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Taking Posterity Seriously: Intergenerational Justice

Contributed by:
John Davidson
Professor of Political Science, University of Oregon

Thesis

The Climate Legacy Initiative seeks to “promote legal doctrines . . . to safeguard present and future generations from harms resulting from global climate change.” Consistent with that mission, CLI should recognize and promote the Stewardship Doctrine, which holds that the existing language of the U.S. Constitution mandates intergenerational justice and – more specifically – the stewardship of critical environmental resources.

Inadequacy of the conventional political process

Global warming is a quintessential issue of intergenerational justice. Whereas the benefits of current CO2 generation accrue primarily in the present, the harms will fall primarily on future generations. While the benefiting parties have present political representation, the harmed parties have none; therefore, the normal political process cannot be relied upon to balance relevant interests fairly. Instead, we bear witness to extreme form of generational cost shifting. In a situation like this, where the normal legislative process is inherently biased, it is natural and reasonable to look to the Constitution and judicial review for possible remedies.

Textual grounds of the doctrine

The Constitution’s Preamble declares that “We the People . . . to ourselves and our Posterity, do ordain and establish this Constitution.” While the Preamble creates no substantive rights, commentators and courts have long recognized that its language bears on the interpretation of other substantive constitutional provisions. See 1 J. Story, Commentaries on the Constitution of the United States § 462 (2d ed. 1885); Texas v. White (1868); Handler et al., “A Reconsideration of the Relevance and Materiality of the Preamble in Constitutional Interpretation,”12 Cardozo Law Review 117, 117-18 and 131-48 (1990). Accordingly, we should recognize “ourselves and our posterity” as the proper beneficiaries of the powers and rights enumerated in the body of the constitution. When, for instance, the 14th Amendment provides that no person shall be deprived of equal protection, it ought to be construed to protect the class of future persons from present discrimination.

Original intent

The most obvious objection to this construction rests on respect for original intent: whether or not posterity rights are a good idea, such rights could not have been intended by the framers, who were unfamiliar with such modern intergenerational threats as global warming, radioactive waste, persistent toxins, or biodiversity loss. Right? Wrong!

Generational sovereignty

Although the framers were unfamiliar with most modern instances of generational overreaching, they were well versed in earlier versions of the same general problem. The framers and their European contemporaries discussed principles of intergenerational justice extensively. They were especially interested in protecting later generations’ political sovereignty from overreaching by earlier generations. The issue was personal to them. In order to sever their bonds with the English king, the founders were obliged to violate a set of explicit intergenerational commitments entered into by their ancestors and set forth in the Magna Carta and English Bill of Rights. To justify themselves, they relied upon John Locke, who had written that, “[W]hatever Engagements or Promises any one has made for himself, he is under the Obligation of them, but cannot by any Compact whatsoever, bind his children or Posterity.”

Jefferson explained in his famous “usufruct” letter to Madison that, “[B]y the law of nature, one generation is to another as one independent nation to another.” This is the gist of the framers’ generational sovereignty theory, and the idea appears again and again in writings of the period. The concern for generational sovereignty manifests throughout the text of the Constitution. It underlies Article V, which recognizes the right of later incarnations of the polity to amend even the most fundamental of social arrangements. It serves as the primary motivation for the anti-nobility clauses of Article I, sections 9 and 10. (Nobility is, by definition, any form of hereditary advantage. As Tom Paine argued in Common Sense, such arrangements represent “an insult and an imposition on posterity.”)

The framers clearly and explicitly sought to prevent earlier generations from instituting policies that unjustly infringed on the sovereignty of later generations. For our present purposes, the key question is: whether this constitutional recognition and protection of generational sovereignty implies or justifies similar constitutional protection for the core environmental interests of later generations? The framers would certainly have answered in the affirmative. For them, the principle of natural resource preservation was ethically and logically prior to the principle of generational sovereignty. This requires explanation.

Entail, usufruct, and waste

Because of the prevalence of entailed estates in Anglo-American society, landowners over time became accustomed to usufructary limitations upon land use. The owner of entailed land effectively possessed no more than a life estate and was not allowed to impair the long term productivity of the land. By the late 1700s, after centuries of this arrangement, a principle of responsible land stewardship had been absorbed into the social consciousness; it had become ethical bedrock. This is why the widely recognized obligation to sustainably steward the land became a model for explaining intergenerational political obligations.

