Models for Protecting the Environment for Future Generations
The paper proposes how various organizations, individuals, and other non-governmental bodies can help secure the future for our environment. As you read the report, aim to identify the key ideas that you believe would make the biggest difference.
I. Summary
Due to growing concern over deteriorating environmental conditions, legal systems around the world have increasingly recognized the interests of future generations and the corresponding responsibilities of present generations. The notion of intergenerational equity is not new, but over the past several decades, more legal documents have specifically referenced future generations and their interests. Some courts, government bodies, and other entities have also begun to take the interests of future generations into account in making decisions that affect the long-term health of the environment. This paper explores
the variety of ways that the legitimate environmental interests of future generations may be advanced through more frequent development and use of institutional mechanisms, such as ombudsmen and guardians. Deployment of new mechanisms would help move beyond the mere citation of the interests of future generations in legal documents. Through such innovation, the interests could be evaluated and weighed, for example, by courts determining the impacts of environmental degradation on a community, by administrative agencies drafting regulations or considering development proposals, and by executive officials negotiating with indigenous communities.
The concept of future generations is based on precedent, both ancient and modern, international and domestic. Historically, for example, some Native Americans have recognized the obligation of present generations to take into consideration the long-term environmental consequences of their actions.
The constitution of the Confederation of the Six Nations of the Iroquois, the Gayanashagowa or "Great Law of Peace", requires leaders to make decisions with the "Seventh Generation to come" in mind. More recently, especially since the early 1970s, international treaties have set out responsibilities to protect future generations, especially related to environmental protection. Modern constitutions and statutes have also articulated intergenerational equity in terms of duties, rights, or guardianships.
This briefing paper provides an overview of various legal models that promote protection of the environment for future generations. Part II outlines how international and domestic law highlight future generations' interests in protecting the environment. It also explores how these interests have manifested themselves in different frameworks. Legal documents sometimes create duties for present generations to protect the rights of future generations; this approach carries great normative weight because rights are generally seen to trump other interests. In other cases, legal structures create a guardian-ward or trustee-beneficiary relationship that requires present generations to ensure ecological health for the benefit of future generations. Often, these structures mandate that the interests of present and future generations be weighed against one another when making decisions.
As outlined in Part III, the legal frameworks – duties, rights, guardianships, and trusteeships – can be implemented through a number of legal mechanisms or institutions, each of which can contribute to the advancement of protection for future generations. First, courts are a traditional mechanism, and several have addressed intergenerational equity in their decisions. Second, ombudsmen generally possess broad advisory authority to review legislation and executive acts to assess their impact on future generations and to make recommendations. Hungary and Israel have created such positions specifically for future generations. Ombudsmen exist in the environmental arena more generally, including in Canada, the United Kingdom, and the United States, playing similar advisory roles or assisting with statutory compliance. Ombudsmen in the human rights sphere often serve mediation or quasi-judicial roles by investigating issues or cases as well as hearing disputes in some instances. Third, guardians advocate in specific situations for the "best interests" of people who cannot, for example, represent themselves in litigation and negotiations. This mechanism could be developed to help ensure environmental protection for future generations. Guardianships have been successfully implemented in analogous situations; U.S. courts, for example, regularly appoint guardians to represent the interests of children and others not competent to represent themselves legally.
While this paper provides ample precedent and models for protecting future generations' interests, what is needed now is for more jurisdictions – through their legislatures, judiciaries, and executives – to develop and deploy integrated approaches that advance the interests of future generations consistent with their legal systems. Ultimately, the core mechanisms discussed here could operationalize the legal interests of future generations in innovative ways to address the important problems facing the world.
II. Legal Bases for Present Promotion of Future Interests
Various legal traditions and documents recognize the interests of future generations in a clean and healthy environment, providing precedent for considering them in contemporary decision-making. Many also take the next step and articulate a legal relationship between present and future generations.
