Adopt the Public Trust Doctrine as its Guiding Principle for a Climate Change Response
Preamble
WHEREAS Twentieth century efforts at environmental regulation have yielded to growing demands on the commons (air, water, land, and biological diversity) such that global warming is now threatening human civilization and possibly life itself;
WHEREAS Humans have created this looming catastrophe, yet still have the time and capacity to limit its damage through emergency action;
WHEREAS Given that choice exists in taking or not taking emergency action, we have a moral imperative to preserve nature and ourselves from annihilation, by immediately mobilizing to curb CO2 emissions;
WHEREAS Climate change is “the biggest collective action problem of all time,”[5] requiring a unified political will and a means by which this political will can be supported or enforced;
WHEREAS “Systemic threats call for a unifying governing principle”[6] such as the Public Trust Doctrine, which embodies:
1) recognition that natural resources – especially air, fresh water and oceans – are central to our very existence,
2) recognition that governments must exercise a continuing fiduciary duty to sustain the essence of those resources for long-term use,
3) recognition that immediate private interests are secondary to the interests of society as a whole, and to future generations of human and non-human life;
WHEREAS Canadians have been slow (in relation to the US and the international community [7]) to embrace the public trust principle[8], although they may now be ready for a doctrine that is in line with nature’s own laws;
WHEREAS Given that “moral principle is the foundation of law;”[9] and that use of the Public Trust Doctrine for the protection of the commons is reaching a critical point in environmental law, especially with regard to the “atmospheric trust;”[10]
Operative
BE IT RESOLVED THAT The Green Party of Canada adopt a moral and legal commitment to identify global warming and the corresponding commons trust, the atmosphere, as its most urgent priority;
Green Party Members of Parliament, once elected in sufficient numbers, will adopt the elements of a successful public trust doctrine to protect Canada’s air, land, and water commons using:
• A statement identifying the commons that require protection
• A statement of the superiority of public rights to these resources over individual use rights
• The criteria for assigning priority public rights to these commons, including the priority of protecting the atmosphere from CO2 build-up
• Public participation in establishing a public trust doctrine for Canada
• Resources for implementation: Any statutory provision or agency rule should include the financial, personnel, and institutional resources for implementation, without which even the strongest legal foundation will falter.[11]
Background
(this motion is a companion motion to: Motion for the Green Party of Canada to declare a climate emergency, and to mobilize our economic, political, and social resources to aggressively reduce CO2 emissions while adapting to their unavoidable impacts)
The idea that governments, by virtue of their sovereignty, have the responsibility to protect natural resources, has a long history in Roman law, English and continental medieval law, and US law.
The U.S. Supreme Court ruled in 1892: “The state can no more abdicate its trust over property in which the whole people are interested, than it can abdicate its police powers in the administration of government and the preservation of the peace.” [1]
“The essence of a trust is a fiduciary relationship. This relationship imposes on trustees a duty to act for the benefit of beneficiaries with respect to trust matters.”[2]
The legal challenge is for the courts to require political leaders to carry out their duties to preserve nature as our trust – which is to provide essential natural resources for current and future generations.
The public trust doctrine movement was ushered in by the essays of Joseph Sax in the seventies and eighties, and Edith Brown Weiss’s book in 1984.
In atmospheric trust litigation (ATL), the court is asked to defend Earth’s largest “commons,” the atmosphere, against private interests encroaching on it.
“By linking to scientific prescriptions as the measure of fiduciary responsibility, the ATL approach is aimed at divesting the world’s political leaders of their assumed prerogative to take action only according to their political objectives.”[3]
“ATL asserts a sovereign fiduciary obligation to prevent waste or degradation of the atmosphere from greenhouse gas pollution.”[4] This is especially important now that there is so little atmospheric space left for
carbon pollution.
Precedents for including air in the public trust have been set through the courts in India, Arizona, Hawaii, Iowa, Louisiana, New Jersey, Pennsylvania, and Texas.
Sovereignty in the matter applies as much to federal governments as it does to the states (or provinces).
It is now urgent that the Green Party of Canada adopt the atmospheric trust principle (if not a legislative policy) to encourage and enable Canada to play its part in protecting Earth’s atmosphere.
REFERENCES:
[1] ILLINOIS CENTRAL RAILWAY CO. v. ILLINOIS, Supreme Court of the United States, 1892. 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1019. Cited in: Philip Weinberg, “Environmental Law: Cases and Materials,” University Press of America, Lanham, MD, 2006, p. 128.
[2] Edith Brown Weiss, “The Planetary Trust: Conservation and Intergenerational Equity,” Ecology Law Quarterly 11/4, 1984, p. 16.
[3] Mary Christina Wood, “Nature’s Trust: Environmental Law for a New Ecological Age,” Cambridge University Press, 2013, p. 127.
[4] Wood, “Securing Planetary Life Sources,”
(http://law.uoregon.edu/assets/facultydocs/mwood/Securing%20Planetary%20L...).
