Ecological realism and the need for a paradigm shift.

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Advancing the Sovereign Trust of Government to Safeguard the Environment for Present and Future Generations, part 1

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Ecological realism and the need for a paradigm shift.

I. INTRODUCTION II. THE END IN SIGHT A. Ecological Bankruptcy B. Climate Emergency C. Realism D. The Inevitability of Transformational Change III. THE FAILED PARADIGM OF ENVIRONMENTAL LAW IV. DEPTHS OF CHANGE V. NATURE'S TRUST A. Government as Trustee of Public Assets for Present and Future Generations B. The Trust as an Inalienable Attribute of Sovereignty Derived from the People C. The Constitutional Framework of Trust Responsibility D. The Trust as Applied to Each Branch of Government E. Common Law in a Changing World F. The People's Ecological Res 1. The Essential Trust Purpose 2. Society's Changing Needs 3. Statutes as a Reflection of Public Concern 4. A Holistic Approach VI. THE ROLE OF SOVEREIGNS AS COTENANT TRUSTEES OVER SHARED ASSETS A. The Sovereign Cotenancy B. The Cotenant's Duty Not to Waste the Asset C. The Global Atmospheric Trust VII. CONCLUSION I. INTRODUCTION

The ecological crisis of today is largely a result of government's failure to protect natural resources on behalf of its citizens. Under the system of environmental statutory laws enacted in the United States over the past three decades, agencies at every jurisdictional level have gained nearly unlimited authority to manage natural resources and allow their destruction by private interests through permit systems. Although environmental statutes were designed to protect natural resources, most agencies have used permit provisions to allow continual destruction of natural resources. Though permits often contain mitigation conditions, the overall cumulative effect of agency-permitted damage pursuant to statutory authority is staggering. Nearly every natural resource--including the atmosphere, water, air, wetlands, wildlife, fisheries, soils, marine systems, grasslands, and forests--is seriously degraded, and many are at the brink of collapse. (1) Without a fundamental paradigm shift in the way government manages the environment, government will continue to impoverish natural capital until society will no longer be able to sustain itself.

This paper draws upon the public trust doctrine as the most compelling beacon for a fundamental and rapid paradigm shift towards sustainability. (2) Deriving from the common law of property, the public trust doctrine is the original legal mechanism to ensure that government safeguards natural resources necessary for public welfare and survival. At the core. of the doctrine is the antecedent principle that every sovereign government holds vital natural resources in "trust" for the public--present and future generations of citizen beneficiaries. (3) A trust is a basic type of ownership whereby one manages property for the benefit of another. An ancient yet enduring legal principle, it underlies modern environmental statutory law. (4) The doctrine invokes the sovereign's property powers and obligations, distinct from the police powers of a state. (5) In the United States, the doctrine is evident in hundreds of judicial decisions, including landmark United States Supreme Court opinions. (6)

Section II of this Article explains the ecological crisis and the need for an emergency response to arrest the hemorrhage of natural systems and stabilize the global climate by bringing down atmospheric concentrations of greenhouse gas pollution. Section III seeks to explain the dysfunction of modern environmental law. 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 delineates the role of states and foreign nations as cotenant trustees vis-a-vis one another with respect to shared or transitory resources. A companion Article, Part II, explores the application of trust principles within the modern administrative framework. It discusses the substantive and procedural duties of governmental trustees of natural assets and presents the interface between public trust obligations and statutory law.

II. THE END IN SIGHT

The need for a profound and enduring societal paradigm shift towards natural resources management is now quite obvious. Society is exhausting life-sustaining natural resources at a pace that threatens the lives, comfort, and economic prosperity of individuals--not just future generations, but those living on Earth today. (7) Many "collapse" books illuminate the trajectory towards disaster. (8) In his book, The Bridge At the Edge of the World, James Gustave Speth, the Dean of the School of Forestry and Environmental Studies at Yale University, inventories accumulating evidence of natural collapse from deforestation, destruction of wetlands, toxic pollution, over-appropriation of water, disappearance of coral reefs, and extinction of species. (9) He surmises that societies now face environmental threats of unprecedented magnitude and scope, a future comprised of "catastrophes, breakdowns, and collapses." (10) As he puts it: "[W]e're headed toward ...

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