For instance, Jefferson famously stated that, “The question [w]hether one generation of men has a right to bind another. . . is a question of such consequences as [to place] among the fundamental principles of every government. . . . I set out on this ground, which I suppose to be self-evident, ‘that the earth belongs in usufruct to the living‘: that the dead have neither powers nor rights over it.” In other words, he based generational sovereignty upon generational land rights. Edmund Burke similarly linked political stewardship with estate stewardship. He argued that each generation had an obligation to be mindful of their posterity and to preserve the political system, “that they should not think it among their rights to cut off the entail or commit waste on the inheritance . . . hazarding to leave to those who come after them a ruin instead of a habitation . . ..”

If we asked the framers whether environmental sovereignty logically follows from political sovereignty, they would be puzzled: for them, the logic flowed in the opposite direction. Environmental sovereignty was the “self-evident” truth, from which the political obligations and limitations upon each generation could be logically deduced. The notion that any one generation could justify a permanent wastage of the land itself (or the water or the air) would have been completely foreign and abhorrent to the framers. For a society to behave in such a fashion would be to (in Jefferson’s words) “eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to the living, which would be the reverse of our principle.”

Cause of action / entitlement to relief

Accepting then that posterity are objects of constitutional protection, what are the mechanics for presenting their claims? How, for instance, does one set forth the grounds of jurisdiction and the entitlement to relief required by FRCP 8? Generally, the entitlement to relief will flow from the equal protection clause of the 14th Amendment. When a critical public resource such as the atmosphere is irreparably harmed for the short term advantage of the present generation, posterity’s right to equal protection is implicated. (Because posterity – defined as citizens yet-to-be-born and persons too young to vote – is a paradigmatically disenfranchised class, it falls neatly within the representation-reinforcement theories of equal protection and judicial review espoused by John Hart Ely in Democracy and Discontent (1980) (esp. chs. 4 and 6) and suggested by footnote 4 in United States v. Carolene Products Co., 304 U.S. 144, 152-53 (1938).

In some circumstances, the procedural due process guarantees of the 5th and 14th Amendments will be implicated. For instance, when a contemplated public policy threatens irreparable damage to critical resources, consideration of possible alternatives should be mandated. A “posterity impact statement” requirement might be patterned upon existing NEPA or OMB rules.

Jurisdiction and standing

Asserting these causes of action will be simplest if the claims and the court’s jurisdiction are explicitly authorized by statute. However, the absence of such statutory authorization is not determinative. Article III §2 and 28 USC §1331 declare federal courts’ jurisdiction over actions arising under the Constitution, and cases such as Ex Parte Young, 209 U.S. 123 (1908) and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) indicate that these provisions, by themselves, suffice to support equitable claims for relief from threatened constitutional injuries.

While posterity standing poses some interesting challenges, they are neither unique, nor insoluble. Again, it would be simplest if Congress were to enact special legislation recognizing posterity standing (Joshua Rosenkranz has designed a serviceable statute, modeled on FRCP 23. See Note, A Ghost of Christmas Yet to Come: Standing to Sue for Future Generations, 1 J.L. & Tech. 67, 71 (1986)), but the absence of such a rule is not fatal. As many commentators have noted, most objections to posterity standing mirror similar objections that were once raised to the standing of minors and other incapacitated individuals. And yet, the courts have allowed guardians ad litem to bring actions on behalf of the incapacitated for centuries now, with little or no controversy. The grounds for federal posterity standing can be found in Article III § 2′s grant of equitable jurisdiction over claims arising under the Constitution. See Davidson, Tomorrow’s Standing Today: . . .,” 28 Colum. J. Envtl. L. 185 (2003).

Standard of review

The most appropriate standard of review is strict scrutiny, which would constitutionalize what has been elsewhere termed the precautionary principle: Present policies and practices which pose a serious threat of irreparable harm to critical natural resources should be enjoined unless they are shown to be a necessary (or the least harmful) means to achieve an equal or greater compelling public interest.

The public trust

The public trust doctrine can be understood – at least in part – as a particular manifestation of the intergenerational Stewardship Doctrine. The public trust doctrine prohibits privatization of natural resources that are deemed to be so critical that their administration in the public interest is recognized as a core aspect of political sovereignty. As the Supreme Court explained in Illinois Central RR v. Illinois, 146 U.S. 387, 452-60 (1892) an earlier legislature / generation cannot privatize such resources because to do so unduly infringes upon the inherent power of later legislatures / generations.

