Natural Resources Archives – Southern California Law Review

Common Heritage as Public Trust: A Property Law Approach to Managing Resources Beyond National Jurisdiction

October 2024October 2024Christopher Mirasola*

The search for rare minerals is taking us well beyond the bounds of national jurisdiction, and international law is struggling to keep up. In the 1970s states agreed that the deep seabed beyond national jurisdiction was the “common heritage of mankind,” a doctrine that was ultimately codified in the United Nations Convention on the Law of the Sea. The common heritage doctrine has, from the outset, been something of a chimera. And fears over its association with redistributive economic policies led to the failure of an agreement regulating activities on the moon. Yet the doctrine exists as a going concern in international law. Deep seabed mining is on track to begin in 2024. The United Nations is presently considering international rules for asteroid and lunar mining. And efforts to protect marine biodiversity continue to rely on the idea that certain resources are our common heritage. If states are to deal productively with any of these issues, we need a revitalized approach to the common heritage doctrine.

Instead of embodying a static set of legal precepts, I argue for a flexible understanding of the common heritage doctrine rooted in theories of commons property that is sensitive to the peculiarities of specific natural resources. A fruitful exemplar of such an approach is the public trust doctrine of U.S. property law. Sharing with the common heritage doctrine a common foundation in Roman principles of common property, the public trust doctrine recognizes that governments hold certain natural resources in trust for the beneficial use of their citizens. By imposing this duty, and by limiting the purposes for which governments can use these resources, the public trust doctrine is a prototypical example of property as a set of governance rules. Drawing on the public trust doctrine’s rich common law and scholarly history, I propose a four-part framework for a public trust approach to the common heritage doctrine.

To demonstrate the opportunities made available by this approach, I take outer space mining as a case study and I propose steps that states can take to incrementally govern resource extraction in a manner more likely to attract international consensus.

INTRODUCTION

There is an inconvenient truth to our push towards a renewable energy future—it requires a stupendous amount of hard-to-find minerals. The growing fleet of electric vehicles, for example, all need high-capacity batteries that rely on lithium, nickel, cobalt, manganese, and graphite.¹ To be sure, we already mine for these minerals—the Energizer Bunny has been going for quite some time.² But future demand for them is unprecedented. The International Energy Agency has found that, since 2010, the average amount of rare earth minerals required for a unit of generated power increased fifty percent.³ Based on current energy policies, demand for rare earth minerals will double by 2040.⁴ And if we are to meet the goals of the Paris Climate Agreement to stabilize warming below a two-degree Celsius increase, demand will quadruple over the same timeframe.⁵

There are significant geopolitical ramifications to this shift in energy production. Mining for and refining rare earth minerals is, at present, highly concentrated. Sixty-nine percent of cobalt, for example, is produced in the Democratic Republic of Congo.⁶ Fifty-eight percent of the world’s lithium reserves are in Bolivia, Argentina, and Chile, and just over half of all current production is in Australia.⁷ Other rare earth minerals are disproportionately concentrated within China.⁸ All of which has led U.S. policymakers to prioritize diversifying this supply chain by providing substantial financial incentives to locate and develop domestic mineral production.⁹

This race to secure minerals is leading states and private industry to remote locales—areas “beyond national jurisdiction”—and particularly the deep seabed and celestial bodies. Under the law of the sea, areas of the seabed that are, at a minimum, 350 nautical miles from the coast are beyond national jurisdiction.¹⁰ And in outer space law, all celestial bodies, including asteroids and the moon, are not susceptible to sovereign claims.¹¹ In July 2023, the international organization charged with regulating deep seabed mining¹² began accepting applications that may, by 2024, pave the way for the first commercial mining operation beyond national jurisdiction.¹³ In April 2023, the most recent in a string of outer space mining startups launched a satellite to test equipment designed to refine metals mined from asteroids.¹⁴ Another test, into deep space, is scheduled for late 2024.¹⁵ Many states and private entities have near-term plans for human settlements on the moon.¹⁶ Such settlements will necessarily rely on extracting lunar resources.¹⁷ States take these developments seriously. The United Nations Committee on the Peaceful Uses of Outer Space (“UNCOPUOS”) is in the midst of a five-year program to develop more detailed international rules for exploiting outer space resources.¹⁸

These first steps toward mining in areas beyond national jurisdiction are controversial. A coalition of states and non-profits are calling for a moratorium on deep seabed mining to forestall the attendant probable, and likely irreversible, environmental damage.¹⁹ Similarly, there was significant international condemnation when the United States, in 2015, enacted domestic legislation recognizing the property rights of U.S. entities that extract resources from celestial objects.²⁰

All of this supercharges a decades-old debate in international law—who owns the resources available in areas beyond national jurisdiction? One of the key legal innovations of the 1970s was to characterize such resources as the common heritage of mankind (now often referred to as the common heritage of humankind). Part XI of the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) provides that resources of the seabed beyond national jurisdiction are the common heritage of mankind.²¹ Similarly, the Outer Space Treaty provides that “[t]he exploration and use of outer space . . . shall be carried out for the benefit and in the interests of all countries . . . and shall be the province of all mankind.”²² More controversially, as no spacefaring nations have acceded to it, the Moon Agreement explicitly provides that “the moon and its natural resources are the common heritage of mankind.”²³

What does it mean for a territory or resource to be the common heritage of humankind? Attempts to pin down the concept as a matter of black letter international law are unsatisfying. At a minimum, it appears to mean that the territory is not susceptible to claims of sovereignty or jurisdiction and that the territory may only be used for peaceful purposes. Yet on myriad other fronts—whether the mining must be undertaken in a manner that particularly benefits developing economies, whether an international organization is required to administer access to resources, the terms on which access may be provided, and so forth—states and scholars have fundamentally disagreed for decades.

I propose rethinking the common heritage of humankind by analogizing to the public trust doctrine, a longstanding principle of U.S. property law. I am not the first to draw international resource management lessons from the public trust doctrine. Hope Babcock, for example, has argued that it is a helpful model for establishing an international legal regime for outer space mining.²⁴ I take this proposal one step further, to flesh out a four-part framework that states can use to adopt property rules sensitive to the particularities of disparate natural resources in areas beyond national jurisdiction.

The public trust doctrine is itself a controversial principle of U.S. property law. As I discuss in Part II, it has also been the subject of significant scholarly criticism and debate. In a nutshell, the doctrine provides that there are certain natural resources that, by sovereign right, State governments hold in a kind of public trust for general use and enjoyment. The doctrine was made famous by Illinois Central Railroad Company v. State of Illinois, wherein the Supreme Court found that the Illinois legislature’s decision to completely alienate a portion of Chicago’s waterfront for private development by the Illinois Central Railroad violated the public trust doctrine.²⁵ Although Illinois Central is often the first case discussed when explaining the public trust doctrine, it was not the first U.S. public trust doctrine case. The New Jersey Supreme Court first noted the State’s trust duties with respect to navigable rivers, the coastline, and riverbeds in the early 1800s, drawing on English common law and principles of Roman property law.²⁶ The scope of the doctrine, however, expanded radically over time, impelled importantly by an intervention from Joseph Sax in 1970.²⁷Although slightly different in each State,²⁸ in its most robust form the public trust doctrine provides citizens standing to object to State governments’ decisions about water use and conservation and use of public lands.

Notwithstanding its variation across State lines, the public trust doctrine is a productive foundation from which to reimagine the common heritage of humankind. First, over the past forty years State supreme courts have productively used the doctrine to manage water consumption, particularly in Hawaii and California.²⁹ Second, and more generally, the public trust doctrine orients us to the range of substantive ends that a legal regime concerned with access to commons resources can achieve. Third, it attunes us to the relationships to which we must attend in creating these property law rules. And fourth, it moves us away from the entrenched debates over process and redistribution that have so stymied broader application of the common heritage doctrine.

My argument proceeds in four parts. Part I explains the problem: What is the common heritage of humankind, and why has it failed to meet the aspirations of its original proponents? Part II justifies using a public trust approach to the common heritage doctrine. I begin by setting out the contours of the public trust doctrine and arguing why a commons approach to managing resources in areas beyond national jurisdiction is appropriate. I go on to explain the shared historical roots of the two doctrines in Roman law, as well as what these shared roots should mean for our understanding of a public trust approach to the common heritage of humankind. I demonstrate the striking similarity in how these doctrines revolutionized their respective areas of law in the middle of the twentieth century. I argue that these similarities speak to a deep theoretical continuity between the doctrines and that a significant body of scholarship concerning commons property justifies using the public trust as a model for a modern common heritage doctrine.

Part III sets out the four-part framework for a public trust approach to the common heritage of humankind. This is a framework for institutional design, and accounts for: (1) the tangible objects to which the trust applies (that is, the res); (2) the beneficiary for whom the res is in trust; (3) the means by which the res is conserved and the entity committed to conserving it (that is, the trustee); and (4) the process by which the beneficiary may vindicate the trust if the trustee fails in its duties. Taken together, this framework moves away from particular normative visions for the common heritage of humankind to show the paths that can be taken to manage resources in areas beyond national jurisdiction. In Part IV, I use outer space mining as a case study to demonstrate how a public trust approach to the common heritage doctrine opens up fresh avenues for resource management. I then offer some brief thoughts for future work in conclusion.

I. DEFINING THE COMMON HERITAGE OF HUMANKIND

The common heritage doctrine, in many ways, persists in spite of itself. Notwithstanding its codification in UNCLOS and the Moon Agreement, the only real consensus on its parameters has been that there is no consensus.³⁰ Indeed, prior to widespread adoption of UNCLOS, many disputed that it was a legal, as opposed to a political, proposition.³¹ In this Section I identify three core commitments we can reasonably ascribe to the common heritage doctrine: (1) common heritage territory is not subject to claims of sovereignty; (2) even in some de minimis way, exploitation of common heritage resources should benefit humanity writ large; and (3) common heritage territories may only be used for peaceful purposes. I show why UNCLOS’s tortured ratification history and the failure of the Moon Agreement prevent us from imputing much else to the doctrine. Finally, I identify three areas of confusion, essential for operationalizing the doctrine, that remain: (1) the territories or things to which the common heritage doctrine should apply; (2) the international mechanism, if any, required to implement it; and (3) the beneficiary of the doctrine and the benefit accruing to them.

The Vienna Convention on the Law of Treaties directs that treaty provisions be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”³² The Convention provides for an expansive search for a treaty’s context, taking into account all treaty text and any agreements made between all parties regarding the treaty.³³ Further, the Convention directs that treaty interpretation should account for subsequent agreements and state practice in applying the treaty.³⁴

A. Purpose of the Common Heritage Doctrine

There is a strong case that the original object and purpose of the common heritage doctrine was to concretely advance the redistributive economic agenda of the new international economic order. This is evident in what is often credited as the birth of the doctrine, a 1967 speech by Maltese Ambassador Arvid Pardo.³⁵ But even Ambassador Pardo would have admitted that the roots are, in fact, much older. Earlier in 1967, Ambassador Aldo Armando Cocca, in the context of the emerging field of outer space law, argued that “the international community had endowed that new subject of international law—mankind—with the vastest common property (res communis humanitatis) which the human mind could at present conceive of, namely outer space itself, including the Moon and the other celestial bodies.”³⁶ Comments by U.S. officials during the 1960s endorsed a similar view.³⁷ Indeed, in the text of his 1967 speech Pardo noted the work of the 1967 World Peace Through Law Conference,³⁸ which resolved that the General Assembly should issue “[a] proclamation declaring that the non-fishery resources of the high seas, outside the territorial waters of any State, and the bed of the sea beyond the continental shelf, appertain to the United Nations and are subject to its jurisdiction and control.”³⁹

What differentiated these earlier statements from Pardo’s speech, more than anything, was his concern that international law, as it existed, was not sufficient to meet the challenges of decolonization. His speech began by noting in exacting detail the deep seabed’s unrealized commercial potential⁴⁰ and the strategic instability that would result from the unfettered militarization of the seabed.⁴¹ Ambassador Pardo argued that existing international law doctrines concerning territorial acquisition were insufficient to protect newly liberated states.⁴² Specifically, Pardo called for using the “financial benefits . . . derived from the exploitation of the sea-bed and ocean floor for commercial purposes” to assist “poor countries, representing that part of mankind which is most in need of assistance.”⁴³

These concerns were highly resonant of his political environment. The pace of decolonization quickened rapidly in the 1960s, and with it a widespread urgency to restructure basic premises of international politics.⁴⁴ This urgency partly manifested in the “new international economic order,” an important goal of which was to reorient the law of the sea to benefit developing states more directly.⁴⁵ Indeed, a central tenet of the “new international economic order” was to reorient the law of the sea to benefit developing states through the common heritage doctrine.⁴⁶

These overarching objectives continued to inform the doctrine’s earliest textual articulations. General Assembly Resolution 2749, for example, declared that “the sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction . . . as well as the resources of the area, are the common heritage of mankind.”⁴⁷ It went on to provide that this area is not “subject to appropriation by any means” and that “no State shall claim or exercise sovereignty or sovereign rights over any part thereof.”⁴⁸ The resolution also reserved the area “exclusively for peaceful purposes” and noted that resource extraction in the area “be carried out for the benefit of mankind as a whole . . . taking into particular consideration the interests and needs of the developing countries.”⁴⁹

B. Textual Articulations of the Common Heritage Doctrine

We can most vividly see how the common heritage doctrine failed to achieve these redistributive aims in the only two areas of international law in which the doctrine is incorporated into treaty text—the law of the sea and outer space law.

Efforts to codify the law of the sea in treaty form date to the mid-1950s.⁵⁰ We are concerned with the third conference on the law of the sea, which began in 1973 and ended in 1982 with the adoption of UNCLOS.⁵¹ The common heritage doctrine is codified in part XI of UNCLOS, which concerns “the Area”—a region of the seabed beyond a state’s exclusive economic zone and continental shelf.⁵² UNCLOS provides that the “Area and its resources” are the common heritage of mankind.⁵³ It proceeds to track the three commitments noted above. First, activities in the Area must “be carried out for the benefit of mankind as a whole.”⁵⁴ More specifically, hewing closer to the Pardian vision, these benefits must “tak[e] into particular consideration the interests and needs of developing States and of peoples who have not attained full independence.”⁵⁵ Second, part XI prohibits any state from exercising “sovereignty or sovereign rights” over the Area or its resources.⁵⁶ Finally, it provides that the Area may only be used for peaceful purposes.⁵⁷

The treaty then provides, in truly astonishing detail, an international bureaucracy designed to administer the Area for the benefit of humanity, with a particular emphasis on realizing the treaty’s redistributive aims. I will sketch them only in brief. UNCLOS establishes two organizations to realize deep seabed mining—the International Seabed Authority (“the Authority”)⁵⁸ and “the Enterprise.”⁵⁹ While the Authority is charged with generally administering and setting mining regulations, the Enterprise is arranged to operate as an independent mining concern. UNCLOS provides that proceeds from mining approved by the Authority, or undertaken by the Enterprise, be provided to adversely affected land-based mineral producers, geographically disadvantaged states, and developing countries.⁶⁰ To maximize these proceeds, UNCLOS also provides myriad ways in which states must support the Enterprise particularly. Its operating budget comes from fees collected by the Authority,⁶¹ voluntary payments from states parties, and loans.⁶² States and private mining companies are also required to provide any technical support requested by the Enterprise.⁶³ To help the Enterprise identify areas for potential mining operations, UNCLOS establishes a banking system. Each time a state or private entity wants to apply to prospect or mine in the Area, they must provide two locations, one of which is reserved for the Enterprise.⁶⁴ On top of these institutional arrangements are a number of limitations on extraction and required financial distributions to underdeveloped economies. For example, UNCLOS prescribes a detailed mathematical formula for setting production limitations on seabed mining to protect the interests of states that rely on land-based mining.⁶⁵

Developed economies strongly objected to this institutional apparatus.⁶⁶ Although the Nixon Administration had supported characterizing the Area as the common heritage of mankind, prohibiting sovereign claims, and establishing some mechanism for distributing profits “for international community purposes including economic advancement of developing countries,” by the Carter Administration opposition to the regime was solidifying.⁶⁷ By 1983, with President Reagan in office, the United States registered its dissatisfaction with the Authority’s governance structure, perceived preference for developing countries’ interests, production limits, and financial burdens by voting against the convention.⁶⁸ Most other developed economies followed suit.⁶⁹

Recognizing that a deep seabed regime without participation from developed countries would amount to little, and in a moment of renewed interest in neoliberal economics after the fall of the Soviet Union, in 1990 the United Nations began to craft an agreement concerning part XI.⁷⁰ This process culminated in the 1994 Implementation Agreement—in actual fact a rewriting of part XI to convince developed states to join UNCLOS. The changes were significant. They struck out provisions requiring the transfer of technology to the Enterprise.⁷¹ The Enterprise was directed to operate on “sound commercial principles,” deprived of required contributions from states parties, and put in an indefinite “interim” status.⁷² Complex models prescribing the rates that could be charged for mining contracts were replaced with general guidelines requiring “fair” rates comparable to those prevailing in land-based mining.⁷³ Representation on the Authority’s Council was revised to ensure that the United States and other developed countries could stymie any proposed distribution of Authority or Enterprise funds to developing countries.⁷⁴ And the banking system was revised such that the entity applying for a mining permit now had the right of first refusal to enter into a joint venture with the Enterprise.⁷⁵ These changes were effective in getting developed states to adopt UNCLOS. The Convention has been ratified by 165 of 193 UN member states. Yet these changes eviscerated the redistributive aims actualized by the original text of part XI.

