AuthorWood, Mary Christina


It is a tremendous honor to be the Distinguished Visitor this year at Lewis & Clark Law School. My talk this hour applies the public trust to our ecological crisis. I will speak in broad terms, not technical narrow legal terms, because at this crucial moment we truly need to focus on the big picture. (1)


When I began preparing this presentation several weeks ago, the world was in a different place. Now, there is war--a war that, if not WWIII, certainly has every country engaged in some way. I imagine most of you, like me, read about Putin's brutal atrocities in Ukraine, which was a free and peaceful country just three weeks ago, and find it hard to keep our focus on anything else. Putin's rampage is devastating to the world, and it adds an escalating concern of nuclear war, which of course would pose an existential threat to humanity.

Ukraine requires our resolute attention, and we must also keep an undaunted focus on the environment, because, collectively, humanity has launched an assault that might at some point equal the nuclear threat in loss of life. This is the silent war, the unintended war, the war we wage against ourselves, our own children, against all other species on Earth--waged in vast ecological theatres and already causing millions of refugees. This war is the climate crisis that brings us eye-to-eye with tipping points capable of triggering runaway planetary heating that is not broadly survivable; this is the war that has already started the Sixth Mass Extinction; this is the war that leaves dying oceans in its wake and marine waters that show a chemical regression to "a half-billion years ago when the oceans were ruled by jellyfish and bacteria." (2) This war, through the instrumentalities of sea level rise, wildfire infernos, Category 5 hurricanes, parching droughts, and devastating floods, will level entire towns and swallow entire coastlines if we do not stop. And if this is all too much to bear, well, we must save our despair for better times.

As Bill McKibben said recently, we must defeat Putin and climate change. (3) The fact is, there can be no world peace without ecological peace. And there can be no prosperity without ecological prosperity. Law has an integral role in both peace and prosperity. Environmental law will either organize society's final assaults on Nature or it can catalyze a broad planetary defense of Nature. It will be part of the problem, or part of the solution. Either way, we need to acknowledge that environmental law is not like any other area of law. Family law, criminal law, tax law, and all other types of law, deal with human relations that can be adjusted, whereas environmental law must answer to a set of higher laws. Indigenous culture reflects a nearly universal principle called "natural law," which you might think of as the laws of Nature. As Oren Lyons explains it: "The thing that you have to understand about nature and natural law is, there's no mercy... There's only law. And if you don't understand that law and you don't abide by that law, you will suffer the consequence." (4) The main purpose of environmental law is to keep us in compliance with these laws of Nature, because there is no negotiating our way out of those. If environmental law becomes unmoored from Nature's laws, society will eventually collapse--and environmental law, no matter how complex or sophisticated, will have been irrelevant.


This evening I want to contrast two dueling social frames in environmental law and suggest that our collective survival and prosperity is only possible through one. We lawyers tend to burrow down into specific doctrines, court rulings, and regulations and miss the social frames through which these legal outcomes emerge. A social frame is something well beyond a legal doctrine. Social frames are powerful because they influence people's account of reality. As George Lakoff writes: "Frames... shape the goals we seek, the plans we make, the way we act, and what counts as a good or bad outcome." (5) Frames can oppress and subdue, or they can empower and mobilize. Frames can legitimize massive ruin, or they can demand survival, protection, and recovery. We see the battle of social frames in Russia's war on Ukraine. In Putin's portrayal of liberating Ukraine from Nazis, we see that a frame can be based on cold lies and propped up only by strangling the truth outlets of free press and social media. But we see in President Zelensky's messages that social frames can announce such morally compelling truths and display such personal courage as to draw world-wide support for Ukraine overnight, not only among international leaders but among ordinary citizens all over, including some thousands from other countries who went to fight side by side with Ukrainian soldiers to defend their freedom. Frames can move an entire world, and the frame controlling environmental law has everything to do with whether we will succeed in securing worldwide ecological peace.