No legislature or person may legitimately convey or recognize a private property interest that includes the right to endanger critical elements of posterity’s natural legacy. Such recognition would unlawfully alienate the juris publicum – the shared interest of each generation in the intergenerational commons. This should be understood as a “background principle of property law,” per Lucas v. South Carolina Coastal Commission, 505 U.S. 1003, 1029 (1992).

Conclusion

The atmosphere and the climate belong to all of us, and to posterity. Each generation has an obligation to preserve these critical resources unimpaired. However, unless constrained by some superior authority, neither the economic marketplace nor the legislative marketplace is likely to respect this obligation. Happily, the Constitution provides the superior authority and the appropriate principles to preserve nature’s legacy “to ourselves and our Posterity.”

At the End of our Tether: The Rationality of Nonviolence*

Contributed by:
David Orr
Pau Sear Professor of Environmental Studies
Oberlin College, Ohio

Somebody must begin it.

William Penn

Perhaps humankind will do the right thing, as Winston Churchill once said of Americans, but only after it has exhausted all other possibilities. In human relations we’ve tried brute force and that is the story of empires rising and falling and the lamentable catalog of folly that we call history. In 1648 the creators of the Westphalian system of sovereign nation-states improved things slightly by creating a few rules to govern interstate anarchy in Europe. The architects of the post-World War II world improved things a bit more with the creation of international institutions such as the World Bank, the International Monetary Fund, and the United Nations. But war and militarization have a stronger hold on human affairs than ever and sooner or later violence whether by states, terrorist groups, or simply by demented individuals will devour the human prospect. 

In the last few centuries we applied the same mindset to nature. We’ve bullied, bulldozed, and re-engineered her down to the gene and that got us into more trouble and perplexities than a dozen scientific journals could adequately describe. It is now proposed that we manage nature even more intensely—but the same goal with smarter methods will only delay the inevitable. Either way we are rapidly creating what climate scientist, James Hansen, calls a “different planet” and one we are not going to like. We can quibble about the timing of disaster, but, given our present course, there is no rational argument about its inevitability.

            Whether to nature or human affairs we continue to apply brute force with more powerful and sophisticated technology and expect different results—a definition according to some of insanity. True or not, it is a prescription for the destruction of nature and civilization that is woven into our politics, economies, and culture. The attempt to master nature and to control destiny through force has not worked and will not work because the world, whether natural or international, as Jonathan Schell puts it, is “unconquerable” (Schell, 2003). The reasons are to be found in the mismatch between the human intellect and the complexity of non-linear systems, and no amount of research, thought, or computation can fill that void of ignorance, which is only to acknowledge the limits of human foresight and the inevitability of surprises, unforeseen and unforeseeable results, unintended consequences, paradox, irony, and counterintuitive outcomes. But the limits of human intelligence do not prevent us from discerning something about self-induced messes.

            So what kind of messes have we made for ourselves? Some are problems that are, by definition, solvable with enough rationality, money, and effort. The problem of powering the world by current sunlight, for example, is solvable given enough effort and money. But some situations are dilemmas which by definition are not solvable by any rational means—although with enough foresight and wisdom they can be avoided or resolved at a higher level. British economist E. F. Schumacher, once described the difference between “convergent” and “divergent” problems in much the same terms. In the former, logic tends to converge on a specific answer while the latter “are refractory to mere logic and discursive reason” and require something akin to a change of heart and perspective (Schumacher, 1977, p. 128). Donella Meadows, in a frequently cited article on the alchemy of change, concluded that of all possible ways to change social systems, the highest leverage comes, not with policies, taxes, numbers and the usual menu of rational choices, but with change in how we think (Meadows, 1997). The crucial issues we face are not so much problems as they are dilemmas. They cannot be solved by the application of more technology and smartness but they can be transcended by a change of mindset.  

