Moyers' last interview: in the Public Trust Doctrine

Submitted: Jan 08, 2015
By: 
Badlands Journal editorial board

 

 

 It was typical of Bill Moyers, the guy who always got it, to end his magnificent career of public broadcasting with an interview on the environment, specifically how the great American environmental law, once the envy of the world's environmentalists, has been largely corrupted -- Badlands has done some documentation on that topic -- and that the whole environmental legal edifice needs to be regrounded in  Public Trust Doctrine. Moyer's guest, Mary Christina Wood, a legal scholar from the University of Oregon, has published a book on the topic, Nature's Trust: Environmental Law for a New Ecological Age, Cambridge University Press, 2013. -- blj

1-2-15

 

BillMoyers.com

 

 

Bill Moyers: The Ingenious Project to Save Our Climate Using an Ancient Legal Theory A legal concept called trust litigation is at the heart of an innovative effort to protect us from devastating climate change.

 

 

By Bill Moyers 

http://www.alternet.org/environment/bill-moyers-ingenious-project-save-our-climate-using-ancient-legal-theory

 

 

Introduction for January 2, 2015 Moyers & Company broadcast: The very agencies created to protect our environment have been hijacked by the polluting industries they were meant to regulate. It may just turn out that the judicial system, our children and their children will save us from ourselves. The new legal framework for this crusade against global warming is called atmospheric trust litigation. It takes the fate of the Earth into the courts, arguing that the planet’s atmosphere – its air, water, land, plants and animals — are the responsibility of government, held in its trust to insure the survival of all generations to come. It’s the strategy being used by Bill Moyers’ recent guest, Kelsey Juliana, a co-plaintiff in a major lawsuit spearheaded by Our Children’s Trust, that could force the state of Oregon to take a more aggressive stance against the carbon emissions. It’s the brainchild of Mary Christina Wood, a legal scholar who wrote the book, Nature’s Trust, tracing this public trust doctrine all the way back to ancient Rome. Wood tells Bill: “If this nation relies on a stable climate system, and the very habitability of this nation and all of the liberties of young people and their survival interests are at stake, the courts need to force the agencies and the legislatures to simply do their job.” Watch the interview (full transcript below):

 

 

BILL MOYERS: Welcome. This is our final broadcast. But you haven’t seen the last of us -- we’ll continue to report and comment at our website, BillMoyers.com, I hope you’ll join me there for a webchat later this month. We end our broadcast series on an encouraging word from the emerging generation. Remember Kelsey Juliana from Eugene, Oregon? She’s 18 years old, and co-plaintiff in a lawsuit spearheaded by the organization Our Children’s Trust, which claims that Oregon is not doing all it can to slow down global warming and protect the future. It’s one of several such suits around the country based on the doctrine of public trust, which goes back to ancient Rome. Here’s an excerpt from that conversation:

 

 

KELSEY JULIANA: Public trust states that the government is a trustee to protect these natural resources -- air, water, land, you know, to protect them for this generation and for many generations down the line.

 

 

BILL MOYERS: The law professor who has developed this theory in its more modern garb, Mary Christina Wood, says it's because the government agencies that are supposed to protect our natural resources have been captured by corporate raiders and lobbyists, that these agencies treat these industries as their clients instead of the public. Do you think that's right?

 

 

KELSEY JULIANA: Unfortunately, we, you know, do have a lot of corruption, a lot of money, a lot of greed that influences most of our governmental decisions. So, I do think that's right. And that's why we're, you know, going to the courts, to hold the legislature accountable.

 

 

BILL MOYERS: Further hearings in the Oregon case are expected in a couple of months. The idea, which has come to be called atmospheric trust litigation, is catching on, thanks to this very influential book, “Nature’s Trust,” by the aforementioned legal scholar Mary Christina Wood. She teaches law at the University of Oregon and founded the Environmental and Natural Resources Law program there. Mary Christina Wood, welcome.

 

 

MARY CHRISTINA WOOD: Thank you.

 

 

 

BILL MOYERS: Let's talk about some of those cases that have been filed by Our Children's Trust. Exactly what is the purpose of those particular suits. What do they want?

