models for protecting the environment for future generations

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Science and Environmental Health Network

The International Human Rights Clinic at Harvard Law School

Models for Protectingthe Environment forFuture Generations


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The Science & Environmental Health Network (SEHN) engages communitiesand governments in the eective application o science to restore and protectpublic and ecosystem health. SEHN is a leading proponent o the precautionaryprinciple as a basis or public policy. Our goal is policy reorm that promotes

just and sustainable communities, or this and uture generations.

The International Human Rights Clinic (IHRC) at Harvard Law School is acenter or critical thought and active engagement in human rights. The IHRCprovides students the opportunity to engage directly with the vital issues, insti-tutions and processes o the human rights movement. Each year, the IHRC part-ners with dozens o local and international non-governmental organizations towork on human rights projects ranging rom litigation, on-site investigations,legal and policy analysis, report drating or international oversight bodies, andthe development o advocacy strategies.


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ModelsforProtectingthe environMent

forfuturegenerations

Table o Contents

I. Summary 1

II. Legal Bases or Present Promotion o Future Interests 3

A. The Interests o Future Generations 4B. Duties to and Rights o Future Generations 6

C. Guardians and Trustees or Future Generations 9

III. Legal Mechanisms and Institutions or Protecting

the Environment or Future Generations 11

A. Courts 12

B. Ombudsmen, or Commissioners 15

C. Guardians, or Trustees 19

IV. Conclusion 23

APPENDIX A: A Proposed Structure or an Ombudsman

or Future Generations 25

APPENDIX B: A Proposed Structure or a Guardian orFuture Generations 30

APPENDIX C: Examples o International Legal Frameworks

to Protect Future Generations 34

APPENDIX D: Examples o Domestic Legal Frameworks

to Protect Future Generations 38

APPENDIX E: Bemidji Statement on Seventh

Generation Leadership 45


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ModelsforProtectingthe environMent

forfuturegenerations

I. Summary

Due to growing concern over deteriorating environmental conditions, legalsystems around the world have increasingly recognized the interests o uturegenerations and the corresponding responsibilities o present generations. The

notion o intergenerational equity is not new, but over the past several decades,more legal documents have specically reerenced uture generations and theirinterests. Some courts, government bodies, and other entities have also begunto take the interests o uture generations into account in making decisionsthat aect the long-term health o the environment.This paper exploresthe variety o ways that the legitimate environmental interests o uturegenerations may be advanced through more requent development and use oinstitutional mechanisms, such as ombudsmen and guardians. Deployment o

new mechanisms would help move beyond the mere citation o the interestso uture generations in legal documents. Through such innovation, theinterests could be evaluated and weighed, or example, by courts determiningthe impacts o environmental degradation on a community, by administrativeagencies drating regulations or considering development proposals, and byexecutive ocials negotiating with indigenous communities.

The concept o uture generations is based on precedent, both ancient andmodern, international and domestic. Historically, or example, some NativeAmericans have recognized the obligation o present generations to take intoconsideration the long-term environmental consequences o their actions.

1 This paper was conceived and written by Carolyn Raensperger, executive director o the Sci-ence and Environmental Health Network (SEHN), Tyler Giannini, director o the InternationalHuman Rights Clinic at Harvard Law Schools Human Rights Program, and Bonnie Docherty,lecturer and clinical instructor at the Clinic. Additional writing assistance came rom Nate Ela,litigation and writing ellow at the Clinic. Research was provided by Jose Klein, J.D. 008, BartLounsbury, J.D. 007, Jason Steen, J.D. 007, and Mike Sullivan, J.D. 009, all students in theClinic. Joseph Guth, SEHNs legal director, and James Cavallaro, executive director o the HumanRights Program, reviewed the paper. Intragenerational equity is also an important concept with regards to the environment and isparticularly tied to the environmental justice movement. Discussions about intragenerationalequity are beyond the scope o this paper, however. Appendices to 5 provide examples o this precedent in more depth.


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judicial roles by investigating issues or cases as well as hearing disputesin some instances. Third, guardians advocate in specic situations or thebest interests o people who cannot, or example, represent themselves inlitigation and negotiations. This mechanism could be developed to help ensureenvironmental protection or uture generations. Guardianships have beensuccessully implemented in analogous situations; U.S. courts, or example,regularly appoint guardians to represent the interests o children and othersnot competent to represent themselves legally.7

While this paper provides ample precedent and models or protecting uture

generations interests, what is needed now is or more jurisdictionsthroughtheir legislatures, judiciaries, and executivesto develop and deploy integratedapproaches that advance the interests o uture generations consistent withtheir legal systems. Ultimately, the core mechanisms discussed here couldoperationalize the legal interests o uture generations in innovative ways toaddress the important problems acing the world.8

