Posted: 11/13/2014 5:03 pm EST Updated: 11/14/2014 2:59 pm EST
Our Constitution was established to “promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” And yet, our government persists with a business-as-usual path, despite the overwhelming scientific consensus that continued carbon emissions threaten the climate system on which civilization and nature as we know it depend.
In our view, the climate crisis cannot effectively be addressed by weak regulatory action and feeble statements of intent — such as those recently announced by the U.S. and China — while we maintain our present massive subsidization of the fossil fuel industry. We need a new approach, one grounded in government’s fundamental duty to safeguard essential natural resources in trust for our children and those yet to be born.
The idea that essential resources, such as the “air, running water [and] the sea,” are held in “common to all mankind,” stems at least from the sixth century code of ancient Rome. Blackstone, writing in his Commentaries on the Law of England, brought it forward to the 18th Century, noting that, notwithstanding developments in property law, certain resources must “unavoidably remain in common [including] the elements of light, air, and water.”
Our Supreme Court has also recognized the public trust doctrine, both as a limitation on government action and a source of its affirmative duty. In 1892 it held, for example, that government may not fully sell off public resources and so deprive future legislatures of their authority to provide for the people. Neither may government mismanage resources that it holds in trust for the people as part of the public domain.