“A Legal Paradigm Shift: Protecting Nature by Entrusting It”

An Interview with Mary Christina Wood

FlyingLess recently interviewed Mary Christina Wood, the author of the much-acclaimed book, Nature’s Trust: Environmental Law for a New Ecological Age. Mary is the Philip H. Knight Professor at the University of Oregon School of Law, where she serves as the Faculty Director of the Environmental and Natural Resources Law Center. The transcript below is an edited version of the interview, one conducted by Joseph Nevins of Vassar College in Poughkeepsie, New York.

 FlyingLess: Why did you become an environmental law scholar?

 Mary Christina Wood: I grew up along the Columbia River in Washington State [in the Pacific Northwest region of the United States] in a family with a long line of conservationists. I’m also a 4th generation lawyer, so I grew up appreciating that the law was a tool to solve problems and to hold people responsible for harm.

During my formative years along the Columbia, I saw a place utterly devastated by development, pollution, and deforestation.  The fish were declining and, as a result, there were “fish wars” between the Indian tribes and non-Indian fishers. This reflected dramatic changes in the local ecosystem. My father would tell us stories of the incredible abundance he had experienced growing up along the Columbia. As a boy, he would row out on the Columbia River and get fish right from the fishing boats. He would tell me that the canneries just down the road had been stacked to the ceiling with salmon. This set the backdrop for the news stories I would see on TV during the 1970s showing police clubbing and tear gassing Indian fisherman who were fishing at their ancient treaty sites—asserting what a federal court had said were their legal rights, rights that the State of Washington refused to acknowledge, however. That accumulated experience along the river gave me a perspective of what happens when a once-abundant resource crashes.

So, going into college, I was outraged at what was happening — by the salmon collapse, the disappearance of farmland for suburban development, the clear-cutting of the forests, and wetland destruction. I was appalled that the government would allow so much devastation. Because I grew up in a family of lawyers, I tended to ask questions like, “How could this be legal?” I wanted to protect the world we live in, so I went into environmental law.

Mary-Wood head shot
Professor Mary Christina Wood

FlyingLess: A basic premise of your book seems to be that, given that we live in a “new ecological age” (the book’s subtitle), we need new legal tools to deal with the associated environmental challenges. What is wrong with the old legal tools—and how did you come to the conclusion that the old legal tools weren’t working?

Mary Christina Wood: When I began teaching environmental law, I assumed it was functional, because law school had taught me law from the books.  Those books reflected environmental law as it should have been, without much regard to what actually happened on the ground.  But soon I began to see very deep and problems with the system as a whole.

Every semester, I would have students write papers on environmental issues running the gamut — logging, mining, hazardous waste, pesticides, urban development, water appropriation, you name it. Literally, every paper came out more or less the same: there were laws in place to protect the resources, but the agencies implementing the statutes deviated from the goals intended by their architects. Instead of using statutory authority to prevent damage, the agencies used their discretion to allow the very damage the law was designed to prevent. It wasn’t until I saw so many instances of this behavior that I perceived dysfunction at a deeper level. I often say that it doesn’t matter what the law intends — the agencies will find a way around it. We have plenty of laws that are purposed in the right direction. The problem lies in their implementation.

It was at that point that I decided to do a legal “autopsy” of environmental law to determine where the dysfunction lies. I located a fundamental problem in the way in which environmental law is framed. The current paradigm is one of political discretion.  The agencies—such as the U.S. Environmental Protection Agency (EPA)—have administrative discretion [the right to make judgments in particular cases guided by legal principles] to allow harmful practices. The assumption is that agencies have a right to exercise broad discretion, because they are objective entities with vast expertise that will use their authority to promote the public purposes of the statutes.

