Column: The Public Trust Doctrine, Climate Magic?

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[The following is a guest post by Zay Eleanor Watersong. Zay Eleanor Watersong is a teacher in the Reclaiming Tradition of Witchcraft, community organizer, and law student.  She got her start in Reclaiming with the Ithaca Reclaiming Collective and the Pagan Cluster, sharing priestessing roles in Pagan circles internationally and Reclaiming circles nationwide since 2003.]

“Anthro-arrogance is not an option,” stated one of the law student organizers for the 2014 Public Interest Environmental Law Conference (PIELC) at the University of Oregon in Eugene as they opened the conference on February 27.  “This conference, this planet, expects action.”

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University of Oregon students took this to heart and continued a long history of protest at the conference with a 100-person walkout shortly thereafter during one of the keynote addresses, protesting the speaker’s anti-transgender stance.  It was an interesting echo of the controversy at PantheaCon in 2012.  Hopefully PIELC too will learn from the experience.

photo (1)This conference, now in its 32nd year, has a long history of bringing together legal scholars, lawyers, activists and organizers to discuss the pressing issues of the day and weave synergistic relationships to address them. It brings together so many who are working at the leading edge, whether in blockades or in the courtroom, to protect the earth which we hold sacred.  There is a deep magic in being able to see the web of laws and policies that hold the current system in place, and seeing the points where if we push just a little bit, things can shift.  Practicing law and practicing spellwork are not that different.

This year’s theme was “Running In to Running Out”.  It could be easy to come away depressed by power of the oil and gas industry, which is extracting resources as fast as it can and using more and more extreme ways to do so, with absolutely no consideration for the impacts on the environment, and very little reigning in by the government.  In fact, it turns out this industry is exempt from most of our environmental laws. And as former NASA scientist Dr. James Hansen explained, if the oil and gas industry is allowed to extract and burn all that they wish to, we are looking at a 6° C increase in global temperature, blowing past the 2* C limit that scientists and governments worldwide have agreed is the absolute upper limit to prevent catastrophic climate change.  What was that we were saying about anthro-arrogance?

There is no doubt we are already feeling the impacts of climate change. Dr. Jane Lubchenco, former director of the National Oceanic and Atmospheric Administration, put the current situation into perspective with a baseball analogy: “A player taking steroids increases the chances of more and bigger home runs.  You can’t point to any one home run as caused by steroids but overall, you know where the credit lies.  The climate is on steroids now.”  The weather is getting more extreme, more frequently.

"Outlaw party" during PIELC.

“Outlaw party” during PIELC.

Yet, the conference was a testament to the deep hope and commitment to action of the environmental movement.  The camaraderie and energy was palpable at the “Outlaw Party” thrown on the outskirts of Eugene by the Cascadia Forest Defense, where anarchists, organizers, and lawyers alike danced our love of the earth in the mud and rain to excellent bluegrass and let our primal nature run free around a rather spectacular effigy.  As the Pagan Cluster and Free Cascadia Witchcamp know, a little bit of ritual goes a long way towards feeding the soul and avoiding activist burnout.  These direct action activists –such as the 398 arrested at the White House on Saturday protesting the Keystone XL pipeline- who put their bodies and freedom on the line to make a statement about the failure of the administrative process deserve our thanks, and our spiritual support.

Just as important are the lawyers, advocates, and citizens that watchdog the bureaucracy, read and digest long tomes of environmental impact statements, and spend their days paperwrenching with public comments and lawsuits.  Theirs is an effort of endurance, particularly when environmental laws no longer protect the environment.

Mary Christina Wood

Mary Christina Wood

“At every level, agencies have turned environmental law inside out,” explained Mary Christina Wood, professor at the University of Oregon and author of the new book Nature’s Trust: Environmental Law for a New Ecological Age.  Her keynote address Saturday evening followed Dr. Hansen’s dire predictions and painted a visionary method for the profound legal paradigm shift needs to happen.

“We’ve been running around putting out all these fires,” Wood explained, “but what if we can stop the pyromaniac?”  Wood is one of many legal scholars around the country re-invigorating an ancient judicial concept known as the Public Trust Doctrine.

It’s a basic idea: that there are certain natural resources that are so important for society as a whole that the government has a responsibility to protect those resources for everyone’s use.  The key case that brought this doctrine from ancient Roman law and English common law into U.S. Federal law is Illinois Central Railroad Co. v. Illinois (1892), where the courts determined that the shoreline of Lake Michigan was held in public trust by the states and could not be given to a private railroad corporation.

A more recent case was Robinson Township v. Commonwealth of Pennsylvania (2013) where the Pennsylvania Supreme Court determined that legislation removing many regulatory hurdles for the fracking industry violated the public trust doctrine, which Pennsylvania voters amended into their constitution in 1971.

Wood and others are taking the public trust doctrine one step further, with atmospheric trust litigation, arguing that the atmosphere itself is one of those resources that must be maintained for us all.   Youth are filing lawsuits in every state, to hold the states and federal government responsible under the public trust doctrine for developing carbon recovery plans to meet the 6% annual reduction in carbon emissions that scientists agree is necessary to stabilize the atmosphere.  They’ve put together a wonderful video explaining the idea.

Is it a coincidence that so many of us have heard the call of Goddess at the same time that the earth, air, and waters that we honor are so threatened?  Gaia is calling us to action.  Our descendants are calling us to action.  What has been done in your state?  Does your state constitution include the public trust doctrine?  Do you have children who want to be part of the fight for their future?  When it seems like government at every level is failing us, and failing the climate, the positive action of the people working on atmospheric trust litigation is truly a breath of fresh air.