The common heritage doctrine’s failure to launch in outer space law draws from these acrimonious UNCLOS debates. There are five international agreements regarding outer space activities: the Outer Space Treaty,⁷⁶ the Rescue and Return Agreement,⁷⁷ the Liability Convention,⁷⁸ the Registration Convention,⁷⁹ and the Moon Agreement.⁸⁰ Of these, the first four have been widely adopted by all spacefaring, and many non-spacefaring, states.⁸¹ The Moon Agreement—the only one with an explicit reference to the common heritage doctrine—has been ratified by eighteen states, none of which have a significant, independent space program.

The Outer Space Treaty provides that the “exploration and use of outer space . . . shall be the province of all mankind.”⁸² There has been much debate as to whether the “province of all mankind” is substantively different from the “common heritage of mankind.”⁸³ But looking to the remaining text of the Outer Space Treaty shows how, regardless of any difference in titles, the “province of all mankind” is strikingly similar to what remains of the common heritage doctrine after the 1994 Implementation Agreement. For example, article I provides that “[o]uter space . . . shall be free for exploration and use by all States without discrimination of any kind.”⁸⁴ Article II similarly establishes that outer space “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”⁸⁵ And article IV directs that “[t]he Moon and other celestial bodies shall be used by all States Parties . . . exclusively for peaceful purposes.”⁸⁶

At the same time that debates about the common heritage of mankind were dividing states during UNCLOS negotiations, states similarly turned to debate more detailed questions about the permissible uses of celestial objects. How may states use resources located on celestial bodies? What benefits must accrue to humanity through their use? What duties are incumbent on states when using them? With striking similarity to law of the sea debates, some called for the United Nations (or another, specially designed international agency) to be vested with authority over celestial objects, and granted the ability to provide leases or licenses for resource extraction.⁸⁷ But ultimately, just as in UNCLOS negotiations, intense disagreements over the common heritage doctrine⁸⁸ yielded contradictory text unacceptable to states concerned that they were signing up for an incoherent doctrine likely to develop in directions over which they would have little control.⁸⁹

C. Unanswered Questions

This analysis of treaty text leaves three key doctrinal questions unanswered, each the subject of considerable scholarly debate. First, there is a vast volume of writing on the territories or objects to which the common heritage doctrine should apply (that is, the res of the doctrine). Some have identified a “broad” vision, one that applies to “atmospheric air, biodiversity, forests, drinking water margin[s], [and] cultural and natural heritage.”⁹⁰ Efforts to use the common heritage doctrine to protect the environment⁹¹ and the atmosphere (as a tool to combat climate change) date back at least to the 1980s.⁹² Others have called for using the common heritage doctrine to protect rain forests and food systems,⁹³ fauna and flora of the deep seabed,⁹⁴ biodiversity,⁹⁵ and marine genetic resources.⁹⁶ Nearly all of these attempts have been opposed by, at a minimum, developed states in a variety of international contexts.⁹⁷

Many states and scholars proposing a wider definition of the resources to which the common heritage doctrine applies also envision some formal, international enforcement mechanism (that is, the means by which the international community’s interests may be vindicated). This is particularly true for those states animated by a version of the common heritage doctrine born of the new international economic order movement.⁹⁸ The details of this proposed mechanism vary. One of the more inventive, proposed by Malta and endorsed by Kofi Annan during his time as UN Secretary General, is to repurpose the UN Trusteeship Council to be a forum for protecting common heritage resources.⁹⁹ An independent international body, like the Authority, is another option, though a variety of states, across ideological fault lines, have resisted such an approach. In the early days of the law of the sea conferences, for example, communist bloc states opposed the creation of an international organization like the Authority out of concern that it would not be truly democratic and only exacerbate the gaps between developed and developing economies.¹⁰⁰ Other states and scholars have similarly argued that creating a new international organization would be too unwieldy, instead endorsing a model whereby enforcement is left to individual states.¹⁰¹ Certainly neither approach is fool-proof. The issues with international bureaucracy are evident in the fact that it has taken nearly forty years for the Authority to develop rules for deep seabed mining. And the potential for backsliding without a mechanism for international enforcement is readily apparent in many states’ continued inability to meet emissions targets developed during UN climate change negotiations.¹⁰²

How the benefits of the common heritage should, or must, be distributed is perhaps the most controversial aspect of the doctrine. Stepping back, this is part and parcel of a broader question concerning what duties pertain to states as trustees of humanity’s interests. We saw this in the negotiating history of both UNCLOS and the Moon Agreement. The idea that benefits accruing to common heritage resources be distributed through direct payments that favor developing states¹⁰³ and requirements for technology transfer¹⁰⁴ have been particularly contentious. There has been equally vociferous debate about whether the common heritage doctrine creates a duty to conserve heritage resources.¹⁰⁵ At a more fundamental, if slightly metaphysical, level, scholars have also debated what, in fact, constitutes “humankind”—whether it refers to states, states on behalf of all people, or all people without interposition from any state.¹⁰⁶ Practically, it is difficult to imagine in the current international system any practical version of “humankind” that does not include, at least in a representative fashion, states.

The vision of the common heritage of humankind that first animated its inclusion in international treaty law greatly exceeded what remains of the doctrine in treaty text and actual practice today. We have seen the doctrine’s contentious codification in the law of the sea, and we have witnessed how it foundered in outer space law. Taken together, we are left with a vision of the common heritage doctrine that is at once freighted by historical association with redistributive policies, and yet which, in practice, has few concrete hooks to advance these goals. This contradictory status quo does little to foster doctrinal clarity or productive negotiations about methods for managing resources in areas beyond national jurisdiction. In the remaining sections, I set out to sketch a new path.

II. JUSTIFYING A PUBLIC TRUST APPROACH TO THE COMMON HERITAGE DOCTRINE

If the common heritage doctrine is to become a meaningful proposition in international law, we need a new approach. In this Section, I argue why looking to the public trust doctrine is instructive. First, the doctrines share similar normative impulses, evinced over a long history, that make this analogy particularly apt. Proponents of the public trust and common heritage doctrines, for example, both trace their legal arguments back to the same provisions of Roman law. Moreover, the primary innovators of both doctrines in the 1960s and 1970s had a similarly instrumental vision for the legal framework they set out to establish—a vision more fully realized by the public trust doctrine. Second, the public trust doctrine provides a coherent approach to managing common pool resources in a manner that, at a practical and theoretical level, coheres with general principles of property law. And finally, although the public trust doctrine gained prominence primarily in domestic U.S. property law, it has gained international traction. As I propose to use it, the public trust doctrine provides a generalizable heuristic for devising rules to manage international resources.

This argument builds on a 2019 article by Hope Babcock, which discussed briefly the virtues of the public trust doctrine within a broader discussion of the many domestic property law doctrines that might be used to regulate outer space mining.¹⁰⁷ In particular, Babcock noted the practical benefits to adopting a duty to preserve resources, assure public access, and prevent alienation in the absence of a robust international ruleset for outer space mining.¹⁰⁸ I expand on this argument in three ways. First, I show that the public trust doctrine can inform our approach to the common heritage doctrine writ large, in contexts far beyond outer space. Second, I develop the historical and theoretical reasons why this analogy should be attractive to states looking for a more comprehensive approach to international resource management. Third, I explain in detail what a public trust approach to the common heritage means through a four-part framework, detailed in Part III.

A. Why a Commons Approach to International Resource Management

Anyone advocating that we reinvigorate the common heritage doctrine must first justify why resources beyond the bounds of national jurisdiction should be treated as a commons. Why not, instead, simply divvy them up? This, after all, is the compelling insight proffered by Garrett Hardin in his work on the tragedy of the commons.¹⁰⁹ Hardin posits that, in a world of rational herdsmen, each with equal and unfettered access to a pasture, the “only sensible course for him to pursue is to add another animal to his herd. And another; and another.”¹¹⁰ Inexorably, Hardin tells us, “[r]uin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.”¹¹¹ He was not the first to make this point. Aristotle also observed that “what is common to the greatest number has the least care bestowed upon it. Everyone thinks chiefly of his own, hardly at all of the common interest.”¹¹²

But we know that this simple picture of a tragic commons and complete allocation of rights (whether through allocation of private property rights or government management) is incomplete. Michael Heller, for example, warns of the dangers of too much allocation of private rights in resources. In what he terms a tragedy of the anticommons, real property may be underutilized when too many users are granted the right to exclude others from a scarce resource if no hierarchy of privilege exists between these users.¹¹³ Economic modeling has borne out this analysis,¹¹⁴ though some have argued for a more precise articulation of the game theoretic problem appropriately denominated an anticommons.¹¹⁵ But even this represents an overly narrow view of the practical ways in which resources are managed. Elinor Ostrom, for example, has empirically demonstrated how communities have developed private agreements to manage common pool resources, enforced by a variety of institutional mechanisms that go beyond simple division of property rights or government management.¹¹⁶ Specifically, she notes that achieving Pareto-optimal equilibrium in the market for a particular resource through centralized resource management rests on assumptions that the government has completely accurate information about the resource, sophisticated capability to monitor and sanction compliance, and zero administration costs.¹¹⁷ This does not mean that Ostrom denies any role for the government or an external monitor in managing common pool resources. For example, speaking to those who advocate for privatized rights, Ostrom notes that it can be practically infeasible with respect to nonstationary resources, like water and fisheries.¹¹⁸ Instead, she argues that there is no single solution to resource management.¹¹⁹ Institutional design is difficult, time-consuming, and context dependent. More often than not, some mixture of private and public institutions is needed “to achieve productive outcomes in situations where temptations to free-ride and shirk are ever present.”¹²⁰

A commons approach to international resource management in areas beyond national jurisdiction is particularly appropriate for a number of the reasons outlined above. Although the mineral resources of the deep seabed are certainly stationary, the marine life of the high seas that these operations would disturb do not respect jurisdictional boundaries. On any reasonable assessment of the International Seabed Authority’s track record, its role as a centralized arbiter of resource rights is far from cost free. In outer space, given how little we know about the productive uses of asteroids and other celestial objects, there is a real risk of dividing property rights so finely as to create an anticommons. Moreover, at least at present, there is no centralized authority empowered to penalize free riding, and the likelihood of establishing such an authority seems dim in our current geopolitical environment. Before adopting an entirely new system of property rights, it therefore seems reasonable to find a way to make a commons approach to managing resources beyond national jurisdiction work.

B. Defining the Public Trust Doctrine

Perhaps more than many common law principles in U.S. law, the public trust doctrine varies significantly from State to State. Put most simply, it provides that the State holds title to land under tidal waters in a form of trust for the people of that State, who “have the right to use the land and water for navigation, fishing, and recreational uses.”¹²¹ Two of the most far-reaching applications of the public trust doctrine were rendered by the California and Hawaii Supreme Courts. I will treat them both in turn, as demonstrations of the kind of work that the public trust doctrine does in modern U.S. property law.

In National Audubon Society v. Superior Court, the California Supreme Court addressed whether, and how, the public trust doctrine affected the State’s system for prioritizing access to fresh water, with a particular focus on use of water from Mono Lake, a particularly distressed reservoir for fresh water in the Los Angeles County area.¹²² It found that the public trust doctrine did apply to these water resource decisions, and is an articulation of:

[T]he state’s authority as sovereign to exercise a continuous supervision and control over the navigable waters of the state and the lands underlying those waters. This authority applies to the waters tributary to Mono Lake and bars [the City of Los Angeles Department of Water and Power (“DWP”)] or any other party from claiming a vested right to divert waters once it becomes clear that such diversions harm the interests protected by the public trust.¹²³

This application of the public trust doctrine to California’s system of water rights had significant effects on life in California, where, as the court acknowledged, “[t]he prosperity and habitability of much of the state required the diversion of great quantities of water from its streams for purposes unconnected to any navigation, commerce, fishing, recreation, or ecological use relating to the source stream.”¹²⁴ Nevertheless, the court held that “before state courts and agencies approve water diversions they should consider the effect of such diversions upon interests protected by the public trust, and attempt, so far as feasible, to avoid or minimize any harm to those interests.”¹²⁵ Just as significantly, the supreme court also held that California courts and the DWP have “concurrent jurisdiction” in adjudicating these public trust disputes.¹²⁶

This decision had a significant practical effect on Mono Lake, which had experienced rapidly decreasing water levels since the State authorized DWP to divert flows from source streams in the 1940s.¹²⁷ By 2010, implementation of interim measures adopted in 1994 for lake and stream restoration and a final plan published in 1998 raised the lake’s water level by ten feet.¹²⁸ And these regulatory changes established a system of water rights that ensured consideration of public trust interests when adjudicating private water rights in the State.¹²⁹

The Hawaii Supreme Court in In re Water Use Permit Applications faced a similar dispute about allocation of water rights, here between agricultural producers in the central plains of Oahu, down-stream users on the windward side of the island, and the stream’s ecosystems.¹³⁰ The court held that the public trust doctrine, though having independent roots in common law, was a constitutional doctrine and applied to “all water resources without exception or distinction.”¹³¹ It further found that Hawaiian public trust purposes included resource protection,¹³² domestic use (including drinking),¹³³ and “the exercise of Native Hawaiian and traditional and customary rights.”¹³⁴ The court specifically found that the public trust should not consider interests in “private use for ‘economic development.’ ”¹³⁵ Unsurprisingly, the court found that Hawaii had a continuing obligation to “preserve the rights of present and future generations in the waters of the state,” though the courts did not require a one-size-fits-all prioritization of interests.¹³⁶

Although the public trust doctrine is, in many jurisdictions, of rather limited application, the California and Hawaii examples show how it currently serves as a doctrine for resource management.

