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

Environmental Law, Vol. 39, 2009

47 Pages Posted: 19 Jan 2012

See all articles by Mary C. Wood

Mary C. Wood

University of Oregon - School of Law

Date Written: February 5, 2009

Abstract

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 co-tenant 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.

Suggested Citation

Wood, Mary C., 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 (February 5, 2009). Environmental Law, Vol. 39, 2009. Available at SSRN: https://ssrn.com/abstract=1988524

Mary C. Wood (Contact Author)

University of Oregon - School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States

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