            Two dilemmas stand astride our age. The first has to do with age-old addiction to force in human affairs. We don’t know exactly how or when violence became the method of choice or the precise point at which it became wholly counter-productive (Schmookler, 1984). But no tribe or nation that did not prepare for war could survive for long once its neighbors did. And since it makes no sense to have a good army if you don’t use it from time to time, preparation for war tended to make its occurrence more likely. If it was ever rational, however, the bloody carnage of the past one-hundred years should have convinced even the dullest among us that violence within and between societies is now self-defeating and colossally stupid. Violence and threats have always tended to create more of the same—a deadly dance of action and reaction. The development of nuclear and biological weapons and the even more heinous weapons now in development have changed everything . . . everything but our way of thinking as Einstein once noted. In an age of terrorism, the scale of potential destruction and the proliferation of small weapons of mass destruction mean that there is no sure means of security, safety, or deterrence anywhere for anyone. The conclusion is inescapable: from now on—whatever the issues—there can be no winners in any violent conflict, only losers. Nonetheless the world now spends $1.2 trillion each year on weapons and militarism and is, unsurprisingly, less secure than ever. The United States alone spends 46% of the total or $17,000 per second, more than the next twenty-two nations combined. It maintains over 737 military bases worldwide but it is presently losing two wars while threatening to start a third. Economist Joseph Stiglitz estimates that the total cost of the Iraqi misadventure alone will be $2 trillion. Beyond the economic cost it will surely leave a legacy of yet more terrorism, violence, and ruin in all of its many guises.

            The word “realism” has always been a loaded word. In world politics it is contrasted with “idealism,” believed by realists to be the epitome of wooly-headedness. In realist theory, the power realities of inter-state politics required military strength and the aggressive protection of the national interest defined as power. Realists were the architects of empires, World Wars, Cold Wars, arms races, mutual assured destruction, the Vietnam War, and now the fiasco in Iraq. But one of the pre-eminent realists of the post-World War II era, Hans Morganthau, was more of an idealist than commonly appreciated. He once proposed that governments give control of nuclear weapons to “an agency whose powers are commensurate with the worldwide destructive potentials of those weapons” (Joffe, 2007). George Kennan, another post World War II realist similarly proposed international measures to prevent both nuclear war and ecological decline—ideas that are anathema to influential neo-conservative realists now.

The second dilemma is the insolvability of long-term economic growth in a finite biosphere. As ecological economists like Herman Daly have said for decades the economy is a subsystem of the biosphere not an independent system. The “bottom line,” therefore, is set by the laws of entropy and ecology, not by economic theory. The effort to make the economy sustainable by making it smarter and greener is all to the good, but altogether inadequate. It is incrementalism when we need systemic change that begins by changing the goals of the system. Economic growth can and should be smarter and corporations ought to reduce their environmental impacts and with a bit of effort and imagination it is possible for most of them to do so. Could we, however, organize all of the complexities of an endlessly growing global economy to fit within the limits of the biosphere in a mostly badly governed world in which greed, corruption, corporate competition, and consumerism dominate? As you read these words the answer is being written in the disappearing forests of Sumatra, in the mountains being flattened in Appalachia, in the 1000MW per week of new coal plants being built in China, in the billion dollars of advertisements spent each year to stoke the fires of Western-style consumption, in glitzy shopping malls, in the fantasy world of Dubai, in the temporizing of governments virtually everywhere, and by the corporate pursuit of short-term profit. Progress toward a truly green economy, as Thomas Friedman (2007) notes, is incremental not transformational change and a great deal of it is of the smoke and mirrors sort. If we had hundreds of years to make the necessary changes we might muddle our way to a sustainable economy, but time is the one thing we do not have. If we intend to preserve civilization, the inescapable conclusion is that we need a more fundamental economic transformation and that means three things that presently appear to be utterly impossible: (1) a transition from economic growth (creation of more stuff) to development which genuinely improves the quality of life for everyone, first in wealthy nations and eventually everywhere; (2) the transformation of the consumer economy into one oriented first and foremost to needs not wants; and hardest of all, (3) summoning the compassion and wisdom to fairly distribute wealth, opportunity, and risk. The fact that these three seem wholly inconceivable to most of us indicates the scale of the challenge ahead and the necessity of a different manner of thinking.

Both dilemmas are intertwined at every point. To maintain economic growth the powerful must have access to the oil and resources of poor third world nations whether they like it or not. Global trade, often to the disadvantage of poor nations, requires the use of military forces to patrol the seas, enforce inequities, strike quickly, and maintain pliant governments willing to plunder their own people and lands. The result is animosity that fuels global terrorism and ethnic violence. The power of envy and the desperate search for “a better life” requires the “haves” to build higher fences to keep the poor at bay. Profit and the fear of possible insurrection and worldwide turmoil drives the search for more advanced Star Wars kind of technology—robot armies, space platforms, and constant electronic surveillance. But, as Gandhi said repeatedly, our wealth and weapons make us cowards and our fears condone the injustices that underpin our way of life and fuel the hostility that will some day bring it down.