C. Shared Roots of the Common Heritage and Public Trust Doctrines

In this Section, indebted to the work of J.B. Ruhl and Thomas McGinn, I unpack what the res communis meant.¹³⁷ I trace in brief how the public trust and common heritage doctrines developed this concept of the res communis. And I show how debates over the contours of the res communis demonstrate the necessary role of state action to preserve access to common resources. I do not, however, want to burden this connection with too much normative force. Particularly in the context of the public trust doctrine, some have relied on this Roman pedigree to justify the doctrine’s place in modern property law.¹³⁸ But as we will see below, the modern common heritage and public trust doctrines advertently moved beyond the idea of common property enshrined in Roman law. So, while the Roman origins of both doctrines does not make a public trust approach to the common heritage doctrine legally or normatively required, it is nonetheless useful to show how the doctrines are united by a higher-level conviction that there are certain resources that should be held in some form of trust for common use in a way that is not readily accommodated by private or government ownership.

1. Origins in Roman Property Law

Before we trace the public trust and common heritage doctrines to their Roman roots, a bit of background on the res communis—the Roman concept of common property to which both doctrines refer. The res communis stood for the proposition that certain things (at a minimum, the sea, seashore, and air) should remain accessible to all, primarily for resource extraction, and this access could be vindicated at law.

To understand the res communis we must begin with the restatement of Roman law provided in the Corpus Juris Civilis, promulgated by Emperor Justinian from 529 to 534 CE.¹³⁹ The Corpus has three main parts: the Institutes (an introductory guide to Roman law),¹⁴⁰ the Digest (a detailed guide for more advanced study),¹⁴¹ and the Codex (a compilation of imperial legislative, judicial, and administrative enactments stretching from the reign of Emperor Hadrian to the Codex’s publication).¹⁴² Of the many ways in which the Roman jurists categorized types of property, the Second Book of the Institutes provides, for our purposes, the most important:

Let us now speak of things, which either are in our patrimony, or not in our patrimony. For some things by the law of nature are common to all [i.e., res communis]; some are public [i.e., res publicae]; some belong to corporate bodies [i.e., res universitatis], and some belong to no one [i.e., res nullius]. Most things are the property of individuals, who acquire them in different ways, as will appear hereafter.¹⁴³

Res communis is property outside our patrimony (i.e., extra patrimonium) and therefore incapable of private ownership.¹⁴⁴ The Institutes provides that the res communis includes, by natural law, “the air, running water, the sea, and consequently the shores of the sea.”¹⁴⁵ The Digest attributes this rule to Marcian, a noted Roman jurist from the third century,¹⁴⁶ though Ruhl and McGinn have identified earlier articulations of the same or similar rule as early as the late republic.¹⁴⁷

It is this definition of the res communis in the Institutes which most courts and scholars identify as the roots of the public trust and common heritage doctrines. Take, for example, Arnold v. Mundy,¹⁴⁸ one of the earliest cases in the United States on the public trust doctrine. Here, the New Jersey Supreme Court of Judicature found against a plaintiff’s claim of trespass concerning oyster beds planted below the low-water line in a navigable river.¹⁴⁹ The Chief Justice reproduced this provision of the Institutes nearly verbatim—both in English and Latin.¹⁵⁰ The Supreme Court, over two decades later confronting nearly the same issue in New Jersey, adopted this reference to the Institutes.¹⁵¹

Closer to the present day, Justice Kennedy in Idaho v. Coeur d’Alene Tribe of Idaho and PPL Montana, LLC v. Montana also attributed the public trust doctrine to this portion of the Institutes, as incorporated into English common law.¹⁵² Scholars of the public trust doctrine make similar, even more frequent reference to the same.¹⁵³

In international law, this Roman inheritance was used most famously by Hugo Grotius to argue that the seas, by their nature, were incapable of appropriation and therefore open to all for trade and fishing.¹⁵⁴ This greater emphasis on the freedom enjoyed at sea, rather than the guarantee of land access to the seas, is reflected in the relatively greater ambivalence taken toward the text by proponents of the common heritage doctrine. For example, as early as the 1830s, noted South American lawyer Andres Bello argued that a distinct legal regime was needed for objects that cannot be owned by any nation without harming others, what he called an “indivisible common patrimony” that was susceptible only to limited, non-exclusive use.¹⁵⁵ French jurist A.L. Pradelle came to a similar conclusion in 1898, arguing that the seas were the “patrimoine commun de l’humanité.”¹⁵⁶ These innovations were noteworthy primarily because they rebutted Grotius’s use of the res communis. Nevertheless, Ambassador Pardo, for example, cites this provision of the Institutes specifically in his proposal to establish the common heritage doctrine.¹⁵⁷ And other seminal works on the law of the sea make similar references to these provisions of Roman property law.¹⁵⁸

But what did it mean to designate the air, flowing water, sea, and shores of the sea as res communis, and how are these rights vindicated? There has been considerable debate on the topic; I will begin by discussing relevant provisions of the Digest and Institutes before turning to their interpretation by scholars.

First, various provisions of the Digest and Institutes note how designating territory as res communis guaranteed access to other resources that could be appropriated. So, for example, Florentinius characterizes the seashore as res communis and notes that “pebbles, gems, and so on which we find on the shore forthwith become ours by natural law.”¹⁵⁹ Similarly, the Institutes provides that “[w]ild beasts, birds, fish, and all animals, which live either in the sea, the air, or on the earth, so soon as they are taken by any one, immediately become by the law of nations the property of the captor; for natural reason gives to the first occupant that which had no previous owner.”¹⁶⁰ The Digest supports this proposition with a number of citations to even earlier legal opinion.¹⁶¹

Yet, as Ruhl and McGinn argue, the res communis appears to be about more than just providing unfettered access to the air, sea, and flowing rivers so that individuals can extract resources.¹⁶² To understand why, we must appreciate longstanding doctrinal confusion about the difference between the res communis and res publicae.

Ulpian describes as res publicae “those things . . . that belong to the Roman people.”¹⁶³ Similarly, Ulpian is quoted as providing that “[w]e do not regard as being ‘public’ those things which are sacred or hallowed or designed for public use but those things which are, as it were, the property of communities.”¹⁶⁴ In this way, it seems we might make a rough distinction between property to which all are guaranteed access regardless of their political community (that is, res communis) and property owned and preserved for the benefit of a particular group of peoples (that is, res publicae).

But this easy distinction is complicated by the many parts of the Digest that characterize flowing waters and the seashore (things considered res communis) as res publicae. First, with respect to flowing waters, the Digest in a number of places notes that rivers are public property.¹⁶⁵ And although the right to use riverbanks is said to be public,¹⁶⁶ there is also an admitted private right to privately own and construct private buildings on them.¹⁶⁷ A similar story can be told about the sea and the seashore. For although the sea is common to all, the Digest recounts that “just as a building erected in the sea becomes private property, so too one which has been overrun by the sea becomes public.”¹⁶⁸ Muddying the waters even more, we are told that

What a man erects on the seashore belongs to him; for shores are public, not in the sense that they belong to the community as such but that they are initially provided by nature and have hitherto become no one’s property. Their state is not dissimilar to that of fish and wild animals which, once caught, undoubtedly become the property of those into whose power they have come.¹⁶⁹

As Ruhl and McGinn demonstrate in detail, this overlap has bedeviled scholars since the middle ages.¹⁷⁰ From the eleventh through fifteenth centuries, for example, scholars reconciled these passages by holding that res communis resources were used, and not owned, by humans and animals, while res publicae resources were used only by humans.¹⁷¹ Scholars in the nineteenth century adopted other methods to make this area of law coherent, again mostly aimed at creating more nuanced distinctions between what should truly be considered res communis.¹⁷² Yet others in the twentieth century attribute the incoherence to revisions made by those compiling ancient sources of law.¹⁷³ And many more recent scholars, focusing on the less rigorously legal aspects of Marcian’s work, have discounted the existence of the res communis entirely.¹⁷⁴ In fact, these critiques of the underlying Roman law sources, and their inconsistent application in English and early American case law, is the basis for many academic critiques of the public trust doctrine.¹⁷⁵

Ruhl and McGinn instead reconcile this tension by focusing on Ulpian’s earlier writings on the res communis. They find textual evidence that, as a practical matter, access to res communis property was protected in the same manner as that provided for the res publicae.¹⁷⁶ For this reason, they argue, the rules applicable to res publicae should be seen as equally applicable to res communis.¹⁷⁷

There are important consequences that stem from this practical connection. As Ruhl and McGinn note, there are rules concerning uses of res publicae resonant of the idea of a public trust.¹⁷⁸ For example, the Digest reports that Scaevola opined that although one could build on the seashore, such construction could not impede public use.¹⁷⁹ Likewise, Ulpian wrote at length about the actions that could be taken against individuals who impede public access to res publicae.¹⁸⁰ In an indirect way, these areas of overlap suggest an early recognition of the necessary role that government must play if any property is to be considered common to all, and not just open to access by a particular political community (that is, res communis). It is unsurprising, then, that UNCLOS established an international organization through which states would preserve the deep seabed under the common heritage doctrine. And it suggests that future applications of the common heritage doctrine will be difficult to enforce without a similar international mechanism, or state duty, for vindicating humanity’s interests.

2. Common Twentieth Century Doctrinal Innovation

The middle of the twentieth century was critical to the modern incarnations of the common heritage and public trust doctrines. In this Section, I show how two protagonists—Ambassador Arvid Pardo and Professor Joseph Sax—expanded upon existing conceptions of common heritage and public trust to achieve their normative ends. They were both unabashedly instrumental—both saw these doctrines as convenient procedural vehicles to curing what they saw as deficiencies in their respective political environments. What emerges is a common appreciation of the flexibility that Elinor Ostrom noted as one of the signal characteristics of commons governance.¹⁸¹

We have already canvassed Ambassador Pardo’s revolutionary vision for the common heritage doctrine in Part I. Joseph Sax laid out a similar vision for the public trust doctrine, at around the same time, from the pages of the Michigan Law Review.¹⁸²

To understand the power of this vision, we must understand the public trust doctrine as it developed prior to Sax’s intervention. Up until Illinois Central, the public trust doctrine was a relatively constrained proposition, used chiefly to manage access to navigable rivers and the stationary resources (for example, oysters) on the riverbed. Chief Justice Taney in Martin v. Waddell’s Lessee may have been among the earliest to use the term “public trust” when, in denying a patent to an oyster fishery bed, he found that the kings of England held navigable waters “as a public trust.”¹⁸³ Importantly, he held that derogating from this right required “clear[] indicat[ion] by appropriate terms; and would not have been left for inference from ambiguous language.”¹⁸⁴ Just over a decade later the Supreme Court reaffirmed this approach in The Volant, finding that soil below the low-water mark “is held by the State, not only subject to, but in some sense in trust for, the enjoyment of certain public rights, among which is the common liberty of taking fish.”¹⁸⁵ Again, for this reason, the Court held that states “may forbid all such acts as would render the public right less valuable, or destroy it altogether.”¹⁸⁶

Justice Field, in Illinois Central, expanded the doctrine by articulating a more robust role for the courts to limit the legislature’s discretion to alienate public trust resources. Specifically, Justice Field found that “[t]he control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.”¹⁸⁷ This standard was controversial, and did not flow naturally from at least some States’ approaches to the public trust doctrine. In the dissent’s words, “if the State of Illinois has the power, by her legislature, to grant private rights and interests in parcels of soil under her navigable waters, the extent of such a grant and its effect upon the public interests in the lands and waters remaining are matters of legislative discretion.”¹⁸⁸

The extent of this shift is most vividly displayed in Morris v. United States.¹⁸⁹ Here, the Supreme Court rejected a claim to land added to the riverbank by a rapid shifting of the course of the Potomac River.¹⁹⁰ In doing so, the Court applied a straightforward understanding of the Illinois Central test that the public trust could not be entirely alienated for private use.¹⁹¹ Yet, as the Court acknowledged, this flatly contradicted the approach taken by Maryland courts dating back to 1821. For example, in Browne v. Kennedy,¹⁹² Chief Justice of the Maryland Court of Appeals Jeremiah Chase held that the Maryland legislature could sell land “covered by a navigable river” so long as the private use did not “interfer[e] with or affect[] the public or common right[s to] . . . navigation and fishing.”¹⁹³ The Supreme Court’s rather startling response to this contradiction was to note the myriad ways in which the Kennedy Court had misinterpreted prior Maryland case law.

Thereafter, the Court was inconsistent in how aggressively it hewed to Justice Field’s approach in Illinois Central. To name just a few, the Court later affirmed an Alabama statute granting tidewater rights to the city of Mobile,¹⁹⁴ upheld a Chicago ordinance requiring that a railroad dismantle a tunnel built pursuant to an earlier ordinance so that the riverbed could be dredged,¹⁹⁵ and upheld a New York Court of Appeals decision to strike down a statute incorporating a development company that did not provide a mechanism for the State to vindicate public trust rights.¹⁹⁶ Indeed, it was only in 1926 that this inconsistent approach to legislative treatment of trust resources was resolved by the Supreme Court determining that, though “the general principle” of Illinois Central had been “recognized the country over,” in its particulars, the holding was “necessarily a statement of Illinois law.”¹⁹⁷

It was into this commercial understanding of the public trust doctrine, rooted in Roman concerns for open access, that Joseph Sax launched his now famous article on the public trust doctrine. It is beyond dispute that Sax’s article sparked a sea change in the way State courts approached the public trust doctrine. From 1970 to 1985 alone there were nearly one hundred cases concerning the public trust doctrine, many of which cited Sax’s article.¹⁹⁸ And States have taken up Sax’s invitation to unshackle the doctrine from its historical roots in concerns over navigability and fisheries.¹⁹⁹ By the mid-1980s, courts had extended the public trust to include marine law, sand and gravel in water beds, dry sand areas of the beach, rural parklands, battlefields, wildlife generally, archaeological remains, and (in Louisiana) all natural resources, including air and water.²⁰⁰ Sax was similarly influential in identifying the mechanisms that State courts have adopted to enforce this expanded public trust. These include requiring that government action satisfy the public trust’s purpose, mandating that government action be preceded by an assessment of any adverse impact on trust resources, and searching for specific legislative authorization for agency actions that affect trust resources.²⁰¹ While some of these had hooks in early public trust case law, many were relatively novel applications of judicial power.

Sax’s role here is substantially similar to that of Ambassador Pardo and his contemporaries, acting only a few years earlier. Like Ambassador Pardo, Professor Sax makes an unabashedly normative argument, and I do not mean this as a critique. This undermines arguments made by later scholars who criticize Sax’s public trust doctrine as disconnected from English and Roman law sources. Sax states that he is in “search for some broad legal approach which would make the opportunity to obtain effective judicial intervention [for environmental protection] more likely.”²⁰² In particular, he is looking for a doctrine that satisfies three criteria: (1) “some concept of a legal right in the general public” that is (2) “enforceable against the government” and (3) “capable of an interpretation consistent with contemporary concerns for environmental quality.”²⁰³ Indeed, Sax owns up to the state of the law as he found it:

[O]nly the most manipulative of historical readers could extract much binding precedent from what happened a few centuries ago in England. But that the doctrine contains the seeds of ideas whose importance is only beginning to be perceived, and that the doctrine might usefully promote needed legal development, can hardly be doubted.²⁰⁴

Like Ambassador Pardo and his contemporaries, Professor Sax treats with, but advertently moves beyond, the res communis²⁰⁵ to achieve his environmental ends.