Numerous instruments place specific duties on present generations to protect the environment for future generations and, in some cases, establish
corresponding rights for future generations. Alternatively or additionally, legal structures establish guardian-ward or trustee-beneficiary relationships between present and future generations, respectively. Some of these approaches overlap or have yet to be precisely defined, but at their core, they all acknowledge the threats to future generations and the need for assistance from those in present generations.
A. The Interests of Future Generations
A multitude of international and domestic sources acknowledge that the actions of present generations can interfere with the needs of future generations. To address this situation, legal documents commonly highlight the interests of future generations and state that they should receive attention alongside those of present generations.
The principle of sustainable development, frequently cited in international instruments, exemplifies the consideration given to the needs of future generations. The Report of the World Commission on Environment and Development (known as the Brundtland Report), which offers the most accepted definition of sustainable development, uses the term to describe "development that meets the needs of the present without compromising the ability of future generations to meet their own needs". Similarly, the Convention on the Protection and Use of Transboundary Watercourses and International Lakes provides: "Water resources shall be managed so that the needs of the present generation are met without compromising the ability of future generations to meet their own needs". Such provisions, especially because of the phrase "without compromising", subject present generations' needs to those of future generations. Using a slightly different formulation, the Rio Declaration on Environment and Development, adopted by about 178 countries at the 1992 Earth Summit, declares: "The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations". The UN Framework Convention on Climate Change, the major international climate change initiative, articulates how parties must work for the "benefit" of future generations: "The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities". The latter two instruments emphasize a balance between present and future yet still give the latter equal weight. At least five international treaties and three declarations refer to future generations.
Domestic laws, such as those in the United States, also often recognize the interests of future generations. For example, at least eight U.S. federal statutes make specific reference to the protection of the environment for future as well as present generations. At least four U.S. state constitutions and five state statutes similarly reference such interests. The environmental policy section of the Indiana State Code, for example, describes one of its three purposes as "to preserve, protect, and enhance the quality of the environment so that, to the extent possible, future generations will be ensured clean air, clean water, and a healthful environment". New Mexico's Environmental Improvement Act lists as one of its goals "to ensure an environment that in the greatest possible measure" will protect present and future generations. Although the statutes list multiple purposes, they clearly articulate a commitment to protecting the interests of future generations.
B. Duties to and Rights of Future Generations
One legal approach to achieving the kind of intergenerational equity discussed above is to establish, explicitly or implicitly, duties for present generations to promote the interests of future generations. Some argue that every duty has a corresponding right, suggesting that a duty toward future generations would mean that future generations in turn have a right.19 Numerous legal sources establish a duty for present generations to act. Some sources specifically recognize the existence of rights of future generations.
Indigenous peoples have long articulated an obligation of present generations to promote the "welfare" of future generations. In his concurring opinion to the 1997 International Court of Justice ("ICJ") case concerning the Gabcíkovo- Nagymaros Project of locks and dams on the Danube river ("Gabcíkovo- Nagymaros decision"), Judge Christopher Weeramantry chronicled the concern for future generations across several continents. He wrote:
[E]xamples may be cited from nearly every traditional system, ranging from Australasia and the Pacific Islands, through Amerindian and African cultures to those of Ancient Europe. . . . [T]hese varied cultures were reflecting the ancient wisdom of the human family which the legal systems of the time and the tribe absorbed, reflected and turned into principles whose legal validity cannot be denied.
In North America, the Gayanshagowa, or "Great Binding Law", which serves as the constitution of the Confederation of the Six Nations of the Iroquois, defines the duties, rights, and qualifications of Iroquois lords. As mentioned above, in doing so, it establishes their obligation to take future generations' interests into account in their decision-making. The Speaker of the Council directs the New Lords of the Confederate Council to "[l]ook and listen for the welfare of the whole people and have always in view not only the present but also the coming generations".
