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

1) The need for “temporal torts.”
Dr. Guth’s list of unsuccessful clean air public nuisance actions could have been much longer than he made it. Other cases that qualify for the list include Diamond v. General Motors (Cal. App. 1971) and Washington, et al v. General Motors (U.S. 1972) (in which our sometime hero Justice Douglas wrote the majority opinion rejecting the public nuisance claim). In all of the cases, there seem to be two major justifications made for the refusal of the courts to expand the common law to cover large scale air quality issues: a) the nature of the judicial function: judges have no significant investigative resources and make their determinations on a case by case basis, and are therefore less well equipped than the legislative branch to resolve issues with broad policy ramifications; and b) the countermajoritarian problem: as the product of an unelected branch (at least on the federal level), any such policy adopted by a court will have less legitimacy than a policy adopted by elected representatives.

I’ll only address the second of those concerns here. Put briefly, countermajoritarian concerns should play no role in the courts’ resolution of global warming litigation. The most distinctive aspect of this litigation is that it concerns impacts that will be felt disproportionately by later generations. Because they are yet to be born, those generations cannot vote and are not represented in the “representative” branches. They are the quintessential unrepresented minority, and, as such, they are entitled to the protection of the court. The courts should therefore allow themselves to hear claims brought to vindicate the interests of the future public. For the same reasons, courts dealing with such posterity claims should be more willing to exercise the power of judicial review — over any legislation that unreasonably favors present factions, or even the present public as a whole, to the detriment of posterity.

Other “temporal torts” can be articulated, and some might prove to be as useful as – or more useful than — than public nuisance. For instance, “temporal trespass,” borrowing from the elements of traditional trespass, might more readily incorporate an element of presumed damage. The tort of trespass has already evolved to include harms to air quality; successful trespass actions have been brought against such practices as field burning. Because the air at issue in a temporal trespass action would belong to posterity collectively, rather than to specific, presently identifiable individuals, the action would have characteristics of an anti-pollution action brought by one country against another, and international law principles might need to be incorporated by analogy. As Jefferson once famously noted, “by the law of nature, one generation is to another as one independent nation to another.”

Just as regular nuisance and trespass proscribe harms which spill over onto neighbors adjacent in space, temporal nuisance and trespass would proscribe those harms that spill over onto neighbors adjacent in time. Another promising cause of action would be public waste, which would have the advantage of being based on a tort that evolved in equity for the specific purpose of protecting future interests.

2) Incorporation of the Precautionary Principle into public nuisance analysis.
Dr. Guth suggests that “[nuisance] law should adopt a new presumption: that we now must avoid environmental damage, including carbon emissions, whenever and wherever possible.” I would suggest framing this presumption in the “strict scrutiny” language of constitutional jurisprudence. If we accept that the public and posterity have a fundamental interest in an undamaged atmosphere and climate, then it follows that policies and practices which pose a serious threat to that interest should be prohibited unless they are a necessary (or are the least harmful means) to achieve another compelling public interest. This doctrine could be articulated as part of a larger constitutional doctrine (which I will outline in more detail on a later post on this board), or independently, as part of the natural evolution of the common law.

Why, we might enquire, do the property rights crowd and the free-market environmentalists like to situate their struggles in the confused doctrines of “property law”? And why, exactly, do they like to file cases dressed up in the garb of “regulatory takings”? They do this precisely because they hope to defeat governmental regulations, and what better way to beat back the government than to appeal to some imagined “rights” of property that are alleged to be timeless and immutable? Those who hate government (and regulations emanating from government) are not inspired in their litigation strategy by high principles of what the law is and how it ought to be used to engage a fair fight. They figure that “property rights” is the legal window to which they must go if they are to have any chance of winning. And, given the incoherence of takings law, this is indeed their best strategy. But it is not a reliable winning strategy as many landowners (those who claim to have immutable rights) have discovered to their dismay (and expense). But the free-market environmentalists play that card because that is the only card they can play. It is the only legal doctrine that seems to hold promise. I suspect plaintiff attorneys lie awake at night trying to package various disputes as a “takings case.”