II. Legal Bases or Present Promotion o Future Interests

Various legal traditions and documents recognize the interests o uturegenerations in a clean and healthy environment, providing precedent orconsidering them in contemporary decision-making. Many also take the nextstep and articulate a legal relationship between present and uture generations.Numerous instruments place specic duties on present generations to

protect the environment or uture generations and, in some cases, establishcorresponding rights or uture generations. Alternatively or additionally, legalstructures establish guardian-ward or trustee-beneciary relationships betweenpresent and uture generations, respectively. Some o these approaches overlapor have yet to be precisely dened, but at their core, they all acknowledge the

The concept o best interest o the ward is critically important. In the context o considering

the best interests o uture generations, the precautionary principle and alternatives analysis ap-proaches would be key components o the evaluation. See inra Part III(C) or urther discussion.7 Appendices A and B detail how an ombudsman and guardian o uture generations would

work.8 For example, judges; executive ocials at the national, state, or local level; indigenous councils;or private parties could appoint these ombudsmen and guardians. The positions would varydepending on the character o specic jurisdictions. For example, parliamentary systems mightdier rom presidential systems, and the exact interactions between courts and ombudsmen orguardians might also dier.

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threats to uture generations and the need or assistance rom those in presentgenerations.9

A. The Interests o Future Generations

A multitude o international and domestic sources acknowledge thatthe actions o present generations can interere with the needs o uturegenerations. To address this situation, legal documents commonly highlightthe interests o uture generations and state that they should receive attentionalongside those o present generations.

The principle o sustainable development, requently cited in internationalinstruments, exemplies the consideration given to the needs o uturegenerations. The Report o the World Commission on Environment andDevelopment (known as the Brundtland Report), which oers the mostaccepted denition o sustainable development, uses the term to describedevelopment that meets the needs o the present without compromising

the ability o uture generations to meet their own needs.10

Similarly, theConvention on the Protection and Use o Transboundary Watercourses andInternational Lakesprovides: Water resources shall be managed so that theneeds o the present generation are met without compromising the abilityo uture generations to meet their own needs.11 Such provisions, especiallybecause o the phrase without compromising, subject present generationsneeds to those o uture generations. Using a slightly dierent ormulation,the Rio Declaration on Environment and Development, adopted by about 178

countries at the 199 Earth Summit, declares: The right to development mustbe ullled so as to equitably meet developmental and environmental needs opresent and uture generations.1 The UN Framework Convention on Climate

9 In the 1980s and 1990s, Proessor Edith Brown Weiss traced the roots o intergenerationalequity in international law. She proposed three principles to inorm intergenerational equity:conservation o options, quality, and access or uture generations. E. Brown Weiss, OurRights and Obligations to Future Generations or the Environment, 8 Am. J. Intl l. 198, 00-0(1990); see also E. Brown wEIss, In FAIrnEssto FuturE GEnErAtIons: IntErnAtIonAl lAw, CommonPAtrImonyAnd IntErGEnErAtIonAl EquIty 25-26(1989).10 rEPortoFthE world CommIssIonon EnvIronmEntAnd dEvEloPmEnt, ch. (1), U.N. doC.A//7 (1987), availableathttp://www.worldinbalance.net/agreements/1987-brundtland.html[hereinater Brundtland Report].11 Convention on the Protection and Use o Transboundary Watercourses and InternationalLakes, art. (5)(c), Mar. 17, 199, 1 I.L.M. 11.1 Rio Declaration on Environment and Development, princ. , U.N. Doc. A/CONF.151/ (Vol.I) (199) [hereinater Rio Declaration].

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Change, the major international climate change initiative, articulates howparties must work or the benet o uture generations: The Parties shouldprotect the climate system or the benet o present and uture generationso humankind, on the basis o equity and in accordance with their commonbut dierentiated responsibilities and respective capabilities.1 The latter twoinstruments emphasize a balance between present and uture yet still give thelatter equal weight. At least ve international treaties and three declarationsreer to uture generations.

Domestic laws, such as those in the United States, also oten recognize the

interests o uture generations. For example, at least eight U.S. ederal statutesmake specic reerence to the protection o the environment or uture as wellas present generations.1 At least our U.S. state constitutions and ve statestatutes similarly reerence such interests.15 The environmental policy section othe Indiana State Code, or example, describes one o its three purposes as topreserve, protect, and enhance the quality o the environment so that, to theextent possible, uture generations will be ensured clean air, clean water, anda healthul environment.1 New Mexicos Environmental Improvement Actlists as one o its goals to ensure an environment that in the greatest possiblemeasure will protect present and uture generations.17 Although the statuteslist multiple purposes,18 they clearly articulate a commitment to protecting theinterests o uture generations.