[5] Jonathan Rowson, "The 7 Dimensions of Climate Change: Science, Law, Money, Technology, Democracy, Culture, Behaviour," February 16, 2014
(http://www.rsablogs.org.uk/2014/socialbrain/dimensions-climate-change-sc...).
February 16, 2014
(http://www.rsablogs.org.uk/2014/socialbrain/dimensions-climate-change-sc...).
[6] James Olson, "All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine," Vermont Journal of Environmental Law, Spring 2014
(http://vjel.vermontlaw.edu/files/2014/01/Issue-2_Olson.pdf).
[7] Many countries (including including the US, India, Pakistan, the Philippines, Uganda, Kenya, Nigeria, South Africa, Brazil, Ecuador and Canada) have adopted this ancient Roman doctrine. Douglas Martin, “Joseph Sax, Who Pioneered Environmental Law, Dies at 78,” New York Times, March 10, 2014
(http://www.nytimes.com/2014/03/11/us/joseph-l-sax-who-pioneered-legal-pr...).
[8] Ralph Pentland, ‘Public Trust Doctrine – Potential in Canadian Water and Environmental Management,” POLIS Project on Ecological Governance, June 2009, p. 2
(http://poliswaterproject.org/sites/default/files/public_trust_doctrine.pdf
).
[9] Ronald Dworkin. See also: “You can’t legislate morality; We legislate little else.” (Robert Bork); “Law is the highest reason implanted in Nature, which commands what ought to be done and forbids the opposite.” (Marcus Tullius Cicero). In: Dave Schuler, “Law, morality, and getting my Irish up,” March 24,
2005 (http://theglitteringeye.com/law-morality-and-getting-my-irish-up/).
[10] Verner Wilson III, “How the Public Trust Doctrine Can Save Us From the Perils of Climate Change,” Yale Center for Environmental Law and Policy, April 14, 2014
(http://environment.yale.edu/envirocenter/post/how-the-public-trust-doctr...).
[11] Taken from: Alexandra B. Klass and Ling-Yee Huang, “Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates,” Center for Progressive Reform, Washington, DC, White Paper #908, September 2009, p. 8
(http://www.progressivereform.org/articles/CPR_Public_Trust_Doctrine_Manu...).
Code
Proposal Type
Submitter Name
Party Commentary
This motion will mandate Green Party MPs to adopt a public trust doctrine (defined in the motion) to protect Canada’s air, land and water commons. The details of the public trust doctrine would be determined with public participation. Discussions about public vs. private rights will be a delicate communications issue.
Preamble
WHEREAS Twentieth century efforts at environmental regulation have yielded to growing demands on the commons (air, water, land, and biological diversity) such that global warming is now threatening human civilization and possibly life itself;
WHEREAS Humans have created this looming catastrophe, yet still have the time and capacity to limit its damage through emergency action;
WHEREAS Given that choice exists in taking or not taking emergency action, we have a moral imperative to preserve nature and ourselves from annihilation, by immediately mobilizing to curb CO2 emissions;
WHEREAS Climate change is “the biggest collective action problem of all time,”[5] requiring a unified political will and a means by which this political will can be supported or enforced;
WHEREAS “Systemic threats call for a unifying governing principle”[6] such as the Public Trust Doctrine, which embodies:
1) recognition that natural resources – especially air, fresh water and oceans – are central to our very existence,
2) recognition that governments must exercise a continuing fiduciary duty to sustain the essence of those resources for long-term use,
3) recognition that immediate private interests are secondary to the interests of society as a whole, and to future generations of human and non-human life;
WHEREAS Canadians have been slow (in relation to the US and the international community [7]) to embrace the public trust principle[8], although they may now be ready for a doctrine that is in line with nature’s own laws;
WHEREAS Given that “moral principle is the foundation of law;”[9] and that use of the Public Trust Doctrine for the protection of the commons is reaching a critical point in environmental law, especially with regard to the “atmospheric trust;”[10]
Operative
BE IT RESOLVED THAT The Green Party of Canada adopt a moral and legal commitment to identify global warming and the corresponding commons trust, the atmosphere, as its most urgent priority;
Green Party Members of Parliament, once elected in sufficient numbers, will adopt the elements of a successful public trust doctrine to protect Canada’s air, land, and water commons using:
• A statement identifying the commons that require protection
• A statement of the superiority of public rights to these resources over individual use rights
• The criteria for assigning priority public rights to these commons, including the priority of protecting the atmosphere from CO2 build-up
• Public participation in establishing a public trust doctrine for Canada
• Resources for implementation: Any statutory provision or agency rule should include the financial, personnel, and institutional resources for implementation, without which even the strongest legal foundation will falter.[11]
Sponsors
Background
(this motion is a companion motion to: Motion for the Green Party of Canada to declare a climate emergency, and to mobilize our economic, political, and social resources to aggressively reduce CO2 emissions while adapting to their unavoidable impacts)
The idea that governments, by virtue of their sovereignty, have the responsibility to protect natural resources, has a long history in Roman law, English and continental medieval law, and US law.
