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Reading "Nature's Trust: Environmental Law for a New Ecological Age," Mary Christina Wood
Threadable-adjacent reading discussion on land ownership
The most recent—and final!—Threadable reading for Land Ownership was a selection from Mary Christina Wood’s 2013 book Nature’s Trust: Environmental Law for a New Ecological Age.
*(For anyone new to On the Commons, an overview of this project is here. Please feel free to comment or email me with any questions.)
Note: I am starting a new commons-related Threadable reading circle this week, titled The Commons & Belonging in Science Fiction & Fantasy. This link should take you to the app’s home page if you would like to read and participate (still for iOS/Apple devices only, and for me it works best on a phone or iPad—the link has been a touch glitchy the past day or so, but if you have the app you can navigate to any of the circles). The reading selections are all science fiction, fantasy, and speculative fiction short stories, starting with Hao Jingfang’s Hugo-nominated “Folding Beijing.” Super big thanks to everyone here and elsewhere online who’ve passed on reading suggestions, most particularly On the Commons subscriber Stefanie, who has given me a big pile of excellent authors and stories to read! There is some great new SFF out there by a much wider variety of voices than I grew up with and I’m excited to read it all.
(If you want to download the app, you can do so through the Threadable site.)
Does the theme of science fiction and fantasy seem drastically different from land ownership? As I wrote in Threadable’s community circle,
“I ask us to reconsider that dichotomy. Enclosures of land commons and land privatization in both Europe and North America forced an enormous rift in people’s sense of security and belonging. (This is true all over the world, obviously, but the circle’s readings focused mostly on those regions.) And in placemaking, it’s often said that where you are is who you are.
Science fiction, fantasy, and speculative fiction allow us to imagine variations on belonging and identity that envision all possible futures while interrogating the past.”
And the present, I should have written. Science fiction in particular has ways of showing us the realities of our present by framing them in stories about the future. I’m a big fan of Martha Wells’s Murderbot Diaries, for example, because underneath the great storytelling and characters are important questions about how a “person” is defined and who gets to define them, what that means for individual freedom, and what kind of world we get when it’s completely controlled by competing corporations with no oversight. We won’t be reading Murderbot because Threadable readings are shorter selections, which is why I’m sticking to short stories, but I hope you get the idea. (Also I hope you read Murderbot.)
Anyway, for one more post, back to land ownership.*
5% of this quarter’s On the Commons paid subscriber earnings will be given to All Nations Health Center in Missoula, Montana.
I chose two excerpts from Nature’s Trust, both from chapter 14: pp. 312 (starting with the section heading “Land as Commonwealth or Commodity?”) - 320 (stopping before the heading “Public Trust Property and Restraints on Privatization”); and pp. 328 (starting at the section heading “‘The Earth Belongs in Usufruct to the Living’: Trust Easements and Servitudes on Private Property”) - 334 (end of chapter).
Unfortunately, I could not find any free versions of this book or sections of it online. It’s more of an academic book but I wouldn’t say it’s excessively challenging if this is a subject you’re interested in. It was recommended to me years ago by an environmental lawyer friend when I first got interested in the commons and land ownership, and Wood has a lot of insight and knowledge, and a compelling writing voice.
Mary Christina Wood is a law professor at the University of Oregon, where she heads the Environmental and Natural Resources Law Center. Not to get too deep into the weeds, Nature’s Trust is about what’s called the “public trust doctrine,” the legal principle saying that certain resources are held in trust for public (human) benefit. It applies to wildlife in the U.S., to legal water rights in many places, to public lands in the U.S., and to many other entities that are collected under the concept of “resources.” It’s what opponents of public lands specifically get wrong (on purpose, I’m pretty sure) when they say those lands are “owned” by the federal or state government. They’re not. Legally, they’re “owned” by the people and held in trust for the people by the government.
There are obviously a lot of pitfalls even in this concept. How do you talk about public trust and ownership by, of, and for the people when all the water and land and everything else in question was stolen in the first place and when many if not all of the treaties they were taken under were forged or broken? And what does this legal worldview still assume about the human relationship with the rest of life, or what’s often called the natural world? And even assuming you accept the precept of public ownership and the public trust, there’s still the question of how you hold the government accountable for managing “resources” belonging to the people and doing it in the public’s interest. (The absurdity of the U.S.’s still-active 1872 Mining Law, which heavily subsidizes mining of “public resources” for private interests, with little or no recourse for stopping or mitigating the attendant enormous destruction and pollution, comes to mind.)
Wood’s focus is on the loss of the public trust doctrine in favor of environmental law and entities such as the U.S. Environmental Protection Agency, which was created in 1970. When these agencies and laws replaced the public trust doctrine, protection of public resources and environmental regulations became far weaker. Entities like the EPA are easy prey for industry regulatory capture—rather than fight deforestation laws, for example, timber company lobbyists and executives can get friendly enough with regulators to help write favorable or weak forestry laws with no teeth.
Some of these ideas are outlined in an excerpt from an earlier part of the book that was republished on Bill Moyers’s now-archived website:
“The field of environmental law stands as a failed legal experiment. The administrative state vests agencies with breathtaking power that came justified by one simple assumption: officials will deploy public resources and invoke their technical expertise on behalf of the public interest. Instead, too many environmental agencies today use their power to carry out profit agendas set by corporations and singular interests. As Part I of this book explained, environmental agencies have fallen captive to the industries they regulate. Consequently, they use the laws’ permit provisions to legalize the very damage the statutes were designed to prevent. Nearly across the board, environmental statutory processes do not prohibit harm: they permit it.”
The concept of a Nature’s Trust, wrote Wood,
“calls forth an ancient duty embodied in the public trust doctrine, a legal principle that has flowed through countless forms of government through the ages. At its core, the doctrine declares public property rights originally and inherently reserved through the peoples’ social contract with their sovereign governments.”