Joe’s major point is good—and remains pertinent. That is, how can we bring the public and the legislature around to understand the perils of climate change? After all, if my understanding of the law is at all close to reality, the legislature must speak with some cogency on this matter before the common law can kick in. After all, judges have to embed their decisions in some collectively understood context. Recall the Bush administration does not want CO2 to be declared a “pollutant” that can be regulated under the Clean Air Act. It seems as if we need a new piece of legislation that speaks not to clean air but to an atmosphere that is not assaulted by certain gasses in excess of their “natural” (background) level. Perhaps a “Pre-Industrial Atmosphere Act” would do the trick?

It is not my position that the “law changes pragmatically when the need for it to do so becomes apparent.” I go back to the original post from Joe—“Common Law Judges MUST….” I am as much in favor of eliminating greenhouse gasses as the next person, and certainly as committed to this as Joe is. But what I want, or what Joe wants, will not be enough to get it done. Indeed, one of the serious flaws in a democracy is that the majority of people need to be brought around to a position for it to have any chance of success in the policy arena. Dictatorships have no such impediments.

Pragmatism is not a philosophical position that says laws change when it is apparent that they should. That logic is circular. Pragmatism is concerned with a careful assessment of the reasons why individuals hold the beliefs they hold. A pragmatist would say to George Bush, “Please tell me again why you do not believe that we are undergoing climate change?” Another question from a pragmatist might be: “Can you please tell me who has persuaded you that the costs of complying with the Kyoto Protocol would be seriously harmful to the American economy?” Or perhaps this question might be tried: “Can you please tell us why all of your advisors on energy policy happen to be from the energy industry?” These (and many more related) questions are what pragmatism teaches us to ask.

My view is that we will not bring American voters around to our side until they have had a chance to judge political leaders on a set of questions like the sample above. Democracy demands coherent discourse about pressing issues. Will the coming presidential campaign yield up such discourse? I am not optimistic.

Professor Bromley

Professor Bromley questions whether climate change is properly situated as an issue of property rights. This may be just a semantic or definitional question. “Property laws” are commonly considered by lawyers to include all laws that govern how people use their property. Within these laws reside society’s accommodation and balancing of private interests with the obligations of property owners to the community. Defined this way, “property laws” include all environmental statues and all common law doctrines such as nuisance and negligence (to the extent they involve property). Indeed, “property rights activists” and “free-market environmentalists” are acutely concerned with takings and environmental law.

Laws governing carbon emissions will force private owners to curb emissions emanating from factories they built on their land, impose financial liability or tax burdens on unreasonable carbon emissions, etc. Such new laws would clearly constitute a rebalancing of the private freedom to use property to emit carbon with the obligations of property owners to the community. Looked at this way, calling laws that affect climate change “property laws” is a definitional choice, but one that has solid grounding among property lawyers and in the law itself. The fact that we have treated the atmosphere as an open access carbon sink does not mean that when we adopt laws governing access to that sink, those laws are not property laws. But the real issue is not so much the semantic one of what name we give to these laws. Rather it is their structure, the balance they strike between society’s interests in economic growth and the environment, and the role they play in guiding our economic activity.

Professor Bromley is correct that property and takings law are confused, but that does not make them unimportant or unworthy of intensive attention. Indeed, at most times in our history people are likely to have been somewhat confused about property laws because those laws are almost always in transition. It is only hindsight that makes the past look clear. Today, we are, I believe, in the midst of a monumental transition in the law governing how we live on the Earth, and this is naturally confusing and disruptive of vested interests and established ways of doing things.

Finally, Professor Bromley argues that the law changes pragmatically when the need for it to do so becomes apparent. This seems to me a very removed point of view, and one that might be possible if one looks at history from a distance. But history only looks preordained in hindsight; in reality we have no real idea what the future holds. We don’t know whether we will be able to learn to live on the earth or whether, like so many species released from predators, we will outgrow and destroy our only home. Lawyers who spend their lives trying to achieve legal change experience their work as a titanic struggle to get judges and legislatures to alter vested rights in the public interest. While laws are always based on some particular vision of how to balance various interests, there is never only one “pragmatic” way to do this (except perhaps in hindsight) because there is no absolute right way for us to live — in a democratic nation governed by the rule of law, each generation is on its own to figure out and implement a balance of values and interests that it can live with.