MARY CHRISTINA WOOD: Every suit and every administrative petition filed in every state in the country and against the federal government asks for the same relief. And that is for the government, whether it’s the state of Tennessee or the state of Oregon or the federal government to bring down carbon emissions in compliance with what scientists say is necessary to avert catastrophic climate change. And so the remedy in the suits pending is for the courts to order a plan, simply order the legislatures and the agencies to do their job in figuring out how to lower carbon emissions. So the courts would not actually figure out how to do that. That's the other branch's job. It's just that they're not doing it. And they probably won't without pressure before we pass crucial tipping points.

 

 

BILL MOYERS: A plaintiff in one of the early suits, 16 years old at the time, sued the federal government, quote, "…for making decisions that threaten our right to a safe and healthy planet." Now, where does it say anywhere in law that the government serves as the trustee of the atmosphere and that it's violating its most compelling duties by failing, in the words of this young man, to protect the atmosphere from climate change? Where do you find that?

 

 

MARY CHRISTINA WOOD: You find that in case law, going back to the beginning years of this country. The Supreme Court, the US Supreme Court, has announced the public trust doctrine in multiple cases over the years. And again, it's in every state jurisprudence as well. And so this is not statutory law. I think people are so accustomed to our statutory system, they always say, as you just did, where can we find it written down in a statute? Well, this is actually the foundation of all laws. Professor Gerald Torres has a wonderful quote in his writings, saying this is the slate upon which all constitutions and laws are written. And that is the approach most courts (in this country and other countries) take in describing the public trust

 

 

BILL MOYERS: It's clear that you consider the courts the alternative to the streets. That this is the way people, including your 16-year-olds and 17-year-olds who are filing these suits, can seek to redress their concerns about the climate and survival through the democratic process as opposed to taking to the streets.

 

 

MARY CHRISTINA WOOD: No. I would never say the two are mutually exclusive. The court is just one-- it's an important branch of government; it's the third branch of government. It's crucial to our checks and balances. And so of course you would think that the courts have a role to play. But street democracy is so powerful. I don't know of any major movement that has succeeded without street democracy. When hundreds of thousands of people take to the streets, as they did in New York City, exercise their constitutional rights of free assembly; and then when you see, also, almost 100,000 people signing up and pledging to risk arrest if Keystone, the Keystone Pipeline, that would transport tar sands from Canada, those people are pledging to risk arrest if Obama or Congress approves the Keystone Pipeline. When you see this kind of uprising, that only reinforces the more formal legal approaches that are put forth in the atmospheric trust litigation. The two go very much hand in hand because what is very important for judges is to sense the moral authority of the people. Judges have a finger on the pulse of the American people in a way that I think we don't really understand that well. Judges can, if they sense the need, move very rapidly and order swift injunctions to force the legislatures or agencies, or both, to create a carbon reduction plan. And as that awareness becomes more acute, as demonstrated in the streets, courts, I believe, will become more receptive to coming in and ordering the legislatures to do their job.

 

 

BILL MOYERS: What's the one thing you want the reader to take away from "Nature's Trust"?

 

 

 

MARY CHRISTINA WOOD: Most important thing is for citizens to understand that they are needed to promote environmental democracy at this crucial moment in time, that environmental law held a lot of promise but that it's not working, and that agencies have basically used it to allow almost unfettered destruction of our natural resources.

 

 

 

BILL MOYERS: What agencies are you talking about?

 

 

 

MARY CHRISTINA WOOD: Agencies that span the full realm of natural resources. So the US EPA, the Forest Service, the Bureau of Land Management, the Corps of Engineers, the US Fish and Wildlife Service, the National Marine Fisheries Service; you name it. There are dozens of agencies at the federal and state levels that control environmental resources. And they are supposed to represent the public interest and not corporations or moneyed interests in making those decisions. And we the public assume that the agencies are doing the right thing when they're implementing environmental laws. Whereas in fact, nothing could be further from the truth. Agencies have become politicized creatures that largely serve industry.

BILL MOYERS: You're talking about agencies at the federal government, but also at the state level.

