The current political frame controlling environmental law turns many government officials into pawns of moneyed power, as prior chapters explained. The frame allows vast and amorphous discretion that proves highly susceptible to corruption; it bends too often to the influence of profiteering industries. Behind the facade of law, such discretion repeatedly dupes the citizens while permitting corporations to pillage the public commonwealth. In contrast, the fiduciary role stands exacting and rigorous, wrapped in time-tested procedural duties. Justice Benjamin Cardozo once said: “A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive.” Fiduciary duties require the trustee to act strictly on behalf of the public beneficiaries.

Steadfast and unbending loyalty to the beneficiaries remains the essence of any trust. It has always been recognized that a trustee holds tremendous power over the assets and that without strict procedural duties, he might abuse that power to serve his own self-interest. The fiduciary duty thus places clear boundaries on what the trustee can and cannot do. As Justice Cardozo explained, “Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties…. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd.”

In the waning days of the George W. Bush administration, Tim DeChristopher, an economics student from the University of Utah, showed up at a Bureau of Land Management (BLM) auction to protest the sale of 166 oil and gas leases across spectacular public lands near two national parks, Arches Park and Canyonlands Park. Pushed through without the environmental review required by law, the BLM was offering several leases that day for a thief’s price of $2.25 per acre. When the process commenced, DeChristopher formed the idea to pose as an authentic bidder to drive up the prices. He raised a bidding paddle.

DeChristopher made significant headway – bidding $1.7 million on 22,000 acres – before being discovered. The auction ended in confusion, and federal officials promptly arrested him for disrupting a federal auction. He was sent to federal prison for two years. His audacity, however, saved some of the most glorious lands in Utah by buying time and drawing national attention to the BLM’s shocking management practices. A judge subsequently blocked several of the leases, and the Department of the Interior later withdrew others.

In the middle of the night on August 30, 2004, a mining bulldozer, working in the dark, dislodged a huge rock. Gaining momentum as it went, the 1,000-pound boulder thundered down a mountain toward a small Appalachian town and smashed everything in its path. The boulder struck a house, where it crushed and killed a toddler, Jeremy Davidson, as he was sleeping peacefully in his bed. The tragedy punctuates a tyranny tightening over the region: Appalachian families are under siege by profit-crazed coal companies.

Mining blasts continue relentlessly, day and night. Some occur within the town limits, some even next to people’s homes. When the price of coal increases, the number of blasts skyrockets. On any given day, there can be thousands of explosions across Appalachia. The scale compares to war as “2,500 tons of explosives [are] detonated each day in West Virginia alone.”

To access the seams of coal buried deep underground, mining companies literally blow the tops off mountains. The ancient mountain peaks of Appalachia, gentle and picturesque, are disappearing fast. The coal companies have beheaded 500 mountains over the last 30 years. If they keep it up, Appalachia will appear an oddly buckled flatland, its forests razed and its landscape scarred with giant strip mines as far as the eye can see. As Robert F. Kennedy Jr. observed after a flyover: “[I] saw a sight that would sicken most Americans. . . . I saw the historic landscapes that gave America some of its most potent cultural legends . . . the frontier hollows that cradled our democracy, the wilderness wellspring of our values, our virtues, our national character – all being leveled.”

Agency discretion operates as a pressure point in environmental law. It determines whether regulatory outcomes will serve the public or polluters. Industry knows that discretion sets an open season to lobby officials into bending the law to their favor. As Professor Houck warned in the Forest Service context, “[Discretion] throws [the] biologists, field managers, and forest rangers to the dogs…. [They] have no shield when the pressure comes on.”

After years of such pressure, an agency falls captive to the industry it regulates. At that point, government officials look at the industry in a different light – as a client the agency must serve. Discretion then becomes a legal conduit through which the agency delivers public resources directly into corporate hands. Houck put it bluntly as to the U.S. Forest Service: “The code words fool no one involved: more ‘discretion’ means that industry gets to cut more timber.”