As Professor Parenteau points out, there is no guarantee whatsoever that we will save the Earth from climate change. It is up to us to make it happen, if we can. But it won’t be easy. What we are trying to do in this forum is define what the new (property) laws should look like and how to make stick the “good reasons” that Professor Bromley is confident exist.

Professor Parenteau

Professor Parenteau is surely right when he outlines the massive global and national legislative effort that we need to address climate change. He argues that the common law may have a limited, if somewhat useful, role to play, but that the common law is not the answer to climate change.

It is true that the common law, by itself, would have difficulty accomplishing on its own the social transformation we need. Nevertheless, I believe that transformation of the common law is much more important than many lawyers recognize. The reason is that we need transformation of the entire legal system of the United States, and this simply cannot occur without a restructuring of the common law. The United States does not have a civil law legal system in which all law derives from a central government with unlimited power to control every aspect of how our society operates, as do the civil law nations of Europe with their elaborate (and repressive?) codes. Leaving aside issues raised by the limited Constitutional powers of the U.S. federal government and by the Constitutional division of power as between federal and state governments, our legal system comprises two principal legitimate sources of evolving law: common law created by judges as they resolve private disputes, and legislative law created by the political branches.

The common law has historically been the source of most of our property law and remains significant even today, after the advent of the federal environmental statutes. Thus, in the United States, we have two different sources of law that govern the balance between private property rights and the obligations of property owners to the community. These two bodies of law exist side by side, each with its own role in the governance of the nation, each implementing a vision of the proper balance of interests in our society.

The central point I am making, which is not a novel one, is that it is very corrosive — indeed, ultimately incapacitating — for the judiciary and the political branches to implement substantially different conceptions of the proper balance of social interests. To the extent a divide persists between the common law and legislative law, legislation is subject to takings claims by infuriated property owners who prefer the conception of property rights implemented by the common law. Because of (a) our tradition of common law, (b) the size and diversity of the nation, (c) the fact that the federal government is one of limited, specified powers, and (d) the takings clauses of both state and federal constitutions, it is going to be very difficult for legislation, especially federal, to fully implement a structure of property rights that diverges substantially from that of the common law. The current existence of such a divide is at the root of the efforts in many states and at the federal level to require government to compensate property owners whenever legislation diminishes the value of their property under existing common law property rights or imposes costs not required by that law. To avoid inflaming this divide as more progressive legislation arises, we need the common law to be updated to reflect the new balance of property rights that we need to protect the environment. If it did so, property rights activists and free-market environmentalists would really have nowhere to turn.

Moreover, while common law judges for the last decades have failed to adapt the law to our changing environmental circumstances, I believe that Professor Parenteau underestimates the power that inheres in the common law under our legal system. It was, after all, common law judges who led the complete transformation in the nineteenth century of our legal system to one favoring economic growth. By now moving to implement a new balance of interests, the common law could force a general internalization of environmental costs, adapt to local ecological circumstances and respond to myriad private concerns that neighbors are having impacts on the community that are no longer reasonable in our current circumstances. And judges have the power to do this quickly, on an emergency basis if they can be convinced it is necessary. (Think of how far reaching and immediate the impact would be of a determination that automakers and power companies are liable for damages for their carbon emissions! Who else would face immediate liability, or rather, who wouldn’t?) The common law enables private parties (and thereby society) to resolve disputes by courts that can experiment with new legal principles. It is a flexible and powerful element of the American legal system, which provides the nation with an effective alternative to a distant government that issues detailed codes governing every aspect of the national life.

The common law is an integral and important part of the American system of government and law. It needs to be updated, and quickly, to support, further and make complete the kind of social transformation Professor Parenteau advocates so forcefully. Judge Jenkins’ avoidance of this responsibility in California v. General Motors et al. should outrage us all.

Having said that, I question the value of situating the conversation about climate change in the realm of “property rights.” There are two reasons why I find this unpromising. First, property law and takings law is now largely incoherent—still struggling to escape the trap set by Frank Michelman back in 1967, and the prospects for clarity with a confused Supreme Court on our hands seem remote. Second, climate change has little at all to do with property law as we ordinarily think of that subject. Of course if the atmosphere is seen as an open access resource (res nullius) then we cannot be surprised at the level of emissions that contribute to the production of greenhouse gasses. But greenhouse gasses (water vapor, carbon dioxide, methane, nitrous oxide, and ozone) emanate from many sources (many of them mobile and not normally connected with “property rights” as ordinarily construed).