In sum: (1) the time to heal our conflict with Earth and those between nations and ethnic groups is short; (2) both are dilemmas, not merely problems; (3) neither can be resolved by applying more of the kind of thinking that created it; (4) the connection between the two is our addiction to violence; and (5) neither can be solved without solving the other.

We are at the end of our tether and no amount of conventional rationality or smartness is nearly rational enough or smart enough. We need deeper, transformational change. The remorseless working out of big numbers whether climate change, the loss of biological diversity, or the combination of hatred and the proliferation of heinous weaponry are wreaking havoc on our pretensions of control. This is not the time for illusions or evasion; it is time for transformation.

            Self-described realists will argue that, however necessary, humans are not up to change at this scale and pace—muddling along is the best that we can do. And for those inclined to wager that is certainly the smart bet. But if that is all that can be said, we have no good reason for hope and might best prepare for our denouement. On the other hand, transformational change is not only necessary, but it may be possible as well. Do we have good reasons to transform the growth economy and transcend the use of force in world politics? Is the public ready for transformation? Is this an opportune time (a “teachable moment”) to do so?  Do we have better non-violent alternatives?

            There is a great deal of evidence to suggest a more hopeful view of possibilities than most “realists” are inclined to see. A recent BBC poll of attitudes in 21 countries, for example, shows that a majority, including a majority of Americans, are willing to make significant sacrifices to avoid rapid climate change—even though no “leader” has thought to ask them to do so. Can we craft a fair and ecologically sustainable economy that also sustains us spiritually? The present economy has failed miserably on all three counts. As Richard Layard puts it “we are as a society no happier than fifty years ago. Yet every group in society is richer” (Layard, 223). Beyond some minimal level, in other words, economic growth advances neither happiness nor well-being. But the outlines of a non-violent economy are beginning to emerge in the rapid deployment of solar and wind technology, in a growing anti-consumer movement, in the slow food movement, and in the fields like biomimicry and industrial ecology. In world affairs, the manifest failure of neo-conservative realism in the Middle East and elsewhere may have created that teachable moment when we come to our senses and overthrow that out worn and dangerous paradigm for something far more realistic—security for everyone. And at least since Gandhi we have known that there are better means and ends for the conduct of politics.

              The transformative idea of non-violence can no longer be dismissed as an Eastern oddity, an historical aberration, or the height of naiveté. At the end of our tether it is rather the core of a more realistic and practical global realism. There is no decent future for humankind without transformation of both our manner of relations and our collective relationship with the Earth. Gandhi stands as the preeminent modern theorist and practitioner of the art of non-violence. His life and thought were grounded in the practice of ahimsa, a Sanskrit word that means unconditional love. To denote the practice of ahimsa Gandhi coined the word satyagraha, which combines the Sanskrit word sat meaning truth with graha meaning “holding firm to” (Schell, 119). Gandhi honed the philosophy of nonviolence into an effective tool of change in India as Martin Luther King Jr. later did in the United States, but we’ve never known what to do with persons like Gandhi and King. On one hand we occasionally pay them lip service in public speeches and name holidays in their honor but on the other hand we ignore what they had to say about how we live and how we conduct the public business. The time has come to pay closer attention to what they said and did and fathom what that means for us now.

            The beginning of a more realistic realism is in the recognition that violence of any sort is a sure path to ruin on all levels and that the practice of non-violence is a viable alternative—indeed our only alternative to collective suicide. But that implies changing a great deal that we presently take for granted beginning with the belief in an unmovable and implacably evil enemy. Richard Gregg, an associate of Gandhi, for example, said that the goal of practitioners of nonviolence:

is not to injure, or to crush and humiliate his opponent, or to ‘break his will’ . . . [but] to convert the opponent, to change his understanding and his sense of values so that he will join wholeheartedly [to] seek a settlement truly amicable and truly satisfying to both sides (Gregg, 1935/1971, 51).

