Does food for the future depend on public trust thinking?

Does Food for the Future Depend on Public Trust Thinking?

A Charge to Students of Food and Agriculture in a Time of Planetary Crisis

By Heather Williams and Alex Lintner 

We live in an epoch when global climate change, defaunation, habitat destruction, groundwater depletion, soil loss, toxification of water and land, and the rise of virulent new diseases threaten civilization as we know it. In the last two decades, leading scientists have warned that human economies as presently organized will result in the extinction of more than half of the Earth’s species by 2100.[2] The least noticeable extinctions may be the most consequential: a rapid decline recorded in recent years of the world’s spiders and insects, including ants, beetles, arthropods, and flying insects, stands to topple food chains and leave plates and cupboards empty.[3] The chemicals that are a factor in invertebrate population crashes are also altering microbiomes in plants, soil, and human bodies.[4] The world’s cereals, forage crops, its orchards and fisheries depend on webs of life that begin in soil microbes and grasses. Earth scientists assembling global databases of terrestrial water storage have documented rapid drops in groundwater in the world’s most productive food-producing regions, signaling abstractions that outstrip rates of replacement. [5] Soil scientists, meanwhile, warn that erosion on crop fields has compromised yields on up to a third of the world’s farms, and that rates of soil loss outstrip soil replenishment by a range of 4 to 200 times.[6]

In short, we are living a planetary emergency. The call for a radical rethinking of our most basic arrangements of housing, urban layout, transportation, paid work, communication, recreation, clothing, and land use is no longer limited to voices associated with radical ideas. In 2018, the Intergovernmental Panel on Climate Change (IPCC) released a special report that stated in the strongest language it had used to date that a failure to alter status quo arrangements would result in runaway climate change with feedback loops that likely would escape any further human remedial action. “Pathways limiting global warming to 1.5°C with no or limited overshoot would require rapid and far-reaching transitions in energy, land, urban and infrastructure (including transport and buildings), and industrial systems,” the authors wrote. “These systems transitions are unprecedented in terms of scale, but not necessarily in terms of speed, and imply deep emissions reductions in all sectors, a wide portfolio of mitigation options and a significant upscaling of investments in those options.”[7]  

And the emergency has not simply just arrived. The James Gustave Speth, Dean of the august Yale School of Forestry and Environment—historically the networking ground of Washington D.C.’s best-resourced elite environmental institutions, argued in a surprisingly radical vein after the turn of the millennium that an adherence to gradualist and incrementalist approach to global environmental was the road to ruin. “It would be comforting to think that all the international negotiations, summit and conference agreements, conventions and protocols have at least got us to the point where we are now prepared to act decisively—comforting but wrong,” he wrote in Red Sky at Morning. The problems have gone from bad to worse; we are not yet prepared to deal with them; and many countries around the world lack the leadership to get prepared.”[8]

Teaching During a planetary emergency

We are faced with a dilemma. On a planet in which biogeochemical systems are already locked into greater flux in the coming centuries than they have experienced in the last 800,000 years,[9] radical change in the way people live is inevitable. What is left for us to decide, as the IPCC has stated, is whether we opt for purposeful transformation and reorganization of our energy, food, production, and distribution systems as well as the structure of public and private finance or relegate today’s children to grow into adulthood on a planet whose atmosphere, soil, water, and microbiota are no longer hospitable to millions of species, including our own.  

Teaching university courses in this time of existential choosing presents a dilemma a parallel dilemma. Do we teach as we have been taught? Everything in our training would steer us toward making conservative and small claims, and holding students to that same standard. In the area of social sciences and policy, do we argue, for the sake of realism, that an introduction to food system politics requires us to focus primarily on the structure of international trade arrangements, market structures, the U.S. Farm Bill, and the European Common Agricultural Policy?  Likewise, does an introduction to the science of food systems  require us to focus on maximum yield technologies, pest management, and technical aspects of phytosanitary management of food chains?

Certainly, these are all important bodies of knowledge. In light of the mounting global environmental crisis, inspired by the growing climate strike movement led by young people around the world and given special voice by the intrepid Greta Thunberg, we chose to center our course inquiry on what radical reorganization or even restoration of management systems might be possible in the global food system.

Our aim is not a course in legal studies per se, but we based our charge to students in an examination of current developments of an ancient body of law called public trust doctrine.

This approach to the law finds its origins in the Code of Justinian in the 6th Century A.D. and has been reaffirmed as a relevant basis for claims-making in federal and state courts in the United States, as well as in thirteen countries around the world (Our Children’s Trust, 2020). In simplest terms, the public trust doctrine rests on an understanding of certain natural resources as being so vital to human survival and well-being that they cannot be bought, sold, owned or in any way considered private property. Instead, these critical natural resources must be treated as collectively-owned, priceless assets that must be held, managed, and preserved through some form of public trusteeship for the sake of future generations. Legal and civil society activists are continuing to press for public trust language to be added to constitutions and common law in other countries.

