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.
Perspectives from the Field: Three Endangered Species Acts: The Costs to Biodiversity Conservation
Many consider the 1973 Endangered Species Act (ESA) to be the workhorse of environmental protection in the United States (US). The 1973 ESA was passed by Congress with nearly unanimous support and was part of President Richard M. Nixon's far-reaching environmental agenda. Much has changed in ESA political and public support. In 2010, the Western Governors Association referred to the “nonsensical policy” in implementing the ESA (Silva, 2010), and Congress delisted a population segment—the western gray wolf ( Canis lupus )—by amendment (US House of Representatives, 2011, p. 290). It is nothing short of astonishing to compare how different the discussion was at the genesis of the three ESAs as compared to now (Doremus, 2010).
Majority Party Leadership in Congress . By Randall B. Ripley. (Boston: Little, Brown a Co., 1969. Pp. 187. $5.00.)
first, when Congress defeated proposals for restrictions on s ta te programs in 1935. With time, the federal bureaucracy began to assert more control over the program, bu t the states have the upper hand in most cases. This is a description of the situation three years ago, when Steiner's book was published. The situation since then has changed somewhat, although Steiner cannot be faulted for not discussion what had not yet happened when his book was writ ten. Indeed, his description and analysis help one to unders tand what has happened more recently. The recent rise of the welfare rights movement and the increasing demands for participation by the public in governmental decision-making, mean t h a t the recipients are no longer unorganized, and the inadequacies of the program no longer go unnoticed. The black rebellions, increasing amounts being spent for public assistance, and the resulting financial pressures on the states, have forced Congress, the President, and the intellectual communi ty to pay greater a t tent ion to public assistance. By the t ime this review is published, it is likely tha t the President will have proposed innovations in the program.