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Nature's Trust: Environmental Law For A New Ecological Age
Ebook Free Nature's Trust: Environmental Law For A New Ecological Age
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Review
"What Silent Spring did for our perception of the environment, Nature's Trust should do for our perception of environmental protection. Thoroughly researched and beautifully written, this book calls for a revolution in environmental policy and law - now, before it is too late. It is simply brilliant." James Gustave Speth, author of America the Possible: Manifesto for a New Economy and former dean, Yale School of Forestry and Environmental Studies"The gutting of our environmental laws now generates ominous and grotesque distortions in our natural world. This, as Mary Wood so vividly points out, reflects the deeper pollution of our regulatory agencies caused by the influence of big industries. Assembling an impressive range of legal precedents, Wood challenges our government to fulfill its age-old responsibility as "trustee" of public property. Nature's Trust is an eloquent plea to revive a fundamental pillar of civilized law to ensure the survival of a coherent civilization." Ross Gelbspan, author of The Heat is On and Boiling Point"At pivotal points in western history, when the failures of government became unconscionable and unbearable, thinkers have come forward with new, catalyzing principles that changed the world. I believe that Nature's Trust is the book we have been waiting for, a new paradigm that can correct the course of history." Kathleen Dean Moore, co-editor of Moral Ground: Ethical Action for a Planet in Peril"We face, in climate change, the worst crisis in human history. So it's a good thing we have such a powerful mind rethinking our understanding of legal obligation - and human responsibility." Bill McKibben, author of Earth and The End of Nature"Our children are trusting us to protect their Earth. Our governments are on trial for failing that trust. This is the trial that should rivet the public's attention, for all life depends on its outcome. This book puts the people - all of us - in the jury box." James Hansen, author of Storms of My Grandchildren and former director, NASA's Goddard Institute for Space Studies"It is a rare opportunity to read a book that causes us to reimagine the landscape of law, democracy and the environment. Nature's Trust does that. Here, Professor Wood challenges us with a thorough investigation of what it will take to really protect the environment coupled with a profound assessment of the legitimate foundations of government. She demonstrates that the principles of trusteeship animate our relationship to nature as well as to the institutions of the state. These trust duties are the very slate upon which our constitution is written. This is a beautiful, profound, and important book and anyone who cares about our environmental and democratic future needs to read it." Gerald Torres, Marc and Beth Goldberg Distinguished Visiting Professor of Law, Cornell Law School; Bryant Smith Chair in Law, the University of Texas at Austin School of Law; and co-author of The Miner's Canary"Nonetheless, as jacket blurbs by Bill McKibben, James Hansen, and Ross Gelbspan express quite well, Nature's Trust is both ambitious and original. For anyone interested in using the legal system to prod action, Wood has made a major contribution." Rena Steinzor, Science Magazine'... Mary Christina Wood in Nature's Trust calls for a revolution in environmental law grounded in the public trust doctrine. ... the largest value of Nature's Trust is likely its arguments in support of the need to establish expanded public trust responsibilities of government officials ... the book should help civil society understand why the revolution is worth fighting for and what reforms in environmental law are necessary.' Donald A. Brown, Center for Environmental Philosophy
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Book Description
This book exposes the dysfunction of environmental law and offers a transformative approach based on the public trust doctrine. An ancient and enduring principle, the public trust doctrine empowers citizens to protect their inalienable property rights to crucial resources. This book shows how a trust principle can apply from the local to global level to protect the planet.
