Never Say Never: Reconciling Generational Sovereignty with Environmental Preservation

26 Pages Posted: 8 Feb 2019 Last revised: 11 Feb 2019

See all articles by John Edward Davidson

John Edward Davidson

University of Oregon; Constitutional Law Foundation

Date Written: January 27, 2019

Abstract

Generational sovereignty and environmental preservation are two dominant strands of intergenerational justice theory, often promoted by the same individuals. However, the two principles stand in an apparent tension with one another. If environmental policy is determined by shifting voter preference, environmental protection regimes will be unevenly enforced over time. Sporadic enforcement results in net deterioration. Since some environmental destruction (e.g., species extinction, climate change) is irreversible on any humanly meaningful timescale, pure generational sovereignty would seem to insure the destruction of some critical natural resources. This apparent conflict is illusory: generational sovereignty not only allows for environmental preservation, it requires it. To demonstrate this point, I focus on two key principles: 1) the concept of sovereign resources, which recognizes the disposition of certain critical resources as inherently governmental; and 2) the understanding that de facto entrenchment of policy offends generational sovereignty as much as, de jure entrenchment. In my explanations, I rely heavily on United States public trust jurisprudence and related planetary trust concepts from international law.

Keywords: Intergenerational justice, future generations, generational sovereignty, environmental preservation, public trust doctrine, reserved powers doctrine, sovereign resources, de facto entrenchment, legislative entrenchment, Elisabeth Ellis, Janna Thompson, usufruct, Illinois Central, Mahoning County

Suggested Citation

Davidson, John Edward, Never Say Never: Reconciling Generational Sovereignty with Environmental Preservation (January 27, 2019). Available at SSRN: https://ssrn.com/abstract=3323542 or http://dx.doi.org/10.2139/ssrn.3323542

John Edward Davidson (Contact Author)

University of Oregon ( email )

Eugene, OR 97403
United States
541-346-4540 (Phone)

HOME PAGE: http://www.conlaw.org

Constitutional Law Foundation ( email )

Eugene, OR
United States

HOME PAGE: http://www.conlaw.org

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