The U.S. Supreme Court ruled in 1892: “The state can no more abdicate its trust over property in which the whole people are interested, than it can abdicate its police powers in the administration of government and the preservation of the peace.” [1]
“The essence of a trust is a fiduciary relationship. This relationship imposes on trustees a duty to act for the benefit of beneficiaries with respect to trust matters.”[2]
The legal challenge is for the courts to require political leaders to carry out their duties to preserve nature as our trust – which is to provide essential natural resources for current and future generations.
The public trust doctrine movement was ushered in by the essays of Joseph Sax in the seventies and eighties, and Edith Brown Weiss’s book in 1984.
In atmospheric trust litigation (ATL), the court is asked to defend Earth’s largest “commons,” the atmosphere, against private interests encroaching on it.
“By linking to scientific prescriptions as the measure of fiduciary responsibility, the ATL approach is aimed at divesting the world’s political leaders of their assumed prerogative to take action only according to their political objectives.”[3]
“ATL asserts a sovereign fiduciary obligation to prevent waste or degradation of the atmosphere from greenhouse gas pollution.”[4] This is especially important now that there is so little atmospheric space left for
carbon pollution.
Precedents for including air in the public trust have been set through the courts in India, Arizona, Hawaii, Iowa, Louisiana, New Jersey, Pennsylvania, and Texas.
Sovereignty in the matter applies as much to federal governments as it does to the states (or provinces).
It is now urgent that the Green Party of Canada adopt the atmospheric trust principle (if not a legislative policy) to encourage and enable Canada to play its part in protecting Earth’s atmosphere.
REFERENCES:
[1] ILLINOIS CENTRAL RAILWAY CO. v. ILLINOIS, Supreme Court of the United States, 1892. 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1019. Cited in: Philip Weinberg, “Environmental Law: Cases and Materials,” University Press of America, Lanham, MD, 2006, p. 128.
[2] Edith Brown Weiss, “The Planetary Trust: Conservation and Intergenerational Equity,” Ecology Law Quarterly 11/4, 1984, p. 16.
[3] Mary Christina Wood, “Nature’s Trust: Environmental Law for a New Ecological Age,” Cambridge University Press, 2013, p. 127.
[4] Wood, “Securing Planetary Life Sources,”
(http://law.uoregon.edu/assets/facultydocs/mwood/Securing%20Planetary%20L...).
[5] Jonathan Rowson, "The 7 Dimensions of Climate Change: Science, Law, Money, Technology, Democracy, Culture, Behaviour," February 16, 2014
(http://www.rsablogs.org.uk/2014/socialbrain/dimensions-climate-change-sc...).
February 16, 2014
(http://www.rsablogs.org.uk/2014/socialbrain/dimensions-climate-change-sc...).
[6] James Olson, "All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine," Vermont Journal of Environmental Law, Spring 2014
(http://vjel.vermontlaw.edu/files/2014/01/Issue-2_Olson.pdf).
[7] Many countries (including including the US, India, Pakistan, the Philippines, Uganda, Kenya, Nigeria, South Africa, Brazil, Ecuador and Canada) have adopted this ancient Roman doctrine. Douglas Martin, “Joseph Sax, Who Pioneered Environmental Law, Dies at 78,” New York Times, March 10, 2014
(http://www.nytimes.com/2014/03/11/us/joseph-l-sax-who-pioneered-legal-pr...).
[8] Ralph Pentland, ‘Public Trust Doctrine – Potential in Canadian Water and Environmental Management,” POLIS Project on Ecological Governance, June 2009, p. 2
(http://poliswaterproject.org/sites/default/files/public_trust_doctrine.pdf
).
[9] Ronald Dworkin. See also: “You can’t legislate morality; We legislate little else.” (Robert Bork); “Law is the highest reason implanted in Nature, which commands what ought to be done and forbids the opposite.” (Marcus Tullius Cicero). In: Dave Schuler, “Law, morality, and getting my Irish up,” March 24,
2005 (http://theglitteringeye.com/law-morality-and-getting-my-irish-up/).
[10] Verner Wilson III, “How the Public Trust Doctrine Can Save Us From the Perils of Climate Change,” Yale Center for Environmental Law and Policy, April 14, 2014
(http://environment.yale.edu/envirocenter/post/how-the-public-trust-doctr...).
[11] Taken from: Alexandra B. Klass and Ling-Yee Huang, “Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates,” Center for Progressive Reform, Washington, DC, White Paper #908, September 2009, p. 8
(http://www.progressivereform.org/articles/CPR_Public_Trust_Doctrine_Manu...).
Party Commentary
This motion will mandate Green Party MPs to adopt a public trust doctrine (defined in the motion) to protect Canada’s air, land and water commons. The details of the public trust doctrine would be determined with public participation. Discussions about public vs. private rights will be a delicate communications issue.