Wednesday, June 3, 2015

Nature's Trust

University of Oregon law professor Mary Christina Wood’s recent book—Nature’s Trust: Environmental Law for a New Ecological Age (Cambridge U Press: 2014)—may be the most important book of our time. I say “may” because I’m not sure how many people can wade through its details about the law itself, the perversion of environmental laws that were supposed to protect us, the court cases and related strategies that offer some hope, and the critical ecological problems we all face. But the more people who can, the more people who realize that natural law really does vest power in we the people who are supposed to be its beneficiaries, the more chance we as a species may have of fending off the environmental catastrophes about to overtake us.
            In fact, though, Wood’s thesis is fairly simple to state. All law, and all environmental law in particular, depends on and stems from the legal principle known as the public trust doctrine. Here is how Wood puts it early in her book:

With roots extending back to early Roman law, the [public trust] doctrine rests on a civic and judicial understanding that some natural resources remain so vital to the public welfare and human survival that they should not fall exclusively to private property ownership and control. Under public trust doctrine, natural resources such as waters, wildlife, and presumably air, remain common property belonging to the people as a whole. Such assets take the form of a perpetual trust for future generations. The public’s lasting ownership interest in this trust vests in both present and future generations as legal beneficiaries.
            Public trust law demands that government act as a trustee in controlling and managing crucial natural assets (14). (emphases added)