The bulk of Sax’s article is a detailed review of the public trust doctrine in the States, noting how particular cases might provide a hook for expanding judicial appetite for protecting environmental interests. So he praises Massachusetts courts for requiring that administrative agencies identify a “specific, overt approval of efforts to invade the public trust”²⁰⁶ and lauds Wisconsin courts for asserting the independent authority to assess whether State actions are consistent with public trust interests.²⁰⁷ These various strategies are united by a common desire to root the public trust doctrine in the protection of majority interests (which are asserted to be consistent with environmental protection) from regulatory capture by a powerful minority.²⁰⁸ And here again there is striking similarly between Ambassador Pardo’s call for using the wealth of the common heritage to advance the interests of newly decolonized states and Sax’s argument that “[p]ublic trust problems are found whenever governmental regulation comes into question, and they occur in a wide range of situations in which diffuse public interests need protection against tightly organized groups with clear and immediate goals.”²⁰⁹

Taken together, what emerges from this history is a tale of two doctrines that have much in common, both in their history and their aims. They both emerged from an understanding, rooted in antiquity, that there are certain resources not amenable to private or government ownership that nevertheless are of communal interest. As such, in their deepest past, both doctrines can trace to a common concern about access to resources. Both doctrines were similarly revolutionized by prominent intellectuals of the twentieth century, who themselves built on a growing wave of change that can be traced to the nineteenth century. Each seeking to address inequities in power, Professor Sax and Ambassador Pardo sketched out an instrumental vision for the public trust and common heritage doctrines that gained widespread popularity on an incredibly short timeline. More than sharing a common history, this Section shows that these doctrines are united by a common concern—managing resources seen as necessary for the public in a manner more accountable and more equitable than had thus far been achieved.

D. The Public Trust Doctrine as a Useful Framework for Resource Management

In this Section, I address the most common critiques of the public trust doctrine to show why it provides an approach to managing common pool resources that coheres with general principles of property law. Namely, I show how its substantive flexibility is consistent with scholarly work arguing that the nature (and indeed changing nature) of property rights can be profitably explained through the social values they produce and reproduce.

1. Criticism of the Public Trust Doctrine

Sax’s redefinition of the public trust doctrine has spawned a seemingly endless academic debate. Distilled to the most salient points, scholars contest three issues: (1) whether the public trust doctrine is a necessary, or constructive, tool for environmental protection;²¹⁰ (2) whether the public trust doctrine is sufficiently well-defined, by reference to its historical roots or modern case law;²¹¹ and (3) whether the public trust doctrine comports with democratic and rule of law principles. I will address the last of these debates, as it is most important for our purposes.

Huffman sees the public trust doctrine as an unprincipled property right that, by relying on shifting judicial notions of the res, confounds public expectations and thereby undermines democratic principles.²¹² He is similarly concerned by the fact that the public trust doctrine, by asserting a right incident to State sovereignty that predates any possible private rights, eviscerates protections afforded by the Takings Clause.²¹³

There have been at least three responses to this critique. One flows from what Sax identified as the role of courts in combating agency and legislative capture by minority interests—in effect, an argument that seemingly democratic processes are, in fact, anything but.²¹⁴ A second argues that changes in the scope of the public trust doctrine is quite normal in a common law system.²¹⁵ And a third points to the fact that courts, even when exercising a form of continuing review of State action, rarely impose a substantive outcome. Instead, they use the power afforded by judicial review to require that State instrumentalities meaningfully take into account public trust interests²¹⁶ (though, of course, there may be significant overlap between requiring a substantive outcome and insisting on a method of agency decision-making).

2. The Public Trust Doctrine as a Coherent Approach to Managing Common Pool Resources

These concerns about the changing scope of the public trust doctrine and its use by courts to invalidate State actions point to broader debates about the role of common property doctrines in U.S. property law. Carol Rose addressed this tension most succinctly when she observed that the public trust doctrine and other common property regimes are radical because of “their seeming defiance of classic economic thinking and the common law doctrines so markedly mirroring that theory.”²¹⁷ She points to a few of the most telling tensions—the prioritization of public access over a right to exclude,²¹⁸ and the wholesale withdrawal of some objects from the possibility of private appropriation.²¹⁹ These moves are not easily reconciled by Demsetz’s economic theory for the emergence of property rights (i.e., a process of privatizing the commons made possible when the benefits of internalizing the externalities of using land exceed the costs).²²⁰

But Rose and others show how the public trust and related doctrines are, in fact, consistent with the greater corpus of property law. Henry Smith, for example, has identified two dimensions of property rights: the “compositional” (i.e., the physical resource that is the object of the rights) and the “organizational” (i.e., the range of activities allowed with respect to the resource).²²¹ Conceived along a spectrum, Smith identifies two methods for communicating this information—(1) straightforward rules of exclusion and (2) more informationally-intensive rules of governance.²²² Seen in this light, one defense of the public trust doctrine is that it represents a form of property that just relies more on governance rules than exclusion.²²³

Even this account, however, does little to defend the changing res as a feature of the public trust doctrine. Here, we can look to work arguing that the nature (and indeed changing nature) of property rights can be profitably explained through the social values they produce and reproduce. Rose again provides a useful starting point. She finds that “service to commerce was a central factor in defining as ‘public’ such properties as roads and waterways” and argues that public use of such properties produced significant (even “akin to infinite”) returns to scale.²²⁴ Expanding the categories of resources subject to a common access property rule, therefore, can be consistent with a benefit-maximizing approach to property law. Indeed, Rose notes how private ownership of resources traditionally considered “inherently public,” such as roadways, create holdout and monopoly if privatization is allowed to run free.²²⁵

But Rose also notes how these common access regimes are consistent with an understanding of property law that goes beyond pure economics. She notes, for example, how eighteenth and nineteenth-century scholars viewed the commercial functions enabled by inherently public property as also serving important socializing functions.²²⁶ Taking this as a starting point, Rose argues that substantive visions for what constitutes a socializing function can, and almost certainly will, change. Therefore, it would be quite natural for the nature of “inherently public property” to also change with time.²²⁷ As Rose notes, this account fits quite well with the changing res of the public trust doctrine, particularly if recreational and environmental interests are understood as serving, in modern times, a socializing function similar to that once seen as inherent to commerce.²²⁸

Rose’s socializing account is consistent with the work of Joseph Singer, who argues that property forms (which, particularly in the domain of real property, are notably few)²²⁹ embody “a set of norms and values that defines the legitimate social relationships that can be recognized in a free and democratic society.”²³⁰ As Singer goes on to argue, “the structure, shape, and definition of . . . bundled rights in the property law system must reflect our considered judgments about the legitimate contours of the social order.”²³¹ This work in turn builds on that of Alexander, who has argued that multiple-owner property (which he calls “governance property”²³²) develops virtues (like community, cooperation, trust, and honesty), which in turn promote human flourishing.²³³

The fact, then, that the public trust res has shifted over time is perfectly consistent with a change in the social values that underpin our system of property rights. Of course, questions of institutional competence remain. But in the international system, this challenge to U.S. courts’ roles in shaping the scope of the public trust doctrine just is not germane. There is no world court of common law jurisdiction capable of unilaterally deciding the scope of what comprehends the common heritage doctrine.

There is much that unites the public trust and common heritage doctrines: common roots in Roman property law, doctrinal innovation in the middle of the twentieth century, and heated disagreements about their scope and wisdom as legal doctrines. By understanding how the public trust doctrine coheres with a broader category of inherently public property and an understanding of property rules as conduits for reinforcing social values, we can begin to build a renewed framework for the common heritage doctrine.

E. Realpolitik and a Public Trust Approach to the Common Heritage Doctrine

Finally, I am not advocating for the international community to adopt a substantive vision of U.S. property law. As will be clear by the end of Part III, a public trust approach to the common heritage doctrine provides a framework for devising property rules by focusing on the values that states wish to foster. It does not itself determine what those values should be. We can see the benefits of this approach in the degree to which non–U.S. jurisdictions have adapted Sax’s vision of the public trust doctrine.²³⁴ These effects have been most direct, and most striking, in India.

The Supreme Court of India, in MC Mehta v. Kamal Nath, struck down a ninety-nine year government lease of protected forest to build a motel and declared as incompatible with the public trust a proposal to redirect an adjoining river to prevent the proposed resort from flooding.²³⁵ In its decision, the Court cited Illinois Central, California’s Mono Lake decision, and Sax’s article to establish the common and natural law roots of the public trust doctrine.²³⁶ Indian courts have reaffirmed and, in interesting ways, expanded the public trust doctrine in the years since this decision.²³⁷ For example, they have extended the public trust to include “ensuring a fair distribution of the revenues produced from publicly owned resources, such as natural gas leases,” and a distribution that “includes concerns for intergenerational equity.”²³⁸ The similarities with Pardo’s redistributive vision for the common heritage doctrine are inescapable. But more to the point, we can see how the public trust doctrine suggests a way of thinking about and a process for protecting the public values we want to achieve by preserving certain resources for public use. This approach need not reflect the particular values of any given U.S. State.

III. A PUBLIC TRUST PERSPECTIVE FOR THE COMMON HERITAGE OF HUMANKIND

I propose a four-part framework for this public trust approach to the common heritage of humankind, informed by the structure of common law trusts.²³⁹ The four lines of inquiry consider: (1) the property held in trust (i.e., the res), (2) the beneficiary of the trust, (3) the trustee and the means by which the trustee may treat the trust, and (4) mechanisms by which the beneficiary may vindicate their interests against the trustee.

A. The Res

The rapid pace with which the res considered subject to the public trust has changed suggests that an approach to the common heritage of humankind that takes as a starting point specific resources largely misses the point. Instead, as Rose and others have demonstrated, we should focus on the theory of the res—that is, the social objectives we are trying to achieve by incorporating specific resources into a legal regime of common access. Put another way, the resource matters less than the reason why we think it should be incorporated into a common access regime, and the purposes for which we think such a regime should exist.

We have already seen how these higher-level concerns dominate debates about the common heritage doctrine. Take, for example, opposition to the Moon Agreement. One of the central concerns of the United States and other space powers was how exactly the doctrine would be meted out under the contradictory principles provided in the Moon Agreement.²⁴⁰ The same can be seen in the law of the sea. Industrialized states only acceded to UNCLOS after extracting concessions in the 1994 Implementation Agreement to concentrate power in the International Seabed Authority’s Council through an allocation of seats that ensured their ability to block regulations that implemented a redistributive vision for the common heritage doctrine.²⁴¹ Securing a consensus at this theoretical level can be incredibly difficult in large-scale international negotiations. But, as a matter of negotiation strategy, sticking with such difficult issues can itself be profitable.²⁴² And as I will show in Part IV, in particular negotiation contexts there can be practical ways to refine the scope of this debate to increase the likelihood of success.

There are four theories of the res that we can most immediately discern from our discussion thus far: (1) an access theory; (2) a socializing theory; (3) an ecological theory; and (4) an intergenerational equity theory. I will address each in turn. Of course, these categories represent ideal types—there certainly may be profitable areas of overlap between them.

1. Access Theory

This theory of the res would incorporate those resources for which we expect the economic benefits of general use to be greater than those gained through individual appropriation.

This is the approach most evident in the underlying Roman sources and early U.S. case law. Here, property is characterized as a common heritage to prevent any one entity from monopolizing access to it. So, as was provided in Morris v. United States, land under tide waters is a “public trust for the benefit of the whole community, to be freely used by all for navigation and fishery, and not as private property, to be parceled out and sold for . . . individual emolument.”²⁴³ Another example of this approach is evident in the Supreme Court’s decision in Shively v. Bowlby, where it found that land under tide waters “are of great value to the public for the purposes of commerce, navigation and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use and right.”²⁴⁴

A similar policy sentiment bears forth in the Roman sources. For example, Ulpian finds that a claim may be brought against the owner of a seaside villa where the villa’s owner, in any way, obstructs the public’s right to fish in the seas.²⁴⁵ This is consistent with Rose’s observation that the common law designated properties as “public” where their use by all-comers yields commercial benefits that could not accrue if their use were restricted to a single owner.²⁴⁶

2. Socializing Theory

We might alternatively call this the Rose theory of the res. Here, we characterize as common those properties the use of which advances interactive, social virtues.²⁴⁷ So, for example, Rose identifies free speech, alongside commerce, “as a socializing practice for our society—a practice with infinite returns to scale, whose necessary locations might be subject to a public trust.”²⁴⁸ She likewise argues that the same is true of recreation.²⁴⁹ So, under this theory, resources considered public (or, in our lexicon, common) might be utility poles on which political fliers are posted,²⁵⁰ or beaches on which the public may learn to get along by coming together for recreation.²⁵¹

As Rose admits, notions of what constitutes a socializing activity are nearly infinitely contestable.²⁵² And particularly in an international and multi-cultural setting, developing a consensus about beneficial social interaction may be even more difficult. Yet this kind of inquiry is not unprecedented in international lawmaking. Take, for example, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.²⁵³ This treaty, ratified by 143 states, identifies eleven categories of cultural property for protection through various export and import controls.²⁵⁴ Notable among the policy purposes for the Convention is the belief that “the interchange of cultural property among nations for scientific, cultural and educational purposes increases the knowledge of the civilization of Man, enriches the cultural life of all peoples and inspires mutual respect and appreciation among nations.”²⁵⁵

3. Ecological Theory

An ecological approach to the common heritage doctrine would prioritize protection of the environment to identify resources that should be incorporated into the res. We see this approach most clearly in the work of Sax, who, as we have discussed, focused in a rather utilitarian fashion on the public trust doctrine because of its promise as a procedural means for environmental protection.²⁵⁶ A similar animating principle emerges from scholarship²⁵⁷ and litigation urging courts to identify the atmosphere as another subject of the public trust.²⁵⁸ And so, for example, youth plaintiffs have urged courts to consider the federal government’s failure to curb air pollution as a violation of a public trust that inheres in the atmosphere.²⁵⁹

In some ways, the vociferous disagreement at the International Seabed Authority concerning regulations for extractive mining is a conflict between two theories of the res—the access theory and the ecological theory.²⁶⁰ Both, in a way, have a hook in UNCLOS. Article 140 provides that the financial proceeds of seabed mining will be provided to developing and other disadvantaged states,²⁶¹ which assumes commercialization of seabed resources. Article 145, on the other hand, provides that measures will be taken to “ensure effective protection for the marine environment from harmful effects which may arise from such activities.”²⁶² Yet even these measures presuppose the existence of extractive activities, which may account for the fact that mining operations are set to begin in 2024 notwithstanding significant environmental concern.

4. Intergenerational Equity Theory

The new international economic order movement represents one example of how to conceive of common heritage res in a way that prioritizes equity concerns. We can see this in the words of Ambassador Pardo, who argued that the deep seabed should be characterized as a common heritage primarily as a means for redressing disparities between newly decolonized states and developed economies.²⁶³ And it remains alive in the work of scholars like Egede, who identifies the redistributive potential of the Enterprise’s as a necessary component of the common heritage doctrine in the law of the sea.²⁶⁴ As noted previously, this is also the theory of the res that likely faces the most resistance from developed economies, and which was significantly undermined by the 1994 Implementing Agreement.²⁶⁵

B. The Beneficiary Class

There are at least two primary parts to any inquiry into the common heritage doctrine’s beneficiary population. First is whether the population should be defined as that of a specific political community or humanity writ large. The second is whether the population should be defined as only those persons currently alive or also as including future generations. I will address each in turn.

We have already seen how debate over the first dimension can be traced all the way to the Roman law antecedents of the public trust and common heritage doctrines.²⁶⁶ As Ruhl and McGinn posited, as a practical matter, it may be impossible to enforce a res communis regime without acknowledging some role for the government (i.e., in a manner quite similar to the government’s responsibilities regarding res publicae).²⁶⁷ This approach is implicit in nearly every public trust doctrine case. For example, the Supreme Court in McCready v. Virginia found that “the States own the tide-waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people, and the ownership is that of the people in their united sovereignty.”²⁶⁸ Justice Washington made this connection equally clear in what appears to be the earliest public trust case to have reached the bench of a Supreme Court justice.²⁶⁹

Contemporary public trust cases have been most direct in identifying that the beneficiary class should be understood to include future generations. For example, the Supreme Court of India in MC Mehta was clear in identifying the public trust doctrine as one that protected natural heritage in the interest of future generations.²⁷⁰ The Supreme Court of Hawaii has been similarly forthright in its attention to future generations, holding that “the public trust relating to water resources [is] the authority and duty ‘to maintain the purity and flow of our waters for future generations and to assure that the waters of our land are put to reasonable and beneficial uses.’ ”²⁷¹ This does not mean, however, that any conception of the common heritage must include consideration of future generations. There appears to be no such stipulation in any of the federal public trust cases in the years before Illinois Central, for example. And the Roman sources are equally silent on the question of future interests.

