Do you contemplate challenges to affirmative governmental action under the Constitution, [to] the government’s failure to regulate damage-causing private conduct, or both? . . .[T]he Deshaney doctrine . . . will pose a problem[for challenges to government inaction].

The Stewardship Doctrine, as presented, can be used to: 1) challenge irresponsible governmental action; 2) support responsible governmental action; and 3) challenge irresponsible “private” conduct. The latter challenges can take the form of actions brought directly against the “private” parties or actions challenging government’s failure to adequately regulate those parties.

DeShaney itself does not address the extent of the governmental obligation to preserve the public’s sovereign interest in critical resources. The scope of the holding of DeShaney v. Winnebago County, 489 U.S. 189 (1989) is limited to the issue of governmental obligation to render protective services to individuals. However, the broader “state action” doctrine does provide that, normally,: 1) private parties are not the objects of constitutional limitations; and 2) government is not constitutionally required to affirmatively control private conduct.

The state action doctrine does not bar all Stewardship Doctrine challenges to “private” conduct that irreversibly damages intergenerational sovereign resources. In some cases, the “private” actors are landowners who should properly be viewed as public or quasi-public agents. In all cases, the government, as trustee of the public’s critical natural resources, has the fiduciary duty of any trustee to take affirmative steps to protect the corpus of the trust.

Landowners as government actors
Most CO2 production is caused by private landowners (e.g. the corporate owner of a coal burning power plant). These private landownders justify their pollution of the atmosphere as a legitimate exercise of property rights. However, land ownership must not be viewed as “private” in the way that other property rights are private. Property in land differs fundamentally from personal property. Land ownership is not concerned primarily with the possession or disposition of discrete things. Instead, a land title conveys dominion over a three-dimensional territory, and all persons and activity within that territory. In this sense, every private land title represents a recent or ancient grant by government of territory and a concomitant delegation of political power. The continuing exercise of this dominion is likewise accomplished through the active support of government. This inherently governmental aspect of land ownership is inescapable; it is the reason that most of the seminal “state action” cases have involved limitations on the rights of real property owners. See Marsh v.Alabama, 326 U.S. 501 (1946); Shelley v. Kraemer, 334 U.S. 1 (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

When Peabody Coal creates and implements a preferred land use regime for its lawful domain, it also thereby legislates and implements policy for the atmosphere and climate – central elements of the jus publicum. Perhaps, if Peabody’s abuses of the jus publicum constituted present harms only, government could ignore those harms without violating the Constitution. But that is not the case. The quasi-political powers created and defended by the government are now being employed so as to cause long term, potentially irreversible impairment to critical natural systems. Government cannot create a quasi-political office and then allow the occupant of that office to diminish the core sovereign interests of later generations and legislatures. Private dominion, defined and supported by the state, must be limited and regulated so as to avoid that result; this is the essence of both the Stewardship and the Public Trust doctrines.

Is there some way for courts to strictly scrutinize the economic legislation that you have in mind while simultaneously maintaining the rational basis review of other economic legislation that has prevailed since Carolene Products footnote 4?

The irreversibility distinction
Allowing heightened review of government actions that threaten irreversible damage to core sovereign resources does not open the door, Lochner-style, to heightened review of all economic legislation. The vast majority of government actions do not pose risks of irreversible harm.

Footnote 4 recognized the difference between “ordinary” economic legislation (deserving of a lenient standard of review) and government action that would negate “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” The latter is the type of situation that the Stewardship Doctrine addresses. An irreversible harm is, of necessity, an irrepealable harm.

The critical resources distinction
The Stewardship Doctrine should initially be applied with great caution; holdings should be carefully limited so as to cover only interests on a scale comparable to those described in Illinois Central: e.g. “general control of the state over lands under the navigable waters of an entire harbor or bay, or of a sea or lake;” “trust over property in which the whole people are interested;” “trusts connected with public property, or property of a special character.” The intergenerational interest in preserving the atmosphere and climate of the nation surely satisfies these criteria and warrants an appropriately strict standard of review. By way of comparison, the interest of a dairy company in avoiding government mandated labeling requirements (the economic legislation in question in Carolene Products) warrants no extraordinary attention.

The non-representation distinction
It bears repeating that the Stewardship Doctrine focuses on legislation that disproportionately and irreversibly impacts the sovereignty of posterity, who have no present political representation. It is because the affected parties have no representation in the policy formation process that the relevant legislation warrants closer scrutiny. Unlike posterity, the Carolene Products Co. was presumably afforded an opportunity to make its position heard in the political arena.

Might it not be more useful to confine use of the Posterity Clause to arguments in favor of broadening the standing doctrine so as to support the justiciability of statutory and common law claims against rapacious *private* actors? Otherwise, doesn’t one run the risk of backlash?

I agree that caution is warranted, for exactly the reasons you suggest. Recognizing posterity’s constitutional interests, in any form and to any degree, is a step into largely uncharted legal waters. Some judge will have to take that first step, and it will require uncommon boldness. It would benefit nobody if we were to make that step any longer or higher than absolutely necessary.

I also agree with you that legislation and common law initiatives will both be critical elements of any succesful campaign to protect the climate. However, there are three reasons that I do not believe that we should rely on those two legal tools alone to protect intergenerational interests in natural resources:

1) Common law remedies are local remedies. For some issues, such as preservation of discrete isolated aquifers, local remedies may be practical. For larger, interstate or global common pool resources, local remedies are less practical. Judges will resist, on political question grounds, the creation of overlapping, piecemeal solutions for large, systemic problems.

2) Offended industries can erase common law victories through superseding statutes.

3) As explained in my original post, the normal legislative process can not be expected to adequately address intergenerational harms in a timely fashion. To be blunt: so long as money plays a role in the electoral process and there is more immediate profit to be made by despoiling natural systems than by preserving them, the legislative process will be biased in favor of despoilation.

A constitutional doctrine suffers from none of these deficiencies. It is national in scope (although parallel state doctrines are to be encouraged). It is immune to legislative repeal. Its recognition depends upon the will and judgment of judges removed from the pressures of campaign finance and electioneering.

I hope these responses are helpful. Again, great questions!

John Davidson

Thanks for your excellent article! I teach Constitutional Law but am new to the field of intergenerational justice. I have a few questions about your proposal that I offer in the hope of starting a dialogue:

1. Do you contemplate challenges to affirmative governmental action under the Constitution, the government’s failure to regulate damage-causing private conduct, or both? I ask because, if non-regulation is being challenged, the Deshaney doctrine — that most government inaction does not raise constitutional concerns — will pose a problem in addition to the justiciability problems you mention.

2. If you contemplate challenges to affirmative government action, it seems to me that application of strict scrutiny would be susceptible of being criticized as a revival of Lochner. Is there some way for courts to strictly scrutinize the economic legislation that you have in mind while simultaneously maintaining the rational basis review of other economic legislation that has prevailed since Carolene Products footnote 4?

3. Given these potential objections and the strength of the charges of judicial activism to which they may lead, might it not be more useful to confine use of the Posterity Clause to arguments in favor of broadening the standing doctrine so as to support the justiciability of statutory and common law claims against rapacious *private* actors? Otherwise, doesn’t one run the risk of backlash — i.e., of having the rejection of constitutional claims of the sort you posit being used as precedent to reject (on justiciability grounds) statutory and common law claims against private actors on behalf of future generations?

Thanks very much in advance for considering these questions.

John Greabe
Assistant Professor of Law
Vermont Law School