 

 

 

MARY CHRISTINA WOOD: And the local level. Local, state, and federal level, across all natural resource regulatory areas. And I would never say that environmental law has done nothing. It has stopped a few things. Lead was taken out of gasoline, PCBs were banned, those things. But industry would like no regulation at all. It would like a free-for-all across all resource systems. So we are at a very dangerous situation in this country where the very life systems that support us are now imperiled and in jeopardy.

BILL MOYERS: What has happened to all those great laws passed in the 1970s? I mean, I was around for the first Earth Day in 1970. And then there came all of those promising laws out of Congress, which even President Nixon supported. There was so much optimism, so much promise.

 

 

MARY CHRISTINA WOOD: It's a huge disappointment. There was a lot of promise. The Americans thought they had solved the problem by getting these laws passed. What they didn't realize was that industries got inside the agencies through various means, through campaign contributions, through pressure on the system over and over again. And so one thing we have to keep in mind is we're nearing the end of our resources. And there are laws of nature that we have to comply with. And those laws are supreme. And they determine whether we will survive on this planet. And they will determine the future conditions for our children. And so right now, our environmental laws are out of whack with the laws of nature. They are allowing destruction, whereas they should be structuring society to create a balance with the natural systems that support our lives.

 

 

BILL MOYERS: This paragraph leaped out at me, I'm quoting directly: "…it matters little what new laws emerge, for they will develop the same bureaucratic sinkholes that consumed the 1970s laws. Only a transformative approach can address sources of legal decay." What's the heart of this transformational approach?

 

 

MARY CHRISTINA WOOD: Well, the heart of the approach is the public trust doctrine. And it says that government is a trustee of the resources that support our public welfare and survival. And so a trust means that one entity or person manages a certain wealth, an endowment, so to speak, for the benefit of others. And in the case of the public trust, the beneficiaries are the present and future generations of citizens. So it is a statement of, in essence, public property rights that have been known since Roman times. In fact, this was articulated by the Chief Justice of the Pennsylvania Supreme Court in a landmark public trust decision last year. And the decision basically overturned a statute that the Pennsylvania Legislature had passed to promote fracking. And the Chief Justice of the Pennsylvania Supreme Court, Chief Justice Castille, said this violates the public trust. And he began his opinion by saying that citizens hold inalienable environmental rights to assure the habitability of their communities. And that these are ensconced in the social contract that citizens make with government. They cannot be alienated. They are inherent and reserved. So they are of a constitutional nature. And the point of the public trust is that the citizens hold these constitutional rights in an enduring natural endowment that is supposed to support all future generations of citizens in this country. It is so basic to democracy; in fact, the late Joseph Sax said the trust distinguishes a society of citizens from serfs.

 

 

BILL MOYERS: Well, that will strike some people as socialist.

 

 

MARY CHRISTINA WOOD: It inures in democracy. Now, if they believe that is socialism, then we have quite a conversation ahead, because this has been a part of our legal system since the very earliest years of our country. The Supreme Court of the United States in a landmark case called Illinois Central Railroad in 1892 said that the Illinois Legislature couldn't just give away the shoreline of Chicago, the shoreline along Lake Michigan, to a private railroad company, because the citizens needed that shoreline for fishing and navigation and commerce. This is really nothing new. It's certainly not socialism. It is the heart of popular sovereignty to expect that the citizens have enduring rights to the resources that support their very survival.

 

 

BILL MOYERS: This is a political question. I mean, it's a question that traditionally legislators, elected by voters, would resolve, but you are taking it to court.

 

 

MARY CHRISTINA WOOD: Well, it is political question for the legislatures to respond to. The fact is they're not. And if this nation relies on a stable climate system, and the very habitability of this nation and all of the liberties of young people and their survival interests are at stake the courts need to force the agencies and the legislatures to simply do their job.

 

 

BILL MOYERS: But haven't most of the lower courts dismissed these suits on procedural grounds? That dealing with climate is, quote, indeed a “political question” that the courts must avoid.