What this means, again, seems simple, and, once expressed, self-evident. The government is, in effect, a trustee of the natural resources comprising the public trust. It has strict fiduciary obligations (like a regular trustee) to promote the interest and welfare of the beneficiaries—in this case, you and me and all the citizens of the state or nation in question. And if government or its agents do not act in accord with their obligations to preserve and protect the citizenry and its resources, then it and they can be sued to do so, forced by the judicial branch of government—the judges—to do their primary job. If government permits corporations to pollute the waters, then it has to take measures to stop the pollution and clean the waters. If it permits corporations to use and sell fossil fuels that promise to bring on the environmental disaster of climate change or global warming, then it can be forced to institute measures to stop the pollution and reduce the CO2 level.
            Ok, you may say. So why doesn’t the government do this? After all, we have a whole bevy of environmental laws that were passed in the 1970s: the Clean Air Act, the Clean Water Act, the Endangered Species Act, the Toxic Substances Control Act, the National Forest Management Act, and a host of others. We have the EPA and the FDA and more government agencies than we know what to do with. And yet, the pollution continues apace, the EPA has proposed but still not finalized rules to cut greenhouse gases, and corporations continue to get permission to use pesticides and GMOs and fossil fuels and explosives to blow up mountains to get coal, and dangerous methods for fracking or drilling for oil in complete disregard of the waters, both coastal and in aquifers, that they foul. How can this be? The answer—and Wood cites chapter and verse about this—can be found in one or two little loopholes in those wonderful environmental laws. The first is something that has become increasingly obvious to anyone paying attention in recent years: the lawmakers and bureaucrats who implement the laws in government agencies are pretty much in the pockets of major corporate donors. These big donors, most notably in the polluting industries like oil and coal and chemistry, lavish their wealth on the politicians and agency heads who are supposed to protect the natural trust—the environment. And they are enabled by the other big toxic loophole, agency discretion. Discretion means that agencies like the EPA are given the responsibility to implement the laws passed by Congress, and this generally means ruling on requests by big corporations for permits to pollute—to violate, to whatever degree they rule is permissible, the air or the water or the soil that the agencies are supposedly protecting from such violation. Agencies have this discretion, and they use it most often to favor the polluters rather than the general public. Why? Because the polluters lobby them, wine and dine them, and often hire them (the bureaucrats ruling on their requests) for big salaries when they leave government service. In this way, as one writer puts it, “our most promising environmental bills were deformed and crippled by toxic loopholes.” Or, as Mary Wood summarizes it: “the very system intended to restore Nature actually kills Nature, while delivering a heavy dose of death and despair to innocent citizens” (67). 
            In practice, this often takes the form of manipulating or delaying regulations. As an example, Wood cites the delay involved in regulating lead in gasoline: “It took sixty years for EPA to ban this known neurotoxin from gasoline. For industry, every year of delay buys another year of profit from unregulated activity” (69). Another example comes from the notorious Bush II Administration (the all-time champions at interfering with environmental science to please their corporate cronies). This one involved the “fill rule”, which moved mining waste from one regulatory program to another by characterizing the waste as ‘fill’—a ploy that allowed it to switch from the prohibitive section 402, to the more permissive section 404. Robert F. Kennedy Jr. called this change “the most significant weakening of the Clean Water Act in its entire history.” It not only permitted the Coeur Alaska Mining Company to dump 4.5 million tons of toxic metal tailings into a 23-acre subalpine lake in the Tongass National Forest, raising the lake bottom 50 feet (originally only 51 feet deep); but it also allowed the rush of mountaintop removal to proceed, with the “fill” from over 500 blasted mountaintops obliterating Appalachian valleys and fouling 2000 miles of rivers and streams. And why? So coal companies could get to their precious CO2-spewing fossil fuel. And why again? Because the coal industry was the largest single contributor to Bush’s presidential campaign; and because, as payback, Bush appointed Stephen Griles (formerly a VP for a Virginia-based coal company) as number two official in the Department of the Interior, who then pushed through the still-operating ‘fill’ rule. A final note on Griles: charged with ethical violations, he resigned, and was then imprisoned for illegalities in yet another scam.
            That brings us to the Nature’s Trust framework as the solution. Current politics and law thinks of Nature as something amorphous, something that “corporations can lawfully plunder with government’s blessing,” by means of permits. By contrast, a trust framework “characterizes natural assets as the public’s inherited natural wealth that, with decisive justice, should pass down through the generations of citizens.” Government has a fiduciary obligation to protect this common wealth, regardless of politics or even normal property rights, for no one has the right to destroy or pollute or otherwise damage this natural wealth. And if the trustees—the agencies of government—do not abide by their fiduciary obligation to protect it, then they must be forced to do so by legal means. More than that, this obligation extends to conserving the natural trust for future generations, to restoring the trust where it has been damaged (recovering damages from third parties that have done the damage), and to “refraining from alienating (i.e. privatizing) the trust except in limited circumstances” (167). One more extension, and this is fundamental to our current situation regarding climate change: a trustee faces liability for damages if he “should have known of danger to the trust, could have protected the trust, but did not do so” (168). To not do so, to adopt a do-nothing policy regarding climate change as the U.S. government has been doing for decades, is to stand in breach of trust, in breach of its fiduciary duty to its citizens and to future generations.
            And here is where Wood adopts the key Nature’s Trust principle in her book. If, as she clearly believes, “the most urgent environmental imperative on the planet” is some form of atmospheric recovery from the greenhouse gases heating our planet, then the government—all governments—must immediately embark on a recovery program. Recovery, here, means “drawing down atmospheric greenhouse gas levels” in order to reach some form of climate equilibrium. Following the calculations of Dr. James Hansen, this means drawing out 100 gigatons of carbon already in the atmosphere, and at the same time, phasing out carbon emissions by getting to a “6% annual reduction in carbon emissions beginning in 2013.” That’s reducing CO2 emissions by at least 6% each year! But Wood doesn’t just recommend that governments do this, and hope they will. She, as a lawyer, takes seriously the role of the courts in forcing the government to do this. This is why one of the major efforts proceeding from her work is the Atmospheric Trust Litigation that began in 2011. It is part of a larger-scale planetary movement to enlist all governments as co-tenant trustees of the atmospheric trust. And it enlists citizens to exert their rights as beneficiaries in “bringing suit against their governmental trustees” if they fail to protect their atmospheric trust. This has already happened, and it may be the most heartening development in the trust arena.