More recently, countries around the world have adapted this tradition to modern constitutions. Bolivia and Norway have enshrined the rights of future generations within their constitutions. Several U.S. state constitutional provisions have also established duties to protect the implied rights of future generations to a healthy environment. The state constitutions of Hawaii, Illinois, and Montana each impose an obligation on present generations to maintain the environment for those who follow. In Hawaii, the duty applies to the state and its subdivisions; in Illinois and Montana, it extends beyond the government to obligate the states' citizenry. Both indigenous and national law thus identify the parties responsible – in this case present generations – for ensuring that the needs of future generations laid out above are met.
In many cases, parties have a duty to both present and future generations. For example, the Stockholm Declaration on the Human Environment declares that humanity "bears a solemn responsibility to protect and improve the environment for present and future generations". In an article on "Needs and interests of future generations", the Declaration on the Responsibilities of the Present Generations toward Future Generations approved by the United Nations Educational, Scientific, and Cultural Organization (UNESCO) in 1997 provides: "The present generations have the responsibility of ensuring that the needs and interests of present and future generations are fully safeguarded". The state constitutions mentioned above – Hawaii, Illinois, and Montana – similarly establish obligations to present and future generations. The dual duty to present and future generations creates a situation in which the rights of each are likely at some point to conflict and must be balanced.
Even when there is such balancing, using the duty-right framework has important implications. Professor Edith Brown Weiss, while recognizing the interests of current generations, highlights the need to give rights to future generations, stating:
[L]imitations [on the present generation] should be applied very narrowly, lest the rights of future generations develop into an all-purpose club to beat down any and all proposals for change. But surely long-term environmental damage is a good place to begin. Future generations really do have the right to be assured that we will not pollute ground water, load lake bottoms with toxic wastes, extinguish habitats and species or change the world's climate dramatically – all long-term effects that are difficult or impossible to reverse – unless there are extremely compelling reasons to do so, reasons that go beyond mere profitability.
"Rights" and "duties" have a strong normative impact that elevates the interests of future generations. Rights' force comes not from their formal applicability alone, but rather their use in balancing against other conflicting rights and interests.
C. Guardians and Trustees for Future Generations
Legal systems also advance intergenerational equity through the concepts of guardianships or trusteeships. These relationships overlap with the duty- rights framework in some ways, but legal sources frequently treat them as distinct concepts. Guardianships require present generations (the guardians) to protect the best interests of future generations (the wards). Trusteeship is a concept similar to a guardianship but is governed by a fiduciary duty. Both relationships help promote the interests or rights discussed above.
Precedents for guardianships date from early history to contemporary times. The ancient Sri Lankan text The Mahavamsa, for example, refers to a future generations guardian. A sermon to the king of Ceylon (as it was then known) says:
O great King, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art only the guardian of it.
More recently, in July 2006, representatives of several Native American tribes issued the Bemidji Statement on Seventh Generation Guardianship. This statement affirms the framework to protect future generations that existed under the Confederation of the Six Nations of the Iroquois, assigning "responsibility to the current generations to protect and restore the intricate web of life that sustains us all, for the Seventh Generation to come". These examples reflect the role of guardians as serving the needs of future generations.
The idea of an intergenerational trust is also ancient, and jurists and scholars have traced it back to the laws of the Abrahamic faiths. Edith Brown Weiss points out that in the Judeo-Christian tradition, "God gave the earth to his people and their offspring as an everlasting possession, to be cared for and passed on to each generation". Likewise, in the Gabcíkovo-Nagymaros decision, Judge Weeramantry noted the use of the trusteeship concept in traditional Islamic law, under which "land belongs to God, [and] land is never the subject of human ownership, but is only held in trust, with all the connotations that follow of due care, wise management, and custody for future generations".