1 UN Framework Convention on Climate Change art. (1), opened or signature May 9, 199,

U.N. Doc. A/AC.7/18 (Part II) (Add. 1), 1 I.L.M. 88.1 See, e.g., National Environmental Policy Act o 199, U.S.C. 1(a) (00); see also Ap-pendix D: Examples o Domestic Legal Frameworks to Protect Future Generations.15 See Appendix D.1 Ind. Code tit. 1, art. 1, ch. (1) (008).17 Environmental Improvement Act, N.M. Stat. Ann. Ch. 7, art. 1() (00). See also CaliorniaEnvironmental Quality Act, Cal. Pub. Res. Code 1001(e) (00) (declaring the intent o thestate to [c]reate and maintain conditions under which man and nature can exist in productiveharmony to ulll the social and economic requirements o present and uture generations).18 The Indiana Code says the other purposes o its environmental title are:

(1) to provide or evolving policies or comprehensive environmentaldevelopment and control on a statewide basis;() to uniy, coordinate, and implement programs to provide or the mostbenecial use o the resources o Indiana.

Ind. Code tit. 1, art. 1, ch. (1) (008). New Mexicos Environmental ImprovementAct describes its other goals as to ensure an environment that in the greatest possiblemeasure will coner optimum health, saety, comort and economic and social well-being on its inhabitants and to maximize the economic and cultural benets o ahealthy people. N.M. Stat. Ann. Ch. 7, art. 1() (00).



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B. Duties to and Rights o Future GenerationsOne legal approach to achieving the kind o intergenerational equity discussedabove is to establish, explicitly or implicitly, duties or present generations topromote the interests o uture generations. Some argue that every duty has acorresponding right, suggesting that a duty toward uture generations wouldmean that uture generations in turn have a right.19 Numerous legal sourcesestablish a duty or present generations to act. Some sources specicallyrecognize the existence o rights o uture generations.

Indigenous peoples have long articulated an obligation o present generationsto promote the welare o uture generations. In his concurring opinion tothe 1997 International Court o Justice (ICJ) case concerning the Gabckovo-Nagymaros Project o locks and dams on the Danube river (Gabckovo-

Nagymaros decision), Judge Christopher Weeramantry chronicled the concernor uture generations across several continents. He wrote:

[E]xamples may be cited rom nearly every traditional system,ranging rom Australasia and the Pacic Islands, throughAmerindian and Arican cultures to those o Ancient Europe.. . . [T]hese varied cultures were refecting the ancient wisdomo the human amily which the legal systems o the time andthe tribe absorbed, refected and turned into principles whoselegal validity cannot be denied.0

19 Blacks Law Dictionary denes duty as a legal obligation that is owed or due to anotherand that needs to be satised; an obligation or which somebody else has a corresponding right.BlACks lAw dICtIonAry 5 (8th ed. 00); see, e.g., Weiss, Our Rights and Obligations, supra note9, at 0-05 (arguing or the rights ramework or uture generations); but see Anthony DAmato,Do We Owe a Duty to Future Generations to Preserve the Global Environment, 8 Am. J. Intl l. 198(1990) (discussing Parts Paradox and challenges involved in conceptualizing rights or uturegenerations); see also Lothar Gndling, Our Responsibility to Future Generations, 8 Am. J. Intll. 07, 10-11 (1990) (discussing whether there are only duties o present generations or alsorights o uture generations).0 Gabckovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 107 (Sept. 5) (Sep. Op. Weera-mantry), available atwww.icj-cij.org/docket/les/9/78.pd. Weeremantry describes a time:

[w]hen Native American wisdom, with its deep love o nature, ordained thatno activity aecting the land should be undertaken without giving thoughtto its impact on the land or seven generations to come; when Aricantradition viewed the human community as three-oldpast, present andutureand reused to adopt a one-eyed vision o concentration on thepresent; when Pacic tradition despised the view o land as merchandise that



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In North America, the Gayanshagowa, or Great Binding Law, which servesas the constitution o the Conederation o the Six Nations o the Iroquois,denes the duties, rights, and qualications o Iroquois lords.1 As mentionedabove, in doing so, it establishes their obligation to take uture generationsinterests into account in their decision-making. The Speaker o the Councildirects the New Lords o the Conederate Council to [l]ook and listen or thewelare o the whole people and have always in view not only the present butalso the coming generations.

More recently, countries around the world have adapted this tradition to

modern constitutions. Bolivia and Norway have enshrined the rights o uturegenerations within their constitutions. Several U.S. state constitutionalprovisions have also established duties to protect the implied rights o uturegenerations to a healthy environment. The state constitutions o Hawaii,

could be bought and sold like a common article o commerce, and viewedland as a living entity which lived and grew with the people and upon whosesickness and death the people likewise sickened and died; when Chinese and

Japanese culture stressed the need or harmony with nature; and when Ab-original custom, while maximizing the use o all species o plant and animallie, yet decreed that no land should be used by man to the point where itcould not replenish itsel.