Mary Christina Wood, a proponent of utilizing public trust doctrine as a means for achieving broad, system-wide change at a time of global emergency writes in her 2014 book, Nature’s Trust, “[T]he Earth defense effort requires an epochal project of rebuilding natural wealth. Instead of incremental reform, the circumstances call out for a full paradigm shift that infuses all government decision making with restoration duty. Citizens worldwide must tap a wellspring of legal obligation to compel their governments to tackle this challenge.”[10]   

That being said, public trust law to date has been applied by the courts in variable manner. In the U.S., rulings thus far have been narrow, mostly pertaining to preservation of surface waters (e.g. Mono Lake or the shore of Lake Michigan), groundwater (Hawaii), or wildlife. The 21st century “moon shot” of public trust doctrine is being spearheaded in a set of lawsuits collectively referred to as Atmospheric Trust Litigation. This set of lawsuits, best developed in an ongoing lawsuit by 21 youth plaintiffs in Oregon, Juliana v. United States (see also “Public Trust Resources” on this webpage) alleges that the governments’ actions that cause climate change have violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources. However, public trust rulings have been far broader in other countries such as India, where the public trust has been defined by the courts to include the right of people and future generations to the environment and to cultural patrimony more generally.[11]

Our charge to students

In courts at this time in venues around the world, the scope of public trust litigation as applied to global climate action is currently limited to challenging national and regional governments’ facilitation of fossil fuel extraction and combustion.

However, we believe that public trust litigation, and even more broadly, public trust thinking in lawmaking, provides a framework for action that might well be applied to other vital biological and physical Earth systems. We need a stable climate system to survive, but we also need viable global food systems. Might that apply to forests, wetlands, grasslands, fisheries, soil microbes, wild plant biodiversity and pollinators? Might it also apply to anthropogenic assets such as the world’s store of seed varieties, its natural pharmacopeia, its threatened languages, as well to cultural systems and ancient technologies for food preservation or for water storage? Such were the claims of the law professor who is generally credited with resurrecting public trust scholarship and legal activism in the late 20th century, Joseph Sax.[12] In his much-studied 1970 article published in the Michigan Law Review, he concluded that public trust thinking and claims-making might well be usefully applied to remedy “air pollution, the dissemination of pesticides, the location of rights of way for utilities, and strip mining or wetland filling on private lands.”[13]

Thus, we asked our students, can we use public trust thinking to identify those tangible and intangible things which cannot or should not be owned, but instead should be considered as essential to human survival and well-being and therefore treated as collective property? This asset, so identified by students in their papers, should be safeguarded for future generations by some combination of oversight guardians, fact-finding bodies, and laws and attendant policy approaches. Going beyond traditional public trust approaches, we counseled students to think broadly about the idea of “government” as the exclusive domain of the idea of the “public.”

Student projects

The semester papers summarized on this website emanate from our readings on public trust law, global climate change politics, and a range of works that ranged from works on pesticide politics and migrant labor to works on soil conservation, regenerative farming, indigenous knowledge and scientific inquiry, global commodity chains and salvage capitalism, pollinators, and the global mycelium.

If, we asked the students, the basis of public trust claims are: 1) that the government is a trustee; 2) that resources held in the public trust include air and atmosphere, waters, and wildlife; 3) that these resources must be maintained beneficially; and 4) the government has a duty to avoid causing a substantial impairment of the environmental system, and that people may require the government to draw up a recovery plan or allow some civic or social network to do so in a manner that is enforceable by the court and that meets scientific standards,[14] what would you name as a public trust and why?

Students’ Assignment

1)     IDENTIFY THE TRUST: Identify some tangible or intangible thing on Earth that is essential to the production of food and/or nutritional health & well-being. It can be as big as the Earth’s stratosphere (e.g. the ozone layer) or as small as a particular strain of microbe. It can be found in many places or only in one location on the planet. It can exist in the physical world or in the mind of humans or non-humans (e.g. the Tibetan language or the knowledge of bees in making hives).

2)     EXPLAIN WHY THIS CANNOT OR SHOULD NOT BE PRIVATELY OWNED OR MANAGED (AT LEAST NOT EXCLUSIVELY OWNED OR MANAGED) AND FURTHERMORE DEMANDS STATUS AS NATURAL RES:

a.     Necessity: Why, for the sake of food and nutrition access, is it essential to maintain this thing you have identified for future generations and to attach trust status and protection to it?

b.     Scarcity:  What evidence do you have that current practices and trends threaten to obliterate it, neglect it, or damage it beyond its capacity to auto-regenerate or endure?

c. Irreplaceability: Is there no available substitute for this thing that might be cheaper, have a smaller environmental and regulatory footprint, and that would produce the same public good? Discuss known alternative paths to providing the same food- or nutrition-related benefit. (e.g. whale oil is no longer needed to provide lighting in homes—better, more sustainable alternatives exist)

d.     Unsuited in the 21st century to private management: Is there evidence that private owners or self-managing groups of producers or managers are unable or unwilling to safeguard the proposed trust for future generations?   