In the contemporary period, the concept of a trust has surfaced in both international and domestic law. The UN Framework Convention on Climate Change holds that one of its key principles is that state parties will work for the "benefit of present and future generations". In U.S. law, several state constitutions have explicitly established a trusteeship. The Alabama
constitution, for example, creates the "Forever Wild Land Trust" and declares that it is the policy of the state to protect "certain lands and waters of Alabama with full recognition that this generation is a trustee of the environment for succeeding generations". Other sources of law imply a trustee-beneficiary relationship without defining an actual trustee by referring generally to "benefits" that should be preserved, secured, or conserved for future generations (and usually current generations as well). The Alaska National Interest Lands Conservation Act exemplifies this approach stating one of its purposes is "to preserve for the benefit, use, education, and inspiration of present and future generations certain lands and waters in the State of Alaska". The implementation of guardianship and trusteeship mechanisms will be discussed in more depth in Part III.
Whether expressed as duties, rights, guardianships, or trusteeships, the principle that future generations have legal interests is well grounded in a range of international and domestic sources. What follows is an exploration of the roles that various legal institutions and mechanisms have played or could play in implementing and protecting these legal interests effectively.
III. Legal Mechanisms and Institutions for Protecting the Environment for Future Generations
Several legal mechanisms – including courts, ombudsmen (or commissioners), and guardians (or trustees) – offer opportunities to advance environmental protection for future generations. Different jurisdictions bring different cultural and legal traditions, and thus variations have emerged and will continue to so in the implementation of such protections. The general functions of these mechanisms, however, illustrate the role each can have in protecting the legal interests of future generations. Courts can interpret the law to recognize the importance of intergenerational equity, grant standing to sue to those seeking to represent future generations, and provide a check on the actions of governments with regard to future generations. Ombudsmen can review and advise on environmental policies with intergenerational equity in mind; they can also serve as mediators between governments and representatives of future generations. Guardians can represent future generations as they represent other voiceless people in specific situations, such as negotiations and litigation. This Part highlights some efforts by such bodies to address the protection of future generations. The examples demonstrate how other jurisdictions might use traditional and established legal mechanisms and extend their use to deal specifically with the question of how to protect the interests of future generations.
A. Courts
International courts have interpreted the law as requiring intergenerational equity in environmental and other spheres. As noted earlier, Judge Christopher Weeramantry took the lead on this issue at the ICJ. He stated in the Gabcíkovo- Nagymaros decision that modern formulations of environmental law encompass "the principle of trusteeship of earth resources [and] the principle of intergenerational rights". In a different opinion, he described the court as a "trustee of those rights". In the case of Denmark v. Norway decided in 1993, Judge Weeramantry wrote in a concurrence: "Respect for these elemental constituents of the inheritance of succeeding generations dictated rules and attitudes based upon a concept of an equitable sharing which was both horizontal in regard to the present generation and vertical for the benefit of generations yet to come". Three years later, the International Court of Justice applied these precepts in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. Although it did not ultimately outlaw nuclear weapons, it considered their impact on future generations to be an importan factor. The majority recognized that "[t]he destructive power of nuclear weapons cannot be contained in either space or time. Further, the use of nuclear weapons could be a serious danger to future generations".
Some domestic courts have established procedural protections for future generations in environmental cases, particularly by granting standing. In the 1994 case Minors Oposa v. Secretary of the Department of the Environment and Natural Resources, the Supreme Court of the Philippines granted standing to 44 minors to sue on behalf of themselves and future generations because of concerns about unsustainable logging in the country. Some U.S. state courts have, with intergenerational equity in mind, granted private parties the right to enforce constitutional environmental provisions. The Montana Supreme Court, for example, has found its state constitutional environmental provisions provide standing to private citizens and environmental groups to sue for environmental harms to public resources. In Montana Environmental Information Center v. Department of Environmental Quality, the court concluded that the state should subject a mining operation to "nondegradation" analysis because of its proposed release of arsenic into waters at concentrations greater than the concentrations present in the receiving waters. The court noted that this proposed release implicated the constitution's aspiration to preserve the environment for the benefit of future generations. Hawaii and Pennsylvania also both grant standing to private parties to sue for enforcement of constitutional environmental provisions. These decisions illustrate the critical role of courts in articulating procedural rights and moving future generations' interests beyond aspirational rights.