The wrongful transfer of public resources to private interests in response to political pressure takes place behind a veil of legitimization provided by environmental law. Citizens rarely discover the inl uence of politics, and if they do, the solid proof usually arrives years after the wrongdoing takes place and decisions become i nal. Facts come to light through very limited avenues: from courageous whistleblowers, persistent investigative journalists, dedicated public-interest lawyers (who sue the agency and gain documents through the discovery process), or as a result of formal investigations launched by congressional oversight committees, the Office of Inspector General, or the Government Accountability Office. In relation to the mass numbers of environmental permits that issue from state and federal agencies, these investigations are exceedingly rare.

In May 2010, citizens across the world watched in horror as a geyser at the bottom of the sea gushed millions of gallons of oil into the Gulf of Mexico. After puncturing the ocean’s floor, BP had no way to hold back the hemorrhage. Yet, when President Obama responded by imposing an emergency moratorium against deep-sea oil drilling, Louisiana Governor Bobby Jindal drew his political daggers and accused the president of stealing 6,000 jobs away from Louisiana workers. He complained that the moratorium’s impact on drilling jobs compounded the “huge economic losses” inflicted on the state’s seafood and tourism industry from the spill.

Louisiana citizens should have choked on the governor’s whopping contradiction, but instead they swallowed it whole. In the Gulf Coast region, politicians demand – in the same breath – pristine beaches, abundant shellfish, teeming marine life, and an industry that, with just one blowout, can slime the waters and murk the sands with millions of gallons of toxic petroleum. As the old saying goes, you can’t have your cake and eat it too. But like so many Americans, Louisianans become easily roused by fighting talk that focuses on the economy. Just weeks after Governor Jindal’s tirade, the Louisiana fervor erupted into a “Rally for Economic Survival” at which time the governor declared, “We’re in the middle of a war to defend our way of life…. [L]et our people work.”

In times of extreme drought, will a parched community be able to assert public rights to a scarce water supply? Or instead, will a profiteering corporation monopolize the water and charge citizens exorbitant rates to sustain their very survival? Will the law treat water as a commodity or a protected life source? These questions loom as corporations make swift maneuvers across the globe to privatize water. Maude Barlow observes in her book, Blue Covenant: “[T]he world is moving toward a corporate-controlled freshwater cartel, with private companies, backed by governments and global institutions, making fundamental decisions about who has access to water and under what conditions.” The public’s right to waters hinges on the matter taken up in this chapter: the scope of resources protected under of the public trust. Identifying trust assets begins the process of casting a net of fiduciary obligation over government trustees and setting boundaries on private exploits of crucial resources.

The trust res consists of assets held in the trust, designed to serve the trust’s purpose and requiring protection so as to meet that purpose when the time comes. Private trusts hold financial assets like stocks and bonds. The res of Nature’s Trust consists of ecological assets, natural wealth that must sustain all foreseeable future generations of humanity. It amounts to humanity’s survival account – the only one it has. Government trustees must protect trust resources for the benefit of present and future generations, allowing their privatization only in limited circumstances. Cleaving any category of natural resource from the trust endowment leaves it open to destruction for profit, with seemingly no end. As the Supreme Court of India remarked in recognizing a public trust in natural gas reserves: “Historically, and all across the globe, predatory forms of capitalism seem to organize themselves, first and foremost, around the extractive industries that seek to exploit the vast, but exhaustible, natural resources. Water, forests, minerals and oil – they are all being privatized; and not yet satisfied, the voices that speak for predatory capitalism seek more.”

The cornerstone of any trust lies in judicial enforcement. If fiduciary obligations become unenforceable in court, a trustee can exert untrammeled power over the beneficiaries’ property and use that power to advance his own singular interests. Judge Learned Hand once stated that courts must have the ability to enforce fiduciary obligations, or what claimed to be a trust would amount to no more than a “precatory admonition.” Yet, by nearly all appearances, environmental law has degenerated into this. Government trustees today enjoy nearly unchecked control over Nature without the concomitant restraint and enforcement that a public trust demands.