3)     WHAT ACTIONS ARE NECESSARY FOR TRUSTEES TO FULFILL THEIR FIDUCIARY DUTIES TO ACT IN THE INTERESTS OF FUTURE GENERATIONS? Presumably trustees cannot fulfill this duty by depriving current inhabitants of the planet food or nutrition access, much the same way as university trustees may not ensure the future well-being of their institution by depriving current generations education access now. Consider what sustainability of the trust requires.

a.     Knowledge gap: Is enough known about how it functions? Might it require more research? What questions in particular should animate this research? Are there groups of humans who hold essential knowledge or cultural practices who should have priority in defining the fiduciary and knowledge interests of the trust? Who should be able to propose questions and how? Who should be able to conduct the research? What product(s) should emerge from the research? (Peer-reviewed articles in scientific journals? IPCC or FAO or UNEP reports? Documentaries? YouTube tutorials or massive online courses? Public murals? Song cycles? Caravans of musicians or poets or clerics? Vaults for preservation and exchange of biotic or mineral specimens? Public databases? Video games? High school curriculum packets? Extension officers with special training?)

b.     Monitoring: What, if anything, should be monitored and how? Who should be entrusted with monitoring? What must exist for monitors to execute their duties thoroughly and without intimidation? 

c.      Tools for enforcement: Is there a case for targeted subsidies or a financial penalty structure to safeguard the asset? Should noncompliance with protection measures carry criminal penalties? 

4)     IDENTIFY EVIDENCE IN THE FORM OF PILOT PROJECTS, LOCAL SYSTEMS (MODERN OR ANCIENT), OR BODIES OF EXPERIMENTAL WORK THAT A SHIFT FROM THE STATUS QUO IN THE NAME OF TRUST PRESERVATION IS POSSIBLE.

a.     Scalability: Is it possible to shift modal practices in how food and nutrition are provided or secured such that future generations are provided for on a mass level? (You needn’t prove that alternative systems will serve everyone, but simply that they could be viable at significantly larger scale than at present.)

b.     Externalities: Are there likely to be high costs to humans and non-human life forms in the adoption of trust measures?

c.      Fairness: Would alternative systems of production and nourishment consistent with the trust management incur outsized costs on any group of persons?      

References

[1] Charles Eisenstein Climate: A New Story (Berkeley: North Atlantic Press, 2018), 265.

[2] Edward O. Wilson, The Future of Life, (New York : Alfred A. Knopf, 2002); Ceballos, Gerardo & Ehrlich, Paul, “The misunderstood sixth mass extinction,” Science 360 (2018) 1080.2-1081. 10.1126/science.aau0191. 

[3] Jarvis, B. The Insect Apocalypse is Here, New York Times Magazine, November 27, 2018 https://www.nytimes.com/2018/11/27/magazine/insect-apocalypse.html.

Hallmann C.A., Sorg M., Jongejans E, Siepel H, Hofland N, Schwan H, et al. “More than 75 percent decline over 27 years in total flying insect biomass in protected areas” PLoS ONE 12, No. 10 (2017), https://doi.org/10.1371/journal. pone.0185809

Mammola, S., Goodacre, S.L. and Isaia, M., “Climate change may drive cave spiders to extinction,” Ecography 41 (2018), 233-243 doi:10.1111/ecog.02902. 

[4] Klein, K. (2019) “Pesticides and Soil Health,” Washington, D.C., Friends of the Earth;

Nettles, R. et al., Influence of pesticide seed treatments on rhizosphere fungal and bacterial communities and leaf fungal endophyte communities in maize and soybean. Applied Soil Ecology, 102 (2016), 61-69

Santos, M.J.G. et al, Pesticide application to agricultural fields: effects on the reproduction and avoidance behaviour of Folsomia candida and Eisenia andrei. Ecotoxicology, 21, no. 8 (2012), 2113-2122. 

[5] de Graaf, I., et al. . "Environmental flow limits to global groundwater pumping " Nature 574 (2010), No. 7776  90-94.             

[6] FAO. 2019. Soil erosion: the greatest challenge to sustainable soil management. Rome; Cox, C., Hug, A., Brezelius, N. (2011) “Losing Ground,” Washington D.C., Environmental Working Group.  

[7] IPCC, “2018: Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty,”  [Masson-Delmotte, V., P. Zhai, H.-O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T. Waterfield (eds.)]. World Meteorological Organization, Geneva, Switzerland.  

[8] Speth, James Gustave. Red Sky at Morning: America and the Crisis of the Global Environment, (New Haven: Yale University, 2003), 2. 

[9] Lindsey, R. “Climate Change: Atmospheric Carbon Dioxide,” National Oceanic and Atmospheric Administration, February 20, 2020, accessed May 23, 2020 at https://www.climate.gov/news-features/understanding-climate/climate-change-atmospheric-carbon-dioxide 

[10] Wood, M.C., Nature’s Trust: Environmental Law for a New Ecological Age, (New York: Cambridge University Press 2014), 14. 

[11] See, for example Michael Blumm, “Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision,” University of California-Davis Law Review 45 (2012), no. 741, 808. 

[12] Joseph L. Sax, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,” Michigan Law Review 68 (1970), no. 3, 473-566.  

[13] Sax, 556-557. 

[14] Hare, D. and Blossey, B., “Principles of Public Trust Thinking,” Human Dimensions of Wildlife 19, no. 5 (2014), 399-402.