by Bruce Dunlavy (My blog home page and index of other posts may be found here.)
As usual, my friend Xiuhtezcatl Martinez has been busy lately. In addition to the ongoing case of Juliana, et al. v. United States , in which he is a plaintiff in a lawsuit to force the USA government to actively and effectively combat climate change, Xiuhtezcatl and several young allies are responding to an adverse decision in their case, Martinez, et al. v. Colorado Oil and Gas Conservation Commission, against the State of Colorado for failing to safeguard human health and the environment against the deleterious effects of fracking and climate change.
Juliana, et al. v. United States, which is still in litigation, is one of the most significant cases most people haven’t heard of. In it, the patriarch of global warming/climate change awareness, climatologist James Hansen, and 21 young people have brought suit to compel action by the Federal government to counteract and reduce the effects of climate change. Rolling Stone magazine recently covered the case.
Image credit: ecowatch.com
The legal principle behind Juliana is the notion of the stewardship of a Public Trust. In early times, natural resources were generally regarded as the property of the king who ruled the region where they were located. This included wildlife (for example, the monarch of England personally owned all the game animals in the kingdom) as well as mineral rights (gold and other precious metals looted from Spanish colonies in the Americas belonged to the King of Spain). By the late Eighteenth Century, the autocratic power of monarchs had begun a process of subordination to the power of the people. With that change substantially completed in most of the world by the end of the Twentieth Century, the concept of ownership of natural resources changed with it.
With government no longer in the proprietary hands of a monarch, the ownership of common property – including air, land, and water, among other things – passed to the people. As government in a republic is representative of the people, it is the responsibility of government to act as the guardian of the people’s property. It is acknowledged that common property is owned by the people, and held in trust by the agencies of government.
The word “trust” should mean exactly what it says. It should mean that the agencies of government must act in the interests of the commonwealth (meaning “the common good”). In practice, this signifies a long-term commitment to preservation and wise use of those things held in trust. However, the controllers of government operations regularly violate this trust by acting in the short-term interests of money.
Since the Progressive Era of 120 years ago, American political theory has held that government must maintain control of potentially harmful business activities through regulatory agencies and boards of control. The Interstate Commerce Commission (ICC) was established in 1887 primarily to curb the excesses and abuses propagated by the railroad industry. The Securities and Exchange Commission (SEC), the Federal Communications Commission (FCC), and the Environmental Protection Agency (EPA) are other examples of the numerous regulatory agencies established with the ostensible purpose of ensuring the proper protection of the Public Trust.
The undoing of the Progressive Era’s optimistic reach was the failure to recognize that the establishment of a regulatory agency does not mean the battle is won. It means the battle is just starting. It did not take long after the ICC was created for the railroad industry to gain control of it. The FCC fell under the sway of politicians to the extent that the public airwaves are no longer diverse and free; a half-dozen enormous corporations control television, radio, and personal communications. The SEC is perhaps the most notorious example of the “revolving door” movement of government regulators from the regulated community to the regulatory commission and back again to the regulated community.
I spent nearly three decades working for the Ohio Environmental Protection Agency, my State’s regulator of the environmental trust. I joined Agency work just a few months after Ohio EPA was created in 1972. During my tenure, I was never able to determine that the Agency knew what its own mission was. Ohio EPA, like almost all similar agencies in other States, given primary authority to administer Federal law. State governments see this as a way of keeping the Feds out of their environmental affairs so that the State can license polluters to suit itself. As seen in Flint, Michigan, keeping the Federal EPA at bay by invoking State primacy not only allows the State to visit disaster upon its citizens, but also gave Michigan the opportunity to shift the blame by saying the Federal EPA failed to take sufficient action.
Ohio EPA, or any other regulatory agency, has to know its mission. During my years of service there (and still today), that mission was never publicly articulated. Of course, the Agency has a “mission statement,” but it is just a nebulous platitude that doesn’t say anything about purpose or action. The real question is this: Is the job Ohio EPA – or any regulatory agency – to be the eyes, ears, and champion of the people? Or is it to strike some sort of balance between conservation and exploitation?
To me, the purpose of any such regulatory agency is clear. Its purpose is to ensure that public property – in this case, the public air, land, and water – are used in the public interest. The public interest. Not the interest of any private entities. Not the interest of money. Not the interests of the present day.
Especially not the interests of the present day. The old Cowboy Philosophy of “Spoil our nest and move on west” is long dead. So, too, should be the attitude of “Why should I do anything for posterity? Posterity has never done anything for me.”
The decision rendered in the Colorado case goes directly against this notion. Judge Eric Elliff wrote in his decision that the Colorado Oil And Gas Conservation Commission is required to “strike a balance” between regulating oil and gas production and protecting human health and the environment. As if the two are mutually exclusive!
Xiuhtezcatl Martinez and his co-plaintiffs are waiting to see if the District Court of Appeals will take up Judge Elliff’s wrong-headed decision. If there is justice, the Court will not only hear the case, but also reverse the decision and establish that – in Colorado, at least – the future cannot be sold to feather the nest of the present.