Mary Wood: Nature’s Trust
Mary Wood is a law professor at University of Oregon. Her book Nature's Trust: Environmental Law for a New Ecological Age will be published by Cambridge University Press. This excerpt is from her paper, "You can't negotiate with a beetle, environmental law for a new ecological age" (pdf).
“You can’t negotiate with a beetle. You are now dealing with natural law. And if you don’t understand natural law, you will soon.”
This was the statement of Oren Lyons, referring in a lecture to four million acres of spruce trees across Canada wiped out by beetles, because rising winter temperatures associated with global warming have made more optimal conditions in which the insects can thrive. ...
The most important function of environmental law is to assure society’s compliance with Nature’s laws, all of which, in the end, determine whether citizens will survive and prosper, or suffer and perish. If environmental law becomes too detached from Nature’s laws, or ineffective in assuring society’s adherence to such laws, society risks collapse -- and environmental law, no matter how seemingly complex or sophisticated, will have been irrelevant. ...
What is broadly referred to as “environmental law” is actually now a fractured field consisting of multiple sub-disciplines, including natural resources law, hazardous waste law, water law, wildlife law, wetlands law, ocean and coastal law, land use law, public lands law, mining law, agricultural law, oil and gas law,
international environmental law, and others. Though directed at different problems, nearly all environmental statutes have one thing in common: they rely on agencies to carry out their mandates. Nature, in its entirety, has been conceptually split up and partitioned among various bureaucracies. ...
The Nature’s Trust paradigm draws upon an ancient and enduring principle known as the public trust doctrine. The doctrine springs from an early civic and judicial understanding that some natural resources are so vital to public welfare and human survival that they cannot be exclusively exploited through private property ownership and control. The public has a lasting ownership interest, called a beneficial interest, in such crucial natural resources -- a right so fundamental that it has been described by some scholars as a God-given right or a natural right. ...
Though the public trust doctrine is embedded in scores of judicial decisions over the past century, it has been all but lost in the administrative jungle that has choked the field of environmental law over the last three decades. Modern-day bureaucrats and politicians no longer see themselves as trustees of public property and resources. ...
[T]he Nature’s Trust paradigm has the potential to create an organizing framework responsive to the new ecological era. But to do so, it must push beyond the current boundaries of the public trust doctrine. ... First, the public trust doctrine is assumed to be primarily applicable to states, probably because most of the historic cases have involved state action. ... Second, the traditional public trust scholarship has never fully illuminated the Constitutional basis of the public trust doctrine. ... Third, the public trust doctrine has not been folded into the modern context of environmental bureaucracy. ... As a fourth matter, the historic interpretation of the public trust has unduly limited its geographic reach to streambeds and water-related areas. ... Fifth, the public trust has characteristically been portrayed as a creature of U.S. law, though a few have attempted to explore its iterations in other countries. In fact, trust principles are manifest in many other legal systems of the world including, for example, India and the Philippines. ... Sixth, the public trust doctrine is most often cast as a one-dimensional doctrinal tool, used to constrain the actions of one single sovereign, usually a state government or agency. It has far greater potential as a medium in which to allocate inter-sovereign rights to shared resources. ...
As the nations on Earth confront global ecological crisis, Nature’s Trust can offer a paradigm that transcends cultures and national borders. By drawing on principles basic to sovereignty and rooted in ancient law, manifest in both indigenous and industrialized nations across the world, Nature’s Trust can empower citizens worldwide in their valiant struggles to hold government accountable for protecting a vanishing global natural heritage.