Could an Ancient Principle of Law Help Protect the Sea?
In September, 2015, six young people initiated a lawsuit in the Commonwealth Court of Pennsylvania against Governor Tom Wolf and six state agencies, including the departments of Environmental Protection, of Conservation and Natural Resources, and of Agriculture. The youngsters want to compel state authorities to properly address the causes and effects of climate change, using a little known principle of customary law called the Public Trust Doctrine to underpin their case. They claim that the defending agencies are failing in their lawful duty by not doing enough to regulate Pennsylvania’s carbon dioxide emissions, and are therefore not safeguarding the atmosphere for the well-being of present and future generations.
This type of legal action is known as Atmospheric Trust Litigation. Groups of frustrated citizens, tired of authorities’ lack of action to deal with climate change are challenging their incompetency in the courts. There are pending lawsuits, similar to the Pennsylvania case, right across the United States and also in the Philippines, the Ukraine, Uganda and the Netherlands.
The Public Trust Doctrine is incorporated in the constitutions of many nations: Australia, Brazil, Canada, Ecuador, India, Kenya, Nigeria, Pakistan, the Philippines, South Africa, Sri Lanka, Tanzania, Uganda and the United States. It obliges governments to manage natural resources and the commons in the best interests of their citizens and has three main elements:
- Common natural resources cannot be privately owned, and instead are held within a Public Trust.
- Governments are merely trustees, and must therefore make sure that the natural capital ‘fund’ of the Earth is respected and maintained in the long term.
- The beneficiaries of the Trust (both present and future citizens) can hold the trustees accountable for its mismanagement.
As a protector of nature, the doctrine is emerging as a formidable force for change. In 1970, American law professor Joseph Sax re-invigorated the quiescent principle in his article The Public Trust Doctrine in Natural Resources and later in the book Defending the Environment. Sax urged people to use the doctrine to pressure authorities to fulfil their duty in protecting and preserving natural resources in the wider public interest, and not for the economic benefit of a minority. He broadened the doctrine’s scope beyond rivers and seashores to include other natural habitats and features: land, air, wildlife, seas, forest, lakes, wilderness and archaeological sites.
More recently, echoing Sax’s rationale, Mary Christina Wood has proposed using the doctrine to define and codify government’s environmental responsibilities. Her book Nature’s Trust is an eloquent call to action, encouraging us to hold government to account for the poor management and squandering of natural resources. She argues that the judiciary should order the executive and legislative branches of government to protect natural resources for the common good. Ms Wood says that governments are currently “doing next to nothing to address this crisis, which is threatening the future survival and welfare of the youth of this nation and future generations.”
But what does this have to do with the sea?
Many of us have been aware of the environmental and ecological crisis in the oceans for some time. We’ve seen television documentaries about overfishing, news reports on plastic pollution, articles in the press and high profile campaigns about the suffering and loss of wildlife. We’ve felt saddened and despondent about the situation for years. Now people want governments to act.
Could the ‘exasperated-by-inept-authorities’ come together and help safeguard the marine environment, in the same way as the young people are doing in Pennsylvania to help safeguard the atmosphere? The combined area of the territorial waters of nations with the Public Trust Doctrine embedded in their constitutions amounts to almost 28 percent of all territorial waters – meaning if those nations properly observe their own laws, 38,600,000 square kilometres of the world’s marine environment would be well-managed and safeguarded.
The world’s seas and oceans are already protected by statutory law with the United Nations Law of the Sea (1982). But regulating authorities consistently fail to enforce the elements of the treaty that concern marine conservation at regional, national and international levels. This is double whammy bungling. By breaching both treaty law and customary law, governments and leaders are enabling the ruin of marine environments, whilst also denying citizens’ rights to all that oceans provide; not least a source of food and employment for millions of people. As Earth’s largest producer of oxygen (due to photosynthesizing marine phytoplankton) even the system which supplies the air we breathe is weakened. Is this a job for the Public Trust Doctrine? Could the collective power of disgruntled citizens take ancient customary law to make governments comply with contemporary treaty law?
In the words of master landscape photographer Ansel Adams, “It is horrifying that we have to fight our own government to save the environment.” Horrifying and absurd, but that is what we have to do.