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Product details
Paperback: 460 pages
Publisher: Cambridge University Press (September 30, 2013)
Language: English
ISBN-10: 0521144116
ISBN-13: 978-0521144117
Product Dimensions:
6 x 1 x 9 inches
Shipping Weight: 1.7 pounds (View shipping rates and policies)
Average Customer Review:
4.7 out of 5 stars
31 customer reviews
Amazon Best Sellers Rank:
#278,226 in Books (See Top 100 in Books)
As an Environmental Law Professor at the University of Oregon, Ms. Wood is uniquely positioned to evaluate the success, or lack thereof, of environmental legislation and regulation since its inception. The power of this book, however, is in its relevance to both the present day and the future, as we face a rapidly changing world with intensifying environmental consequences. The issues addressed in this book are not about the aesthetic desirability of a clean environment, but the absolute survival necessity of reclaiming the legal foundation that can sustain a delicate ecological balance, rather than the status quo that exacerbates the severe ecological imbalance threatening ourselves and certainly our children. Surveying past failures of environmental law, Ms. Wood challenges us to consider the imminent threat and pervasive consequences specifically of climate change, which she appropriately re-terms as climate emergency. The problem isn't a benign "warming" of the planet, or even what some see as a hum-drum acknowledgment that the climate is changing. It is the fact that our obsession with all things economic and material is placing us on a path to a radically different world of climate extremes. Her impassioned call to awareness - isn't about something that "might" someday affect us - it is to recognize that relying on ineffectual environmental law is currently having truly disastrous consequences. As global, "average" temperatures rise, they exacerbate patterns of both drought and flooding, as well as intensifying extreme storm conditions like typhoons and hurricanes. These weather patterns are but the tip of the iceberg (a metaphorical iceberg that isn't melting - but can easily take down not only the Titanic, but any and all luxury cruise ships that continue on autopilot). The last person I would expect to highlight the hopeless failure of current environmental law would be an environmental law professor, and I think this is a courageous and profoundly honest book. It is a call to reclaim the essential foundation of law itself, its purpose and meaning. The success of utilizing legal technicalities has biased courts and governmental bureaucracies toward the letter of the law - indeed we've gotten lost among the dotted `i's and crossed `t's and have sacrificed completely the spirit and intent of our environmental laws. While it appears the author is advocating a paradigm change, and that's a helpful construct to use, the actual problem is we've lost sight of the sun itself - the organizing principle of our legal maze, without which we are subject to a piecemeal, chaotic, relativistic, legal universe now threatening all we hold dear. To reclaim the legal foundation of the trust doctrine, as conceptualized here, based constitutionally on the ecological/natural world, provides an otherwise lacking common-sense approach to a legal system hopelessly complex, irrelevant and impotent. It can offer the environmental protections and behavioral guidance that we rely on a legal system to provide. Reclaiming language, Ms Wood advocates a conservative perspective in the absolute truest sense of the word, in response to the radically extremist perspective that we can live without regard to the consequences of blind resource extraction and pollution. The denialist outrage that often greets books such as this is nothing more than the cries of withdrawal of those powerfully addicted to greedy dreams of unlimited materialism.Ms. Wood masterfully contrasts the imminent threat of ecological crisis as perversely matched in degree by the impotence of existing environmental law. Seeing grievous past failures and a searingly bleak future prospect as she assesses where our current legal and ecological climate is leading us, she does not blink, there are no blinders, there is no denial. It is difficult sharing in her perception of the current state of the world. But such acute perception of "what is", also lends itself to a tangible, meaningful vision of what could be. Despite years of increasing pessimism, I experienced this book as tremendously inspiring, and dare I say, cautiously hopeful. Content aside, it is an immensely enjoyable book to read - the author uses words, concepts and history like the strokes from an artist's brush to provide context, impact and vivid color to a very bleak topic. If you value democracy this is a very important book to read. If law is to have any validity or meaning in the future, this book is a vital statement as for rescuing it from its lost moorings. And if you simply cherish our world with all its ecological richness and beauty - and have a desire to see it continue, this is an absolutely essential book to read. Then, buy it for those others we know in the regulative bureaucracy, the courts, the legislative branch and for any engaged citizen of our commons.
