Around Christmastime when I was eight years old, my family and I were over at a friend’s house celebrating the season. It was 1968, the night Apollo 8 first circled the moon. We watched on our friend’s color TV (still somewhat of a novelty at the time) as astronauts James Lovell, William Anders, and Frank Borman read from the Book of Genesis. This occasion had a profound effect upon me, as it did for many of us fortunate to be able to witness the event. It was the first time I began to contemplate who I am on this Earth and in this Universe.
Morality of Self-Aware Macro-Organisms
I’ve had several other fantastic moments of personal insight. Over time these have led me to understand that there are several ways to view our existence. One of these is as self-aware macro-organisms. Or perhaps, in a larger sense, our self-awareness can be described as the Universe being aware of itself.
One of the implications of this is how we as self-aware macro-organisms for the first time must, as opposed to can, bring morality to an otherwise amoral biosphere. What do I mean? We, meaning humans, have by nature been given a prejudice regarding co-travelers on this star-circling planet; all those other various non-human beings. This evolutionary anthropocentrism has allowed us to survive and more than flourish. In fact, for many reasons our over-flourishing threatens the well-being of all future generations of life, human and non-human, the most pernicious of which is human caused global warming.
We Fail to Protect the Biosphere
Our global economic system, although purporting to achieve greater ecologic protection through poverty alleviation, in fact continues to foster unsustainable development. We continue to fail to protect the biosphere. This is something that is not beyond our abilities but does require adding voices to the unrepresented and voiceless: non-humans and future generations. In practice, this would be a transformative change in how we adjudicate between competing interests in the use and preservation of nature (Treves et al 2019).
The Public Trust Doctrine
This idea is not new. The public trust doctrine (PTD) requires government stewardship of the natural resources upon which society (and, by extension, our economy and government) depends for continued existence. Professor Charles Wilkinson has traced PTD’s roots back to many ancient societies from around the world: Europe, Asia, Africa, Moslem Countries, and Native America (Wood, 2013). The PTD has been described as “one of the most important and far-reaching doctrines of American property law” and has been implicit in our constitution and affirmed by our courts going back to the mid-nineteenth century (Blumm and Guthrie, 2012). This being the case, why has the PTD not effectively protected the biosphere? What is missing from the PTD that would provide successful protections for non-human species and future generations?
Concept of Private Trust
The PTD depends upon the concept of private trust, a type of ownership whereby one party manages property for the benefit of another party. This involves three elements:
- a trustee, who holds the trust property and is subject to fiduciary duties to deal with it for the benefit of another;
- a beneficiary, to whom the trustee owes fiduciary duties to deal with the trust property for his or her benefit; and
- trust property, which is held by the trustee for the beneficiary.
Black’s Law Dictionary (7th ed. 1999) defines the “fiduciary duties” referred to above to include “[a] duty of utmost good faith, trust, confidence, and candor owed by a fiduciary . . . to the beneficiary” and “a duty to act with the highest degree of honesty and loyalty toward another person and in the best interests of the other person.” Under the PTD, the trust property consists of natural resources. The government is the trustee of these natural resources and must manage them subject to fiduciary duties, for the benefit of both present and future generations, who are the beneficiaries. If the legislative and executive branches fail to carry out their trust duties, the beneficiaries can call upon the courts to compel the other branches of government to fulfill their fiduciary obligations (Wood, 2013).
Voice for the Voiceless
Our courts have upheld the requirement that our government act as trustee of the public trust. Deliberations and issued opinions, let alone implementation of environmental regulations, are of course subject to the politics and interests of individuals and collectives made wealthy and powerful through the exploitation of nature. As Treves et al suggest:
“Consensus-based stakeholder-driven processes disadvantage those absent or without a voice and allow current adult humans and narrow, exploitative interests to dominate decisions about the use of nature over its preservation for futurity of all life. We propose that authentically non-anthropocentric worldviews that incorporate multispecies justice are needed for a legitimate, deliberative, and truly democratic process of adjudication between competing interests in balancing the preservation and use of nature. Legitimate arenas for such adjudication would be courts that can defend intergenerational equity, which is envisioned by many nations’ constitutions, and can consider current and future generations of non-human life. We urge… a more comprehensive worldview that grants future life on earth fair representation in humanity’s decisions and actions today (2019).”
While the PTD is a sound basis for the protection of non-humans and “futurity”, we have not yet evolved beyond our anthropocentrism and the result has been our current existential dilemma. My hope harkens back to the time I saw Apollo 8 astronaut William Ander’s photograph of our blue and white swirled marble of a planet as it rose above the moon’s horizon. This first of many views of Earth from space provided a transformative perspective. It made it impossible to perceive the Earth as limitless. No longer could we truly deny our connectedness, dependence, and common fate with our biosphere.
The Necessity to Evolve a Multispecies Ethic
This knowledge has made it both possible and necessary for people and societies to evolve a multispecies ethic. This currently incomplete evolution could lead to codified legal standing of advocates for non-humans and future generations of life. Again, as argued by Treves et al:
…the representatives of youth and futurity, human or non-human, must adhere to a fiduciary standard of responsibility for the components of the trust (nature). For this reason a trustee must advocate for…preservation of life, and even (non-living) components required for future uses….trustees of future generations cannot answer directly to futurity or non-humans, because these are voiceless, therefore the trustees must be particularly responsive to current criticisms and improvements suggested from all quarters about how to perform their duties better….We envision the highest standard of accountability, which would marry the highest financial accountability with the highest standards of ethical and scientific integrity (2019).
The Self-Aware Biosphere Acting For Its Future
We are at an inflection point in the history of human and non-human life on Earth. The Earth will survive, with new life evolving as it always has, continuing to journey around the Sun, until in about a billion years that star’s helium core causes an expansion finally decimating life on Earth. We on the other hand may not survive the next 100 years. This future does not absolve us from action today. It does not mean we are free to impose untold suffering on human and non-human beings alike. It means we must become something the Earth has never experienced: a self-aware biosphere acting for its future “with compassion and wisdom” (Adams, 2018).
Adams, F., 2018. Earth will survive. We may not. Downloaded from Medium News, 12/24/18.
Blumm, M.C., Guthrie, R.D., 2012. Internationalizing the public trust doctrine: natural law and constitutional and statutory approaches to fulfilling the Saxion Vision. UC Davis Law Review (45), pp.741–808.
Dunning, H.C., 1989. The Public Trust: A Fundamental Doctrine of American Property Law. Environmental Law, (19), p.515.
Richard has been the President of Biophilia Foundation since its inception in 1999. A native of Phoenix, AZ, he grew up in the open desert spaces alongside lizards, snakes, coyotes, & javelinas. These early experiences with wildlife led him to his career in conservation biology. He has had the opportunity to work for and volunteer with organizations such as the Trust for Public Land, Chesapeake Wildlife Heritage, Wildlands Network, & Borderlands Restoration Network. Richard received his doctorate at Prescott College.