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#775 - A New Tool for Environmental Protection and Justice, 06-Aug-2003

(Published September 23, 2003)

We need some new tools for environmental protection and
environmental justice, because traditional approaches don't
seem to be working very well. One such tool is the "public
trust doctrine," which has been around for a long time but has
been used only rarely and narrowly.

Before we describe the public trust doctrine, let's define the
problem we're all facing.

The principal actor on the environmental stage is the large
publicly-held corporation.[1] Large corporations, and the
elites that control them, make most of the decisions that
affect our air, water, soils, and quality of life. In general,
it is corporate actions and policies that harm workers and the
environment and create disproportionate environmental impacts
on people of color and on low-income communities. (To the
extent that governments share responsibility for these harms,
it is usually by ignoring, or rubber stamping, something that a
corporation has decided to do.)

The Role of Large Corporations: Fiduciary Duty to Investors

As a matter of law, the managers of corporations that issue
stock to the public cannot make decisions principally to
promote environmental justice or to protect the environment.[2]

As a matter of law, publicly-held corporations must try to
return a steady, modest profit to investors. If corporate
managers make decisions that might interrupt the flow of steady
profit to investors, they can be (and probably will be) sued
for breach of fiduciary duty. This legal requirement to return
a more-or-less steady profit narrowly restricts the kinds of
decisions that corporate managers can make.[2]

We do not mean to imply that the individuals who manage large
corporations are bad people or lacking personal conscience. On
the contrary, in our experience many of them are very fine
people.

However, when they make decisions on behalf of the corporation,
directors and managers have to put their personal ethics aside
and make decisions that are consistent with their legal
obligation to provide a stream of profits to investors.
Everything else is secondary because profit is the primary
corporate goal that MUST be pursued as a requirement of law.[2]

In sum, corporate directors and managers cannot voluntarily
make worker safety or environmental protection or environmental
justice a primary goal because the law prevents them from doing
so whenever those goals conflict with the goal of returning
profit to investors.

Therefore, so far as social justice and environmental
protection are concerned, corporations have no reliable
built-in mechanism for self-restraint or good behavior.

Indeed, most of the incentives push in the opposite direction.

Corporations have major incentives to "externalize" their costs
-- to dump toxic materials into public air and water, to take
inadequate steps to promote the health and dignity of their
workers, and to oppose almost all laws, regulations, and
policies that enhance social justice or protect the environment
but might interfere with profits.

To the extent that they can under law (and occasionally outside
the bounds of law), corporate officials MUST try to get someone
else to pay their costs. Often it is the tax-paying public that
must pay directly -- for managing mountains of
industrially-contaminated sewage sludge, for example, or paying
for emergency-room care of asthmatic children, or supporting a
large bureaucracy to worry about pollution's effects on public
health. And frequently it is individuals who must pay --individual
workers disabled by emphysema or cancer, or
community members who must stay indoors on smoggy days or who
must purchase safe drinking water for their families, or
commercial fishermen whose livelihood is threatened by
contaminated fish or shellfish, for example.

It is the framework of law that requires corporations to behave
in these ways, and we should acknowledge what a problem this
arrangement has become. Corporations can live forever, they can
grow without limit, and they have no reliable built-in
conscience. If an individual were to behave like a corporation,
he or she could be labeled a "sociopath" or in extreme cases a
"psychopathic personality."[3] Enron was not an aberration.[4]

Again, this is not intended to disparage the vast majority of
individuals who control corporations. The law narrowly
constrains the goals that they can seek.[2]

In seeking profits, corporate managers DO have a legal
obligation to comply with public laws, regulations, and
policies (even though financial incentives constantly tempt
them to do otherwise).[4]

Therefore, to protect public health and the environment, the
behavior of corporations MUST be and CAN BE constrained by
government -- through laws, regulations, and policies.

Government is the only entity that can reliably protect and
defend members of the public, and their environment, from the
natural tendencies of corporations to externalize their
costs.[5]

The Role of Government: Fiduciary Duty to The Public Trust

Everyone acknowledges that a diverse, self-regulating, and
self-regenerating environment is essential to life, liberty and
the pursuit of happiness. We know from history that when the
natural environment is allowed to deteriorate, even the
greatest and most powerful civilizations can collapse.[6]

Caring for the commonwealth is an ancient duty of the
sovereign. Sometimes this duty is considered so basic that it
is taken for granted and not spelled out. At other times, this
duty is given a name: the public trust.