 

As with war, the practice of nonviolence requires training, discipline, self-denial, strategy, courage, stamina, and heroism. Its aim is not to defeat but to convert and thereby resolve the particulars of conflict at a higher level. For Gandhi it required its practitioners, first, to transcend animosity and hatred to reach a higher level of being in “self-restraint, unselfishness, patience, gentleness” (Fischer, 1962; 326) The aim is not to win conflict but change the mindset that leads to conflict and ultimately form a “broad human movement which is seeking not merely the end of war but [the end] our equally non-pacifist civilization.”  In Gandhi’s words, “true ahimsa should mean a complete freedom from ill will and anger and hate and an overwhelming love for all” (Fischer, 207).

            Gandhi applied the same logic to the industrial world of his day, regarding it as a “curse . . . depend[ing] entirely on [the] capacity to exploit” (Fischer, 287). Its future, he thought, was “dark” not only because it engendered conflict between peoples but because it cultivated “an infinite multiplicity of wants . . . [depriving] people of a “living faith in Divinity” (289).

The philosophy, strategy, and tactics of non-violence have been updated to our own time and situation by many scholars including Anders Boserup and Andrew Mack (1975), Richard Falk and Saul Mendlovitz  (World Order Models Project), Michael Shuman and Hal Harvey (1993), Gene Sharp (1973, 2005), and the Dalai Lama (1999). Clearly we do not lack examples, precedents, alternatives and better ideas than those now regnant. It is time—long past time—to take the next steps in rethinking and remodeling our economy and foreign policies to fit a higher view of the human potential. The first steps will be the hardest of all because the impediment is not intellectual but something else that lies deeper in our psyche. Over the millennia violence became an addiction of sorts. Our heroes are mostly violent men. Our national holidays mostly celebrate violence in our past. Most of our proudest scientific achievements have to do with the violent domination of nature. There is something in us that seems to need dependably loathsome adversaries even if, sometimes, they have to be conjured. And to that end we built massive institutions to plan and fight wars, giant corporations to supply the equipment for war, and a compliant media to sell us war as a patriotic necessity. In the process we made economies and societies dependent on arms makers and merchants of death and changed how we think and how we talk. We often speak violently and think in metaphors of combat and violence so we “kill time” or “make a killing” in the market, or wage futile wars on drugs, poverty, and terrorism. Worse, our children are being schooled to think violently by electronic games, television, and movies. We have made no comparable effort to build institutions for the study and propagation of peace and conflict resolution or to cultivate the daily habits of peace. We have barely begun to imagine the possibility of a nonviolent economy in which no one profits from war or violence in any form. And so it is surprising that we are continually surprised when our collective obsession with violence manifests yet again in violence down the street or in some distant place. 

            The transformation to a nonviolent world will require courageous champions at all levels—public officials, teachers, communicators, philanthropists, artists, statespersons, philosophers, and corporate executives. But it will most likely be driven by ordinary people who realize that we are all at the end of our tether and it is time to do something a great deal smarter and more decent. And “somebody must begin it.”   

Sources

Boserup, A, Mack, A., 1975. War Without Weapons. New York: Schocken

Fischer, L. (ed), 1962/2002. The Essential Gandhi. New York: Random House.

Friedman, T. 2007. What was That All About? New York Times. December 18, p. A33.

Gregg, R., 1935/1971. The Power of Nonviolence. New York: Schocken.

Joffe, P., 2007. The dwindling Margin for Error: The Realist Perspective on Global Governance and Global Warming. Rutgers Journal of Law & Public Policy. Fall. 2007, Vol. 5: 1, pp. 89-176.

Kurlansky, M., 2006. Nonviolence. New York: Modern Library.

Layard, R., 2005. Happiness: Lessons from a New Science. New York: Penguin. 

Meadows, D., 1997. Places to Intervene in a System. Whole Earth (Winter, pp 78-84).

Schell, J. 2003. The Unconquerable World. New York: Metropolitan Books.

Schmookler, A.B., 1984. The Parable of the Tribes. Berkeley: University of California.  

Schumacher, E.F., 1977. A Guide for the Perplexed. New York, Harper & Row.

Sharp, G., 1973. The Politics of Nonviolent Action. Boston: Porter Sargent.

Sharp, G., 2005. Waging Nonviolent Struggle. Boston: Porter Sargent.

Shuman, M., Harvey, H., 1993. Security without War. Boulder: Westview.

The Dalai Lama, 1999. Ethics for the New Millennium. New York: Riverhead Books.