In the later part of the book excerpted for the Threadable reading, Wood has some thoughts on reviving the public trust doctrine by treating land as a commonwealth rather than a commodity. In this, Nature’s Trust circles back to some of the other readings in this series, including Erik T. Freyfogle’s The Land We Share. Private land ownership, wrote both Freyfogle and Wood, cannot be sustained in the long run if private property rights are considered absolute, with no responsibility to a surrounding community or ecosystem. “In today’s property law arena,” wrote Wood,
“the vestiges of human land tradition compete with consumer lifestyles. One orientation views land as part of a greater commonwealth, whereas the other views land as a commodity available for exploit.”
As I wrote in the comments for this section, this gets to the big question at the heart of the Land Ownership reading circle—and really at the heart of this newsletter and the whole concept of the commons: how do we share a world, manage our lives and honor the needs of all other life in it, with two such completely opposing worldviews? We don’t really have a choice, so how do we do it?
Like Freyfogle, Wood reaches back to some of the earlier history of the United States and how land ownership was viewed, a perspective that had a much looser and less absolutist view of property rights. “Rights to destroy the landscape did not enter into the liberty equation back then,” she wrote. But they do now, and the consequences have long since become unbearable for too much of life, humans included.
Wood’s idea of a commonwealth attitude toward land is not a commons approach, though how she describes commonwealth and land tacks pretty closely to a lot of Elinor Ostrom’s ideas about commons resource management systems. Wood reiterates repeatedly the idea that property rights must only be granted as subservient to and respectful toward the larger community and ecological needs. Owning land, she writes, forces a person or corporation into ecological and community relationships.
Which I agree with, but as I repeatedly wondered when reading John Locke’s and William Blackstone’s much older claims of the same, saying that this responsibility exists, or that people won’t claim or take or use more than they need, doesn’t provide for any enforcement mechanism. To use an extreme example, I live in Montana within an hour’s drive of a lake that is being increasingly polluted by selenium coming downstream from coal mining in British Columbia in Canada. There is no way for people where I live to force a sense of responsibility to waterways and human communities on Teck Resources, which is doing the mining.
In advocating for a commonwealth idea of property rights, Wood points to several specific examples that she sees as embodying the commonwealth approach throughout the United States, including community gardens, inner-city farms, and urban homesteads; food-not-lawns, conservation easements, and rethinking how stormwater is managed in cities. Not bad examples, if not really up to the scale of cross-international-border coal mining pollution.
While hopeful, I found that a lot of these suggestions, and indeed the concept of a commonwealth approach, still depend a little too much on landowners and the landowning class. It neglects the ways in which land ownership translates into power—political power as well as power over others in the form of landlord status. And it neglects the ways in which not having ownership precludes many of these choices without massive political, social, and clear legal change. What if you rent, or even if you own your home but not the land it sits on? Are you allowed to plant peas and tomatoes instead of maintaining a grass lawn? For too many people, the answer is “no.”
In other words, focusing on the responsibilities of landowners can repair some issues, but it bypasses a lot of the ways in which owning itself can damage communities and lock the majority of people out of decisions about how the commons—all the commons, in all their forms—are managed. And it’s not just about what you can do with where you live, if you even have somewhere to live. I’ve brought this up before, but I think it’s far too often overlooked that voting rights were reserved for the landowning class only—not just white and male, but owners of property—until relatively recently in democratic history. If you can’t vote, you also get far less of a say in how your own life and, say, the water you rely on to survive, are controlled. The possibility of that history returning is too real to ignore. Very few of the readings in this project—with the exception maybe of Henry George’s Progress & Poverty—have directly addressed the reality that more abstract human rights are also dependent on rights of survival.
But a commonwealth framework is somewhere to start. Again, it goes back to Freyfogle’s writing about the landowner’s responsibility to the surrounding community. As a reminder, the excerpt from his book was about a private landowner having to sue their county over a zoning change that allowed a neighboring property to operate a concentrated animal feeding operation (CAFO; a feedlot). The harms caused to neighbors by the CAFO translated into degraded air and water, and reduced property values. Absolute private property rights are a recipe for disaster, including to those property rights themselves. It’s the true tragedy of the commons.
To get to a commonwealth framework or back to a public trust understanding of land, though, is going to require an enormous amount of attention, energy, interest, and understanding from the wider public. The idea that the right to profit from what one owns is absolute, with no limitations from government entities, environmental concerns, or any other interests including neighboring humans, rivers, or wildlife, has laced itself throughout the dominant culture’s psyche and made its way across the world. (To be clear, this treatment of the world isn’t unique to private land ownership regimes; it seems to be far more about an ideology that says humans can be completely separate from and dominant over nature and treat her accordingly. The Soviet Union was a living, breathing environmental disaster for decades. But Wood’s book is mostly about the U.S. and corporate as well as individual property rights, and this reading circle has been specifically about private ownership of land.)
It’s going to take a lot of work to untangle that kind of thinking. It will require knowledge and information and a whole world of incredibly compelling narratives.
Which is really what we’ve been doing here. And it’s only just a beginning of understanding some of the roots of the problems our world faces.
Thank you all for exploring land ownership with me, and for putting up with things like having to look up swanimote when reading The Charter of the Forest, and my irritable review of Simon Winchester’s Land, which I’m still mad about. You’ve been patient and curious, and I’m really glad we went on this journey together. It’s been a long one.
Let’s all go for a walk. And then let’s see if we can start to change some things.
Rainstorm approaching over the Missouri River bordering the American Prairie Reserve in eastern Montana, a curious mix of private land and public access that I’m still not sure how I feel about. But it lacks fences and “No Trespassing” signs and feels like . . . possibility.