the trustees whose sworn duty it is to govern so these resources will be available for the present and future generations who are its beneficiaries.
This fundamental responsibility of leadership is the explicit, central principle of governance in the composition of nations around the world. However, the “true origins of the trust reach far deeper than anyone nation’s legal system. ” This obligation is rooted in natural law. It really is what John Locke, whose philosophy provided a cornerstone employed by the Framers in our Constitution, called the “Fundamental, Sacred and unalterable Law of Self-Preservation. ” The necessity of guaranteeing the wherewithal for its members continued existence is “the basis of modern society. ” This creates “a fiduciary obligation on the part of government to protect this human right. ” One central conclusion of this line of reasoning concerning the principles of representative governance is that “…the people’s interest in the ecology important for their survival and well-being limits their governments ability to destroy it. ”
The government’s obligation to do something as trustee for the benefit for citizenry, instead than on behalf of powerful special interests, might come as a amaze to some. One might ask, “Where is actually written into our regulations? ” The answer is that, “Properly understood, the public trust stands as a fundamental attribute of sovereignty—a constitutive principle that government cannot shed. ” “The trust forms the sovereign architecture around which the Constitution and all other laws meld. ” It is not set out in law because, as the author points out, Nature’s Trust is actually “the slate ‘upon which all laws are written. ’” The structure of government designed by the Framers includes, as its designed sovereign legacy, to “secure the Blessings of Liberty to ourselves and our Posterity. ” Thus, there is “an inalienable obligation engrained in government itself …to govern…for the benefit for future generations as well as present ones. ” Professor Wood cites many United States Supreme Court choices to support the girl contention that this basic principle is, indeed, the basis of our government. The girl leaves no doubt which our representatives are entrusted with careful administration of the principal in this natural trust. The resources therein are those required for life, liberty and the pursuit of happiness; those “unalienable Rights” that form the foundation of our great Nation. Yet , the officials in charge of saving and protecting these assets for the benefit for all present and future years are parsing them in order to special interests for personal gain, instead!
Nature’s Trust Review Part III “Nature’s Trust and the Great Transition”
Professor Wood laid the foundation for the Great Transition by tracing the legal history of natural trusts back through Roman times and into the Indigenous cultures that preceded Western Civilization. Oughout. S. case law provides abundant evidence that it is the sovereign obligation of modern government to insure the preservation of natural trust principal. This specific includes, although not limited to, clean air, safe normal water, sufficient food and the biological systems required to provide them. As its trustees, government officials are accountable for passing this ‘common wealth’ along, unchanged, to future generations.
Typically the book also documents the perverse agency mismanagement of statutes like The Thoroughly clean Air and Water Acts. Environmental law under the control of neoliberal capitalism provides bureaucratic cover for allowing widespread destruction of the extremely natural resources it was designed to protect. Justified by way of a presumed need for neverending material growth, it is rapidly liquidating the natural resources and living systems that constitute the most crucial stock of capital in Nature’s Trust, while calling it ‘profit’. This specific is the “ideology of a cancer cell”! This clearly violates the trustee obligations of any government, especially one claiming to represent citizen interest and focused on insuring their posterity.
Nationality includes the duty to hold government accountable for its destruction of important, natural resources and to claim back the endowment saved in Nature’s Trust. Insuring a secure future for our children requires the restoration of governance that administers natural trust law for the many, rather than providing obscene wealth for the few who have seized control of it for their own benefit.
Unfortunately, we have forgotten both our dependency on the natural environment, and the stewardship ethic implicit in that relationship. As a result, we are prone to the modern administration of environmental law, which effectively destroys any vestigial moral basis an personal might muster in an attempt to defend by themselves and their communities from destruction.
How can we possibly prevail?
Professor Wood emphasizes that moral basic principle is the foundation of law “not just to maintain credibility and respect in modern society at large, but in addition to inspire citizens to participate in democracy. ” Typically the Nature’s Trust approach revives four moral understandings that are fundamental to humanity’s continued existence:
1. “That we are obligated to repay …future generations a beautiful, rich and healthful surroundings. ”
2. “Natural law designates certain resources common to all mankind and not susceptible to private ownership, ” including the air, water and the ecological web that sustains community prosperity. (Claiming personal ownership of such resources for oneself is theft. )
3. Natural law forces by using this commonwealth for the greatest possible public advantage. (Wasting community resources is a sign of greed. )
4. Nature itself has a right to exist and flourish.
When a community recalls its dependence on natural systems, it improves this constellation of ideals. Viewed in this frame, it is apparent that preserving the Nature’s Trust endowment, particularly in the face of its imminent destruction, is paramount to anything else. Typically the contrast between moving into an environment governed by such precepts versus one completely outclassed by greed, fear and waste provides additional incentive.
Professor Wood provides powerful insights about how precisely structuring property rights relative to Nature’s Trust can provide effective legal tools for curbing business power. As a fundamental property concept, natural trust law defines the commitments of governance in a deeply integrated, holistic way that applies to all sovereigns—from tribes to nations. This specific intrinsic quality endows it with legal validity independent of legislation— an essential characteristic where elected authorities are bound by special interests.
The integrity of the trust concept is dependent instead on a strong judiciary to enforce the fiduciary duties of trustees—the very ones which may have recently been sloughed off by our elected officials. The writer details the “steps that judges could take immediately, within their realm of authority and judicial traditions, to restore integrity to environmental law and enforce the property rights of citizen beneficiaries. ”
Nevertheless, making judicial findings that bring about the fundamental changes needed requires courage. Idol judges must first understand the real gravity of the ecological disaster confronting all of us. It is equally important to assist them with recollecting the fundamental human ideals embodied in Nature’s Trust principles.
A citizenry performing in accordance with such values will animate the courts. Choosing to work in the best interest of coming generations, while simultaneously making very noticeable and vocal demands that corporate and governmental stars do likewise, (by eschewing wasteful uses of needed resources, for example) is required. Such social actions are manifestations of the deepest human sensibilities. Available display of those qualities is inspirational to humanity, including judicial actors.
If they can be so influenced, the judiciary already has the power to make the necessary changes, as Professor Wood explains so well in Natures Trust!
Master of Environmental Legislation and Policy
Vermont Law School
10 September 2015
*Professor Wood is the Phillip H. Knight Professor of Law and Teachers Director of the Environmental and Natural Resources Legislation Center at the University or college of Oregon School of Law., I checked this book out in our law library after hearing its values touted! I couldn't put it down. It really is a fantastic and timely publication that addresses significant environmental issues from a very readable and understandable strategy. She presents the challenge to all people, and uses the term " planetary patriotism" as a sound way of looking at the difficulties. Checking it out there of the library performed not do it to me. I needed my own copy and am treasure it as a marvelous investment., I read a whole lot of environmental books each year. May Wood's publication is the most useful and best written publication I have read on the environment in a long time. I hope we have the courage to help make the paradigm shift she advocates.
Thanks a lot Mary, An important publication, which returns ethics to the center of jurisprudence--as important as the The Children's Trust movement that it spawned!
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