            Starting in May 2011, a 16-year-old named Alec Lootz sued the Obama Administration in federal court for not acting on global warming (he had formed Kids v. Global Warming at age 12). His complaint said in part: “Americans and the world as a whole face impending catastrophe.” Several others, both older and younger, brought similar lawsuits: Jaime Lynn Butler, a 10-year-old Navajo, sued the governor of Arizona. Akilah Sanders-Reed, a 16-year-old, sued the governor of New Mexico, citing vanishing water supplies that made farming impossible. Kelsey Juliana, 15, and Olivia Cherniak, 11, sued the governor of Oregon, listing things like the 50% loss in snowpack that threatens the region’s water supplies. Even beyond this, similarly courageous young people filed lawsuits in every U.S. state, in Ukraine, and elsewhere, eventually coordinating their campaign in the nonprofit Our Children’s Trust (see, that “declared a sovereign trust duty to protect the atmosphere needed by the youth and future generations for their long-term survival.” They demanded that the courts enforce Climate Recovery Plans to reduce CO2 emissions by at least 6% annually, starting in 2013. Of course their suits were denied, and the recovery start date has long since passed, but they have forged on, filing appeals in higher and higher courts and more and more jurisdictions. At last count they had more than forty pro bono lawyers working on their behalf, as well as affidavits from dozens of renowned scientists. James Hansen’s amicus brief said, in part: “Failure to act with all deliberate speed in the face of the clear scientific evidence of the danger functionally becomes a decision to eliminate the option of preserving a habitable climate system” (229). And most important of all, they leveraged the undeniable appeal of youth seriously concerned that their inheritance will be a ruined planet no longer habitable for their generation of humans. Their appeal is moral, emotional, and firmly situated in the trust doctrine.
            What is needed now, of course, is more support for these and the many other initiatives that Wood cites in her book. What is needed is a growing realization by every human on this planet that the climate threat, as scientists have repeatedly and urgently described it, is human-caused, is dire and growing rapidly towards an irreversible tipping point. And what is needed, as Wood again and again emphasizes, is direct action on the part of as many people as possible, not just in the courts, but in the streets, demanding that the government and its agencies do what they are clearly obliged to do: protect the natural trust that all life and all commerce depends on. This public action is needed to pressure not only the government, but the courts as well, which are keenly aware of the public mood. Courts have responded, as Wood points out again and again, in past cases, protecting the public trust in protecting Lake Michigan from the railroads’ attempt to block access to its shores; in Lake Champlain to prevent owners from selling a priceless shoreline to developers; in Manila Bay to force the government to clean up what had become a polluted, damaged public waterway; and in many other places and cases. And they have done it in the face of the usual arguments about the “rights” of property owners to do whatever they choose to ‘their’ lands. No, says Wood. And No, have said numerous jurists in cases where this was the issue. A statement Wood cites from Justice Christopher Weeramantry makes the point firmly: “Land is never the subject of human ownership, but is only held in trust, with all the connotations that follow of due care, wise management, and custody for future generations” (331). Which puts me in mind of a statement I once heard from the great Italian American writer, Angelo Pellegrini, when he described the attitude that was instilled in him by his father in Italy: “Always leave the land in better condition than it was when you got it.” That is exactly the point of Mary Christina Wood’s book: all land, no matter who owns it, is held in trust.  And if it is necessary, as it obviously is, to sue the government and its agencies to force them to live up to their duty to Nature’s Trust, then that must be done. If it is necessary, and it is, to besiege Congress and force them to enforce the rules already implemented, then it must be done. For it is crucial to remember that the statutes that are needed to enforce even the recovery of the atmosphere from CO2 pollution already exist. Wood cites the instance during the Bush administration when the agency head of the EPA, Stephen Johnson, had actually proposed a finding of endangerment regarding CO2 to the White House Office of Management and Budget, concluding that human carbon emissions caused global warming. Jason Burnett, Associate Deputy Administrator of EPA in fact sent this formal finding as an email attachment to the White House. But the White House, knowing that if it opened the email it would become part of the public record, simply let it lie unopened and instead called Administrator Johnson and “instructed him not to issue the finding,” an order with which he complied. (All of this came to light first, when Burnett resigned in protest in June 2008 and disclosed the details to Congress; and second, when Johnson in 2011 made public a confidential letter he’d sent the White House on January 31, 2008, urging EPA action on endangerment. Wood cites from that letter:
The Supreme Court’s Massachusetts v. EPA decision still requires a response. That case combined with the latest science of climate change requires the Agency to propose a positive endangerment finding…The state of the latest climate change science does not permit a negative finding, nor does it permit a credible finding that we need to wait for more research (43).  

There was no response from the White House then, nor has there been real, sufficient action to this day. Rather, the smokescreen concerning “doubt” about the science has continued. Such dishonesty, such chicanery, such a complete breach of the fiduciary obligation of the executive branch and its agencies, as well as the Congress, cannot be allowed to continue. The people must rise up, bring lawsuits against the bought-off politicians and administrators responsible, and keep suing them until the courts finally issue orders to force government agents and elected officials to comply with their duty. And perhaps send some of them, up to and including the president, to prison for failure to act. In the emergency that now confronts us, nothing else will do.
(To see Mary Christina Wood in action, you can consult several Youtube videos of her speeches, and, in particular, her appearance on Bill Moyers’ last program in January 2015, also on Youtube. Google ‘Mary Christina Wood, video.’)

Lawrence DiStasi

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