Originally posted on January 26, 2015
by Cherice Bock
Editor, Whole Terrain
Mary Wood, law professor at University of Oregon, and author of Nature’s Trust
When I heard the title of Mary Wood‘s book, Nature’s Trust, I knew I needed to read her book and listen to her perspective as we explore our current Whole Terrain theme of trust and environmental practice. Wood teaches law at the University of Oregon. She agreed to speak with us recently about her book, her legal theory, and her process of becoming aware of the urgency of the environmental crisis. Nature’s Trust presents a legal argument for viewing the Earth as a resource we hold in trust for future generations. I will tell a bit of Wood’s story as well as outline her theory, based on her book and a personal interview. You can also hear more of her story in the video linked below.
Mary Wood’s early work focused primarily on Indian treaty rights and tribal law. Her care for the environment gave rise to legal work to protect water rights and endangered species, but protection against human-caused climate change did not become a passion for her until the mid-2000s. In 2005, as our nation reeled with the impact of Hurricane Katrina and discussed the reasons for this massive storm, Wood began reading climate science in earnest. Previously she had been aware of the climate change debate and had believed it was important to protect natural resources and ecosystems, but, like so many, had not seen climate change as an immediate threat.
Subsequent to Hurricane Katrina and Wood’s research into climate science, she began to develop an environmental law theory building on the public trust doctrine, describing the Earth as similar to a legal trust for future generations. A legal trust includes a trustee who holds the asset in trust, a beneficiary who will receive the benefit of the asset, and a res (the assets held in trust).
Applying trust law to the environment as a whole, Wood’s Nature’s Trust delineates the role of governments as trustees for present and future generations. As those we have placed in power over our commonly held environmental assets, our governments hold our waterways, air, and other natural resources in trust so that no single generation, individual, or corporation can use more than its share of the resources needed for continued human survival and wellbeing. Beneficiaries of this trust include current and future citizens of that government, and the res is the public land, waterways, and air of a state or country. In her opening chapter, she points out that “you can’t negotiate with a beetle,” quoting Oren Lyons (Wood, 2014, 3). Wood’s point is that natural law is not going to be changed by any laws that human governments create: we can create laws that encourage sustaining or destructive practices for or against the natural world, but we cannot change natural law.
One of the points I found most fascinating about Wood’s theory is that she is not creating this legal paradigm from scratch: it has legal precedent throughout history, dating back to early Roman anti-pollution laws. In the United States, courts have protected citizens’ rights to access and safeguard public resources over and against the rights of corporations. Wood specifically sites Illinois Central Railroad Co. v. Illinois (Illinois Central), 1892 litigation regarding the sale of a portion of Lake Michigan’s shoreline to a private railroad company. The court found that navigable waterways and adjacent lands of a state are held “in trust for the public.” Wood sees the intent behind this and other similar legal findings as applicable to all natural resources, not just waterways. She also points out “nuisance laws,” which protect the public from the nuisance of polluted air, water, and soil drifting into their area from a nearby factory or other industrial or mining site.
Another important point Wood treats at length is the inadequacy of the government permit system, since these permits simply legalize activities that pose environmental risk. To explain how this permit system came into existence she captivatingly lays out the history of warnings from climate scientists, subsequent policy creation (or lack thereof) at the federal level, collusion between politicians and wealthy corporations, failed negotiations by the Intergovernmental Panel on Climate Change, and legal challenges to attempt to get the EPA to do its job of protecting air, water, and other American resources for the purpose of public health and safety. Wood puts her finger on the main cause of the regulatory problem: statues confer agencies power to “legalize pollution and resource destruction” (Wood, 2014, 52). Rather than protecting public health and resources, these laws often legalize—and therefore protect—the industries causing environmental harm, provided these industries purchase the appropriate permits and abide by minimum standards.
In contrast, Wood puts forth Nature’s Trust as a framework encouraging citizens to see the natural world as a trust in which we all have a stake. We all carry a responsibility to care for this asset or res, from which we also benefit, and we have placed our elected officials in their positions in order to ensure this res continues in abundance into the future. Rather than creating human laws leading to environmental destruction, the role of government is to act as public trustees. The “tragedy of the commons” has become a common trope in environmental literature of late, decrying the problem of a free-for-all mentality when it comes to natural resources. When property is held in common, this tragedy allows us to believe that it is my prerogative to take my share, and to make sure that I get a piece of the resource before it is used up. This can become problematic as we look at publicly held properties, as everyone vies for his or her share of the pie, but Wood, in an attempt to avoid this problem, reminds us, “A trust is not the same as a commons. A trust is managed for the equal benefit of all, and under strict fiduciary standards — in contrast to the ‘commons,’ which invites a free-for-all with no standards and often benefits the first takers.” Moreover, she says, the strict trust standard of protection must always calibrate to nature’s law. When we think of natural resources as an asset in which we have a personal stake and responsibility, noting the natural laws that constrain the availability of that resource, we can shift our focus from short-term to long-term goals.
Wood points out that American Indian tribes have traditionally functioned in a similar way, with various tribes holding rights to assets such as fisheries, good hunting grounds, and other habitat for edible or useful plants and animals. Elaborate customs ensured that the resources were not used more quickly than they could be restored by nature. Other tribes could use the resource through mutually beneficial exchanges. Under American and Indian treaty laws, many tribes continue to hold these assets in perpetuity, and can leverage some legal protection for sites under their jurisdiction.
Mary Wood began writing, publishing, and speaking on her Nature’s Trust approach, and in 2010 Julia Olson, an accomplished litigator who was formerly with EarthJustice, gave traction to the approach by forming an organization to coordinate lawsuits against the state and federal government, on behalf of future generations, for breach of the public trust. Olson formed the nonprofit organization Our Children’s Trust and partnered with Kids vs. Global Warming, launching a hatch of lawsuits and administrative petitions representing youth plaintiffs. The campaign, known as “Atmospheric Trust Litigation” (ATL), asserts in every lawsuit and petition that the state or federal agencies are breaching their fiduciary obligations (breaking trust) by not doing enough to reduce greenhouse gas pollution and stop human-caused environmental degradation. Lawsuits were organized in each American state, as well as the federal level, and some in other countries. The progress of the ATL will appear here in the future.
Wood points out that, although these lawsuits appear in the judicial branch of our government, the lawsuits do not ask the judicial branch to create laws. Rather, they ask the judicial branch to force the other two branches of government to act before it is too late to stave off climate tipping points. Laws already on the books claim protection of the environment and its resources as their goal, laws purporting to benefit public health and welfare. As with other civil rights issues, the judicial branch can play an important role in holding the other branches accountable to follow their own laws and principles, contributing to liberty and justice for all.
My conversation with Mary Wood concluded with her thoughts about what it will take for us to live in a way that honors nature’s law. She spoke of personal responsibility to know how to survive, and to connect ourselves to that which sustains us. When we’re aware of nature’s laws such as the necessity for clean water, air, and a comfortable temperature in order to sustain human life, we begin to place more value on these things. When we allow corporations to disconnect us from these basic natural laws, we forget about our stake in sustaining a healthy environment. We forget that our very existence and the ability of our children to thrive depends on the health of the world around us. By seeing ourselves and our elected officials as trustees of this planet, Wood hopes we will all accept the obligation and recognize the benefits of caring for our natural resources with wisdom and foresight.