Wells, H. G., 1946. Mind at the end of Its Tether. New York: Didier.

*The title is adapted from H. G. Wells, Mind at the End of its Tether. New York: Didier, 1946. Wells wrote: “This world is at the end of its tether. The end of everything we call life is close at hand and cannot be evaded” (p. 1).

Common Law Judges Must Act On Global Warming

Contributed by:
Joseph H. Guth, Ph.D., J.D.
Science & Environmental Health Network

We all know that we have to take action on global warming now. As private individuals, we are beginning to do things like installing photovoltaic panels at our homes and businesses, switching to Priuses and bicycles, and buying local. Our governments are edging forward with steps including a revised Kyoto Protocol, California’s Global Warming Solutions Act of 2006 and the America’s Climate Security Act just introduced into the U.S. Senate by Senators Lieberman and Warner.

But, one might ask, what has become of that other great engine of American social transformation, the common law? Unfortunately, as the recent case of California v. General Motors et al. proves yet again, when it comes to the environment, our common law judges are missing in action and can best be seen running for the hills. The disengagement by these judges not only forsakes their historical role in American system of law but, when combined with the Supreme Court’s takings jurisprudence, is leading American environmental law into a profound and corrosive gridlock.

In California v. General Motors et al., California’s Attorney General sued six automakers for money damages, alleging that the carbon emissions from their cars, which constitute 20% of U.S. greenhouse gas emissions and 30% of California emissions, have created a common law nuisance. The case was brought in federal court because it implicates pollution emanating from other states, and therefore raises an issue of federal rather than state common law. It squarely charges automakers with substantial liability for the impacts of global warming on California; there could hardly be a more important social issue today.

On September 17, 2007, District Judge Martin Jenkins took his first major step in handling this important common law matter: he dismissed it. He accepted the automakers’ unlikely argument that the court should not get involved in global warming because it raises “political questions” that the Constitution assigns exclusively to the political branches of government. He wrote that adjudication of California’s claim would require him to balance environmental destruction with the interest in advancing industrial development, and that such balancing of competing interests is the job of the political branches of government, not courts. This decision duplicated the 2005 dismissal by the Southern District of New York of another global warming case, Connecticut v. American Electric Power Co., a federal common law nuisance action in which six states sued electric utilities seeking a phased abatement of their ongoing carbon emissions. These cases, both now on appeal, hearken back to the famous 1970 decision Boomer v. Atlantic Cement Co., in which the high court of the State of New York asserted that controlling air pollution is the responsibility of legislatures and not courts at common law.

There was a time when the common law judiciary embraced the ongoing duty to resolve conflicts between environment and economy. Throughout most of our history the common law has been the nation’s major source of laws affecting property, steadily evolving through resolution of private disputes. Legal historians have shown that property rights have never been fixed. Instead, they have been continuously modified through the centuries as our circumstances and social objectives have changed.

Our current structure of property rights arose during the nineteenth century when judges invented it to enable the industrialization of the United States. The judges explicitly concluded that the public welfare was no longer best served by the ancient rule that landowners must “use their own so as not to harm another.” They came to view the net public benefit as best served by economic growth even if it caused some collateral damage. Thus, they sought to encourage economic growth by shielding industry from the liability imposed by the old rules, and began instead to impose liability only where defendants were somehow “at fault.” As they overthrew the old law and invented the modern fault-based liability doctrines of negligence and nuisance, the most important step they took was to switch the burden of proof onto plaintiffs, who now must demonstrate that defendants’ acts are “unreasonable” to make them liable for the damage they cause. This modern test requires plaintiffs to prove that defendants’ could have taken steps to prevent the damage that were “cost-effective” (meaning steps whose benefits outweigh their costs), otherwise the damage is deemed “not unreasonable” and is allowed to lie where it falls, an acceptable by-product of the social benefits of economic activity.

This profound redefinition of property rights, rooted in social policy, effectively unleashed the Industrial Revolution as the judges intended. It also permitted the ecological destruction we now face. The common law forces courts to evaluate the fault-based “unreasonableness” of each increment of damage on a case-by-case basis, determining whether each increment taken alone is cost-benefit justified. It implicitly assumes not only that the economy can grow forever but also that the total scale of the accompanying cost-benefit-justified damage to the Earth can grow forever as well. The modern common law, focusing on the fault of individual actions, contains no means of constraining the total scale of the ecological damage we do. It was invented when the world was viewed as an “empty world” with boundless pollution sinks and resources, when the atmosphere seemed infinite and there always was another forest, another river, another fishery to exploit.