The author is a true environmentalist, and also a professor of environmental law at the University of Oregon Law School. As such, she is very familiar and has significant expertise in the legal protections that are provided the environment by not only our myriad of statutes and regulations, but also by historical applications of the common law that have fallen into disuse in the decades since statutory law became dominant. It is her frustration with both the current state of the law and the public attitudes toward the environment that prompted not only this book, but also her support of new efforts to take advantage of past legal remedies. She feels that the current maze of environmental laws and regulations have become so arcane as to be opaque to all but those most steeped in their application and interpretations. This is a narrow group of government administrators, industry lobbyists and lawyers, and a few well organized environmental groups. The state’s traditional role in protecting valuable common assets has been lost amidst this quagmire of acronyms and nebulous regulations. The uninitiated have no chance at understanding the proper role of their political leaders, and feel disconnected from the process. The author feels that the result is a close relationship between administrators and industry, often resulting in “revolving doors†of employment between the two. She postulates that the myriad of rules and regulations enacted with the expressed purpose of protecting the environment (Clean Air Act, Clean Water Act, Endangered Species Act, etc.) have instead become vehicles by which industry obtains permits to slowly degrade the natural resources they were intended to protect. Indeed, Ms. Woods notes that: “The agencies implementing the environmental laws have become perpetrators of legalized destruction, using permit provisions contained in nearly every statute to subvert the purposes Congress and state legislatures intended.â€This slow degradation reflects a “politics of scarcity†rather than abundance. Such “(P)olitics of scarcity focus on creating legal mechanisms to allocate the benefits of an ever-declining natural resource. In other words, officials use the power of the state primarily to divide the last crumbs (allocating those to the most politically powerful individuals). These politics have led society to this perilous point in time. The politics of abundance, by contrast, reach persistently and undauntingly toward protecting and building natural wealth.â€Political systems might support politics of scarcity or abundance, but the Earth’s natural systems can only support the latter. These short sighted policies reflect a society bent on unlimited and unnecessary present indulgence without regard to the world left to future generations. One if the most telling reflections of this goal of unrestrained economic growth, and perhaps the most dangerous, is the present and future effect of climate change. The author presents very persuasive scientific evidence about the threats posed to our environment, and is very critical of the lack of political action, and in fact the suppression of scientific evidence during the Bush administration. These discussions are almost a book in themselves, but the thrust of “Nature’s Trust†is the legal theory which the author advances as providing not only a viable remedy, but an alternative way of thinking which would hopefully move public opinion. The author starts with the recitation of a basic principle that “Government, deriving its authority from the people as a whole, must act as a fiduciary to protect the natural resources held in trust from damage, as well as from dangerous privatization.â€This recognizes that land has both a public and a private component, and that governments hold the public interest in basic ecological assets, such as water and air, in trust for the benefit of all citizens, both current and future generations. Thus, “***private use and enjoyment of trust property by individuals and corporations remains at all times subject to an antecedent encumbrance in favor of the public in order to maintain the ecological stability necessary for society to thrive.†This doesn’t mean that all private property is subject to a public trust, but the author notes at least four common situations that would activate the public trust: “(1) where circumstances involve trans-boundary interstate assets (such as an interstate rivers, lakes, underground aquifers, migratory wildlife, the air, and atmosphere); (2) where state trustees utterly fail to discharge their fiduciary duties to protect assets within their jurisdiction; (3) where national exigencies demand federal involvement, such as those involving national security, commerce among states, broad ecological or public health threats, or natural disasters; and (4) where disputes arise over resources shared with other nations or tribal sovereigns (such as oceans, fisheries, atmosphere, and the like).â€Conversely, there are also situations in which governments might alienate land from the trust to private parties. Such transfer could be allowed “(1) where trustees make the grant in aid of navigation, commerce, or other trust purposes; and (2) where the grant does not cause “substantial impairment†to the public interest in the lands and waters remaining.