 

 

MARY CHRISTINA WOOD: Well, it's interesting. As the-- this is very new litigation. These cases were all filed by the group Our Children's Trust in 2011. And so the initial ones really set some important principles in place. Number one, the courts seemed to realize that the public trust is an area of law that the legislatures and agencies must abide by. That the young people of this country have public trust rights. They're recognizing air and atmosphere, most of them, as a public trust resource, either implicitly or explicitly. They're increasingly recognizing the urgency of climate change. And the latest cases have even dismissed the political question doctrine as a defense. They've been saying, you do have to deal with this. It's not-- this is a public trust right. It's not just a matter for the other branches of government. You have to figure out the nature of the right and give relief if you find there is a justiciable right there. And as the petitions get denied, which they will by the administrative agencies, we all know that, that will be no surprise, the youth and their lawyers are then preparing judicial challenges in those states. And so really, the message for judges out there that get these cases, I think, is this is not an environmental case.

 

 

BILL MOYERS: Not an environmental case.

 

 

MARY CHRISTINA WOOD: No.

 

 

BILL MOYERS: What is it?

 

 

 

MARY CHRISTINA WOOD: Climate is not just an environmental issue. This is a civilizational issue. This is the biggest case that courts will get in terms of the potential harm in front of them, the population affected by that harm, and in terms of the urgency. Climate is mind-blowing. It can't be categorized any longer as an environmental issue.

BILL MOYERS: And yet, we are about to have a Congress controlled by a party, the Republican Party, that boasts of denying climate change brought on by human behavior. Do you expect anything positive coming out of the political process to reinforce your efforts over the next few years?

 

 

MARY CHRISTINA WOOD: I absolutely do. But not at the federal congressional level. I do at the local level. And so the federal Congress has essentially been purchased through millions and millions of dollars of campaign contributions. The whole purpose of the public trust is to prevent one branch of government from precisely that type of corruption. It holds that these legislators are trustees with constitutional obligations to the citizens. So just to put it out there, the public trust is designed for precisely the situation we have today. Now, whether or not I expect political reinforcement, I would say absolutely at the local level. These cases are finding reinforcement at the local level. In fact, in Eugene, Oregon, Our Children's Trust organized a group of youth and they went before city council, month after month after month, and testified, asking the city council to really take action on climate and to make Eugene, Oregon a carbon-neutral place. And after month after month after month, when the city councilors looked those children in the eyes and saw what I describe as just the moral authority of these youth, they passed the most aggressive climate ordinance in the country. And I think that is the power of the youth. The youth have to now step up, come before their legislators, pack the courtrooms in these atmospheric trust cases, meet with the agency people. The youth have to come forward because they have no money. They have no voting rights. But they have got something that no one else has, and that is the moral authority. That is the future. And the obligations we naturally feel towards our own children, towards children we love, they all come to the surface when we can-- when we actually speak to youth about the future they face.

 

 

 

BILL MOYERS: Excuse me for being tedious on this, but as you probably know, there is so much pressure now on many state Supreme Courts from judicial elections that are deeply influenced, since Citizens United in particular, with huge rivers of money overflowing in every election.

MARY CHRISTINA WOOD: Well, so what you're doing is presenting a political reality. And you're absolutely right. There's no arguing with that at all. But I'm a lawyer. The task ahead is to figure out where the pressure points may lie in the legal system that we have today. It would be great if we had democracy thriving. We would not have a climate problem if that were the case. And so when you structure a legal response to a problem as grave as climate change, you don't have false hope that a branch that is co-opted will act. You have some hope that some courts in some states that are less politicized will act and that those states will set a precedent or a domino effect and certainly will change the economic equation in those states. It's not perfect. Again, we have the structure we have. We have only three branches. We go back to fifth grade civics and we find we have to work with the constitutional structure here. And so you just try to find the mechanisms to make progress and to use litigation also as a tool for refining the issue in the Americans' minds. Because the court of public opinion is ever so important to this climate crisis right now.

 

 

BILL MOYERS: So as this old year ends and the new year begins, you're not the pessimist I thought you might be, faced against the legal and administrative and executive system that you're up against.

 

 

MARY CHRISTINA WOOD: If we love our children and nieces and nephews and grandchildren, we cannot be pessimistic. We have to do everything possible at this moment in time. And we have to forge ahead with courage and optimism. And ultimately, we have to be guided by the moral principles that were responsible for the founding of this nation. So no, I'm not a pessimist.

 

 

 

BILL MOYERS: The book is "Nature's Trust: Environmental Law for a New Ecological Age". Mary Christina Wood, thank you very much for being with me.