(Footnotes omitted.) Id. He also noted how a relationship between present and uture genera-tions was central to resource management among the Sub-Saharan Sonjo people. Upkeep o anancient irrigation system was considered to be the sacred duty o each generation to ensure thatthe system was kept in good repair [or posterity]. Id. at 10.1 Const. oFthE IroquoIs nAtIons

, arts. 17-,available athttp://www.constitution.org/cons/iro-quois.htm.

Id. at art. 8. See Const. (1967, as amended 00), art. 7 (Bol.), available athttp://pdba.georgetown.edu/Constitutions/Bolivia/consboliv005.html (according to the text as amended by Law No. 10o August 8, 00, Every person has the ollowing undamental rights... m) to enjoy a healthyenvironment, ecologically balanced and adequate or his wellbeing, saeguarding the rightso uture generations. (The original text in Spanish reads, Toda persona tiene los siguientesderechos undamentales: . . . m) A gozar de un medio ambiente sano, ecolgicamente equilib-rado y adecuado para su bienestar, resguardando los derechos de las generaciones uturas.));Const. (1814, as amended 007), art. 110(b) (Nor.), available athttp://www.stortinget.no/eng-lish/constitution.html#ulltext (Every person has a right to an environment that is conducive tohealth and to a natural environment whose productivity and diversity are maintained. Naturalresources should be managed on the basis o comprehensive long-term considerations wherebythis right will be saeguarded or uture generations as well.). See alsokEnPo [Constitution](1946) arts. 11, 97 (Jap.), available athttp://www.constitution.org/cons/japan.txt (last visited July10, 008) (reerencing the rights o uture generations in general, not specically in relation tothe environment). hAw. Const. art. XI, 1 (For the benet o present and uture generations, the State and



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Illinois,5 and Montana each impose an obligation on present generations tomaintain the environment or those who ollow. In Hawaii, the duty applies tothe state and its subdivisions; in Illinois and Montana, it extends beyond thegovernment to obligate the states citizenry. Both indigenous and national lawthus identiy the parties responsiblein this case present generationsorensuring that the needs o uture generations laid out above are met.

In many cases, parties have a duty to both present and uture generations. Forexample, the Stockholm Declaration on the Human Environment declaresthat humanity bears a solemn responsibility to protect and improve the

environment or present and uture generations.7 In an article on Needsand interests o uture generations, the Declaration on the Responsibilities othe Present Generations toward Future Generations approved by the UnitedNations Educational, Scientic, and Cultural Organization (UNESCO) in 1997provides: The present generations have the responsibility o ensuring that theneeds and interests o present and uture generations are ully saeguarded.8The state constitutions mentioned aboveHawaii, Illinois, and Montanasimilarly establish obligations to present and uture generations.9 The dualduty to present and uture generations creates a situation in which the rights oeach are likely at some point to confict and must be balanced.0

Even when there is such balancing, using the duty-right ramework hasimportant implications. Proessor Edith Brown Weiss, while recognizing the

its political subdivisions shall conserve and protect Hawaiis natural beauty and all natural

resources, including land, water, air, minerals and energy sources, and shall promote the develop-ment and utilization o these resources in a manner consistent with their conservation and inurtherance o the sel-suciency o the State).5 Ill. Const. art. XI, 1 (The public policy o the State and the duty o each person is to pro-vide and maintain a healthul environment or the benet o this and uture generations.). mont. Const. art. IX, 1(1) (The state and each person shall maintain and improve a cleanand healthul environment in Montana or present and uture generations.).7 Stockholm Declaration on the Human Environment o the United Nations Conerence on theHuman Environment, princ. 1, Jun. 1, 197, 11 I.L.M. 11.8 United Nations Educational, Scientic and Cultural Organization, Declaration on the Respon-sibilities o the Present Generations Toward Future Generations, art. 1, Oct. 1-Nov. 1, 1997,http://portal.unesco.org/en/ev.php-URL_ID=1178&URL_DO=DO_PRINTPAGE&URL_SEC-TION=01.html.9 hAw. Const. art. XI, 1; Ill. Const. art. XI, 1; mont. Const. art. IX, 1(1).0 Edith Brown Weiss recognized that issues o equity touched past, present and uture genera-tions. She wrote, [I]ntergenerational obligations to conserve the planet fow rom the presentgeneration both to uture generations as generations and to members o the present generation,who have the right to use and enjoy the planetary legacy. Weiss, Our Rights and Obligations,supra note 9, at 0.