Nonetheless, despite courts' best efforts, the need to balance the rights of present and future generations and the reality of finite resources sometimes make future generations' interests more aspirational concepts than self- executing and judicially enforceable obligations. As one commentator has noted, however, the environmental right-duty relationship can "serve[] to inform and guide state actions and express[] an aspiration which, though not judicially enforceable, ought to guide the state and each person in the conduct of their [sic] affairs. Such a principle, while not self-executing in traditional terms, is certainly not without meaning or force".
Finally, courts have the power to provide a check on other branches of government with regard to the interests of future generations. As they do with other areas of the law, they could enforce related rights created by the executive and legislature. They could review government policies in administrative cases. They could appoint an ombudsman or guardian, like those described below, and/or review decisions or recommendations of such appointees in given circumstances, such as settlements. Precedent (in common law systems) and jurisdiction limit courts, but they still contribute to the advancement of future generations' interests.
B. Ombudsmen, or Commissioners
Ombudsmen, sometimes called commissioners, can also protect the interests of future generations. There are many variations of ombudsmen, but as outlined in the models below, they generally share the following characteristics. They are appointed by the government but maintain some level of independence. They serve an evaluative and advisory function, reviewing, for example, proposed legislation, government policies, or projects to make sure they meet the needs of particular groups. They often produce reports on their work and sometimes serve as liaisons or mediators between the government and an individual or group. On occasion they are given standing to sue. These models can be, and have been applied to meet the needs of future generations. (A proposed description of an ombudsman for future generations is included in Appendix A.)
Many countries have established human rights ombudsmen. These authorities usually serve quasi-judicial roles, either as investigators or mediators. Ombudsmen or commissioners also commonly promote human rights through education efforts – to complement the "protection" functions of investigation and mediation. Usually appointed by the legislature though sometimes by executive authorities, "[t]he primary function of [the ombudsmen] is to oversee fairness and legality in public administration". They attempt to protect individual rights as "impartial mediators" between alleged victims and the government. They perform this function by investigating complaints received from the public and making recommendations to the government, or in some cases resolving the given matter directly. They generally have the power to access relevant information and witnesses. Sometimes, especially when an issue is a matter of "broad public concern" or the victim is a group, ombudsmen may initiate their own investigations. Ombudsmen for future generations could similarly address complaints filed by individuals or future generations guardians (see below) or investigate, on their own initiative, potential violations of intergenerational equity. They could also promote the interests of future generations through education.
Ombudsmen for environmental issues provide additional models for a future generations guardian. The U.K. Sustainable Development Commission uses "advocacy, advice and appraisal . . . [to] put sustainable development at the heart of Government Policy". It reports to the prime minister and other ministers and describes itself as "the Government's independent watchdog". The Canadian Commissioner of the Environment and Sustainable Development, appointed by the auditor general, "provides parliamentarians with objective, independent analysis and recommendations on the federal government's efforts to protect the environment and foster sustainable development". These authorities ensure that a government considers the interest of future generations when making policy. Environmental ombudsmen also operate in a number of U.S. states. Michigan has a Clean Air Ombudsman who works with small business owners and managers as a liaison for the Air Quality Division of the Michigan Department of Environmental Quality. The ombudsman helps small businesses comply with clean air laws, represents small businesses during rule development, and mediates disputes between businesses and the state Department of Environmental Quality. New York has a Small Business Environmental Ombudsman program, which provides businesses with free and confidential assistance to help them comply with air quality regulations. While some of these ombudsmen work with businesses rather than the public, they show that such authorities are frequently charged with assessing compliance with environmental standards.
Ombudsmen specifically designed for future generations have been instituted outside the United States. In November 2007, the Hungarian Parliament adopted legislation establishing a Parliamentary Commissioner for Future Generations. According to the law, the commissioner:
monitors, evaluates, and supervises the enforcement of those legal provisions, which ensure the sustenance and improvement of the condition of nature and the environ- ment. His/her task is the investigation of or ordering the investigation of all improper conduct in connection with these subjects that are brought to his/her attention, and the initiation of general or specific remedial measures to cure the effects of improper conduct.