C. The Trustee and Means of Protection

1. Trustee

There are three distinct considerations to keep in mind here. First, there is deciding whether the beneficiaries should be identified as members of a political community or humans as an aggregated whole. Second, there is identifying a trustee. Finally, there is deciding whether an institutional actor outside the beneficiary class is empowered to ensure that the trustee is acting in the beneficiary class’s interests. In the domestic public trust cases, this has largely centered around debates over the proper role of the courts in reviewing legislative action. We have seen a wide range of models. On one end are some of the earliest cases from Maryland, wherein the courts entirely deferred to the legislature’s decision to alienate trust property.²⁷² On the other end of the spectrum is the California Supreme Court’s assertion of continuous, coequal jurisdiction to impose something akin to a hard-look review of agency action.²⁷³ As we have discussed, it was this potential for a strong judicial role that most attracted Sax to the public trust doctrine as a means for protecting the interests of a silent, disperse majority.²⁷⁴ These are, of course, ideal types, as the Supreme Court’s inconsistent approach to deferring to legislative actions in the wake of Illinois Central makes abundantly clear.²⁷⁵

2. Means of Protection

One could imagine an almost infinitely long list of the ways by which a trustee might protect the res in the interest of the beneficiary. These means would be in significant degree contingent on answers to the questions posited above. So, for example, the theory of active stewardship required by the California Supreme Court can be seen as a necessary product of an ecological theory of the res where the beneficiary class includes future generations. Looking across the case law we have surveyed, three broad categories emerge. Again, these exist along a spectrum from least to most permissive and should only be seen as ideal types.

First, there is the absolute prohibition on alienation or use. This has the least precedent in American public trust case law, as courts almost always recognize some ability for a legislature to divest of, or allow limited use of, trust resources.²⁷⁶ Expanding our notion of the public trust somewhat, this model would be akin to the protection afforded under the Endangered Species Act.²⁷⁷ A second, less robust, means of protection would be a requirement that the trustee be an active steward of the trust resource. The California Supreme Court adopted something analogous to this approach when it held that the public trust “imposes a duty of continuing supervision over the taking and use of [] appropriated water.”²⁷⁸ A third, and by far most common approach in U.S. case law, is to require that use or alienation of the res be consistent with trust principles. As noted previously, this too exists along a spectrum. In this way, the Supreme Court’s more skeptical approach in Illinois Central and the early approach of Maryland courts are all variations of this same model.²⁷⁹

D. Vindicating the Beneficiary’s Interests

Finally, a public trust framework for the common heritage of humankind considers the means by which the beneficiary class can vindicate its interests if the trustee fails in its duties. This is by far the most difficult to analogize across the domestic and international contexts. In U.S. case law, one of the signal virtues of the public trust doctrine, as told by its proponents, is the fact that it provides standing to sue the government for failure to protect trust resources.²⁸⁰ Yet there currently exists no international tribunal by which any citizen might vindicate rights under UNCLOS, for example. UNCLOS provides something of a proxy in the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea.²⁸¹ Yet even here, the chamber’s jurisdiction is limited to disputes between states parties, entities created by UNCLOS concerning seabed mining, and private parties who have entered into mining contracts with the Authority.²⁸² This is, in actuality, quite a robust mechanism for enforcing the duties imposed by UNCLOS. On the other end of the spectrum would be the norm-based enforcement of climate change goals arrived at under the UN Framework Convention on Climate Change.²⁸³

There are a number of benefits to applying the public trust framework to the common heritage of humankind. First, and perhaps most importantly, it provides a more detailed lexicon for articulating what we mean when we debate the common heritage doctrine. Second, it recognizes that social values are at the core of debates about the common heritage of humankind, and it demonstrates the wide range of values that we might seek to advance. And third, it connects this higher-level debate about values to a more practical discussion of particular governance rules.

IV. CASE STUDY: OUTER SPACE MINING

It is particularly appropriate to assess how a public trust approach to the common heritage doctrine might help the international community develop rules for managing outer space mining. There are many existing proposals, often developed after the United States enacted domestic legislation concerning asteroid mining in 2015. Although promising, these proposals are largely a grab-bag of analogies to existing domestic and international legal regimes. Applying a public trust approach to the common heritage doctrine can help us build on these proposals in a way that is incremental and sensitive to geography and changing technology.

A. Existing Proposals

Member states of the UN Committee on the Peaceful Uses of Outer Space (“UNCOPUOS”) have addressed outer space resource extraction every year since 2015.²⁸⁴ Beginning in 2022, UNCOPUOS has embarked on a more rigorous, five-year process for developing international rules for outer space mining. In significant part, this five-year endeavor was born of the plethora of states enacting domestic laws recognizing the property rights of private parties that extract abiotic resources from celestial objects. This list now includes the United States, Luxembourg, Japan, and the United Arab Emirates.²⁸⁵ A 2022 call for views uncovered a few areas of broad agreement. First, most states agreed to exclude discussion of access to orbits and radio frequencies from these debates, since both issues were already addressed in forums like the International Telecommunications Union.²⁸⁶ Many states likewise looked to develop a framework that would ensure predictability, safety, sustainability, and the peaceful uses of outer space.²⁸⁷

The United States has taken the lead in cultivating a group of like-minded states in favor of outer space mining. Executive Order 13914 propelled this initiative by directing that NASA foster international support for outer space resource extraction.²⁸⁸ NASA has primarily executed on this task through a series of identical bilateral agreements with other states called the Artemis Accords—a set of principles established to encourage cooperation in future lunar activities.²⁸⁹ In relevant part for our purposes, the Artemis Accords provide that “the extraction of space resources does not inherently constitute national appropriation under article II of the Outer Space Treaty.”²⁹⁰

The most-cited proposals for managing such resource extraction are provided by the so-called Hague “Building Blocks.” Developed by a group of leading scholars from 2016 through 2020,²⁹¹ these Building Blocks address a wide range of outer space activities. In pertinent part, they recommend establishing a registry-based system for resource extraction “priority rights.”²⁹² Upon registering the geographic scope and period of time for any given prospecting operation, a safety zone around the activity would also be established commensurate with the type of activity that is proposed.²⁹³ The Hague Building Blocks adopt many of the uncontested elements of the common heritage doctrine—resource extraction would be carried out only for peaceful purposes “for the benefit and in the interests of all countries and humankind irrespective of their degree of economic and scientific development.”²⁹⁴ Although the precise contours of this benefit are left largely undefined, the Building Blocks do provide that states should share benefits by promoting “participation in space resource activities by all countries, in particular developing countries.”²⁹⁵ Such promotion might include, for example, assisting in developing space science and technological capacity, cooperation on training and education, providing open access to scientific information, incentivizing joint ventures, exchanging expertise and technology on a mutually agreeable basis, or establishing an international development fund with the proceeds of mining activities. The Building Blocks also advocate ensuring that rights over extracted resources “can lawfully be acquired through domestic legislation, bilateral agreements and/or multilateral agreements.”²⁹⁶

This approach is typical of a wider range of commentary urging states to adopt an outer space mining regime modeled off the International Telecommunication Union’s first-in-time, first-in-right registration system.²⁹⁷ More libertarian versions of this proposal call for the international community to do nothing—relying instead on a rule of first possession and ad hoc recognition of an entity’s on-the-ground mining operations as they develop.²⁹⁸

Another set of proposals suggests establishing some common baseline of resource entitlements. In this vein, some have recommended partitioning the moon geographically between states and allowing each to develop its own system for prioritizing extraction activities within their respective zones.²⁹⁹ A similar variant would adopt the concept of the exclusive economic zone from the law of the sea to achieve a similar end, while also being in less apparent tension with the Outer Space Treaty’s prohibition on sovereign claims.³⁰⁰ Yet others would establish a system of tradable credits, where each state received some baseline allocation of resource rights that could be sold to other states.³⁰¹

A final group of proposals seek to adapt various doctrines of domestic property law. In this way, some have advocated entrusting an international body with all extraterrestrial property rights and granting to private entities a defeasible fee interest for mining operations.³⁰² Similarly, others propose adopting a condominium model, with each state being granted fee simple to particular territories that are subject to a more general management scheme.³⁰³

This is only a flavor of the wide range of schemes proposed by states, scholars, and activists. All have their benefits and drawbacks, depending on your normative views. But, with the possible exception of the Hague Building Blocks, none provide a holistic framework for thinking about outer space mining.

B. The Public Trust Approach

A public trust approach to the common heritage doctrine does not prescribe a particular vision for outer space mining. Instead, it provides a more structured framework for thinking about the values that we seek to advance in using resources on celestial objects. By employing the public trust framework to outer space mining, two key distinctions emerge—the locations on which mining operations will occur and their probable timelines.

1. Defining the Res

To understand why these distinctions matter, we can begin by considering how states might apply a theory of the res to outer space mining. Take, for example, Rose’s socializing theory. This, again, is the idea that we should treat as common those resources the use of which produces some interactive, social virtues.³⁰⁴ Let us imagine that mining operations were to start tomorrow—there are a few categories of objects that, under this theory, should be characterized as a common heritage. The first might be objects of cultural heritage—the first Apollo landing site, for example, or Neil Armstrong and Buzz Aldrin’s footsteps at Tranquility Base. Even with a relatively minimal presence on the moon, preserving such sites would be a reminder of humanity’s shared journey of exploration and our years of shared, peaceful cooperation in civilian space programs. This is by no means a novel idea—the U.S. government has already expressed an interest in preserving these historical artifacts.³⁰⁵ Another might be locations and communication equipment, whether on the moon or in the moon’s orbit, necessary to relay communications from the far side of the moon to Earth.³⁰⁶ These resources are fundamental to communication in the same way that Rose posited utility poles are a cornerstone of political speech.³⁰⁷

These examples just do not apply to asteroid mining. There are no such cultural heritage sites, and if the asteroid is small enough, they are unlikely to ever exist. Asteroids are also unlikely to be so large as to frustrate ready communication with Earth. All of which is to say that location matters. And an approach to outer space mining that is sensitive to these differences in location may more readily lead to consensus on practical rules of the road.

Returning to our thought experiment about mining on the moon, we could imagine significantly different socializing interests at different time horizons. Let us again take the socializing theory as a heuristic. Aside from the cultural objects and communications sites noted above, if mining were to start tomorrow, there are relatively few other resources the use of which might lead to any kind of interaction—there are likely to just be too few people on the moon. But if we cast our minds some decades down the line, when state and private industry plans to have permanent lunar settlements might be realized, the situation is quite different. Like Rose’s public roadways,³⁰⁸ we could imagine there being commonly used routes connecting settlements the private appropriation of which would frustrate socializing settlements to each other. We could also imagine use of the moon’s limited water resources as another locus of important socialization. NASA has found there to be 1/100th of the amount of water in the lunar soil on the sunlit side of the moon as exists in the Sahara.³⁰⁹ To the extent that permanent human settlements need to rely on these water sources, their private use without some general use scheme could well lead to resource conflicts—certainly not a socializing use of water resources. For those who adopt a socializing theory of the res, therefore, it would be useful to adopt now a precautionary approach to using these resources which, in a foreseeable future, are important to incorporate into the commons. Such a precautionary approach might, for example, limit present use of water resources only to what is necessary to sustain human life for research stations, and not stations established just for mining activities.

Once again, these future concerns are less likely to exist on a relatively small asteroid where there is no practical ability to have a human settlement, even in a future where there are more humans who live or operate in outer space. In this case, there may be fewer practical reasons to adopt a precautionary approach to any water resources that might exist on the asteroid—paving the way to more extensive private use.

Finally, choosing between different theories of the res is largely a normative decision. But as this discussion shows, there is a geographic component that is at play. Over any time horizon, the socializing interests implicated in mining an asteroid are significantly fewer than might pertain on the moon. The same would not be true if we adopt an access theory of the res, which prioritizes opening access to outer space resources. While this does not help us choose between theories, it does help us identify those locations on which there is likely to be less disagreement among states. If we imagine a bilateral negotiation between one state that supports an access theory and another that adopts a socializing theory, they should begin their negotiations by developing a legal regime for mining asteroids. There are likely to be fewer areas of disagreement simply because the possible uses of asteroids, now or in the future, are more limited than the possible uses of different parts of the moon.

Distinctions based on location and timeframe are important to considering each of the remaining lines of inquiry for a public trust approach to outer space mining. In the remaining sections, I will briefly demonstrate why.

2. Defining the Beneficiary

As a general matter we can imagine three possible beneficiary classes. The first are those who live near the mining operation (this necessarily requires imagining a future with a permanent human presence, for example, on the moon). Second are those who live on Earth (the only class we could imagine today, for example). And the third would be to combine these two groups. An approach to the common heritage that benefits only those who live near the mining operation would be fundamentally different from one that also considers the interests of those on Earth. For example, if we adopt an ecological theory of the res, there might be significant environmental effects to mining that are purely local. So, operations that eliminate access to lunar groundwater or destroy a particularly attractive landscape simply wouldn’t matter to an earth-bound beneficiary class. Instead, maximizing the benefits that accrue to the mining (so that the proceeds could be redistributed, for example) would be far more important to this class of beneficiaries.

The question of determining the beneficiary class is largely theoretical for the time being. Presently, it is difficult to imagine any beneficiary class other than all of humanity, politically represented by states as the primary subjects of international law. But this thought experiment does suggest that there will be a difficult future task in determining the degree of preference, if any, that these beneficiary groups should enjoy from extracting resources. Difficult, but not unprecedented. Fundamentally, it is no different than the task faced by the Supreme Court in its early public trust cases: Can we impose regulations on oyster fishing in a manner that benefits the citizens of one state over those of another?³¹⁰ And for those who believe in the virtue of including non-Earth-bound beneficiaries into the common heritage of certain extraterrestrial resources, these distinctions would again counsel in favor of adopting a precautionary approach to mining now.

Together with the theory of the res, defining the beneficiary class will also raise questions about what benefits should accrue to the beneficiaries. Much of the debate about sharing technology, information, and financial proceeds from outer space mining has focused on this question. Fundamentally, like all these inquiries, it is normative and defies any necessary legal answer. Taking this public trust approach as a starting point, those advocating for preferences that would accrue to less developed countries should emphasize theories of the res that prioritize an intergenerational, equity-based approach and an understanding of the beneficiary class that extends beyond the political community of the state that engages in mining activities.

3. Trustee and the Means of Protection

As was the case in negotiations concerning the law of the sea, much of the current debate in outer space law concerns whether, and how, to create an international organization to manage mining operations. A public trust approach to the common heritage doctrine, however, suggests that this debate necessarily depends on decisions made about the theory of the res and the beneficiary class. States would do well to think critically about the history of the International Seabed Authority—the mere existence of a detailed international bureaucracy has guaranteed neither redistributive benefits for less-developed countries nor guaranteed swift access to the ocean floor.

We have already canvassed many of the institutional arrangements that states can develop to constitute a trustee and the associated means by which the trust is protected. Again, differences in location and timeframe are important. For locations where future human habitation is possible, some standing adjudicatory body may one day be necessary. But in the interim, proposals for a registry operated by some entity like the International Telecommunications Union³¹¹ appear to be sufficient. The members of such a body can use the forum to develop regulations that ensure non-interference, prioritize resource rights, and develop safety standards. So long as states can agree on the theory of the res before such a model is adopted, the risks of significant future changes in the scope of the common heritage doctrine would also be meaningfully minimized.