The frame influencing the past five decades of environmental statutory law is a frame of political discretion. (6) It basically gives agencies nearly unrestrained power to make environmental decisions, which are often a product of a raw political calculation. This frame would befit a monarchy or oligarchy. The other, more ancient, frame is one of sovereign obligation, and it rises from the reserved rights held by the people. (7) This frame operates through the public trust principle and requires government to sustain ecology as the people's commonwealth. This is a frame required by a democracy. Let's first explore statutory law and its discretion frame and then turn to the public trust.


Statutes have dominated environmental law for fifty years. In the 1970s, Congress passed the Clean Air Act, (8) the Clean Water Act, (9) the National Environmental Policy Act, (10) the Endangered Species Act, (11) the public lands management statutes, and many others. Every one of these statutes spawned a pile of regulations--amounting to many hundreds of thousands of pages in all. States and local governments passed their own laws in the same model. Nearly all these statutes have one thing in common: they rely on agencies to carry out their mandates. So, you can think of Nature, in its entirety, as partitioned among many thousands of bureaucracies spanning the federal, state, and local levels. Acting under these statutes, agencies exert nearly full dominion over Nature. This system not only took hold in the United States, but in many countries around the world which followed our example.

If you were to picture this field of law, you might imagine each statute as a very deep gopher hole that leads down into subterranean quicksand. There are thousands of these gopher holes across the field of environmental law. Government officials and environmental advocates step into these statutory holes, and many of them never emerge, because the sheer regulatory complexity draws them deeper and deeper into a maze of inquiry that veers further and further away from fundamental principles, and from ecological reality.

Enormous faith has been placed in this system for decades, but let's consider what these statutes have brought us: toxic pollution, nuclear waste, clear-cutting, mountaintop removal, strip mining, wetlands destruction, fracking, deep sea drilling, species extinction, dried-up rivers, drinking water pollution, ocean acidification, ocean dead zones, climate crisis, and almost indescribable mutilation of landscapes across this nation. Of course, there were some successes. The rivers stopped catching fire for the most part. Lead was taken out of gasoline. But despite some gains, Earth's natural ecosystems declined 33 percent in just the first thirty years of this statutory law. (12)

We simply cannot package our losses anymore in traditional metrics like water pollution levels, or numbers of listed species, or acres of wetlands gone. The environmental syndromes of our time and threats to the web of life itself have completely eclipsed these measures. Even the Ninth Circuit Court of Appeals has pronounced that we are nearing the "Eve of Destruction." (13) As James Speth writes, if we "keep doing exactly what we are doing today... the world in the latter part of this century won't be fit to live in." (14) If you are not waking up in the middle of the night over this, you probably haven't put all these pieces together.

We just can't teach environmental law anymore as if it's a functional system with a few failures. Instead, we have to understand how the system itself brought these emergencies to our doorstep.

Let's start with the basics. Nearly every statute has this structure: it declares a purpose of protecting the environment, but then it delegates vast authority to an agency to issue permits or leases authorizing the very damage that the statute was designed to prevent. (15) These permit provisions were never supposed to swallow the statutes' purposes, but that is in fact what happened. Agencies regularly use their delegated authority to legalize harm to air, water, soils, forests, species, and whatever resources they control. In surveys of agencies, you see that only about 1 percent of the permits are actually denied. (16) The overarching bureaucratic mindset is that permits are there to be granted. At every level, the agencies have turned environmental law inside out.

I will never forget a conversation with a friend from West Virginia whose community was under siege from coal mining. (17) The coal companies had literally blown the tops off 500 mountains in the Appalachia range to access deep seams of coal. And they dumped these mountaintops into the valleys below, obliterating over 2,000 miles of streams and contaminating communities with highly toxic heavy metals from exposed sediment. My friend described this scene as a ravaged moonscape. She said to me, "I flew over it a couple of times. I...

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