The law grants the commissioner many powers to protect the interests of future generations, including the powers to review and propose legislation, to initiate administrative actions or judicial reviews of agency decisions, to order those illegally endangering the environment to stop their activities and restore the site they damaged, to evaluate proposed development projects, to receive all relevant information, to initiate or participate in public hearings, and to comment on and monitor international treaties. After three failed nominations, the Hungarian Parliament elected an environmental lawyer as the first ombudsman in May 2008.
From 2001 until 2007, the Commission for Future Generations operated pursuant to enabling legislation passed by the Knesset. "The idea at the base of the law is the creation of an inner-parliamentary entity that has a comprehensive view of the legislative picture with regard to any potential effect on the needs and rights of future generations together with the means to prevent such legislation from taking place". The commission performed four basic functions: "To give opinions regarding bills brought . . . that are of concern to future generations"; "[t]o give opinions regarding secondary legislation and regulations . . . that are of concern to future generations"; "[t]o provide parliament . . . with recommendations on any matter the Commissioner [head of the commission] considers to be of importance to future generations"; and "[t]o provide the members of the parliament with advice on matters that are of special interest regarding the future generations". The commissioner had the authority to review any prospective primary or secondary legislation and participate in all top-level debate on the legislation. Crucial to the effective functioning of the commissioner was his right to access relevant information:
The Knesset Commissioner for Future Generations may request from any organization or body being investigated . . . any information, document or report . . . in the possession of that body and which is required by the Commissioner for the implementation of his tasks; the aforesaid body will give the Commissioner the requested information.
These powers gave the commissioner broad authority to act effectively as an ombudsman for future generations. Although the Knesset later disbanded the commission, it offers a useful model. In another example, France in 1993 established a Council for Future Generations that is "empowered to offer advice on such issues on its own initiative". Future generations ombudsmen, whatever form they take, provide a layer of review to ensure that the executive and legislative branches take into account the interests of future generations in a healthy environment.
C. Guardians, or Trustees
Guardians provide a voice to the underrepresented. Guardians are advocates rather than advisors and seek, in specific situations such as litigation and negotiations, to maximize the best interests of those who cannot speak for themselves. Trustees, related to guardians, play a similar role, generally using a fiduciary duty rather than best interests standard. In the environmental context, guardians, or trustees, could help protect and promote the interests of future generations, who lack voice. (A proposed description of a guardian for future generations is included in Appendix B.)
The National Guardianship Association provides guidelines for the establishment and responsibilities of guardians in U.S. law in two documents: A Model Code of Ethics for Guardians and Standards of Practice. Explaining the principle on which guardianship is based, the former says:
In its purest form, guardianship represents an exercise of the state's parens patriae authority to protect individuals who are incapable of making decisions for themselves. In theory, the concept of guardianship is rooted in the moral duty of beneficence. Under this theory, individuals subject to guardianship are entitled to enhanced protection from the state.
Because there is no basis on which to determine the decision wards themselves would make in the case of future generations, the duty of guardians would be to fill the role of a parent and "act in the ward's best interest". That interest is based on what a responsible person would decide in similar circumstances. Guardians should seek and receive all relevant information and evaluate all alternatives. Making the best decisions and avoiding a conflict of interest are imperative. To fulfill their mission, guardians may request a third-party review of actions by courts, lawyers, or others. These guidelines could easily be adapted to guardians of future generations.
