Synthesis/Regeneration 9   (Winter 1996)

The Seventh Generation Act

Robert W. Benson

Excerpted from: Getting Business off the Public Dole: State and Local Model Laws to Curb Corporate Welfare Abuse (National Lawyers Guild 1995) By Robert W. Benson. Booklet will be sent without charge upon request to Robert Benson, Professor of Law, Loyola Law School, Los Angeles, CA 90015.

#Text of the Model Act (below)

Business constantly raises the constitutional complaint that government regulations threaten to "take private property for public use without just compensation." But the actual number of government takings is small. The bigger problem is just the reverse: business takes public property for private destruction or for a private waste dump without any compensation at all. It does this by destroying and polluting the global commons that is the heritage of all humankind, especially the oceans, lakes, drinking water, biological diversity of plant and animal life, topsoil, forests, wetlands, and the atmosphere affecting climate change.

The way the market is set up, it actually pays business to destroy. Economists of all political persuasions would say the problem is that business is permitted to "externalize" its costs, that is, throw the cost of its activities onto someone else, namely, society at large and future generations. This allows companies to sell their products cheaper than they really are, unfairly distorting the so-called free-market into gross inefficiencies that enrich the few and harm everyone else. The economists' answer is to force these costs to be "internalized," paid by those who generate them. That will stop the destruction faster and more efficiently than most regulations have been able to do.

The Model Act draws upon both economic theory and the ancient wisdom of Native Americans. The Great Law of the Iroquois League imposed a duty upon leaders to "have always in view not only the present, but also the coming generations, even those whose faces are yet beneath the surface of the ground—the unborn of the future Nation," [1] and the Iroquois tradition is to consider the impact of decisions on the next seven generations.[2] The Model Act proposes that business be forced to take such long range impacts into account by internalizing their costs, that is, making business pay for them.

The Model Act allows damage suits by public prosecutors, or by citizens as "private attorneys general," all acting as trustees for the public interest. The approach is rooted in the traditional common law remedy of suits to abate public nuisances. Several federal statutes, and laws on the books in more than half the states, already permit such suits to recover damages for injury to land, air, water, fish, wildlife, biota, and other resources.[3] This is nothing new. The Act imposes liability only for long-term damages to vital natural resources, so it is not a general environmental tort statute permitting law suits every time some business harms nature. The harm must result in damages likely to be suffered for 30 to 210 years. Thirty years is the dictionary definition of a generation, so the Act applies to harms that will be felt for between one and seven generations. Further, the harm must be to vital natural resources, defined as biological diversity, topsoil, water and air. The rather technical definitions of "biological diversity" and "ecosystem" in the Act are the same as in the United Nations Framework Convention on Biological Diversity.

Damages must be paid whether the vital natural resources are publicly or privately owned. Rhetoric about "individual property rights" has reached such a shrill pitch in recent years that the public may have forgotten that it too has property rights even over private lands, and they are rooted in ancient, solid, sacred legal and political doctrines.

The first of these is the public trust doctrine. "The state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain," wrote Justice Oliver Wendell Holmes.[4] Indeed, it is the trustee of these resources for all the citizens and has a duty to protect them. The courts are now beginning to recognize that the public trust doctrine, limited in the past mainly to water ways and sea shores, applies conceptually to all vital natural resources.[5]

Another basis of the Model Act is the police power of the state to protect health, safety and welfare. "The limits set to property by other public interests," the U.S. Supreme Court has observed, "present themselves as a branch of what is called the police power of the State. . . .[I]t is recognized that the State as quasi-sovereign and representative of the interests of the public has a standing in court to protect the atmosphere, the water and the forests within its territory, irrespective of the assent or dissent of the private owners of the land immediately concerned."[6] The police power has always been used to abate harmful "public nuisances" emanating from private property, even if the property is rendered valueless: "All property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community."[7]

Even the most conservative decisions of the current U.S. Supreme Court recognize that the state may go so far as to "prohibit all economically beneficial use of land" when the limitation "inhere[s] in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership. . . . [T]he owner of a lake bed, for example, would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others' land. Nor the corporate owner of a nuclear generating plant, when it is directed to remove all improvements from its land upon discovery that the plant sits astride an earthquake fault."[8] The parallels to threats from destruction of vital natural resources are obvious.