To the extent that states are interested in adopting a precautionary approach to mining for any of the reasons discussed above, a few options exist. One would be to limit prospecting for resources indefinitely or for some period of years. These limits could be tailored to specific locations (for example, applying to particular areas of the moon or the moon writ large), types of resources (for example, water), or the purposes for which the resources are used (for example, to sustain life). States could determine these limits in a variety of consultative fora, whether that be UNCOPUOS or some smaller body of concerned states, much like the Arctic Council.

4. Vindicating the Beneficiary’s Interests

The design choices made in Section IV.B.3 significantly determine the ways in which a beneficiary class might vindicate their rights. In the immediate future, there are two choices for how beneficiaries might vindicate their rights.³¹²

At one end, states might create an international tribunal along the lines of the Seabed Disputes Chamber of the International Tribunal of the Law of the Sea. Much like under UNCLOS, such a tribunal could have jurisdiction over states parties and private entities with mining operations and be empowered to enforce agreed-upon regulations. As a practical matter, I am pessimistic about the likelihood of any major spacefaring state acceding to this kind of jurisdiction. There has been enough action to unilaterally assert mining rights, by the United States and Luxembourg particularly, that establishing such a tribunal would likely be seen as a concession with little apparent benefit.

It seems more likely that states would continue using informal conciliation and negotiation to enforce compliance with mining regulations. This would operate in much the same way as states “enforce” the nationally determined emissions targets agreed upon under the UN Framework Convention on Climate Change.³¹³ Such an approach necessarily entails significant potential for backsliding. Some of this risk, however, could be mitigated if states are able to agree on some of the more fundamental questions discussed earlier in this section, and particularly on the theory of the res pertinent to a particular location. By more narrowly defining the problem set and establishing more detailed consensus, there may be less of an incentive for states to backslide on their commitments.

V. CONCLUSION

The common heritage of humankind contains great promise as a framework for understanding and managing resource challenges in areas beyond national jurisdiction. Its potential, however, has been stymied by its close association with the politics and economic disputes of the Cold War. Taking lessons from the development of the public trust doctrine in domestic U.S. law, the common heritage can be liberated from these political battles and applied to a wide range of contemporary problems. Future work, for example, might use this four-part framework to develop a more detailed mechanism to protect and use marine genetic resources or protect marine biodiversity.³¹⁴ Contemporary international politics has, in many ways, returned to a pattern of Cold War alliances and territorial conflict. Our approach to the international law for managing resources in areas beyond national jurisdiction can remain practical and resist a similar turn to the past.

97 S. Cal. L. Rev. 1469

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Christopher Mirasola*

* Assistant Professor, University of Houston Law Center. I am particularly grateful to Molly Brady, who pointed me in the direction of the public trust doctrine in the early stages of this project. I am also very grateful for helpful feedback from William Alford, Haley Anderson, Stephen Cody, Asaf Lubin, Thomas McGinn, Brian Richardson, Melissa Stewart, Andrea Olson, Carol Rose, and Paul Stephan. All errors are, of course, my own.

Identifying Contemporary Rights of Nature in the United States

April 2023April 2023Karen Bradshaw*

The Rights of Nature movement is at the precipice of watershed social changes. Leaders of this international, Indigenous-led movement call upon the public to radically reimagine the human relationship with nature. This Article comes at a crucial moment when some leading environmental law scholars are questioning the potential Rights of Nature within the United States. This Article responds by building upon the ideas of Christopher Stone to chart the theoretical and doctrinal pathways that breathe life into the legal framework of Rights of Nature. It sketches the present status of Rights of Nature in the United States and links this overview to environmental, animal, and natural resources law literatures.

Most scholarly discourse about the Rights of Nature focuses on a few well-known examples outside of the United States, such as constitutional rights in Ecuador or New Zealand and Australia granting rights to wind and rivers. In fact, the United States has a growing body of diverse Rights of Nature that legal scholars have largely overlooked. For example, in six federal statutes, natural resource damages have resulted in over ten billion dollars of tort remedies that benefit nature. Indigenous governments located throughout the United States—including the Band of Ojibwe, Ho-Chunk Nation, Navajo Nation, and Ponca Nation—have created legal personhood, statutory personhood, and constitutional provisions in tribal government. Additionally, wildlife holds many rights hidden in federal statutes, as with bald eagles claiming property rights superior to those of humans in the Bald and Golden Eagle Protection Act. Collectively, this diffuse and innovative set of laws forms a body of existing Rights of Nature, showing that such rights exist in the United States today—examples that deserve discussion, consideration, and potential extension.

This Article seeks to uncover and elevate these rights, thus promoting, amplifying, and calling attention to many diffuse efforts to capitalize upon their collective potential to reshape the human relationship with nature and address the environmental problems of our time. It links popular discourse on the Rights of Nature with its theoretical foundations and well-established statutory systems of environmental law. It seeks to help and inspire legal thinkers in disparate fields to collectively co-create a more robust role for Rights of Nature—within the United States and beyond.

INTRODUCTION

“Rights of Nature” recognize natural objects (such as trees, rivers, and wind) as having some legal rights, including them in our system of law and government. The Rights of Nature movement is international and Indigenous-led. It is part of a broader effort to displace anthropocentric conceptions of the human relationship with nature with an alternative worldview that prioritizes the needs of all parts of an ecosystem.

Famous international examples of governments recognizing natural objects as rightsholders have captivated public attention. Despite this public yearning to reimagine our relationship with nature, U.S. environmental law scholars were long slow to embrace the idea. Some have defined the idea narrowly, presupposing that Rights of Nature are narrowly confined to unenforceable constitutional provisions. Others have yet to engage the idea, thinking of it as orthogonal to environmental law, as it is conventionally understood as a set of statutes enacted in the 1970s (such as the Clean Air Act). This Article makes the novel claim that Rights of Nature not only exist but are actually widespread and can be found in many contemporary U.S. laws not conventionally understood as affording legal rights to natural objects. Further, it links conventional environmental law to the Rights of Nature movement, showing how merging these fields can revitalize environmental law to address pressing problems that presently narrow definitions of the field leave untouched. (This builds upon prior work in which I link Rights of Nature to animal law and animal rights literatures.¹) This Article suggests that we, collectively as a community of scholars continuously co-creating the field of law governing the human relationship with the environment, should use our collective talent, time, and skills to identify, amplify, and extend Rights of Nature because they hold considerable potential to forward new legal pathways to much-needed ecological objectives.

After a slow start, the Rights of Nature movement is quickly gaining momentum. Christopher Stone was influential in the creation of the Rights of Nature.² Stone challenged conventional Western understandings of how law interacts with nature by considering affording standing to natural objects. Since then, Stone’s thinking has influenced a large and growing international consortium of lawmakers, activists, and scholars in granting objects natural rights.

Yet, scholars and commentators may not have yet developed a shared understanding of what “Rights of Nature” are.³ Precision matters at this precarious moment, when an enthusiastic international group of legal scholars are beginning to seriously engage with the concept. There exists a danger that some scholars might ascribe the term a narrow definition—such as constitutional provisions—with understanding that they link to others—such as natural resource damages—which could lead commentators and courts to prematurely dismiss Rights of Nature. Thus, substantive outcomes result from the terminological definition—making proper understanding and definitions of critical importance.

Moreover, the early-stage practical challenges of forging new legal pathways give some leading environmental law scholars cold feet about the administrability of natural rights. For example, Mauricio Guim and Michael A. Livermore are self-described skeptics of the idea, noting “rights for nature are unlikely to provide the solution that frustrated environmentalists seek.”⁴ Although I have tremendous respect for these talented environmental thinkers, I think they dismiss the idea too quickly. Every legal movement is messy at first, needing many iterations to develop and mature into a well-functioning regime. Narrowly defining Rights of Nature and looking at early efforts to actualize it may produce too much skepticism for something that has the potential to provide a much-needed shakeup to the status quo. A broader definition of the Rights of Nature—the vision outlined in this Article—shows that, in fact, they already exist and are functioning quite well in natural resource damages statutes and Indigenous governments within the United States—two sources of Rights of Nature that Guim and Livermore do not contemplate in their valuable paper.

Despite the domestic origins of these ideas in contemporary legal structures, some U.S. scholars have dismissed the Rights of Nature as unworkable in our legal structure. That is beginning to change, with a wave of new scholarship on the Rights of Nature taking a more optimistic tone. Yet, even among this growing body of work, U.S. scholars have not created a typology of Rights of Nature or mined existing domestic law to uncover examples of these rights with an eye towards reforming domestic environmental law.⁵ As a result, some scholars are engaging with a superficial subpart of Rights of Nature as if it were the whole,⁶ dismissing that subpart and with it the entire idea.⁷ The problem is that the concept of Rights of Nature does not match the narrow definition that some scholars are ascribing to it. As a result, some are quickly dismissing the important movement as the latest iteration of the attractive-but-meaningless concept of “sustainability.”⁸

I believe that definition matters a great deal here—that defining the Rights of Nature in a broad and multifaceted way for an audience of legal scholars can save this vital movement from being dismissed as unworkable before it really starts. This Article seeks to bridge the gap between the popular discourse on the Rights of Nature and law. It lays a very modest foundation for lawyers, commentators, and judges to situate the Rights of Nature within the legal context.

This Article begins to explore the idea that the Rights of Nature are not only viable within the U.S. legal structure but are, in fact, already in existence.⁹ It begins by creating a novel typology of Rights of Nature, which is sometimes used in different ways in international discourse. Then, having briefly set forth types of rights, it maps this typology onto domestic laws to see whether—and where—there are Rights of Nature within our existing legal structure.

In doing so, this Article begins to reimagine how we define the field of environmental law—a definition that erodes the existing boundaries of the field as a set of statutes from the 1970s and takes a broader, more expansive approach. Reframing environmental law as laws that govern the human relationship with nature represents a profound, much-needed shift in the field—one that may hold the potential to address the issues of inclusion and rapid geophysical change that we so sorely need at this moment.

Environmental law scholars may have underestimated the potential of existing laws by confining our understanding of the field to federal statutes. This underestimation has caused us to believe that our hands are tied to address environmental issues, that we must wait for Congress to enact new laws to address the many colliding crises of our time to save us as they once did in the 1970s. But this is not the case. Environmental law scholars can find threads running through black letter law that may create legal pathways for new ideas. Reframing environmental law through the Rights of Nature provides a new solution to pressing environmental problems. It also serves to fill a gap between how most people feel about nature and what law on the books states. A more expansive view of environmental law serves to integrate these values—and the long-marginalized populations who hold them—into the canon of environmental law.

This Article proceeds in three Parts.

Part I defines environmental law and the Rights of Nature. Until now, the field of environmental law has been largely understood as a subset of administrative law, focused on federal agency administration of statutes that Congress enacted in the 1970s with very little subsequent updating.¹⁰ This disappointingly narrow conception of the field falls short of the legal tools society must wield to stem climate change and biodiversity loss.¹¹ Rights of Nature is an Indigenous-led effort to ascribe legal meaning to the rights of natural objects within government.¹² Some hope that Rights of Nature represents the most important shift in environmental law since the health-based statutes of the 1970s, which form the canonical version of environmental law. This analysis foreshadows not only the pluralistic descriptive analysis of the Rights of Nature in the United States but also foregrounds the need for new worldviews.

Part II explains that environmental crises highlight the need for alternative worldviews to inform the human relationship with nature. This begins by challenging the received wisdom of a legal and economic system that excludes natural interests—a human-created construct that erases the interests of nonhuman animals and plants. It advocates for readers to radically reimagine the human relationship with nature; it urges legal thinkers to forge creative pathways between the status quo and where we need to go.

Part III provides a typography of Rights of Nature, then compares this framework to existing laws within the United States today (inclusive of Indigenous governments). By mapping the origins of the term and its legal actualization in positive law in the United States today, I show that the concept is much broader than it is sometimes assumed to be. This analysis reveals that there are, in fact, widespread Rights of Nature for natural objects in the United States today. The conclusion considers the implications for Rights of Nature to revitalize environmental law. It briefly flags how some of the most pressing problems of our time—those that statutes alone are failing to address—can, and should, be addressed through innovative tools that integrate the interests of nonhuman rights-holders. This Article reveals that Rights of Nature extend beyond the narrow, commonly understood idea of affording legal personhood to nature in constitutions.

This Article concludes by calling for a change in what counts as environmental law. Students sign up for environmental law courses to learn how to protect pandas and save the world. They are so disappointed when they realize environmental law is mostly about pollution control. An unspoken secret about environmental law is that it is a tremendously narrow field. At the time the classic environmental law statutes (such as the Clean Air Act and Clean Water Act) were created, they were revolutionary. Today, they are clearly not enough to meet public demand. Why, then, do scholars and practitioners in the field accept the narrow constraints of current law? As a relatively new field, a living generation of environmental scholars and advocates built the field of environmental law from scratch.¹³ Early actors fought for legitimacy. They worked hard and earned it. Now, it is time to think of new and bold ideas. Rights of Nature hold the potential to revitalize and reconceive environmental law. This Article suggests that following the path of Rights of Nature—the theories undergirding it and its statutory and doctrinal framework—provides a path to a new iteration of environmental law that is more inclusive, relevant, and expansive.

I. Rights of Nature in Environmental Law

In a recent TED talk, Kelsey Leonard introduced the Rights of Nature to an international audience, suggesting that we should treat “water [as] a living relation and grant[] it the legal personhood it deserves.”¹⁴ Over three million people watched Leonard’s talk.¹⁵ Rights of Nature enjoy widespread popularity—most people like the idea of treating rivers and animals well in the abstract. But how do Rights of Nature intersect with the legal system?

Understanding the nexus of current federal policy and the Rights of Nature begins with two interrelated questions: What is environmental law? And what is the Rights of Nature movement? The answer to both revolves around human relationships with nature. At present, the field of environmental law is largely anthropocentric—focusing on the needs of humans while largely ignoring those of other species.¹⁶ Many (although not all) of our laws are focused on constraining human uses of natural objects (such as airscapes and rivers) so that they do not degrade to the point that they no longer satisfy human needs for clean air and drinking water. The premise of protecting the environment to satisfy ongoing human use of it is a centerpiece of much of the field.

In contrast, the fundamental premise of the Rights of Nature movement challenges this anthropocentric view. It suggests that other living things—rivers, wild rice, wind, animals—also have interests in the environment, which human uses should not fully degrade. Asserting rights on behalf of nature within contemporary human legal systems expands law beyond serving humans, creating a more expansive vision of our legal systems as navigating the human relationship with nature. Notably, this is not a new worldview. Many religions and cultures across time and history, including in much of the world today, reflect this ethos: the idea that the Earth and its resources are shared between its inhabitants, and humans ought not take more than our share from other creatures or destroy natural environments.¹⁷ Through legal formalities and corporate structures, the legal functionaries administering Western systems of law, government, and commerce have often pretended away the idea of nonhuman interests as worthy of equal consideration under the law—separating law from ecological morality.¹⁸

The remainder of this Part shows how Rights of Nature may resolve some of the shortcomings in current environmental law. Section A describes environmental law as a field of study and practice area. Section B shows that Rights of Nature provide an alternative worldview to existing environmental law, one in which nonhuman interests are formally recognized.