As Chapter 5 presented, the modern statutory era of environmental law in the United States postured courts in a way that caused them to retreat from their meaningful role. Courts today render decisions under statutory law that rank fairly insignificant in the broad scheme of mounting ecological threats. Time and again, they fail to penetrate the systemic dysfunction that causes agencies to subvert statutory goals. The Nature’s Trust paradigm revives the constitutionally appointed role of courts as a coequal third branch of government positioned to enforce sovereign legal obligations toward the public’s natural assets. While this chapter principally focuses on the role of courts in the United States, the basic analysis carries relevance elsewhere as well. An active judiciary remains the cornerstone of trust protection in any country.

Oren Lyons’s statement refers to 4 million acres of Canadian forest wiped out by beetles now thriving in warmer winter temperatures as a result of planetary heating. Lyons has a knack for putting environmental problems into terms that are hard to argue with. A member of the Onondaga Nation Council of Chiefs and professor of American studies, he emphasizes “natural law,” a principle that has guided the indigenous approach to ecological management for thousands of years. As Lyons once put it in an interview:

The New Ecological Age

The planet we inhabit seems suddenly and violently out of balance. The consequences of humanity’s disregard for Nature’s laws find glaring reflection through the prism of ocean life. Four hundred “dead zones” now murk the world’s seas, collectively spanning tens of thousands of square miles. Off the coast of Oregon, a dead zone the size of Rhode Island resembles an underwater graveyard, with thousands of crab skeletons drifting in lifeless waters. In Moreton Bay, Australia, toxic fireweed can spread across the sea floor at a rate covering a football field every hour. When fishermen touch it, their skin breaks out into blistering welts, and their eyes burn and swell shut. Thousands of miles away on the Florida Gulf coast, a dreaded red tide visits once a year and persists for months. Ocean breezes carry toxic wafts inland to waterfront communities, sending victims to the hospital with pneumonia, asthma, and bronchitis.

Natural disasters have a way of trivializing property “ownership.” As when a mile-wide tornado vacuums up a town. An entire town. Or when furnace-hot winds blow a canyon wildfire into a subdivision, or torrential rains swell a river over its banks, or a mudslide buries a neighborhood. Within minutes or hours, homes can turn into piles of toothpicks, or ashes, or debris, or wash away altogether. No, we don’t really “own” property. It owns us.

In his eye-opening book, Eaarth, Bill McKibben identifies what grows more apparent, disaster by disaster: what were once so-called “freak events” now come at us with horrific regularity. Climate change has fundamentally altered our planet. As McKibben puts it, “We have traveled to a new planet, propelled on a burst of carbon dioxide.” He says we might as well call this new planet “Eaarth” (sounds like a groaning Earth). He suggests what should seem obvious by now but still escapes the human psyche: we need new habits for this planet. We need to hunker down, batten down the hatches, pull out the sandbags, fill up the water jugs, hose off the roof. And as this chapter points out, we need to change our conception of property law as well.

As climate vengeance strikes communities with greater frequency and horrifying intensity, citizens across the planet now bear witness to the lethal consequences of humanity’s industrialized path. Yet environmental law, society’s major instrument to impart ecological responsibility, does little to bring human actions into compliance with Nature’s laws – the laws that really count. In fact, environmental regulation hastens this course of disaster. This book began by explaining how that could possibly be.

Arising primarily from statutes passed in the 1970s, the field of environmental law stands as a failed legal experiment. The administrative state vests agencies with breathtaking power that came justified by one simple assumption: officials will deploy public resources and invoke their technical expertise on behalf of the public interest. Instead, too many environmental agencies today use their power to carry out profit agendas set by corporations and singular interests. As Part I of this book explained, environmental agencies have fallen captive to the industries they regulate. Consequently, they use the laws’ permit provisions to legalize the very damage the statutes were designed to prevent. Nearly across the board, environmental statutory processes do not prohibit harm: they permit it.