†When trust duties arise, the government must assume the traditional obligations of a trustee. It must first ensure the productivity and health of the asset(s) in trust. Second, it must take action when the trust assets are imperiled. Third, a trustee must exercise prudence in managing the trust, defined by courts as reasonable care, skill and caution. And fourth, and perhaps most importantly, a trustee bears a strict duty of loyalty in administering trust assets. If a public trust is recognized, then State and Federal governments must fulfill these responsibilities. But who recognizes such a trust and imposes such duties? The courts are probably the only entity equipped to do so. This can entail courts telling administrative agencies or even legislatures what they must do to protect trust assets. Such tensions trigger our basic principles of separation of powers. But the author notes these and other examples where the courts have successfully ordered appropriate remedies when other governmental entities did not fulfill their appropriate duties. In New Jersey the State Supreme Court held that “each town in the state held a state constitutional duty to provide a “fair share†of affordable housing.†In Oregon the Federal court fashioned a remedy when the National Fisheries Marine Service failed to draw up an adequate plan to protect Endangered salmon in the Columbia River. Although rare, such actions are supported by precedent. Utilizing this public trust doctrine, in 2011 a non-profit organization known as the Children’s Trust, on behalf of young adults who are invested in a healthy future, initiated litigation in all the states seeking a declaration of a sovereign duty to protect the atmosphere sufficiently to reduce carbon emissions and thus counteract the potentially disastrous effects of global warming. They allege that such action is necessary to protect the atmosphere needed by the youth and future generations for their long-term survival. The cases have not had much initial success. As the author notes: “Unfortunately, many of today’s judges show distaste and fatigue at the prospect of managing the complex details of a meaningful remedy. They may hastily dismiss trust claims on procedural grounds, or characterize the trust issue as a political question committed to the other branches of government. This, indeed, has been the result of some (but not all) of the lowest-court rulings in Atmospheric Trust Litigation.â€NOTE-Since publication there has been a victory of sorts in Washington State where the trust doctrine was recognized, but the court held that the Legislature was taking appropriate steps. The Children;s Trust also recently initiated litigation against the Obama Administration in the Federal District Court of Oregon. (My reading of information in the papers.) So, with so little prospect of success, and with a political environment where global warming is questioned, and much of public opinion is directed toward expanded private property rights and against the idea of “the commonsâ€, or the common public interest in a beneficial use of the land, what does the author see for this legal theory? From my reading, I do not perceive Ms. Wood as the least bit naive. She certainly hopes that the litigation will have some success, but she acknowledges that the real battle to save the environment, and the planet as we know it, depends on a shift in public opinion, not just here, but worldwide. She hopes that the public trust doctrine might rekindle the sense of commons that has been present in our country since the days of the Founders. She also hopes that a similar change in attitude takes place in other parts of the world, and does cite favorable attitudes. This book is a very complete legal discussion, but one that can be digested by a lay person willing to take the time. (I do have the advantage of being a retired lawyer.) It also is far more than a book on the potential legal remedies for climate change. It is also a basic primer on the science of climate change, and a literal expose of the corporate and political corruption that so threatens our planet. This is a serious book that demands a serious read. As with many books of this sort that I have read and reviewed, I also feel that its message could have been conveyed more succinctly, but all of the information is relevant and informative. It certainly discusses in detail the nature and extent of environmental degradation that should be of concern to all of us.
The publication of Nature’s Trust:Environmental Law for a New Ecological Age by Professor Mary Christina Wood is the highest landmark to date on the trail to achieve environmental protection. Professor Wood illuminates a powerful and effective tool to achieve rapid and lasting protection for Earth’s life support systems. Her explanation of the jurisprudence that supports the evolution of the public trust doctrine gives hope that there may yet be time enough to salvage Nature for her own sake and that of humanity.As a philosophical justification for empowering and challenging jurists, lawyers, and citizens alike this treatise ranks with Aldo Leopold’s Sand County Almanac and Rachael Carson’s Silent Spring, with the added impetus of Edward Abbey’s moral outrage toward the foes of Nature and servants of mammon.
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