Not, "Is it Irreparable?" But, "Is it Unnecessary?"

Thoughts on a Practical Limit for Intergenerational Equity Suits

Mary O'Brien

I offer the following remarks as a thought on how to practically apply intergenerational equity and public trust law in cases of intergenerational harms, and at the same time articulate practical limits on their use. I welcome your thoughts on whether the idea has any merit.

Articulating practical limits on the use of intergenerational equity claims isn't easy, given the fact that we are simultaneously depleting aquifers, manufacturing radioactive waste, eroding topsoil, releasing novel toxic chemicals and gene sequences, driving plant and animal species into extinction, and eliminating entire habitats such as estuaries and wetlands. All of these are reducing environmental health and options for future generations – our posterity. So this question is crucial: how can we establish any practical LIMITS on the use of the Constitutional principle of intergenerational equity and stewardship in courts, so that it CAN be used?

While John, Jay, and Charlie have been delving into this issue in relation to the Constitution, I have worked for the last few years in the arena of the precautionary principle, which faces a similar question. The version of the precautionary principle that is most frequently cited in the U.S. is that from the Wingspread Statement, namely:

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.

What major activity of the modern, particularly industrialized, world does NOT raise threats of harm to human health or the environment, and thus fall under the precautionary principle? At 6 billion people and more, even the basic human activities of reproducing and eliminating our bodily wastes, raise threats of harm to human health and the environment, thereby triggering the need for precautionary measures under the precautionary principle. How do we not end up saying "NO" to every human activity?

Opponents of the precautionary principle capitalize on this, saying that the precautionary principle is impractical because since proving "safety" of an activity is impossible, and so the precautionary principle means saying no to everything, and so it is not a legitimate concept.

The solution we too often offer to this type of critique, out of habit and culture, is to suggest that we should use the precautionary principle only when threats of harm are "significant." Likewise, some would say that we should limit intergenerational equity challenges only to those cases that involve irreparable injury, with perhaps only purposeful extinction of species qualifying.

However, I would suggest that this approach of limiting use of the intergenerational equity principle to only irreparable harms, and invoking the precautionary principle only for highly significant harms ultimately will doom both principles to functional irrelevance. Both in the case of the precautionary principle and Constitutional intergenerational equity cases, what will be judged "significant" will generally lie in the eye of the most economically powerful beholder.

Though most of us understand that draining aquifers, eroding soils, altering climate, and and contaminating groundwater with radioactive wastes are essentially irreparable within any reasonable time, those who advocate activities with these consequences always argue that the harms AREN'T irreparable; that they AREN'T significant, because technologies can be found to mitigate these harms, or provide substitute materials, or artificially re-create the ecosystem functions or replace lost ecosystem services. Thus, they say, wetlands can be "created;" plants can be grown in water if the soil is eroded; we can raise fish in hatcheries when the streams are dammed; we can learn how to desalinate water for drinking, or genetically engineer plants to grow in salty soil. We can even clone the last individuals of a species, thus preventing extinction, the last bulwark of irreparability In the eyes of those who would extract, pollute, overharvest, pave over, or genetically engineer nature, NO HARM is significant or irreparable.

I believe that rather than approaching intergenerational harms with the question of whether the harms are irreparable, we should ask the question of whether the harms are avoidable. Are the harms necessary? Are reliable alternatives available?

I am wondering whether there are ways to link an intergenerational equity claim to the demonstration that the activity posing near-certain intergenerational harm is NOT NECESSARY. In this way, we will have indicated a means by which posterity suits, intergenerational equity suits can be limited, and thus make a case for why intergnerational equity suits are reasonable.