As legal scholar Peter Manus describes it, "Under American
democratic theory, the nation's people possess an abstract form
of sovereignty over the land and its natural resources that may
be termed original ownership. In creating the government, the
people delegated many powers and duties to its sovereign
authority, including managerial responsibilities over the
country's resources. In trust terms, the people designated the
government as trustee of the land and other natural resources
and themselves as beneficiaries. This framework is particularly
analogous to that of a charitable trust, which may incorporate
a public purpose, government trustee, and generalized
beneficiaries." [7, pg. 325]

Professor Manus goes on: "Certainly the trust concept, as a
structure of law, was part of the common law upon which
American constitutional protections were founded. Thus, the
idea that a party may exercise control over the assets of a
second party on that party's behalf, and not in subjugation of
the second party, is a principle that was among the fundamental
presumptions of the original American settlers as well as the
constitutional framers." [7, pg. 361]

Here is another way of phrasing the public trust concept:

"Government has a fundamental duty to adhere to a program of
environmental husbandry aimed at maintaining a regenerative
natural environment. This obligation is perpetual and requires
both preventive measures to protect environmental health and
remediative measures where past behavior has breached the
trust. The public trust thus serves the general citizenry,
including future citizens, by ensuring that the natural
environment thrives and will continue to thrive as a healthy
and diverse human habitat." [7, pg. 322]

In sum: Government has a duty to promote and maintain a healthy
natural environment on behalf of current and future citizens.
This duty is not optional: it is a mandatory, affirmative duty
that government cannot alienate, repudiate, or deny.

The role of trustee casts government in a new and positive
light. In fulfilling its central duty to protect the future for
us and for those unborn, government has a heroic role to play.
Government is the protector, the guardian, the shield of the
public trust. This is a role that government officials can
proclaim proudly, for it is their unique, specific duty to
protect our common heritage so that we can pass it on to the
future undamaged and, ideally, improved.

How can we express this fundamental role of government? Here
are some nouns:

caretaker

champion

custodian

defender

fiduciary

guardian

keeper

paladin

protector

sentinel

steward

trustee

And here are some verbs:
defend

guard

hold

husband

keep

protect

safeguard

save

secure

shield

shelter

watch over

A trust has four parts: a creator, a beneficiary, a trustee, and a
trust property. The "public trust" was created when the United
States was created. The beneficiary is present and future
generations. The trustee is government. So what is the "trust
property" that the trustee must maintain and enhance for
present and future generations?

The following phrases try to capture the elements of the trust
property:

** the things that we own in common, which none of us owns
individually

** our common heritage

** air

** water

** wildlife and biodiversity

** the common weal

** everything that is essential to life, liberty and the
pursuit of happiness

** fertile and self-regenerating soils

** the presumption that we are all created equal and that we
all have an inherent right to liberty and justice

** our genetic heritage (the human and wild genomes)

** knowledge passed from generation to generation[8]

** self-regulating, self-regenerating ecosystems

** the sky, the moon, the stars

** outer space

** the electromagnetic spectrum (carries radio and TV signals)

** peacefulness, stillness, silence

** the natural beauty of a place

** recreational amenities provided by nature

** the satisfaction of knowing that we are preserving life

** our right to live free from toxic threats

** our right to raise children free from toxic threats

... and so on

This "trust property" is a cultural legacy owed to future
generations.

The Public Trust and Private Property

We must acknowledge that, in fulfilling its affirmative public
trust duty, government will have an obligation from time to
time to limit the prerogatives of private property:

"A public trustee aims to protect individual citizens from
their own trust-destructive instincts." [7, pgs. 342-343]

"A public trust perspective on takings law protects against the
hoarding of nature's gifts by refusing to allow private
property interests to presumptively include the right to
destroy natural resources." [7, pg. 356]

"...[T]he government's overarching sovereign duty to protect
the environmental rights of citizen beneficiaries from the
exploitive tendencies of the beneficiaries themselves. Access
rights must be secondary." [7, pg. 334]

"[T]he duty of this generation to future generations must be
the key ingredient of an effective modern public trust." [7,
pg. 334]

The Public Trust Requires Precautionary Action

"In essence, public trustees must recognize that future
patterns in land use and resource consumption may create
ecological problems that trigger public trust duties to
regulate these uses and, consequently, impact private property
owners." [7, pg. 342]

This is an important point: the trustee must recognize that
circumstances change, and changing circumstances may bring new
threats to the trust that never existed before. The trustee
must foresee and forestall.