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interests o current generations, highlights the need to give rights to uturegenerations, stating:

[L]imitations [on the present generation] should be appliedvery narrowly, lest the rights o uture generations developinto an all-purpose club to beat down any and all proposals orchange. But surely long-term environmental damage is a goodplace to begin. Future generations really do have the right tobe assured that we will not pollute ground water, load lakebottoms with toxic wastes, extinguish habitats and species or

change the worlds climate dramaticallyall long-term eectsthat are dicult or impossible to reverseunless there areextremely compelling reasons to do so, reasons that go beyondmere protability.1

Rights and duties have a strong normative impact that elevates the interestso uture generations. Rights orce comes not rom their ormal applicabilityalone, but rather their use in balancing against other conficting rights andinterests.

C. Guardians and Trustees or Future Generations

Legal systems also advance intergenerational equity through the conceptso guardianships or trusteeships. These relationships overlap with the duty-rights ramework in some ways, but legal sources requently treat them as

distinct concepts. Guardianships require present generations (the guardians)to protect the best interests o uture generations (the wards). Trusteeship is aconcept similar to a guardianship but is governed by a duciary duty. Bothrelationships help promote the interests or rights discussed above.

Precedents or guardianships date rom early history to contemporary times.The ancient Sri Lankan text The Mahavamsa, or example, reers to a uture

generations guardian. A sermon to the king o Ceylon (as it was then known)says:

O great King, the birds o the air and the beasts have as equala right to live and move about in any part o the land as thou.

1 Id. at 0. This term will be discussed inra Part III(C).



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The land belongs to the people and all living beings; thou artonly the guardian o it.

More recently, in July 00, representatives o several Native American tribesissued the Bemidji Statement on Seventh Generation Guardianship. Thisstatement arms the ramework to protect uture generations that existedunder the Conederation o the Six Nations o the Iroquois, assigningresponsibility to the current generations to protect and restore the intricateweb o lie that sustains us all, or the Seventh Generation to come.5These examples refect the role o guardians as serving the needs o uture

generations.

The idea o an intergenerational trust is also ancient, and jurists and scholarshave traced it back to the laws o the Abrahamic aiths. Edith Brown Weisspoints out that in the Judeo-Christian tradition, God gave the earth tohis people and their ospring as an everlasting possession, to be cared orand passed on to each generation. Likewise, in the Gabckovo-Nagymarosdecision, Judge Weeramantry noted the use o the trusteeship concept intraditional Islamic law, under which land belongs to God, [and] land isnever the subject o human ownership, but is only held in trust, with all theconnotations that ollow o due care, wise management, and custody or uturegenerations.7

In the contemporary period, the concept o a trust has suraced in bothinternational and domestic law. The UN Framework Convention on Climate

Change holds that one o its key principles is that state parties will workor the benet o present and uture generations.8 In U.S. law, severalstate constitutions have explicitly established a trusteeship. The Alabamaconstitution, or example, creates the Forever Wild Land Trust and declaresthat it is the policy o the state to protect certain lands and waters o Alabama

Gabckovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. at 10 (Sept. 5) (Sep. Op. Weera-mantry) (citing thE mAhAvAmsA, ch. XIV) (discussing the infuence o Buddhist teaching on lawand how the notion o not causing harm to others also touched environmental attitudes andwould be extended by Buddhism to uture generations). Bemidji Statement on Seventh Generation Guardianship (July -9, 00), http://www.ienearth.org/bemidj_statement_7th%0gen_guardianship.pd [hereinater Bemidji State-ment].5 Id. wEIss, In FAIrnEssto FuturE GEnErAtIons, supra note 9, at 19 (citing Genesis 1:1-1, 17:7-8).7 1997 I.C.J. at 108 (Sept. 5) (Sep. Op. Weeramantry).8 UN Framework Convention on Climate Change, supra note 1, art. (1).



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with ull recognition that this generation is a trustee o the environment orsucceeding generations.9 Other sources o law imply a trustee-beneciaryrelationship without dening an actual trustee by reerring generally tobenets that should be preserved, secured, or conserved or uturegenerations (and usually current generations as well). The Alaska NationalInterest Lands Conservation Act exemplies this approach stating one oits purposes is to preserve or the benet, use, education, and inspirationo present and uture generations certain lands and waters in the State oAlaska.0 The implementation o guardianship and trusteeship mechanismswill be discussed in more depth in Part III.

Whether expressed as duties, rights, guardianships, or trusteeships, theprinciple that uture generations have legal interests is well grounded in a rangeo international and domestic sources. What ollows is an exploration o theroles that various legal institutions and mechanisms have played or could playin implementing and protecting these legal interests eectively.