But it turns out that the premise underlying discretion—that agencies are objective—flies in the face of reality. Agencies are very politicized and often make decisions to serve their own political ends. Discretion is golden for industries, profiteers, developers, and corporations – those who want to exploit public resources for their own gain—because it opens the door for them to try to influence regulatory agencies. As much as the U.S. public is aware of corporate lobbying in the legislatures, the public is nearly oblivious to the lobbying that takes place every day behind the scenes within the regulatory agencies.  These agencies exert the major power over all natural resources in the United States. Industry knows it can influence these agencies, so it spends a lot of money working them. It’s called government relations. They are constantly pressuring the agencies to do what they want—easing up on regulations or not enforcing them.  The result is a warping of statutory law to serve political ends, dictated by the same industries the law was supposed to regulate.

This agency discretion also undermines the check and balances that are crucial to our system of democracy.  When an agency action is challenged in court, judges typically assume that the agencies are the objective experts, so they are reluctant to second-guess administrative decisions. And as for Congress, that branch has had almost a hands-off approach to environmental law over the last two decades, relinquishing the supervisory role that it should have over the agencies it has delegated so much power to.  Citizens have also backed off, because they assume that there are so many laws and so many agencies that this massive legal structure must be working. And those citizens who do get involved find themselves quickly overwhelmed by a process that is mind-boggling in its complexity and techno-jargon.

So, stepping back, we don’t necessarily need to change most laws. What we need to do is change the whole paradigm through which the law is administered. If we have the right paradigm, then the laws could work.  The paradigm I advance is a public trust frame—which has four sides: obligation, obligation, obligation, and obligation. The frame is not based on discretion, but rather on a property concept called a trust.  In any trust—a college or retirement account, for example—the ownership is split between two parties: the trustees and the beneficiaries. The wealth in the trust is called the res. The trustee must manage the wealth for the beneficiary.  Courts emphasize that the trustee must have complete loyalty to the beneficiary. A trustee can’t engage in self-dealing or make decisions to advance his or her own interests through use of trust assets.  So, a trust is different from any other property regime. Private property owners can use their property to benefit their own interests without limitation.

The public trust doctrine applies this trust principle to government’s management of natural resources. U.S. courts have said that government (legislatures and agencies) is the trustee, and that present and future generations of citizens are the beneficiaries of crucial natural resources. When you take this duty of loyalty over to the political realm, you understand that it’s blatantly wrong for a legislator-trustee to take money from an industry that stands to benefit directly from that legislator’s decision on natural resource management in the public trust. Yet that very behavior defines our campaign finance system. It’s all a violation of fundamental trust principles. So in many respects, the reframing I am talking about gets to the heart of government dysfunction that we see today in the United States.

The public trust doctrine is strongly rooted in U.S. law and has been around since the founding of the country. It came from Britain, and before that, had origins in public rights recognized in Roman law.  The idea that government manages critical natural resources as a trust for the benefit of present and future generations can be a powerful concept to restrain government and other actors. It has profound implications for how we treat mining, pesticides, fisheries, etc.

The public trust principle has much more power than statutes—laws or regulations passed by legislative bodies. The trust is a constitutional concept—in other words, a fundamental rights-based concept. The public has trust rights that can be asserted in court, regardless of what any particular statute says. So this legal principle has extraordinary potential as a check on government.

All of this comes with a big caveat:  the trust is only good if the courts enforce it.  For it to have meaning, you need to bring cases to court to force government’s hand.

FlyingLess: In many ways, your book speaks to a U.S. audience. But in a number of places you suggest that the implications of your analysis go far beyond the boundaries of the United States. Would you please expand on this?

Mary Christina Wood: The United States passed many environmental statutes in the 1970s, and each statute designated an agency to pass regulations to implement it. This also happened on the state level. The United States suddenly had thousands of pages of environmental law, and nearly everyone thought they would work. So people fighting the ill effects of industrialization and development elsewhere often looked to the United States and invited U.S. lawyers to help them draw up laws—ones based on the U.S. model.

In most countries, the basic construct of legislation and agencies is similar. The same problems that U.S. citizens face with agency discretion are very similar to what people in other countries experience. While not a panacea, the public trust does seem to be a concept that is transferable to countries around the world— with the exception of dictatorships or tyrannies, which don’t recognize the trust because it is fundamentally a democratic concept.