My reading of legal and economic history suggests that Anglo-American jurisprudence is driven by a commitment to pragmatism—-a position endorsed by the mature (but not the early) Posner. The courts and the legislature will change their mind on climate change when enough good reasons are marshaled to persuade them that it is now “reasonable” to address the problem and to create the necessary legal instruments for doing so. That is what the common law does. With the dramatic climate events now making daily news, we can expect a more rapid reassessment by lawmakers and judges (also, “lawmakers,” by the way) than has been evident over the past decade.

Of course the machinery moves far too slowly on those issues that we favor (fixing climate change), and much too fast on those issues we abhor (authorizing and upholding an unnecessary and counterproductive war….). But then, what else is new?

Given this reality, common law nuisance claims are obviously not the answer to climate change, even if the courts welcomed them with open arms, which is not likely anytime soon. Much more comprehensive solutions are needed including an aggressive cap and trade program(with auction), a “Manhattan Project” level R&D program to end the fossil fuel era (without launching a nuclear proliferation and waste era), a “Beyond Kyoto” international treaty that fairly allocates reductions among developed and developing nations, acceleration of “green development mechanisms” in China, India and other rapidly industrializing countries, preservation of tropical forests prime agricultural soils and other “carbon sinks” (with debt for nature swaps and other sustainable investment programs underwritten by the World Bank and other financial institutions), and so on. Even if, by some miracle, all this were to happen on schedule, the existing atmospheric concentrations of CO2 have already committed the planet to severe impacts from climate change, impacts we have just begun to comprehend. Yet, to date there has been precious little attention paid to the human calamity that is already unfolding in the Arctic, in the island nations, in Africa, and right here in the good ol’ USA, where conditions of “extreme drought” and “extreme fire danger” and “extreme flood hazards”–all of which are the terms used by the responsible government agencies as well as by private insurers–are in the headlines across the country. These conditions are likely to get much worse before they get better, if they ever do. While we dither over how much it will “cost” to take decisive action now, and ignore the far greater cost of delay, the fate of millions of people and thousands of communities is being determined, and we are not even thinking about to deal with this human catastrophe in the making.

Despite these inescapable and depressing facts, we cannot simply give up. There is still time to act to forestall the worst disasters, and to come to the aid of those at risk; and we have moral obligation to do all we can, and use every tool at out disposal to confront the gathering menace of runaway climate change. Litigation does have a role to play in this epic battle to save the planet, literally. Litigation is needed to force changes in government policies, like the Massachusetts v EPA case, which has opened the door to meaningful improvements in fuel efficiency standards for automobiles, and to regulation of CO2 from power plants and other sources. Litigation is needed to stop the proposed construction of 150 or so “conventional” (i.e. dirty) coal plants, as just happened in Kansas and Florida. Litigation is needed to force corporations to disclose the risks of climate change in their state and federal securities filings. Litigation is needed to hold corporate managers accountable for failures to factor carbon constraints into their business models. Litigation is needed to vindicate the rights of climate change victims before national and international tribunals. Litigation is needed to require federal agencies to not only “consider and disclose” in environmental impact statements the climate effects of their actions and programs, but to adopt alternatives that, at a minimum, do not make matters worse, and at the optimum actually reform the way they do business.

In this vein, common law claims do have a part to play. They draw attention to the crisis we face and what needs to be done about it. They help educate and hopefully galvanize stronger public support for legislative action at state and national levels. They increase political pressure on elected officials to “lead, follow or get out of the way” when it comes to taking meaningful action. And at some point, as the jurisdictional barriers are overcome–for example, if the Second Circuit rules that the political question doctrine does not bar nuisance actions grounded on federal or state common law–liability judgments will become a more defined and quantifiable risk that even “Wall Street” cannot ignore. To the extent that nuisance claims and lawsuits like California vs. the auto companies and Connecticut vs. the electric utilities can motivate these industries to start building better cars and power plants, or at least scare investors away from investments in the outmoded and dangerous ways of “BAU” that would be a welcome innovation in the evolution of the common law.

Thanks for writing the essay, and keep them coming.