The trustee must be alert, vigilant, attentive, heedful,
mindful, prudent, prepared and precautious. Like any good
sentinel, the trustee must boldly anticipate and explore
potential threats to the trust property. In this duty, the
trustee will find the precautionary principle an essential
guide.[9]

If the trustee waits for threats to fully manifest themselves,
it will be too late -- the trust property will have been harmed
by the time action is taken. Precautionary action is essential
for safeguarding the public trust. Indeed, the Supreme Court of
Hawaii has determined that the public trust doctrine REQUIRES
use of the precautionary principle.[9]

For the Good of All: What Government Can Do

There is a strong consensus among many biologists that the
natural world is in deep trouble.[9,10,11] The biosphere, upon
which all life depends, is being shredded. And there is
abundant evidence that environmental deterioration has led to
serious chronic disease among humans, especially among people
of color and low-income populations.[12,13] This is
environmental injustice.

Is must be obvious that we need to develop an environmentally
benign industrial base. It is also clear that corporations, as
presently constituted under law, are not up to the task.

There is precious little evidence that corporate managers (in
their role as corporate officials) are able to conceive of this
goal, much less articulate the goal or prescribe steps for
getting there. On the other hand, corporate managers spend
enormous resources defending the status quo, attacking positive
new ideas like the precautionary principle, and deflecting
peoples' concerns away from the main source of our troubles,
which is principally corporate policies.

No, after a sober (and sobering) review of the available
evidence, one is forced to conclude that the corporate sector,
in its present legal form,[2] can never be the engine for
achieving social justice or environmental protection.

Protecting the environment and achieving social justice is the
duty -- and the honor -- of government. Government has a clear
mandate to do the job, to protect our common heritage, AND to
achieve justice, including of course environmental justice.

It is NOT the role of government to auction off the public
trust to the highest bidder.

It is NOT the role of government to "achieve a balance" between
those who want to preserve our common heritage and those who
want to use it up or throw it away. Too often we hear from
disheartened government officials that they must be doing
something right if "both sides" are dissatisfied with the job
they are doing. This is nonsense. Government has a duty to come
down squarely and proudly on the side of protecting our common
heritage, including the natural environment and the conditions
that make justice possible -- including environmental justice.

At their best, government officials provide inspiring examples
of service to community. Protecting the public trust through
precautionary action provides a way for government to celebrate
and rededicate itself in its role of service for the common
good. As guardian of the public trust, government can help
America regain its balance, heal itself, and rediscover its
core spiritual values of stewardship and self-sacrifice. As
Peter Manus has written,

"Defined as a government responsibility to preserve a healthy
natural environment for the American people, the public trust
captures the essence of the stewardship principle. At the same
time, by stressing the duty of all parties -- government trustees,
market participants, and citizen beneficiaries -- to compromise
personal exploitation values before the needs of the
environment, the public trust captures the ideal of a
democratic society of individuals working for the greater good
even as they work for individual benefits." [7, pg. 370]
--Peter Montague and Carolyn Raffensperger
===============

[1] Sarah Anderson and John Cavanagh, Top 200; The Rise of
Corporate Global Power (Washington, D.C.: Institute for Policy
Studies, Dec. 4, 2000. Available at:
http://www.rachel.org/library/getfile.cfm?ID=147 . Throughout
Rachel's #775, the word "corporation" refers exclusively to large,
publicly-held corporations. Privately held corporations are
free to do whatever their owners choose to do, within the law,
no matter what the effect on profits might be.

[2] Robert Hinkley, "Twenty Eight Words to Redefine Corporate
Duties," Multinational Monitor Vol. 23, Nos. 7 and 8
(July/August 2002); available at
http://www.rachel.org/library/getfile.cfm?ID=237 . And be sure
to see The Model Uniform Code for Corporate Citizenship,
available at http://www.rachel.org/library/getfile.cfm?ID=236 .