A. Environmental Law

Environmental law as a field is generally understood as a set of statutes enacted in the 1970s, such as the Clean Air Act, Clean Water Act, Endangered Species Act, and National Environmental Policy Act.¹⁹ These laws have largely sat stagnant since then—rarely amended with very little new environmental legislation. As a result, existing environmental laws are not addressing ecological vicissitudes including climate change, wildfire policy, factory farming, and biodiversity loss. Environmental laws are sorely out of date.²⁰

In the fifty years since the environmental laws were enacted, astonishing shifts have occurred in scientific understanding, showing many imbricated challenges that the statutory framework does not begin to address. Climate change, biodiversity loss, wildfire smoke emissions, and factory farming are modern environmental disasters. The worldview undergirding current laws are out-of-step with updated understandings of nature as part of an interconnected world.

While we have learned more about the natural world, so too has society shifted since the environmental laws were created.²¹ First, an understanding of intergenerational, systemic racism has shown how racist institutions have created environmental justice problems that intersect with climate change, wildfire, and biodiversity in troubling ways. Second, Indigenous governments worldwide are innovating new laws that draw on traditional ecological knowledge to address environmental issues.²² Third, Wicca and Paganism are quickly growing religions, emerging from the ashes of European and domestic genocide of people (generally identifying as women) who advocated on behalf of nature.²³ Fourth, animal law scholars have advanced a new agenda for radically reimagining a legal system focused on interspecies equity and expanding the law to make nonhumans co-participants in our systems of governance.²⁴

Environmental law statutes have failed to keep pace with these social shifts. Laws that represented colonial perspectives and were largely developed by non-inclusive groups of lawmakers are still on the books. Scholars, lawyers, legislators, and judges should broaden environmental law to keep up with the times. New laws, tools, and approaches are desperately needed from more diverse voices. ²⁵ The crucial question is how to update the field to incorporate new perspectives. Relying solely upon a narrow, statutory approach—by enacting more federal law—is insufficient to the intertwined challenges of natural and social concerns.

This is where the Rights of Nature come in—offering an opportunity to radically reimagine the human relationship with nature in ways that reflect both ancient worldviews and modern scientific understandings. The Rights of Nature is an international, Indigenous-led movement to update the law to recognize the legal rights of natural objects.

B. Rights of Nature

The term “Rights of Nature” describes affording legal rights to nonhuman natural beings and objects.²⁶ Rights of Nature incorporate nonhumans into human legal systems. Affording rights to a river, for example, allows the river to independently assert its interests to legal institutions through human trustees. A constitutional provision may allow citizens to sue on behalf of natural objects. This removes the need for a human plaintiff to assert adequate standing—providing built-in access for natural entities to the judicial process.

The Rights of Nature is also a movement—an international effort for governments worldwide to fold nature into systems of law and government.²⁷ Rights of Nature seek to reinfuse pre-colonial values of human-nature relationships into legal and economic institutions in the United States and beyond. It is sometimes described as decolonization of property or the natural world.²⁸ The movement challenges anthropomorphic conceptions of the world by folding nature’s interests into man-made institutions of law and markets.

The “Rights of Nature” are once new and ancient. Legal scholars often credit Christopher Stone’s canonical article Should Trees Have Standing? with giving birth to each of these ideas.²⁹ Three central features define Stone’s conception of affording legal rights to natural objects: (1) the standing to sue for a legal remedy in court; (2) the opportunity to obtain a legal remedy, such as money damages or an injunction; and (3) the opportunity to directly benefit from the legal remedy provided.³⁰ The effect of giving nature legal rights is to allow natural objects to collect damages, reallocating the cost of damaging nature as it presently is (costless, in economic terms) to having a value (the harm caused to nature through its damage). This essentially shifts an externality to the person creating it, a form of the “polluter pays” principle.³¹ In his seminal article, Stone argued that conferring rights on nature would impose economic costs on the value of nature that people had harmed.³² Granting legal rights to nature also reduces the damage to nature by encouraging precaution to protect against harm, the cost of which is not justified under a system in which the harm is not paid for.

Environmental law scholars tend to credit Stone’s canonical article Should Trees Have Standing? with giving birth to the Rights of Nature.³³ Surely, Stone’s work is of vital importance to the legal actualization of Rights of Nature, which is credited as an influence by European and South American scholars.³⁴ For example, influential scholar Delphine Misonne has meticulously traced the influence of Stone’s writings on international legal developments, showing that his ideas were foundational to a number of international efforts to afford nature rights, which might otherwise appear scattered but—thanks to the work of Misonne—are instead rightfully linked to Stone’s influence.³⁵

Yet, world-changing ideas rarely come to one person at one time; instead, they are things that people have always believed.³⁶ Stone’s writing might be understood as an excellent modern legal interpretation of similar concepts found in other cultural traditions, past and present. The genesis for humans acknowledging the right of natural objects is present in cultural and religious ideas throughout time and history.³⁷ Indeed, Western culture might be unique for creating legal and economic constructs that erase nature. The Rights of Nature movement merely seeks to reincorporate natural interests in legal regimes that erased them. For these reasons, Rights of Nature can be understood as either a modern legal invention or a return to pre-colonial ideas of rules governing human interactions with nature, which some cultures have held uninterrupted since time immemorial.³⁸

Today, Rights of Nature are a burgeoning area of environmental law scholarship.³⁹ Yet, existing scholarship overlooks the extent to which damages are already being collected for human harms to nature and the extent to which they have (or have not) deterred additional harm. Scholars tend to focus on the question of standing, debating the possibility (or impossibility) of natural objects seeking legal remedies in court.⁴⁰ This Article takes a different approach. It starts by looking at remedies obtained by natural objects in practice. In this way, this Article shows that the Rights of Nature are neither wholly theoretical nor confined to international examples; they are embedded in a variety of laws. But first, I briefly highlight the importance of searching for Rights of Nature in domestic law by outlining why they might serve to incorporate vitally needed diverse perspectives into our field and practice.

II. Infusing Diverse Worldviews into Environmental Law and Policy

A radically different model of envisioning human relationships with nature requires finding alternatives to the dominant discourse that frames environmental law in scientific and economic terms.⁴¹ This Part briefly overviews alternative inputs that could inform our field, drawing upon a body of my work that engages environmental values from diverse perspectives.⁴² This opens the door to more pluralistic worldviews that—directly and indirectly—are informing the Rights of Nature movement and could be incorporated into environmental law.

Dramatically increasing the diversity of inputs into ecological policymaking is crucial to course-correcting our current, disastrous environmental trajectory. One way to understand the myriad overlapping environmental problems is through a relational perspective, understanding the human relationship with nature as frayed. Humans are acting badly in our relationship with Earth and the other living creatures on it. From this perspective, the key to solving problems like climate change or factory farming is not merely practical (reduce CO2 emissions), but also philosophical (live sustainably). Sustainable living within the confines of a living world is not a value system embedded in dominant Western capitalist perspectives. Indeed, the values undergirding the dominant social views are what landed us in our current crisis. It follows, then, that backing away from the crisis cannot be achieved through the policies that landed us in this predicament, nor by the people whose decision-making is informed by worldviews that have landed us there. To do better and differently in our relationship with the natural world requires new understandings of our perspectives and obligations to it. For this, diversity is sorely needed—not for the sake of diversity alone (which would be valid), but also because our current mindsets have proven limited and problematic.

In recent work, I note, “I believe that marginalized members of society—those most absent from academic discourse and positions of federal policymaking—hold the insights that are key to our collective survival.”⁴³ Without adapting our existing property laws and environmental statutes to incorporate other perspectives, we are doomed to continue unknowingly replicating the flaws in the code of our laws. Only rethinking the underlying mindsets—which requires engaging with voices left out in prior iterations of federal statutory decision-making—will point out the problems in our perspective that led to too-narrow, ineffective, and dated laws.

Fortunately, legal scholars in related fields are shedding light on how to update common law and statutory fields to reflect more diverse perspectives. We can learn from the reckoning happening in administrative law and property law. Administrative law professor Bijal Shah suggests that “[t]he core models of analysis in administrative law are inflexible and entrenched, and the scope, quality, and materiality of administrative law scholarship has stagnated as a result.”⁴⁴ Shah advocates for introducing critical legal study of administrative law in order to invigorate the field.⁴⁵ Relatedly, in property law, K-Sue Park notes that “[a] growing body of legal scholarship suggests that erasure of the histories of conquest, slavery, and race is widespread across doctrinal areas.”⁴⁶ Park advocates for scholars to review the historical development of legal doctrines through a presumption of erasure and a close look at buried material.⁴⁷ Shah and Park both point to the work of scholars who have done important, critical work that speaks to administrative law, property law, and—by extension—environmental law.

Animal law scholars are calling for interspecies equity and shifts in the legal status of nonhuman animals. Maneesha Deckha is leading an international coalition of scholars in considering how Indigenous and eco-feminist perspectives might transform anthropocentric systems into more pluralistic spaces.⁴⁸ An Ecuadorian court recently found that the Rights of Nature protects individual nonhuman animals.⁴⁹

Environmental law scholars are considering perspectives outside of the mainstream environmental status quo, considering concepts like decolonization and unsettling. Rights of Nature provides one of many opportunities to engage these concepts within Western legal structures. Learning from pluralistic worldviews about the ways in which Rights of Nature provides insight into how environmental law scholars can and should engage our body of law amidst personal examination and institutional critiques about diversity, equity, and inclusion.

III. A Typology of Rights of Nature Applied to U.S. Law

This Part provides an overview of Rights of Nature. Section A provides a typology of Rights of Nature, which applies to domestic and international law. Section B explores domestic law, comparing existing laws outside environmental law that nevertheless map on to Rights of Nature. Section C suggests that natural resource damages might constitute the best-developed Right of Nature in the United States, although it has not previously been considered as such. Section D outlines three crucial next steps to expanding existing legal instruments to more fully accommodate a Rights-of-Nature approach.

A. Typology of Rights of Nature

This Section sketches a very rough typology of the legal instruments to actualize Rights of Nature. At present, various sources of positive law exist under this broad term, which lacks the requisite exactitude for legal purposes. Concretely identifying the legal meaning of Rights of Nature requires taking a broad view of possible sources of rights, sifting through potential applications, and delineating various sources of rights.

The inquiry in this Section proceeds in three steps. First, it draws upon actions by Indigenous communities worldwide, which have been forerunners in granting a variety of rights consistent with traditional ecological knowledge. Second, it draws upon emerging definitions that international law scholars are giving to Rights of Nature, such as constitutional provisions in some South American countries and tort remedies for repairing nature under French law. Third, it looks to law—treaties, constitutions, cases, statutes, regulations, and ordinances. From these diverse sources, I link the ephemeral concept of right to concrete legal instruments.

Two brief disclaimers are necessary. First, mapping a quickly emerging area of law runs the risk of overlooking an important component. Therefore, I present this list tentatively as a modest first step, with the assumption that subsequent scholarly discussion will refine and better it. Second, it is necessary to note a technical point: rights can overlap. For example, a constitutional provision could also create legal personhood. Therefore, this is a rough typology and not a perfect mapping, which ideally will emerge collaboratively as the field matures.

This Article identifies various legal meanings of “the Rights of Nature,” including constitutional provisions, standing, tort remedies, the right to own property, equitable consideration under the law, and rights-based personhood. This novel typology seeks to provide a legal framework for the many different meanings that scholars and commentators are assigning to the Rights of Nature.

Constitutional provisions provide perhaps the best-known Rights of Nature. International bodies, national governments, states, and Indigenous constitutions can (and do) create positive, written rights to nature in their constitutions. This can be anthropocentric—guaranteeing citizens a right to nature—or eco-centric—making an independent right of nature exist. Over one hundred governments provide some variation of a right to the environment.⁵⁰ Some well-known examples include the constitutional provisions in Ecuador and the Navajo Nation.

Legal personhood allows defined natural objects the opportunity to participate in the legal system by suing in court.⁵¹ A crucial question embedded in this is standing, or whether—and by whom—legal remedies can be sought on behalf of nature.⁵² Potential intermediaries include government entities, Indigenous communities, and nongovernmental organizations. Broader considerations of personhood include communities and governments granting natural features legal personhood, as with communities that have declared the Whanganui River or Klamath River legal persons.⁵³ Standing can be granted statutorily, with Congress explicitly allowing standing through statute. Courts can also grant legal personhood, creating a “jurisprudential paradigm shift.”⁵⁴ Tribal, state, and local laws are also being used.⁵⁵

Equitable consideration means a court considering the fairness of a particular outcome on a nonhuman animal. This is most evident in the growing number of states in which judges engage in a “best interest of all involved” standard to determine the custodial interests of pets—a degree of judicial consideration previously confined to human children.⁵⁶

Tort remedies provide a judicial remedy for a court to order that a person who harms nature pay money damages to compensate for that harm. French scholar Matthieu Poumarède asserts that making humans pay to fix nature when they hurt it is one form of a Right of Nature.⁵⁷ This is essentially saying that nature deserves to be free from harm—much as tort law suggests that people should not be harmed—and to receive damages when it is harmed.

Property rights describe nature, or natural elements such as trees, having the right to own property for its benefit. The federal natural resource damage fund is an example of this: hundreds of millions of dollars that can only be spent to restore nature. More recently, philosophers and legal scholars are considering extending the ability to own property to nature, including wildlife.⁵⁸

Right to Exist confers rights on nature equivalent to those enjoyed not only by people but also by corporations. “[N]ature has certain rights as a legal subject and holder of rights[,] . . . such as the rights to exist, to survive, and to persist and regenerate vital cycles.”⁵⁹ Philosophers urge the distinction between moral and legal rights.⁶⁰ For example, we may believe animals have a right to dignity, but that is not legally enforceable.

International agreements are also creating Rights of Nature. In 1982, 111 countries signed a United Nations (“U.N.”) Charter for the Rights of Nature declaring rights for all living things.⁶¹ Also, in September 2012, the fifth World Conservation Congress of the International Union for Conservation of Nature (“IUCN”) passed a resolution on “[i]ncorporation of the Rights of Nature as the organizational focal point in IUCN’s decision making.”⁶² Former U.N. Special Rapporteur to the Environment, John Knox, advocates for a U.N. provision recognizing a right to a clean environment.⁶³

Having sketched out a very rough typography of Rights of Nature, the next Section considers whether such rights exist within the United States

B. Mapping Current Rights of Nature in the United States

This Article makes a surprising claim: the United States, in fact, already partially recognizes the Rights of Nature. This survey of U.S. law setting aside the legal elements of the Rights of Nature reveals a surprising overlap. Familiar examples include the Endangered Species Act providing a right-to-exist for plants and wildlife.⁶⁴ The National Environmental Policy Act affords procedural protections—and attendant dignity—to government actions on viewsheds.⁶⁵

At its core, Rights of Nature allow human advocates to bring suit to collect damages for ecosystems or their component parts. Rights of Nature can be found in various sources of law, ranging from constitutional provisions to federal statutes, but they always involve a focus on natural objects or systems.

The Rights of Nature exist in many forms. For example, a nongovernmental organization may sue for a legal remedy on behalf of an animal.⁶⁶ A whale can sue the United States, asking the government to stop sonar testing that damages the whale’s vital organs and interferes with important biological behaviors such as feeding and mating.⁶⁷ A monkey can sue a photographer, asserting that he owns a copyright for a picture that he took using the photographer’s camera.⁶⁸ A pet, represented by a trustee, can inherit millions of dollars from her owner.⁶⁹ Similarly, a government can sue as a trustee for damages that someone causes to public lands or resources. If an oil spill kills a bird, the government must sue the oil company for the cost of restoring the habitat so more of that species can live there.⁷⁰

Unlike human litigants, natural objects do not sue on their own behalf. The monkey does not stand in the courtroom and seek to convince the judge that the picture is his. A human trustee must stand in for the natural object. Many legal thinkers get stuck on this point of standing—who may rightfully stand in for an animal, when, and how? As scholars debate these questions, nature continues to participate in the legal system—collecting billions of dollars in damages, amassing countless funds in inheritance, and benefiting through tort deterrence of natural action.⁷¹

Below, this Article begins to tentatively chart how legal advocacy for Rights of Nature occurs in practice, studying the activist lawyering that is expanding the margins of the legal Rights of Nature and the little-known federal statutes that form the basis for collecting damages on behalf of natural objects, as Stone imagined. It begins by setting aside the questions of standing and focuses instead on the remedies garnered. This reveals a large, previously unseen set of laws in place, from which one can trace back the questions of standing. This analysis provides insights that reframe our understanding of how, in practice, litigation for nature occurs.