III. Legal Mechanisms and Institutions or Protecting the

Environment or Future Generations

Several legal mechanismsincluding courts, ombudsmen (or commissioners),and guardians (or trustees)oer opportunities to advance environmentalprotection or uture generations. Dierent jurisdictions bring dierentcultural and legal traditions, and thus variations have emerged and willcontinue to so in the implementation o such protections. The generalunctions o these mechanisms, however, illustrate the role each can have in

9 AlA. Const. amend. 5. See also Colo. Const. art. IX, 10 (establishing that state school landsare to be held in a perpetual, inter-generational public trust or the support o public schoolsand are to be managed with sound stewardship or long-term productivity); Conn. Gen. Stat. a-1 (00) (noting that the states growing population and economy have placed consider-able burdens on the lie-sustaining natural environment; dening the state as trustee o theenvironment or present and uture generations; and establishing a state policy to conserve,improve, and protect natural resources and the environment through pollution control andimproved environmental planning and interagency/intergovernmental coordination).0 Alaska National Interest Lands Conservation Act, 1 U.S.C. 101 (00); see also NationalPark Service Organic Act, 1 U.S.C. 1 (00); Wild and Scenic Rivers Act, 1 U.S.C. 171(00); Wilderness Act o 19, 1 U.S.C. 111(a) (00); Endangered Species Act, 1 U.S.C. 151(b) (00); Forest and Rangeland Renewable Resources Planning Act o 197, 1 U.S.C. 109(a) (00); National Wildlie Reuge System Improvement Act o 1997, 1 U.S.C. 8dd(a)() (00).



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protecting the legal interests o uture generations. Courts can interpret thelaw to recognize the importance o intergenerational equity, grant standing tosue to those seeking to represent uture generations, and provide a check onthe actions o governments with regard to uture generations. Ombudsmencan review and advise on environmental policies with intergenerationalequity in mind; they can also serve as mediators between governmentsand representatives o uture generations. Guardians can represent uturegenerations as they represent other voiceless people in specic situations, suchas negotiations and litigation. This Part highlights some eorts by such bodiesto address the protection o uture generations. The examples demonstrate

how other jurisdictions might use traditional and established legal mechanismsand extend their use to deal specically with the question o how to protect theinterests o uture generations.

A. Courts

International courts have interpreted the law as requiring intergenerational

equity in environmental and other spheres. As noted earlier, Judge ChristopherWeeramantry took the lead on this issue at the ICJ. He stated in the Gabckovo-Nagymaros decision thatmodern ormulations o environmental lawencompass the principle o trusteeship o earth resources [and] the principleo intergenerational rights.1 In a dierent opinion, he described the courtas a trustee o those rights. In the case oDenmark v. Norwaydecided in199, Judge Weeramantry wrote in a concurrence: Respect or these elementalconstituents o the inheritance o succeeding generations dictated rules

and attitudes based upon a concept o an equitable sharing which was bothhorizontal in regard to the present generation and vertical or the benet ogenerations yet to come. Three years later, the International Court o Justiceapplied these precepts in its Advisory Opinion on the Legality o the Threator Use o Nuclear Weapons. Although it did not ultimately outlaw nuclearweapons, it considered their impact on uture generations to be an important

1 1997 I.C.J. at 110 (Sept. 5) (Sep. Op. Weeramantry). Request or an Examination o the Situation in Accordance with Paragraph o the CourtsJudgement o 0 December 197 inNuclear Tests (N.Z. v. Fr.), 1995 I.C.J. 88, 1 (Sept. 1995)(Weeramantry, J. dissent), available athttp://www.icj-cij.org/docket/les/97/757.pd (thisCourt must regard itsel as a trustee o those [uture generations] rights in the sense that a do-mestic court is a trustee o the interests o an inant unable to speak or itsel.). Maritime Delimitation in the Area Between Greenland and Jan Mayen (Den. v. Nor.), 199I.C.J. 8, 77 (June 1) (Sep. Op. Weeramantry), available athttp://www.icj-cij.org/docket/les/78/71.pd.



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actor. The majority recognized that [t]he destructive power o nuclearweapons cannot be contained in either space or time. . . . Further, the use onuclear weapons could be a serious danger to uture generations.5

Some domestic courts have established procedural protections or uturegenerations in environmental cases, particularly by granting standing. In the199 caseMinors Oposa v. Secretary o the Department o the Environment and

Natural Resources, the Supreme Court o the Philippines granted standingto minors to sue on behal o themselves and uture generations becauseo concerns about unsustainable logging in the country.7 Some U.S. state

courts have, with intergenerational equity in mind, granted private partiesthe right to enorce constitutional environmental provisions. The MontanaSupreme Court, or example, has ound its state constitutional environmentalprovisions provide standing to private citizens and environmentalgroups to sue or environmental harms to public resources. In MontanaEnvironmental Inormation Center v. Department o Environmental Quality,the court concluded that the state should subject a mining operation tonondegradation analysis because o its proposed release o arsenic intowaters at concentrations greater than the concentrations present in thereceiving waters.8 The court noted that this proposed release implicated the