In addition, the Model Act rests upon the fundamental human right of present and future generations to a healthful environment, acknowledged in recent years as a basic norm of international law[9] and as a constitutional or common law right in a number of U.S. states.[10]

Finally, the Model Act is rooted in the deepest precepts of the social contract doctrine that underlies our Constitution. Influenced by 17th century philosopher John Locke [11], the drafters of our Declaration of Independence and our Constitution understood that individuals entered into a contract with civil society in order to protect life as well as liberty and property, and that a government that failed to protect them against others was breaking its part of the contract. Government has a duty to protect us not only from our neighbors' guns but also from their poisoning of the vital natural resources we need to support life on earth. In the words of a contemporary legal philosopher, whatever else it is, the Constitution is not a suicide pact.

Notes at bottom...

The Seventh Generation Act

1. Short title. This Act shall be known as The Seventh Generation Act.

2. Purpose. The State Legislature is concerned that the present generation is rapidly destroying the natural web of environmental resources that will be needed to sustain future generations as it has ours. The Legislature finds that the destruction is especially propelled by businesses accustomed to using a seemingly endless abundance of land, air and water as if they were free for the taking. It finds that the free use and destruction of these resources amounts to a welfare subsidy to business that is contrary to the so-called free-market principles to which business claims to be committed, and contrary to the public interest. Conscious of the native American Indian wisdom that we should consider the impact of our decisions on the next seven generations, mindful of its legal responsibility as ultimate trustee of all natural resources in the State whether publicly or privately owned, acknowledging that a healthy environment is a fundamental human right under international law and the law of this State, and acting under its police power to suppress nuisances and protect the health, safety and welfare of its citizens, the Legislature adopts this Act to slow the destruction of vital natural resources.

3. Liability for damages to vital natural resources.

(a) Every corporation, partnership, sole proprietorship and other form of for-profit enterprise is liable for long-term damages it causes after the effective date of this Act through injury, destruction, or loss of vital natural resources.

(b) As used in this section: "long-term damages" means damages that are likely to be suffered by generations living between 30 years and 210 years from the time of the injury, destruction or loss. "Vital natural resources" means biological diversity, topsoil, water, and the atmosphere. "Biological diversity" means the variability among living organisms from all sources, including but not limited to terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems. "Ecosystem" means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.

4. Calculation of damages. The court shall set damages in an amount adequate to restore or replace the resources injured, destroyed or lost. If restoration or replacement is infeasible, or is grossly disproportionate in cost to the value of the resources injured, destroyed or lost, then the court in its sound discretion shall set damages by another generally accepted method that best advances the purposes of this Act. In every case, however, the court shall value resources by their existence value and not by their use value.

5. Enforcement. The State attorney general and the public prosecutors of any county or city in the State may bring suit in a court of competent jurisdiction to enforce this Act. Any person resident in the State may notify the attorney general and appropriate public prosecutors of an alleged violation of the Act. If none of those officers files suit within ninety days after receiving notice, then that person may file suit on behalf of the public as a private attorney general. A private attorney general who substantially prevails shall be entitled to attorneys' fees and court costs. Any damages recovered by the attorney general, public prosecutors, or a private attorney general shall be directed by the court wholly to fund restoration, replacement, or mitigation of damage to vital natural resources.

6. Preemption. This Act neither preempts nor is modified by existing laws. It supplements them. Compliance with this Act does not relieve any duty arising from those laws. Compliance with those laws raises no defense to violations of this Act. 7. Effective date. This Act takes effect one year after the date of its enactment.

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[1] The Great Law of Peace of the Longhouse People (Iroquois League of Six Nations) Chapter 28 (White Roots of Peace, Mohawk Nation at Akwesasne, Rooseveltown, N.Y. 1973).

[2] Paul Schneider, "Respect For The Earth: The Environmentalism of Chief Oren Lyons Stems from His Iroquois Heritage," 96 Audubon No. 2, p. 110 (March 1994).

[3] Frank B. Cross, "Natural Resource Damage Valuation," 42 Vanderbilt Law Review 269 (1989).

[4] Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907).

[5] See David B. Hunter, "An Ecological Perspective on Property: A Call for Judicial Protection of the Public's Interest in Environmentally Critical Resources," 12 Harvard Environmental Law Review 311 (1988); James P. Karp, "A Private Property Duty of Stewardship: Changing Our Land Ethic," 23 Environmental Law 735 (1993).

[6] Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908).

[7] Mugler v. Kansas, 123 U.S. 623, 665 (1887).

[8] Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2901 (1992).

[9] Experts Group on Enviornmental Law of the World Commission on Environment and Development, Environmental Protection and Sustainable Development: Legal Principles and Recommendations (1986) Article I.

[10] Mary Ellen Cusack, "Judicial Interpretation of State Constitutional Rights to a Healthful Environment," 20 Boston College Environmental Affairs Law Review 173 (1993).

[11] John Locke, Second Treatise of Government (1690).

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