Advancing the Sovereign Trust of Government to Safeguard the Environment for Present and Future Generations (Part I): Ecological Realism and the Need for a Paradigm Shift
Modern environmental law has proved a colossal failure, despite the good intentions and the hard work of many citizens, lawyers, and government officials. Notwithstanding the most extensive and complex set of legal mandates the world has ever known, government is driving runaway greenhouse gas emissions and resource depletion. Agencies use the discretion in their statutes to allow continuing damage to the atmosphere and other natural resources. At a time when society faces catastrophic climate heating and ecological collapse, leading thinkers should be setting their sights on a transformational environmental law principle. This Article is the first of two companion Articles that identify the public trust doctrine as the most fundamental legal mechanism available to ensure governmental protection of natural resources necessary for public welfare and survival. At the core of the doctrine is the principle that every sovereign government holds vital natural resources in “trust” for the public – i.e., present and future generations of citizen beneficiaries. This Article proposes a paradigm shift away from the current system of natural resource management, a system driven by political discretion, to one that is infused with public trust principles and policies across all branches of government and at all jurisdictional levels. Section II of this Article explains the necessity for an emergency response to arrest the hemorrhage of natural systems and stabilize climate by bringing down atmospheric concentrations of greenhouse gas pollution. Section III explains the dysfunction of modern environmental law and the role of agencies in promoting natural damage. Section IV explores the depth of legal change needed to secure the resources essential to future survival and prosperity. Section V explains the role of government as trustee of natural resources. Section VI describes states and foreign nations as covenant trustees with respect to shared or transitory resources. Part II of this work presents the trust framework as it relates to the modern regime of statutory and administrative law.
Speaking of inconvenient truths -- a history of the public trust doctrine
ABSTRACT In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine. The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine's Roman, English and early American roots. In a nutshell, the generally accepted history is that from Justinian's Institutes through Magna Carta and Bracton, Hale and Blackstone reporting on English law, and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access to and use of resources important to the public welfare. Arnold v. Mundy, Martin v. Waddell and Illinois Central Railroad v. Illinois are cited repeatedly as precedent for present day recognition of a doctrine that will limit the authority of the state to alienate resources while imposing constraints on governmental and private use of those resources. As propounded by Professor Sax and the many adherents to his argument, an expansive public trust doctrine will restore the wisdom of antiquity while serving as a powerful tool for the protection and preservation of natural resources and the environment. The only problem with these ambitions for the public trust doctrine is that they rely on a mythological history of the doctrine. There was nothing resembling the modern idea of public trust in Roman law and the claimed restraint on alienation of state owned waters and lands is belied by a history of pervasive private ownership in both Rome and England. Magna Carta had little or nothing to do with such public rights, nor is there significant support in Bracton, Hale, or Blackstone for the imagined doctrine. The one concept of English law on which the modern public trust doctrine relies--the prima facie rule pursuant to which title to submerged lands is presumed to be in the Crown absent a showing to the contrary--was a sixteenth century fabrication that did not take hold in England until late in the nineteenth century, well after American law had developed on its own. Ironically, the invented prima facie rule served to feather the nest of the Crown, not to protect the rights of the public. American law would serve the same government self-dealing many centuries later in Phillips Petroleum v. Mississippi, though in the name of the public good. American public trust law, even today, is founded on a New Jersey decision that misunderstood the Roman and English history and contradicted the contemporary law and practice of that state. That decision was overruled less than three decades later and only eight years after the United States Supreme Court had embraced its public trust theories in a title dispute to which it had no relevance. A half century later, the Supreme Court revived the public trust concept, along with the mistaken history, in a case that has been badly misconstrued both legally and sociologically. Professors Kearney and Merrill have set the record straight on the economic and political history, but the legal significance of Illinois Central continues to be misunderstood, notwithstanding the Court's clear explanation of Illinois Central's narrow holding only three decades later in Appleby v. City of New York. Relying on both original and secondary sources, this paper sets the historical record straight. While the courts will do what they choose, those with expansive ideas about the public trust doctrine should be discomfited by the conclusions reached. Presumably they and their academic enablers make persistent reference to the history of Roman and English law because they understand that precedent is important in a rule of law system. If their claims for precedent are incorrect, as demonstrated in this paper, they must look to other justifications for a doctrine that threatens the property rights of millions of individuals while recognizing in the courts expansive powers to invalidate the democratic choices of the elected representatives of the people. …
ASSESSING AGE AND GENDER DIFFERENCES IN PERCEIVED RISK AND FEAR OF CRIME
Much of the research on fear of crime indicates that women and older persons are highly afraid of crime. These findings, especially older persons' fear of crime, are widely communicated in the scientific and popular media. This study examines age and gender differences in perceived risk and fear of crime. The data are from telephone interviews of 320 randomly selected residents in a southeastern metropolitan area of the United States. The relationships of age and gender to fear of crime are compared using a National Crime Survey (NCS) measure of fear of crime and 11 alternative indicators of fear of specific offenses. Women reported signifcantly greater perceived risk and fear of crime than men regardless of how fear of crime was measured and older adults reported the greatest fear of crime when the NCS measure was used. but not when the alternative individual measures of fear of crime were used. A LISREL model with latent constructs for fear of personal crime and fear of property crime also indicates that older adults do not have higher levels of fear of crime. In short, the extent of fear in the everyday lives of most older persons has been overestimated in many previous studies because of measurement problems.