Nature's Trust (Part 1)

04/07/2015 12:30 pm ET | Updated Jun 07, 2015

We are overwhelmed by the daily litany of environmental disaster. We hear the voices of the people and see pictures of the places that have been tragically affected by the global compulsion to grow, not just to meet the needs of ever-increasing population but also to feed a system driven by unrestrained consumption of goods and services derived from the excessive and unsustainable extraction of natural resources. Knowing full well that the collapse of such a society is inevitable, we nevertheless carry on, indifferent to the destruction around us, the alternative possibilities, and the exponential risk to the lives of our children. We face a global despondency that finds form in a poisoned landscape, poverty, political disaffection, and social unrest. Some live well at the expense of many who live miserably; income disparity grows; vested interests corrupt the political process to near paralysis; the world, even from the most privileged perspective, looks nervous, angry, volatile, delimited, and lost.

We ask ourselves, "What can we do?" and we can do some things for ourselves, for others, for the local community, even for causes we believe can make some contribution toward far greater change and improvement. But these efforts often seem insubstantial, inefficient, disconnected from the larger need to manage our way from the evident failure of past systems and ideas to the very different, limited world of the future that cannot survive without a new paradigm around which to organize a successful, civilized response to the needs of a new age. As I have argued before, we need a plan, and we need a principled strategy to base it on.

I have proposed the ocean, water, and water cycles as that paradigm, as a galvanizing strategy with a compelling logic and application that will release us from the addiction to fossil fuels and the associated system of compromise and destruction and connect us to new values and behaviors that will guide us as we enter the turbulent unknowns of the 21st century.

Pass over for now the objections, attacks, and clamoring justifications of those who will lose purchase and benefit in this new world. That part will be vociferous and dangerous; we know its defensiveness and aggression already. But think for this moment on just what it is we want in that stead, and how we can achieve it in a democratic society based on the rule of law. Is it hydraulic society as proposed here? Or is it another idea, a better idea that meets the mandate for change and viability as a system beyond? Whichever, we need a new idea and system of law that will enable an alternative to collapse or chaos.

As an advocate for the ocean and the global water cycle as that idea, I have been unable to establish the principle and precedent on which such a system of law might be based -- until now, with the discovery of a fresh and astonishing contribution to the discussion by Mary Christina Wood, a professor of environmental law at the University of Oregon, in her book Nature's Trust: Environmental Law for a New Ecological Age, published in 2014 by Cambridge University Press.

Permit me this metaphor: In designing the gateway to this future, the components of an imagined arch may be in place as elements of content, standards of performance and behavior, the most useful technologies, the financial assets in place, and the workers straining to build an edifice like never before. But without the keystone, the architecture will fail. I see as all the blocks in place save one -- the one that will provide the incontrovertible internal vector of support to enable the construction to stand and endure over the challenging circumstances of time.

Professor Wood asks two fundamental questions about environmental law: "First, does the field of law work to keep society in compliance with Nature's own laws? Second, can it be effective in confronting the ecologic challenges now coming at us at horrifying speed?" Her answer to both is a resounding yes, based on (and here is where I found the breakthrough surprise) principles established as far back as Roman law, rooted again in English common law, incorporated in the U.S. Constitution and the writings of its authors, manifest in the governing documents of other nations, upheld often in landmark decisions by the judiciary in those nations, and providing a system of principle and precedent on which environmental legislation and the mission of governmental environment agencies were predicated in the 1970s when the need for conservation and regulation became evident and the conservation ethic and its definition, practice, and implementation evolved. The keystone principle is known as the public trust doctrine, which "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 the 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."

Is not such a doctrine exactly what we need? And there it lies, to hand.