Advisory Opinion on the Legality o the Threat or Use o Nuclear Weapons, 199 I.C.J. ,- (July 8), available athttp://www.icj-cij.org/docket/les/95/795.pd. The ICJ embraceda broad denition o the environment. It represents the living space, the quality o lie and thevery health o human beings, including generations unborn. Id. at 1.5

Id. at -. Minors Oposa v. Secretary o the Department o the Environment and Natural Resources(S.C., January 199) (Phil.), I.L.M. 17 (199)).7 Id. (We nd no diculty in ruling that they can, or themselves, or others o their genera-tion and or succeeding generations, le a class suit. Their personality to sue on behal o thesucceeding generations can only be based on the concept o intergenerational responsibility in soar as the right to a balanced and healthul ecology is concerned. . . . Such rhythm and harmonyindispensably include, inter alia, the judicious disposition, utilization, management, renewal andconservation o the countrys orest, mineral, land, waters, sheries, wildlie, oshore areas andother natural resources to be aimed at their exploration, development and utilization be equita-bly accessible to the present as well as uture generations.).8 988 P.d 1, 19 (Mont. 1999) ([T]he [constitutional convention] delegates intention wasto provide language and protections which are both anticipatory and preventative. The del-egates did not intend to merely prohibit that degree o environmental degradation which can beconclusively linked to ill health or physical endangerment. Our constitution does not require thatdead sh foat on the surace o our states rivers and streams beore its arsighted environmentalprotections can be invoked.). Though not invoked by name, implicit in the Montana courtsreasoning is the precautionary principle, which is one way to protect uture generations interestsand will be discussed more below. In the ace o a likelihood o substantial harm, the court opted



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constitutions aspiration to preserve the environment or the benet o uturegenerations. Hawaii and Pennsylvania also both grant standing to privateparties to sue or enorcement o constitutional environmental provisions.9These decisions illustrate the critical role o courts in articulating proceduralrights and moving uture generations interests beyond aspirational rights.

Nonetheless, despite courts best eorts, the need to balance the rights opresent and uture generations and the reality o nite resources50 sometimesmake uture generations interests more aspirational concepts than sel-executing and judicially enorceable obligations. As one commentator has

noted, however, the environmental right-duty relationship can serve[] toinorm and guide state actions and express[] an aspiration which, though not

judicially enorceable, ought to guide the state and each person in the conducto their [sic] aairs. Such a principle, while not sel-executing in traditionalterms, is certainly not without meaning or orce.51

Finally, courts have the power to provide a check on other branches ogovernment with regard to the interests o uture generations. As they do withother areas o the law, they could enorce related rights created by the executiveand 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 o such appointees in givencircumstances, such as settlements. Precedent (in common law systems) and

jurisdiction limit courts, but they still contribute to the advancement o uturegenerations interests.

or injunctive response priorto irreutable proo that the harm will occur. This proactive ap-proach is consonant with protecting the legal interests o uture generations.9 See, e.g., Kahana Sunset Owners Assn v. Maui County Council, 98 P.d 1 (Haw. 1997);Commonwealth v. National Gettysburg Battleeld Tower, Inc., 8 Pa. Commw. 1 (197). Seealso Oneida County Forest Preserve Council v. Wehle, 09 N.Y. 15 (N.Y. 1955) (allowing a pub-lic-interest corporation to bring suit against the state to prevent it rom granting certain loggingpermits).50 See, e.g., Convention Concerning the Protection o the World Cultural and Natural Heritage,Nov. 1, 197, 107 U.N.T.S. 151 art. (Each State Party to this Convention recognizes thatthe dutyo ensuring the identication, protection, conservation, presentation and transmissionto uture generations o the cultural and natural heritage . . . situated on its territory, belongsprimarily to that State. It will do all it can to this end, to the utmost o its own resources and, whereappropriate, with any international assistance and co-operation, in particular, nancial, artistic,scientic and technical, which it may be able to obtain.) (emphasis added).51 John L. Horwich,Montanas Constitutional Environmental Quality Provisions: Sel-execution orSel-delusion, 57 mont. l. rEv. , 7 (199).



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B. Ombudsmen, or Commissioners

Ombudsmen, sometimes called commissioners, can also protect the interests outure generations. There are many variations o ombudsmen, but as outlinedin the models below, they generally share the ollowing characteristics. They areappointed by the government but maintain some level o independence. Theyserve an evaluative and advisory unction, reviewing, or example, proposedlegislation, government policies, or projects to make sure they meet the needso particular groups. They oten produce reports on their work and sometimesserve 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 o uture generations. (A proposeddescription o an ombudsman or uture generations is included in AppendixA.)