Table 1. Rights of Nature in U.S. Law
Legal Aspect	Analogy in U.S. Law
Constitutional Provision	None; some argue it is embedded in the human “right to happiness” Ecuadorian Constitution^a Indigenous constitutions within the United States (Navajo Nation)
Legal Personhood	Pa. Gen. Energy Co., LLC v. Grant Twp., No. 14-209ERIE, 2018 U.S. Dist. LEXIS 2069 (W.D. Pa. Jan. 5, 2018). Colo. River Ecosystem ex rel. Deep Green Resistance v. Colorado, No. 17-cv-02316-NYW (D. Colo. 2017). Mute swan case: Fund for Animals v. Norton, 281 F. Supp. 2d 209 (D.D.C. 2003). Legal Personhood of Klamath River
Standing	Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004); Tilikum ex rel. People for the Ethical Treatment of Animals v. Sea World Parks & Ent. Inc., 842 F. Supp. 2d 1259 (S.D. Cal. 2012). But see Palila v. Haw. Dep’t Land & Nat. Res., 852 F.2d 1106, 1107 (9th Cir. 1988). Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992).
Human Rights	ESA = right to exist Public trust doctrine Steven Wise; Nonhuman Rights Project litigation^b
Tort Remedy	Natural resource damages
Dignity	Cultural resource claims—Native American Wild and Scenic River Act, 16 U.S.C. § 1271, stakeholder collectives National Park Service and Related Programs Act, 54 U.S.C. § 100101(a), and the National Monument enabling statute, Antiquities Act of 1906, 54 U.S.C. §§ 320301–320303
Property Rights	Animal property rights Public lands management National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. § 668dd(a)(2) National Park Service and Related Programs Act, 54 U.S.C. § 100101(a)^c

Sources: ^a Constitución de la República del Ecuador, Oct. 20, 2008, art. 7. ^b Steven M. Wise, Rattling the Cage: Toward Legal Rights for Animals (2000). For critiques of this approach, see Richard A. Posner, Animal Rights, 110 Yale L.J. 527, 539–40 (2000); Richard Epstein, Animals as Objects, or Subjects, of Rights (Univ. of Chi. John M. Olin Law & Econ., Working Paper No. 171, 2002). For a summary of efforts in court, see Bradshaw supra note 58, at 812, 812 n.10. ^c Bradshaw, supra note 58, at 823–30.

Of the potential Rights of Nature outlined above, perhaps the remedy most closely tracking Stone’s conception are the natural resource damages statutes, which are discussed in greater detail below.

C. Natural Resource Damages as Rights of Nature

This Article links the existing environmental law tort remedy of natural resource damages to the Rights of Nature. This account radically reframes legal discussions of nature’s rights, showing them to be far more tangible and well-developed than the nascent rights that scholars and commentators generally describe them as. This advances scholarly discourse about the Rights of Nature beyond whether they should exist to sophisticated discussions of how they have been already operating in practice for decades at the highest levels of federal and international law. Conceptualizing Rights of Nature as including natural resource damages has important implications for environmental law activists and scholars—it charts new pathways for pursuing Rights of Nature.

Natural resource damages are a tort remedy that require tortfeasers that harm public lands or natural resources to pay money damages to fix them.⁷² Tort remedies provide a judicial remedy for a court to order that a company, agency, or individual who harms nature must pay money damages to compensate for that harm.⁷³

Six federal statutes provide nature with a natural resource damages remedy.⁷⁴ Natural resource damages are collected by the government under the public trust doctrine. Teams of environmental lawyers employed by the government seek natural resource damages on behalf of the federal trusts. The damages can only be used to restore nature to a pre-incident baseline condition; they are not a fine or penalty, nor are they used for clean-up. This remedy has produced over ten billion dollars in the past thirty years. It is best known as the vehicle through which British Petroleum (“B.P.”) paid for the restoration of the gulf coast following the Deepwater Horizon oil spill.⁷⁵

Although widespread in practice, natural resource damages are relatively rarely studied. Until recently, environmental law scholars largely overlooked natural resource damages.⁷⁶ In 2012, Sanne Knudsen provided an outstanding introduction to the remedy, describing it as protecting ecosystem health and serving as a limitation on environmentally detrimental uses of private property.⁷⁷ In 2016, I published a descriptive article that provided a longitudinal mapping of the various statutes in which the remedies arise and reported the collection activities by the thirteen federal and resource management agencies.⁷⁸

Despite not yet being understood as conceptually linked, natural resource damages may be the best-developed actualization of Rights of Nature in the United States.⁷⁹ The United States has quietly and unwittingly charted a novel path for statutory Rights of Nature. This is a departure from the splashier continuation of all recognitions afforded Rights of Nature in other countries and tribal governments. Situating natural resource damages among other, international efforts to advance the Rights of Nature paves the way to revitalizing environmental law.

Courts and commentators alike underestimate the importance of tort damages for nature. This leads courts to rubber stamp settlements, which in turn allows overstretched agencies to settle for cents on the dollar. Parties, in turn, rely upon agencies’ inability to litigate cases to push hard for aggressive settlements that do not satisfy the fix what you broke nature of the statute. For example, the agencies in Deepwater Horizon were reliant on B.P. to provide early-stage funding to mitigate damage and assessment costs. This creates an inherent conflict for agencies, which must threaten to sue the party funding the science underlying the settlement. Understanding natural resource damages as Rights of Nature revitalizes the statutes and agencies, providing outside attention to offset the financial interests of responsible parties. Agencies should be increasingly comfortable taking more aggressive settlement and litigation positions if courts and outside commentators—such as environmental nongovernmental organizations—are playing an active role advocating for nature through these statutes. In other words, to realize the potential of natural resource damages, courts and commentators must realize its intellectual hook to Rights of Nature.

Advocating for legal acceptance of the Rights of Nature is at once prosaic and radical. Pragmatically, this Article proceeds in the established model of environmental law by pointing towards six federal natural resource damages statutes in the United States. In 2016, a longitudinal research project revealed that Congress has enacted six statutes that clearly give natural objects legal rights, under which federal agencies, tribes, and states have collected over ten billion dollars.⁸⁰ This Article links natural resource damages to the canonical legal thinking on affording nature rights, linking the law with the theory. This effectively ends the conversation about whether Rights of Nature could possibly exist in the United States. They can, and they do.

Rights of Nature—as they presently exist in federal law—elevate the legal status of nonhuman animals, plants, and natural objects on public lands as protected by law. If a party (person, company, or government entity) harms nature, they must pay tort damages.⁸¹ Those damages can only be used to actively repair the harmed object.⁸² If an oil spill kills songbirds, government agencies will sue the vessel that spilled the oil and use the money damages to restore songbirds. This might mean buying land in Costa Rica where the songbird nests, devoting that land to the songbirds, and rebuilding the population to the point that the songbirds return to the California coast.⁸³ This is one example of hundreds of well-documented cases in which federal agencies used statutes to collect money damages on behalf of nature, then used those funds to restore natural objects that humans had damaged. This is the actualization of Christopher Stone’s idea in Should Trees Have Standing?—his vision has come to fruition.⁸⁴ If we believe that natural resource damages give nature legal rights, then one could argue that Rights of Nature have existed in the United States for at least forty years.

Theoretically, Rights of Nature shift environmental law from an anthropocentric to eco-centric perspective. Nature deserves to exist outside of its uses to humans. Courts might apply the Endangered Species Act to outline the economic purposes of the songbirds—for tourists to see, for hunters to shoot. The Rights of Nature take a dramatic step, suggesting that the public trust doctrine invests in public land and resources a shared, communal right to the continued existence of the resources. Songbirds should exist because they are part of nature, which is part of the American public. Tribal and international examples take a step further still, citing the independent right of natural objects to exist, showing how existing examples of Rights of Nature might evolve in U.S. law over time.

D. Expanding the Rights of Nature

Despite widespread public enthusiasm for reimagining the human relationship with nature, desire and discourse are insufficient to create lasting change. Legal and political institutions translate public will into law. Scholars, lawyers, and law students can act quickly to leverage public will for protecting nature into a powerful, enduring, and meaningful set of legal instruments. I identify three core steps for doing so as the Rights of Nature develop: establishing trusteeship; institutionalizing sound governance models; and innovating legal routes to institutionalize emerging, continually evolving notions of Rights of Nature.

1. Trustees

The first and most urgent step is to institutionalize the early gains of legal personhood by establishing appropriate trustees. Who can be a trustee for a river?⁸⁵ Federal, state, local, or tribal governments? What about trustee claims by nongovernmental organizations, corporations, trusts, or individuals? Who is best situated to advocate for, establish, protect, and manage the Rights of Nature?

These are urgent questions. Public will has outpaced legal answers. There already exist rivers and lakes in the United States that are legal persons. Now, environmental law theorists owe it to the efforts of hard-working environmental advocates to take the baton of shepherding these rights through the legal system. This means providing solid legal analysis and advice for institutionalizing early gains. Nongovernmental organizations are surely working on them, but they should not work alone.

Lessons from the history of environmental law can shape the answers to these questions. For example, a body of extremely valuable recent work by Jessica Owley, tracing the development of conservation easements, can provide valuable lessons for this emerging tool.⁸⁶

2. Institutionalizing Governance

The second task is to consider the institutional features of adjudicating trust responsibilities. Environmental law scholars can bring to bear the cumulative lessons of fifty years of environmental history to craft well-reasoned governance mechanisms. As a default, courts are responsible. Judges have deep expertise in the procedural questions of trusts. They are generally less expert, however, on scientific topics—a reason for the substantial deference generally afforded agencies. Perhaps a system of private governance should exist to answer the scientific management question of natural rights (an argument I make specifically with regard to wildlife property trusts elsewhere).⁸⁷

Trustees, unlike agencies, are not responsive to public will and lack democratic legitimacy. As such, I argue, it is vital that a unified system of private governance emerges, composed of a certifying body representing diverse expertise including scientists, animal advocates, sociologists, and persons with traditional ecological knowledge. Here, too, we find an analogy in land trusts: the Land Alliance is a certifying body to which many reputable trusts remain. History from sustainability certifications, however, warn of the danger of look-alike certifications with less stringent objectives.⁸⁸ To avoid this, I argue, the certifying body should follow the model of Administrative Conference of the United States—a federal government agency that is composed of public and private members. The imprimatur of the federal government will add legitimacy to the proposal; the private element guards against capture.

3. Expanding the Rights of Nature

The broader task of environmental law is to integrate its current narrow framing with the Rights of Nature and environmental justice to create a meaningful, evolving, substantive area of law. This means looking beyond the statutory confines of environmental law. It means listening to what members of the public want for the environment and figuring out how to actualize it. It also means, as a field, engaging in robust debate.

Much as lawyers are called “deal killers” in corporate transactions because they spot the potential problems, so too must we bring skepticism to this project, however aligned we might be with its aims. Some ideas that sound good initially may prove ultimately detrimental. What is the worst that could happen? How could it be guarded against? Lessons learned from environmental law should also apply. If we impose on rural and landowner interests without consultation, they might derail even the clearest of laws. If elite legal architects discount the perspectives of underrepresented voices of women and people of color, our environmental law will not reflect our social values.

The difficult balance of brainstorming, experimentation, and debate may change the nature of the field. Environmental law scholars have long been aligned with one another, assessing the risk from the outside, and thus perhaps not pushing and challenging ideas far enough. But two crucial things have changed since the advent of environmental law. Public sentiment is increasing, and our field has matured. Unification in the fight for legitimacy is no longer necessary; in fact, it holds back the potential to create debate within the field that differentiates a field of scholarship from advocacy. We are ready for that leap; the world needs it. Boldly setting forth new ideas is essential. We can preserve the enviable norms of our field for supporting junior scholars, actively welcoming and encouraging women and people of color. But environmental law scholars must also look for vital and undeniable links between our fields and Indigenous law, animal law, health law, and corporate law.

Conclusion

Indigenous communities and nongovernmental organizations are investing heavily in creating Rights of Nature. Environmental law scholars might collectively choose to answer that call by taking the idea seriously and charting the theoretical and doctrinal pathways to breathe life into it. Although it is simpler to continue forward without critical examination of the past, our present environmental crises warn that is not enough. It is time for a radical reimagining of the human relationship with nature, a shift that must take place through law.

Environmental law scholars need not be the “deal killers” of bold, new ideas. Instead, it is our task to find throughlines in black letter law that create pathways to give legal life to social ideas. This Article strives to do just that—linking popular discourse on the Rights of Nature with its theoretical foundations and well-established statutory systems in the United States. It argues that Rights of Nature have become embedded in seldom-explored cracks and crevices of the law, waiting to be discovered and mined for ideas and new approaches.

This Article links the passion for Rights of Nature to the existing legal framework, providing a novel theoretical analysis and charting doctrinal pathways to institutionalize and actualize Rights of Nature in the United States. Desire and discourse are necessary but not enough. Legal and political institutions translate public will into law. Scholars, lawyers, and law students must act quickly to leverage public will for protecting nature into a powerful, enduring, and meaningful set of legal instruments. I identify three core steps for doing so: establishing trusteeship, institutionalizing sound governance models, and innovating legal routes to institutionalize emerging, continually evolving notions of Rights of Nature. Reframing environmental law like this expands the available remedies in a way that can respond to increased environmental challenges such as climate change, which existing statutes alone cannot address.

It could be the chosen task of a new generation of environmental law scholars to find the Rights of Nature, explore them, and expand them. The public enthusiasm behind Rights of Nature provides precisely such an opportunity. We are not confined to a dozen leading environmental law statutes or to history; our collective scholarly effort should not be limited to merely building upon what is, but also searching out what could be. The Rights of Nature are playing out across hundreds of seldom-explored sources of law in many courtrooms. Identifying them, creating typologies, and assessing outcomes—this is work worthy of the minds available to do it.

Environmental statutes, although vital, may have been a scaffold to build toward a more sophisticated reconciliation of capitalist and environmental values. At this moment in history, we have the combination of the urgent need, public will, and legal pathways to actualize sweeping change. Both the will and tools exist. We have the matches and the kindling—environmental law scholars can collectively choose to build the fire. I hope we do.

95 S. Cal. L. Rev. 1439

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Karen Bradshaw*

* Professor of Law and Mary Sigler Research Fellow, Sandra Day O’Connor College of Law, Arizona State University. Senior Sustainability Scientist, Global Institute for Sustainability, Arizona State
University. Faculty Affiliate, Classical Liberal Institute, New York University Law School. I am thankful for the comments provided by attendees at the University of Southern California Law Review Symposium, Christopher Stone: Assessing the Influence of “Do Trees Have Standing” (2022), the Rights of Nature: Opening the Academic Debate in the European Legal Context, University of Toulouse, IEJIJC, France, and Sustainability Conference of America Legal Educators, Arizona State University (2022). This Article benefitted greatly from comments by, and conversations with, Robin Kundis Craig, Michael
Livermore, Delphine Misonne Julien Betaille, John Knox, Hendrik Schoukens, Guillaume Chapron, and Jan Darpo. I am thankful for the outstanding research assistance of Sarah Brunswick, Caitlin Doak, and Clayton Kinsey