In a democracy, government receives power from the people and, in granting that power, the people hold back rights for themselves to assure lasting natural commonwealth to support future generations. This principle goes back to Roman times, expressed in the Justinian Code, which provides the foundation for many legal systems throughout the world. In Asia, Africa, Europe, South America, and in British Commonwealth countries, there is a common notion of public rights to natural resources—the oceans, air, shorelines, wildlife—and a public right to support and maintain these natural communities.

The public trust doctrine has been the focus of court cases across the world, for instance, in countries in Africa, in the Philippines, and in India, which has perhaps the most pronounced public trust doctrine in the world. The universal recognition of the trust (or public property rights) demonstrates its great potential as a common platform for environmental protection worldwide. It also helps explain why the approach is taking off in a growing number of countries. The U.S. organization, Our Children’s Trust, which has a global atmospheric trust campaign underway, is working with partners in many other countries, including India and the United Kingdom, to help give the concept of the public trust more attention and legal traction. In countries with civil law systems, however, there are two little bumps that make it harder to implement a public trust approach.

One is that the courts there can only operate within the statutes.  They can’t formulate core principles of justice as courts do in the United States (which has common law, or judge-made law).  In countries with an English Common Law tradition, by contrast—countries like India, Canada, the Philippines—courts have more room to implement a full public trust doctrine. The second bump is that some countries don’t have a concept of private trust, so the public trust is less familiar.

Lawyers in other countries are dealing with these challenges by figuring out ways to craft legal claims tailored to the laws of the country—one way being to interpret existing statutes as iterations of the public trust. Many national constitutions, for example, say that natural resources are held for present and future generations. They don’t use the word “trust,” but they are essentially saying the same thing.  Any time a constitution or statute iterates public rights to access certain resources, that indicates a trust concept.

FlyingLess: One of the things which stands out in your book is your assertion of a right to public property. Would you please speak to how the right to public property relates to the concept of “Nature’s Trust” and why you find it important to couch the right in terms of property?

Mary Christina Wood: Environmental law is statutory law, not property law, yet you often hear private property owners say, “It’s my right to do whatever I want on my land.” The only way to really address the property paradigm of destruction is to invoke a property paradigm of protection.  The public trust principle empowers citizens to say, “We also have property rights—to resource protection—and you are harming those.” This is far more powerful that stating “there’s a statute out there that the EPA should enforce and you’re not abiding by it.” The statutes are subject to intense politicization and the discretion frame. Moreover, legislatures can repeal them at any time.

The public trust is so powerful because it is considered to be an antecedent, preexisting property right that is superior to private property rights. The public’s right to protect trust resources needed to sustain society remains embedded as a limitation on private title. It also forms a restraint on government’s ability to privatize crucial resources needed by the public. As the U.S. Supreme Court’s 1892 decision regarding the State of Illinois’s sale of Lake Michigan shoreline demonstrated, the public trust limits what governments can sell or give away. This is why a property-rights approach is distinctively forceful. Statutes come and go, because they can be repealed. Property rights create an enduring framework of responsibility.

It is also important to recognize that the public trust has constitutional force. Without a constitutional check, the legislatures can simply go on exacerbating climate crisis by pursuing fossil fuel policies or by ignoring the problem.  Some key periods of U.S. history, such as the civil rights period, are marked by court opinions finding government action unconstitutional.  The present atmospheric trust campaign asserts both public trust and individual constitutional liberties to challenge government fossil fuel policies that are driving the country—and indeed, the world—towards  climate catastrophe.

A November 2015 decision by a superior court in King County in Washington state declared a public trust constitutional right to a stable climate system. That is a tremendously important decision because it shows that legislative bodies must abide by the trust. In that same state, there is a very interesting case enforcing constitutional rights against the state legislature, in a totally different context dealing with public education. Because the state legislature is not funding education at a level required by the state constitution, the Washington State Supreme Court has actually found the legislature in contempt of court and has since begun imposing fines—$100,000/day—for not complying with its constitutional obligation to fund public education.  This kind of remedy – again, developed in a context wholly apart from the public trust—provides  a model for judicial enforcement against a legislature when it violates constitutional rights.

