Ecological realism and the need for a paradigm shift.

• Author: Wood, Mary Christina
• Position: Advancing the Sovereign Trust of Government to Safeguard the Environment for Present and Future Generations, part 1

1. 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.

2. 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 a mined planet." (11) The drivers of collapse are society's impoverishment of natural systems and resources, and climate crisis. (12)

   1. Ecological Bankruptcy

      Just a few statistics speak volumes as to the loss of life and ecosystems on the planet. In this country alone, at least 9000 species are at risk of extinction. (13) Nearly 40% of fish species in North American streams, rivers, and lakes are in jeopardy, representing a 92% increase since 1989. (14) Fish advisories for toxic contamination are in effect for 24% of all rivers, 35% of all lakes, and 71% of all coastal estuaries, as well as 100% of the Great Lakes. (15) The United States has destroyed over 53% of its wetlands (16) and 90% of its old growth forests. (17) California has lost 99% of its native grassland. (18) The amount of urban land development quadrupled between 1954 and 1997. (19) According to the United States Environmental Protection Agency (EPA), 95% of all Americans now have an increased risk of lung cancer, just from breathing toxins in outdoor air. (20) Babies in the United States are being born polluted, the blood of some hosting a cocktail of toxins even before they take their first breath of life. (21)

      On the global level, approximately half of the world's original forest is gone, and another 30% is degraded or fragmented. (22) There are now 200 "dead zones" in the world's oceans, covering tens of thousands of square miles. (23) Due to high levels of carbon absorbed in marine waters; the oceans are becoming acidic--corrosive enough to dissolve the shells of sea creatures--posing "potentially catastrophic consequences for marine life." (24) Nearly one-third of the sea fisheries have already collapsed, with the rate of decline freefalling towards complete loss of wild seafood just four decades from now. (25) The International Union for Conservation of Nature (IUCN) has found that globally 21% of all mammals, 30% of all amphibians, and 12% of all bird species are threatened. (26) The planet "has not seen such a spasm of extinction in sixty-five million years, since the dinosaurs disappeared." (27) Overall, the Earth's natural ecosystems have declined by 33% during the last thirty years according to a comprehensive report issued in 2000 by the World Wildlife Fund (WWF). (28)

   2. Climate Emergency

      Climate crisis now looms over all other environmental threats as a deadly emergency that is leagues beyond anything Humanity has ever faced. (29) In June 2007, a team of leading climate scientists warned that Earth is in "imminent peril" from carbon emissions that cause global heating. (30) Runaway heating threatens to melt the polar ice Sheets and those on Greenland, kill the coral reefs, and turn the Amazon forest into savannah. (31) It would bring floods, hurricanes, killer heat waves, fires, disease, crop losses, food shortages, droughts, and could cause extinctions of 50% or more of the world's species. (32) In the words of a leading scientist, our continued carbon pollution will cause a "transformed planet." (33)

      Climate heating is a life and death matter for citizens worldwide, as it impacts the resources humans need for basic survival. Analysts warn that climate change will force massive human refugee migrations and pose an unending threat to world security. (34) Legal institutions that collapse under such stress will no longer provide stability, and many predict that a hotter world would trigger the breakdown of civilization as we know it. (35) If these scenarios come to pass, it could mean death for millions or even billions of Earth's citizens. (36) As Speth concludes: "[If we] keep doing exactly what we are doing today, with no growth in the human population or the world economy ... the world in the latter part of this century won't be fit to live in." (37)

      The world has only a narrow window of time to begin reversing global emissions of carbon before the planet passes a "tipping point." (38) At such point, dangerous feedback loops will unravel the planet's climate system--despite any subsequent carbon reductions achieved by Humanity. (39) Under its aimless present course of "Business As Usual" (BAU), Humanity continues to emit carbon dioxide at an average increase of 2%-3% each year. (40) Carbon pollution can persist in the atmosphere for hundreds, or even thousands, of years. Due to carbon in the atmosphere from past releases, the Earth is already experiencing intense "feedbacks" that exacerbate the planet's heating. (41) For example, vast areas of permafrost are melting, in turn causing releases of carbon and methane. (42) Natural "sinks," such as oceans and forests that historically have absorbed carbon, are turning into sources of carbon. (43) Another feedback concerns what scientists term the "albedo flip." When ice melts and turns to water, it causes further heating, because water absorbs heat and ice reflects heat; (44) thus, melting begets more melting. Last summer, Arctic melting greatly accelerated, causing scientists to...