But twenty-first century realities have outrun this nineteenth century view of the world. In California v. General Motors et al., Judge Jenkins recognized that the allegations before him highlighted the limitations in the common law. He wrote that he had no guidance as to how to determine what was an unreasonable contribution to global warming or how to apportion costs among multiple sources of damage. But the answer is that the current rules of the common law are not inevitable or required by logic or somehow fixed for all time. It is the job of judges to adapt the law to current circumstances seeking always to promote the public welfare. We need them to invent new rules that respond to the central fact of humanity’s modern circumstances: the Earth has a finite and limited capacity to sustain ecological damage, and to exceed this ecologically sustainable limit is to diminish the public welfare. It seems plain that the law should adopt a new presumption: that we now must avoid environmental damage, including carbon emissions, whenever and wherever possible.

The federal government has stepped in with modern environmental statutes. Unfortunately, since these statutes were patterned after the common law, they harbor, for the most part, the common law’s core structure. They implicitly adopt the presumption that favors economic activity and then, especially as administered under President Clinton’s Executive Order No. 12866, require government to develop regulations that it can prove are “reasonable” (i.e., provide benefits that outweigh costs). Like the common law, these statutes force environmental problems to be addressed medium-by-medium and case-by-case and do not attempt to constrain cumulative ecological damage. We all know that the federal statutes are not going to preserve the Earth, and these are the fundamental reasons why.

To be sure, some federal laws adopt environmental or health objectives, including the wetland protection and water quality goals of the Clean Water Act, the health-based standards of the Clean Air Act and provisions of the Food Quality Protection Act and the Endangered Species Act. Some states and local communities are going further as well, attempting to ban development in ecologically sensitive areas and adopting new approaches such as the precautionary principle. These laws are important steps forward, and the bitter criticism that industry reserves for them reflects their divergence from the balance of interests struck long ago by the common law.

The divergence between the common law and more progressive steps by government is, however, corrosive for our system of government through the rule of law. It encourages property owners to view environmental laws as invasions of their common law rights, as efforts by government to take their property and give it to the public. It allows property rights conflicts to be cast as a struggle of private individuals for freedom from a repressive and authoritarian government rather than what they are — a continuing democratic realignment of property rights to promote the public welfare. It fuels reactions like Oregon’s Measure 37 and calls by property owners for legislatures everywhere to adhere to the rights embodied in the common law or else provide compensation.

The Supreme Court stoked these fires with the landmark 1992 takings case of Lucas v. South Carolina Coastal Council. In that case, a landowner claimed that South Carolina worked a taking and owed him compensation when its law to preserve fragile beachfront barred him from building houses on his land. Justice Scalia’s opinion for the 6-3 Court agreed, holding that when legislation denies an owner of “all economically beneficial or productive use of land,” the Fifth Amendment requires compensation if the legislation creates more restrictions than “background principles of the State’s law of property and nuisance already place upon land ownership.”

So it came to be that the current version of the common law, developed to promote the Industrial Revolution, is enshrined as the source of legitimate “background principles” of property rights, the touchstone against which progressive environmental legislation must be measured (at least where it eliminates economic value). One might find dubious, as did the Lucas minority, this disfavoring of legislative expressions of the democratic will. After all, the Constitution nowhere defines what is and is not property, and the ultimate source of power to define property rights, including the power to overrule the common law, resides in the people, the democratic polity. But Lucas is the law of the land, and those of us who urge legislatures to adopt more progressive, ecologically-based laws know just how deeply they fear working a takings that, like South Carolina, they cannot afford.

The Supreme Court’s jurisprudence is impeding legislatures from creating a structure of property rights that diverges substantially from the common law. This makes it more important, not less, for our judges to confront ecological crises in the disputes that come before them at common law. The federal common law cases now on appeal in the Ninth Circuit and the Second Circuit represent profound efforts to prompt common law judges to step up and grapple with global warming both on its own merits and also as a paradigm for grappling with the problem of cumulative ecological impacts writ large. We all, including future generations, should salute the plaintiff States and environmental groups for their efforts and wish them well. For we need the common law to join with individuals and the other branches of government, and take action now.

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