[3] A dictionary definition of a "psychopathic personality" is,
"An emotionally and behaviorally disordered state characterized
by a clear perception of reality except for the individual's
social and moral obligations...."

[4] For example, see Kurt Eichenwald, "After a boom, there will
be scandal. Count on it.," New York Times Dec. 16, 2002.
Available at http://www.rachel.org/library/getfile.cfm?ID=308 .

[5] Corporate campaigns by citizens can sometimes change
corporate behavior. Under present circumstances, laws,
regulations and public policies, COMBINED WITH corporate
campaigns, are likely to be the MOST effective deterrent of
corporate abuse. However, sooner or later, we believe the
corporate form itself will need to be modified to allow
corporate managers to pursue other goals in addition to profit.
See note 2, above.

[6] Clive Ponting, A Green History of the World; The
Environment and the Collapse of Great Civilizations (London:
Sinclair-Stevenson, 1991; New York: Penguin Books, 1993).

[7] Peter Manus, "To a Candidate in Search of an Environmental
Theme: Promote the Public Trust," Stanford Environmental law
Journal Vol. 19 (May 2000), pgs. 315-369. Available at
http://www.rachel.org/library/getfile.cfm?ID=234

[8] Joseph L. Sax, "Implementing the Public Trust in
Paleontological Resources," unpublished (?) paper dated 2001
(?). Available on the web at
http://www.rachel.org/library/getfile.cfm?ID=235 .

[9] James T. Paul, "The Public Trust Doctrine: Who Has the
Burden of Proof?" Paper presented at the July 1996 meeting of
the Western Association of Wildlife and Fisheries
Administrators. Available at:
http://www.rachel.org/library/getfile.cfm?ID=190

[10] See, for example, Peter M. Vitousek and others, "Human
Domination of Earth's Ecosystems," Science Vol. 277 (July 25,
1997), pgs. 494-499. Available at
http://www.rachel.org/library/getfile.cfm?ID=200

[11] Jane Lubchenco, "Entering the Century of the Environment:
A New Social Contract for Science," Science Vol. 279 (Jan. 23,
1998), pgs. 491-497. Available at:
http://www.rachel.org/library/getfile.cfm?ID=203

[12] William K. Stevens, "Lost Rivets and Threads, and
Ecosystems Pulled Apart," New York Times July 4, 2000, pg. F4.
Available at: http://www.rachel.org/library/getfile.cfm?ID=233

[13] See, for example, Michael McCally, editor, Life Support:
The Environment and Human Health (Cambridge, Mass.: MIT Press,
1002; ISBN 0262632578). And see any issue of the U.S.
government journal, Environmental Health Perspectives at
http://ehpnet1.niehs.nih.gov/docs/allpubs.html .

[14] See Richard Wilkinson, Unhealthy Societies: The
Afflictions of Inequality (New York: Routledge, 1997; ISBN:
0415092353); and see the bibliography in D. Raphael, Inequality
is Bad for Our Hearts: Why Low Income and Social Exclusion Are
Major Causes of Heart Disease in Canada (Toronto: North York
Heart Health Network, 2001). And see, for example: Ana V. Diez
Roux and others, "Neighborhood of Residence and Incidence of
Coronary Heart Disease," New England Journal of Medicine Vol.
345, No. 2 (July 12, 2001), pgs. 99-106. And: Michael Marmot,
"Inequalities in Health," New England Journal of Medicine Vol.
345, No. 2 (July 12, 2001), pgs. 134-136. And see the extensive
bibliographies in the following: M. G. Marmot and Richard G.
Wilkinson, editors, Social Determinants of Health (Oxford and
New York: Oxford University Press, 1999; ISBN 0192630695);
David A. Leon, editor and others, Poverty, Inequality and
Health: An International Perspective (Oxford and New York:
Oxford University Press, 2001; ISBN 0192631969); Norman Daniels
and others, Is Inequality Bad for Our Health? (Boston: Beacon
Press, 2000; ISBN: 0807004472); Ichiro Kawachi, and others, The
Society and Population Health Reader: Income Inequality and
Health (New York: New Press, 1999; ISBN: 1565845714); Alvin R.
Tarlov, editor, The Society and Population Health Reader,
Volume 2: A State Perspective (New York: New Press, 2000; ISBN
1565845579).