FlyingLess: Two months ago (in May), there was what seems to be a very important ruling by the Massachusetts Supreme Judicial Court that the state must comply with mandates to achieve dramatic cuts in greenhouse gas emissions. How is the decision similar to, or different from, what is taking place in Washington State?

Mary Christina Wood: Both cases are part of a global campaign of atmospheric trust litigation, spearheaded and coordinated by the non-profit organization, Our Children’s Trust (OCT).   The campaign is unprecedented in the history of law.  On May 4, 2011, the organization filed administrative petitions or lawsuits against every state in the country and the U.S. federal government. All of them were filed on behalf of youth petitioners and asserted the same thing: the atmosphere and climate system are held in trust by the government for the benefit of present and future generations.  The state agencies denied every single one of the administrative petitions. As for the court cases, several lower courts denied the claims saying that climate is a matter for the other branches of government.  Initial rulings in Texas and New Mexico, however, found an atmospheric trust obligation.  After that first wave of litigation, lawyers went back and filed appeals and, in some states, new cases.  And now these cases are gaining real momentum, as we see in Washington and Massachusetts.

There is a growing realization that we’re running out of time and that Congress and state legislatures won’t do what is needed to address climate change. The fossil fuel industry has them trapped in a political cage that is walled in by campaign contributions.  Judges are now waking up and realizing that these are real threats unfolding in the present, and that they have a crucial role to play in confronting this crisis.

In Massachusetts, the youth petitioned the state’s Department of Environmental Protection (DEP) to control greenhouse gas emissions pursuant to its public trust obligation and the state’s statutory law. The DEP denied the youth’s petition. The youth appealed to the court, stating that the DEP did not comply with a 2008 state law passed by the Massachusetts legislature requiring at least an 80 percent reduction (based on 1990 levels) in greenhouse gas emissions by 2050. The youth’s lawyers basically said that the DEP wasn’t doing enough to comply with that statute. The DEP defended its policies partly on the basis of the state’s participation in the Regional Greenhouse Gas Initiative (RGGI)—a regional cap and trade scheme. That dispute went to court. The court deferred to the agency, and the youth lost. The youth subsequently appealed to the state’s Supreme Court. On May 17, that court issued a decision asserting that what the state has done thus far has not been adequate.  It obligated Massachusetts to set clear limits on the state’s emissions, limits that decline annually.

This is a monumental victory. The actual decision was quite short, saying essentially to the state that there’s a statute and you’re not implementing it. The opinion didn’t contain public trust pronouncements, but the case is very significant as part of the overall litigation effort. The limitation is that it is not transferable to other states, because the court decided to premise its decision on the Massachusetts statute.

The Washington case is also monumental and actually transferable. The judge in that case has now issued three opinions. Her second one was especially clear about the urgency of the situation. This is the first judge in the country saying that the children cannot wait any longer for a government response. Referencing the best available science of climate change, as well as the Department of Ecology’s own reports, she explicitly recognized that the children’s safety and survival—later in their lifespans—is in jeopardy. She also said that the public trust is grounded in the Washington State Constitution in two places: 1) in the section which speaks of fundamental and inalienable rights retained by the people; and 2) in the part which asserts that the state has sovereign ownership over the beds and shores of all navigable waters. The state can’t protect those waters without protecting the atmosphere, and to separate the two would be “nonsensical,” Judge Hollis said.

A very big case pending now is a federal case, Juliana v. United States, in which 21 youth and climate scientist James Hansen have sued the Obama administration and all of the agencies that are part of the fossil fuel regime. The case is pending in the federal district court in Eugene, Oregon. The youth contend that the federal government, by pursuing policies that endanger the climate system upon which their future survival and welfare depends, is violating both their public trust rights and express rights to life, liberty and property guaranteed by the U.S. Constitution. It’s probably no overstatement to say that this is the biggest case on the planet right now in terms of the magnitude of harm at stake and the potential ramifications to people worldwide. The youth plaintiffs are taking on the entire fossil fuel regime of the U.S. government.  Every major fossil fuel corporation (through trade associations) has intervened, siding with the Obama Administration to defend continued reliance on the fossil fuels that leading scientists say will take us over the tipping point into a climate catastrophe from which there is no viable recovery.