The government-appointed natural resource trustees established under the U.S. Superfund Amendments and Reauthorization Act of 1986 provide a relevant model for guardians on environmental issues. These trustees act on behalf of the public environmental interest at specific Superfund cleanup sites and exist at the federal, state, and tribal levels. Environmental Protection Agency (EPA) officials must coordinate with the trustees "in site characterization, response actions, and settlement negotiations". The act requires the EPA to share available information and to work cooperatively with trustees so that the trustees can adequately fulfill their mandate. All the trustees assist with natural resource preparedness and response actions and develop and implement restoration plans. Federal trustees also have the following authority:
to ask the attorney general to seek damages and costs from a responsible party, to participate in negotiations between the United States and potentially responsible parties, to require compliance with information gathering provisions, and to initiate damage assessments.
Rooted in the tradition of Gayanashagowa, the Bemidji Statement lays out indigenous peoples' articulation of the need for a future generations guardian. It explains that "exploitation and industrialization of the land and water have altered the relationships [between people and the land] that have sustained our Indigenous communities". It also notes that government agencies have failed to protect these relationships. To address these concerns, it pledges to designate Guardians for the Seventh Generation.
The health and well being of our grandchildren are worth more than all the wealth that can be taken from these lands. By returning to the collective empowerment and decision making that is part of our history, we are able to envision a future that will restore and protect the inheritance of this, and future generations.
The Indigenous Environmental Network (IEN) interprets the responsibilities of this position as assuming responsibility to "assess and monitor the chosen piece of the web of life, restore it when necessary, and report the status of their responsibilities to other guardians". That "piece" can range in size from all water to a specific pond, but like most guardians, the Bemidji guardians deal with a particular issue. Such guardians, appointed specifically for future generations, would ensure representation of this otherwise unrepresented group and actively promote its best interests.
Despite Bemidiji's vision, guardians designed specifically for future generations do not yet exist. They could, however, be extensions of court-appointed guardianships involving children or others who are not able to represent adequately their own interests. Future generations guardians would differ in that they would put themselves in the position of representing a group rather than an individual (akin to the natural resources trustee), but the mission would be essentially the same. In the context of future generations, guardians could be, though not necessarily would be, appointed by a court or limited to in-court representation. Alternatively, negotiating parties might appoint a guardian to represent future generations in discussions over a new project that that threatens the environment, or the government might appoint one to review an environmental impact assessment. Like the more traditional guardians, future generations guardians could also be given standing to sue to protect the best interests of their wards.
Two standards of best interest would be particularly appropriate for guardians of future generations: the precautionary principle common in international law and the best alternative approach in U.S. law. Although there has been some debate about the exact meaning of the precautionary principle, a consensus is developing around the definition enunciated at the Wingspread Conference of 1998: "When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically". The concept appears in a multitude of international legal instruments, and courts and executive agencies have validated recourse to the precautionary principle in a variety of settings. In U.S. law, government agencies are required to consider all possible alternatives when evaluating a project proposal. According to the National Environmental Policy Act, federal agencies must "study, develop, and describe appropriate alternatives to recommend courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources". A best interest standard can be interpreted as a reasonable person standard; a reasonable person, represented by a guardian, would prefer the least harmful alternative. While the precautionary principle and alternatives approach acknowledge the needs and rights of present generations, they also support the protection of an ecologically healthy environment for future generations. Both support the proposition that each generation depends on its predecessors to bequeath it an inhabitable environment.
IV. Conclusion
Future generations have legal interests in environmental protection. There is also an emerging understanding that present generations have responsibility to preserve the environment so that generations to come can enjoy it. Frameworks for articulating the connection between these premises include the duty-right, guardian-ward, and trustee-beneficiary relationships. A variety of means exist to implement these relationships. In addition to receiving help from judicial decisions, present generations can live up to their responsibility to ensure intergenerational equity by adopting and creating appropriate protection mechanisms and institutions, such as ombudsmen or guardians for future generations. These positions can take different forms to fit the needs of a given society, providing both independent evaluations and representative advocacy. Although effective alone, a combination will better protect and promote environmental health for the benefit of future generations. Given the significant and urgent threats facing the environment today, more efforts to develop and deploy such tools are needed in the immediate future.
Source: Science and Environmental Health Network, https://www.sehn.org/
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