MARY CHRISTINA WOOD: Thank you so much.

 

 

BILL MOYERS: Mary Christina Wood reminds us that democracy, too is a public trust – a reciprocal agreement between generations to keep it in good repair and pass it along. Our country’s DNA carries an inherent promise for every citizen of an equal opportunity at life, liberty, and the pursuit of happiness. Our history resonates with the hallowed idea – hallowed by blood – of government of, by, and for the people. Our great progressive struggles have been waged to make sure ordinary citizens, and not just the rich and privileged, share in the benefits of a free society. In the words of Louis Brandeis, one of the greatest of our Supreme Court justices, “We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.” Yet look at just a few recent headlines: this one from “The New York Times”: “U.S. Wealth Gap Is Widest in Decades”. From the website Alternet: “Just 40 Americans Own As Much Wealth As Half the United States.” From Slate.com: “The Great Wealth Meltdown: Middle-Class Families Are Worth Less Today Than in 1969.” And from “The Economist”: “Wealth without workers, workers without wealth,” pointing to the reality that “for all but an elite few, work no longer guarantees a rising income.” So as the next generation steps forward, I am tempted to think that the only thing my generation can say to them is: we’re sorry. Sorry for the mess you’re inheriting. Sorry we broke the trust. But I know in my heart that’s not what they ask or expect. So instead I recommend to them the example of Senator Robert La Follette of Wisconsin, another of my heroes from the past. He battled the excesses of the first Gilded Age a century ago so boldly and proudly that he went down in history as “Fighting Bob.” He told us, “…democracy is a life; and involves continual struggle.” I keep asking myself, what if that struggle is the palpable reality without which this world would be truly barren? So to this new generation I say: over to you, welcome to the fight. And to all of you who have been loyal to these broadcasts, and to my colleagues who produced them and our funders who kept on giving despite my foibles and flaws, I say: thank you. This series ends, but not our website -- BillMoyers.com. I’ll see you there, and I’ll see you around.

 

 

 

 

 

1-8-15

 

 

Endangered Species Coalition

 

DOJ: Killing an endangered species is a crime.

 

We recently learned the tragic news that a wolf that had likely walked all the way from Wyoming to Utah--more than 500 miles--had been shot and killed by a hunter.  Like many of you, we are angered and heartbroken by this careless act. The Utah hunter has told authorities he believed he was firing on a coyote when he gunned down the radio-collared, 3 year-old female wolf. Incredibly, this seeming-confusion on the part of hunters is increasingly killing wolves and other endangered species, and there seem to be no consequences.

 

 

Tell the Department of Justice (DOJ) to enforce the Endangered Species Act and prosecute killers of endangered species.

 

 

 

 

 

 

A little-known DOJ guideline referred to as the "McKittrick Policy" directs U.S. Attorneys not to prosecute hunters, or anyone else who kills an endangered species, if they are unable to show they knew what they were killing. The policy was put in place years ago after a Montana man claimed that he had intended to shoot a dog when he had actually gunned down an endangered gray wolf. The government charged him under the Endangered Species Act, but later reversed course.

 

 

 

This policy is particularly shocking when you compare it to the “mistaken identity” shooting of non-endangered animals. For instance, if a hunter mistakenly shoots a mule deer buck, but is only allowed to kill a whitetail buck, he or she must pay a fine. Misidentification is no excuse.

 

 

That same standard must apply here. A hunter must be able to correctly identify what he is firing on before pulling the trigger.

 

Tell President Obama and Attorney General Holder to end the get-out-of-jail-free card for killing a protected species.

 

Killing an endangered species is a criminal act. This non-enforcement policy is having real world, negative impacts and must be changed. Recently, hunters, who each later asserted they thought they were firing on a coyote, have gunned down wolves in Iowa and Kentucky. In total, more than fifty highly-endangered Mexican wolves have been shot in the years following this policy, and countless gray wolves elsewhere in the U.S. have been killed. 

 

It is not just wolves that are being let down by this policy. Endangered grizzly bears, California condors, and whooping cranes have also been killed by people who escaped responsibility for their actions by pleading ignorance.  A lawsuit has been filed by an ESC member group seeking to force DOJ to change its policy, but Attorney General Holder and President Obama need to hear from you

Ask that they treat the killings of endangered species as a crime as Congress intended.