On April 8, Magistrate Judge Thomas Coffin made a set of findings and recommendations concluding that all of the youth’s claims should go forward. This was a huge preliminary victory for the plaintiffs. The case is now in front of U.S. District Court Judge Ann Aiken, who must review the magistrate’s findings and accept or reject them. Judge Aiken has scheduled a hearing for September 13 so that the plaintiffs and the defendants (the federal government and intervening fossil fuel industry representatives) can make their oral arguments. If Judge Aiken allows the case to proceed (thereby affirming the magistrate), this will be the first time that the federal government’s fossil fuel policy will be on trial. Some people are calling it the trial of the millennium. It will involve expert testimony of world-class climate scientists and will undoubtedly hold the attention of the national and international press.

What will come out in trial may be quite shocking to average people. The plaintiffs are expected to present evidence showing that the government has known for decades of the mounting climate damage from fossil fuel use, but has willfully pursued policies that exacerbate the danger. And because fossil fuel companies (or, more precisely, trade associations that represent them) intervened in this case as defendants, the industry will likely have to make records available to the plaintiffs as part of the discovery process. So we could see a trial with three dramatic stories converging: 1) the growing climate danger over the course of decades as told by scientists; 2) the government’s continued fossil fuel regime in the face of clear warnings of mounting danger; and 3) the fossil fuel industry’s decision to pursue its own profits despite this public danger — and perhaps even its efforts to influence government policy in its favor. If evidence bears these stories out, this case could be the catalyst needed for broad-scale, urgent phase out of fossil fuels.   It’s now late in the Eleventh Hour and, speaking in terms of the legal system, there is nothing else teed up to accomplish what this case could. As climate scientist James Hansen said in an amicus brief in one atmospheric trust case, judicial relief “may be the best, the last, and, at this late stage, the only real chance to preserve a habitable planet for young people and future generations.”

FlyingLess: Given the goal of the FlyingLess campaign to bring about marked reductions in academic flying, what can the campaign learn from the atmospheric trust litigation approach?

Mary Christina Wood: Flying is the elephant in the room. People are flying as if there were no climate crisis. The trust approach requires a carbon emissions accounting. That’s the methodical approach for bringing carbon emissions down. A full accounting means that you don’t ignore a big part of the problem—flying. We have to develop global protocols for airports in cities and figure out who is going to be responsible for the flights associated with a particular airport. We basically have to arrive at an annual emissions reduction strategy for the entire air travel sector because it is such a large part of the overall emissions picture.

“Universities will have to re-think their flying practices in a very serious way.”

Though I’m not a fan of national cap and trade legislation because it requires too much regulatory oversight, such a system could work for the airline industry system as a discrete emitting sector. The idea would be that the airline industry as a whole would bring down its emissions by a certain percentage each year, and individual airlines could trade among themselves to accomplish such reduction. Within universities, you could do the same thing. You could have a system whereby you aggregate all of the flight miles of the university and establish a cap and trade system within that university. Everyone would get a yearly allocation (reduced annually) and could trade, with the goal of bringing down the overall amount of flying each year. Of course university athletic departments, which typically have the highest emissions, would have to participate as well. At the University of Oregon where I work, the football team, with its huge entourage of support people, flies all around the country with no policy for dealing with its carbon dioxide emissions.

Universities will have to re-think their flying practices in a very serious way. There are promising new fuel innovations for airplanes, and potential offsets for emissions, but so far no one has forced the issue of responsibility for the emissions of academic institutions, programs and departments. This is an area where business and science programs at top research institutions could partner to develop a protocol. If we are lucky enough to have any window of opportunity remaining before irrevocable climate tipping points, we know this much: there is no time to lose.

Advertisements