Professor of Political Science, University of Oregon
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.
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!
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).
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.”