 

 

Thank you for your commitment to vanishing wildlife and wild places.

 

 

Sincerely,

 

 

Leda Huta

 

Leda Huta
Executive Director
Endangered Species Coalition

1-8-15

Los Angeles Times
Delta smelt legal battle heads to Supreme Court

By DAVID G. SAVAGE

http://www.latimes.com/local/california/la-me-court-california-water-20150108-story.html 

California's tiny delta smelt may reach all the way to the Supreme Court in legal battle over water

The delta smelt may be a small fish with a short life, but it has spawned a decades-long legal battle over water in California.

At issue has been a series of orders under the Endangered Species Act that at times reduce water deliveries from the Sacramento-San Joaquin River Delta to San Joaquin Valley growers and urban Southern California.

Citing the severe state drought, lawyers for the Metropolitan Water District of Southern California are asking the U.S. Supreme Court to reconsider a strict federal rule from the 1970s that calls for curtailing the water diversions to protect the threatened delta smelt and other imperiled species regardless of the cost to humans and the economy.

The reduced pumping "has had a huge impact," said Bob Muir, a district spokesman. Over the last five years, state officials say pumping has been reduced 10% to 30% each year to keep more fresh water in the delta, the only place in the world where the tiny native smelt is found.

In their appeal, the district's lawyers said the amount of water that was withheld during the winter of 2012-13 "would have been enough to supply the entire San Diego region this year."

 

The justices will meet Friday to consider a long list of pending appeals; the California water dispute is raised in two appeals, one from a coalition of water agencies and the second from Central Valley growers.

The appeals describe California's state and federal water projects as the nation's largest and most important and say their operations have been "substantially curtailed," even during the drought, because they were deemed to threaten the delta smelt, a finger-size fish whose survival is in doubt.

The case has echoes of the famous snail darter case from 1978.

The delta smelt has teetered on the brink of extinction ... and the FWS has a duty to protect the viability of the smelt whatever the cost.- Judge Jay Bybee, U.S. 9th Circuit Court of Appeals

The Supreme Court agreed then to block completion of a Tennessee dam because it threatened to kill off that endangered tiny fish. Afterward, Congress amended the law to give more flexibility to federal officials. They were told to consider "reasonable and prudent" steps that would be "economically and technically feasible" in saving a threatened species.

But in the delta smelt case, federal officials and the U.S. 9th Circuit Court of Appeals decided that what is "reasonable and prudent" does not include weighing the effect on humans or the economy.

Last year, the 9th Circuit in effect backed the pumping limits. In a 2-1 decision, judges rejected legal challenges to the opinions of the Fish and Wildlife Service that required the reduced pumping. Judge Jay Bybee, a George W. Bush appointee, said the law left the court no other choice.

"The 'economic and technological feasibility factor' does not address the downstream impact," he wrote, citing the high court's decision in the snail darter case. "The delta smelt has teetered on the brink of extinction … and the FWS has a duty to protect the viability of the smelt whatever the cost."

Washington attorney Tom Goldstein, representing the California water agencies, called this a legal error that only the Supreme Court can correct. He argued Congress intended that federal wildlife officials weigh the effect on "third parties" before deciding whether cutbacks in water are "reasonable and prudent."

The high court agrees to hear only about 1% of the cases that are appealed, but the California water cases could prove to be crucial tests of the Endangered Species Act. They are State Water Contractors vs. Jewell and Stewart & Jasper Orchards vs. Jewell.

Lawyers for the Natural Resources Defense Council and U.S. Solicitor Gen. Donald Verrilli Jr. urged the court to turn down the appeals. They said the 9th Circuit was correct in saying Fish and Wildlife officials must take reasonable steps to protect an endangered species, regardless of the economic effect.

Kate Poole, an NRDC attorney, said the water agencies have "a long history of exaggerating the impacts" of protecting endangered fish in the delta, including chinook salmon.

"The underlying problem in California is that our demand for water consistently exceeds our supply, even in non-drought years," she said. "Wiping out our native fisheries will not solve this problem."

 

 

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