John Davidson indicates to me that the "least restrictive means to achieve a compelling interest" is a well-established formulation in constitutional law. In a 1987 article in the Journal of Environmental Law and Litigation, Vic Sher noted that both state and federal courts have recognized that, for instance, a person has a constitutionally protected interest in being left free to refuse anti-psychotic drugs. In an appeals court ruling in such a case (Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert denied 105S.Ct. 1187, 1986) the 10th Circuit wrote:

Our constitutional jurisprudence long has held that where state interest conflicts with fundamental personal liberties, the means by which that interest is promoted must be carefully selected so as to result in the minimum possible infringement of protected rights. . . . Thus, less restrictive alternatives . . . should be ruled out before resorting to anti-psychotic drugs.

I would be interested if this "least restrictive alternatives" legal tradition, with its inherent consideration of whether more benign alternatives exist, could be linked to a given challenge to intergenerational harm on the basis that when there are less harmful means of achieving the same legitimate objectives, intergenerational harm is not legitimate.

An activity that comes to mind is the use of transgenic crops in agriculture. Genetic engineering is by its nature an intergenerational act. In fact the PURPOSE of most genetic engineering of crops is to create desirable traits that can be inherited. The multiple potential and demonstrated harms of genetically engineered crops likewise are intergenerational, such as genetic contamination of native plants and animals, including humans. Genetic contamination of an ancient native corn variety, for instance, means the entire genetic variety may be lost. Can a desirable end sought by genetic engineering, e.g., insect resistance, or cold tolerance, be achieved by conventional breeding methods or soil management? Or, at a broader scale, can people be well-fed without reliance on genetic engineering?

Several European countries are now speaking of a Fifth Criterion of necessity in decisionmaking. This language refers to three classic criteria upon which proposals for registration of a pharmaceutical drug are judged. The first three are efficacy, safety and purity. A fourth criterion has more recently come into being, that of social or economic considerations. And the "Fifth Criterion" is necessity. For instance, the Netherlands citizenry, through a state-funded citizen review process, indicated that they did not want GMOs in the Dutch food supply because GMOs could cause harm, and they aren't necessary.

While our nation has tended to employ the "least restrictive means" principle to limit regulatory interference with personal rights, there is no logical reason to exclude consideration of "least restrictive means" to limit harm to (i.e., interference with) intergenerational health.

In his Columbia Journal of Environmental Law article, "Tomorrow's Standing Today...", John Davidson cites a particular commentator (Rosenkranz at p. ___) who has proposed a "modified injunction test" for posterity suits. Under the proposed test, the substantiality and imminence of the future injury would be balanced against the burden of the requested relief on the opposing party, and the utility of the challenged conduct. In other words, if a feasible alternative exists, that should lower the threshold for how much future injury has to be alleged before relief is not too burdensome on the opposing party. If a feasible alternative exists, the utility of the challenged conduct can be supplied by less harmful conduct.

Obviously, there would be the usual debates over what constitutes a feasible alternative and what constitutes an intergenerational harm that warrants court attention, but inserting the question of "least harmful means" of achieving an end, that is considering whether the intergenerationally harmful activity is necessary should avoid the dead-end of having to prove irreparable harm.

Ultimately, I am asking whether we might be able to claim, on the basis of our legal traditions, that harming future generations unnecessarily could be the reasonable purview of court decisions. If so, I would offer it is an approach that will allow us not only to invoke the Constitution for posterity's suits, but also to demonstrate that there is a practical way to limit such claims.

It SHOULD be hard to argue that harm should be visited on future generations unnecessarily. If a legal scholar or litigating attorney finds this an interesting possibility, I would be glad to work with her or him to flesh these ideas out.

--- Presentation at a panel, "Stewardship Doctrine: Environmental and Related Rights for Posterity Under the Constitution" 2003 Public Interest Environmental Law Conference, University of Oregon, Eugene, Oregon, March 6-9.

*Mary O'Brien (Ph.D., botany), has served 22 years as a staff scientist with grassroots environmental organizations, and was a co-founder of Environmental Law Alliance Worldwide. She is the author of Making Better Environmental Decisions: An Alternative to Risk Assessment (MIT Press, 2000).


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