Nature's Trust (Part 2)

04/13/2015 03:47 pm ET | Updated Jun 13, 2015

Last week I introduced the concept of the Public Trust Doctrine as a civic and judicial understanding, originating in Roman and English common law and incorporated into the principles of the US Constitution, that asserts that natural resources such as water, wildlife, air remain common property belonging to the people as a whole. I am indebted to Dr. Mary Christina Wood, Professor of Environmental Law at the University of Oregon, for her exposition of this legal concept in her recently published Nature's Trust: Environmental Law for a New Ecological Age (Cambridge University Press).

This public trust doctrine was the foundation for the many innovative legislative actions in the 1970's that through the Clean Air and Clean Water Acts, the Endangered Species Act, and other such laws led to the creation of the Environmental Protection Agency, other government agencies, and various regulatory programs and bureaucratic systems wherein conservation was central to the mandated mission and established as a progressive response to a need recognized from the emerging detrimental consequences of consumption-driven, unregulated industry and agriculture on which the post-war system of growth and value were based. We enjoyed the benefit of such enterprise for certain, but then realized that there were unforeseen, damaging consequences that needed the controlling hand of government.

What followed on the surface seemed generally a good thing, with certain changes and protections enacted that suggested that environmental protection was secure and appropriate to the challenge. But, as Professor Wood argues, there followed almost immediately a succession of compromises - small, incremental changes that allowed for the rules to be bent, standards diminished, certain activities disqualified from the most stringent oversight and enforcement. Lobbyists, campaign contributions, vested interest in short-term reward, and the cynical rotation of industry and government political appointees worked with insidious effect. Woods cites again and again myriad examples of innumerable licenses and permits that from the outset were exceptions to the law, not a right guaranteed by it, now evolved and aggregated into a seemingly impenetrable web of validated destructive bureaucratic compromise that de facto from the beginning diluted and eroded the principles and protections and enabled the vested extractors and exploiters to consume and harvest, make and discard the natural elements of healthy land, air, and water, the sustainable resources that the original legislation was meant to protect. Given the state of nature we find ourselves in today--the condition of the air we breathe, the water we drink, and the exhausted land around us--one might argue that the entire regulatory effort of the past decades, despite the occasional management success and judicial affirmation to the contrary, has only delayed the inevitable, indeed has been a devastating failure. That is very hard to accept, but it may be cruelly true. What would the American landscape look like if we had no legislation at all? Would it be habitable today? And why would we not take every possible step to defend against it happening again? Is there law on which such defense may depend?

Professor Wood cites many legal decisions, precedents, and arguments. Three will serve us here: In the first, Illinois Central Railroad Co. vs. Illinois, a case involving transfer of a length of the Lake Michigan shoreline to a private railroad, the Supreme Court stated "the decisions are numerous which declare that such property is held by the state, by virtue of its sovereignty, in trust for the public. The ownership of the navigable waters of the harbor, and the lands under them, is subject of public concern of the people of the state." Second, in Geer vs. Connecticut, the Court stated that "the trust is for the benefit of the people, and not...for the benefit of private individuals as distinguished from the public good." And third, in Alabama vs. Texas, Supreme Court Justice William O. Douglas wrote, "the marginal sea is not an oil well; it is more than a mass of water; it is a protective belt for the entire Nation over which the United States must exercise exclusive and paramount authority. The authority can no more be abdicated than any of the other great powers of the Federal Government. It is to be exercised for the benefit of the whole..."

We are not lawyers here, but the point to be made is that there is an historic and durable foundation in law for the responsibility of government to assure the protection and sustainability of submerged waters, rivers and watersheds, and the species nurtured within as a public trust protected against destruction and waste, private exploitation and gain, depletion, and the diminished health and livelihood of human communities from one generation to the next.

If this is so, then what the law has been used to put asunder, cannot the law now be used to make right?

Nature's Trust is a 3-part series on designing an enduring plan for the future which will protect natural resources such as water, wildlife, and air beyond the challenging circumstances of the 21st century.