Many countries have established human rights ombudsmen. Theseauthorities usually serve quasi-judicial roles, either as investigators or

mediators. Ombudsmen or commissioners also commonly promotehuman rights through education eortsto complement the protectionunctions o investigation and mediation.5 Usually appointed by thelegislature though sometimes by executive authorities, [t]he primaryunction o [the ombudsmen] is to oversee airness and legality in publicadministration.5 They attempt to protect individual rights as impartialmediators between alleged victims and the government.5 They perorm thisunction by investigating complaints received rom the public and making

recommendations to the government, or in some cases resolving the givenmatter directly. They generally have the power to access relevant inormationand witnesses. Sometimes, especially when an issue is a matter o broadpublic concern or the victim is a group, ombudsmen may initiate their owninvestigations.55 Ombudsmen or uture generations could similarly addresscomplaints led by individuals or uture generations guardians (see below) orinvestigate, on their own initiative, potential violations o intergenerational

equity. They could also promote the interests o uture generations througheducation.

5 United Nations, Centre or Human Rights,National Human Rights Institutions: A Handbookon the Establishment and Strengthening o National Institutions or the Promotion and Protection o

Human Rights, ProFEssIonAl trAInInG sErIEs 8-9 (1995).5 Id. at 8.5 Id.55 Id.



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Ombudsmen or environmental issues provide additional models or a uturegenerations guardian. The U.K. Sustainable Development Commissionuses advocacy, advice and appraisal . . . [to] put sustainable developmentat the heart o Government Policy.5 It reports to the prime minister andother ministers and describes itsel as the Governments independentwatchdog.57 The Canadian Commissioner o the Environment and SustainableDevelopment, appointed by the auditor general, provides parliamentarianswith objective, independent analysis and recommendations on the ederalgovernments eorts to protect the environment and oster sustainabledevelopment.58 These authorities ensure that a government considers the

interest o uture generations when making policy. Environmental ombudsmenalso operate in a number o U.S. states. Michigan has a Clean Air Ombudsmanwho works with small business owners and managers as a liaison or the AirQuality Division o the Michigan Department o Environmental Quality.59The ombudsman helps small businesses comply with clean air laws, representssmall businesses during rule development, and mediates disputes betweenbusinesses and the state Department o Environmental Quality.0 New Yorkhas a Small Business Environmental Ombudsman program, which providesbusinesses with ree and condential assistance to help them comply with airquality regulations.1 While some o these ombudsmen work with businesses

5 U.K. Sustainable Development Commission,About Us, http://www.sd-commission.org.uk/pages/aboutus.html (last visited Mar. 9, 008). According to the Commissions web site it:

Produce[s] evidence-based public reports on contentious environmental,social and economic issues, such as nuclear power Draw[s] on expert opinion to advise key Ministers, policy-makers andstakeholders across Government Respond[s] openly to Government policy initiatives Invite[s] debates on controversial subjects

Undertake[s] watchdog appraisals o Governments progress.

Sustainable development, as dened in the Brundlant Report discussed earlier, typi-cally balances environmental interests and development needs. See supra note 10 andaccompanying text.57 U.K. Sustainable Development Commission, supra note 5.58 Oce o the Auditor General o Canada, Commissioner o the Environment and SustainableDevelopment,http://www.oag-bvg.gc.ca/internet/English/oag-bvg_e_91.html (last visited Mar. 9, 008).59 Michigan Department o Environmental Quality, Clean Air Ombudsman, Clean Air Ombuds-manMich. Dept. o Envtl. Quality: http://www.michigan.gov/deq/0,107,7-15-0-111--,00.html (last visited Mar. 9. 008).0 Id.1 NY Business, Small Business Compliance, http://www.empire.state.ny.us/Productivity_Energy_



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rather than the public, they show that such authorities are requently chargedwith assessing compliance with environmental standards.

Ombudsmen specically designed or uture generations have been institutedoutside the United States. In November 007, the Hungarian Parliamentadopted legislation establishing a Parliamentary Commissioner or FutureGenerations. According to the law, the commissioner:

monitors, evaluates, and supervises the enorcement othose legal provisions, which ensure the sustenance and

improvement o the condition o nature and the environ-ment. . . . His/her task is the investigation o or ordering theinvestigation o all improper conduct in connection withthese subjects that are brought to his/her attention, and theinitiation o general or specic remedial measures to cure theeects o improper conduct.

The law grants the commissioner many powers to protect the interests outure generations, including the powers to review and propose legislation,to initiate administrative actions or judicial reviews o agency decisions, toorder those illegally endangering the environment to stop their activities andrestore the site they damaged, to evaluate proposed development projects, toreceive all relevant inormation, to initiate or participate in public hearings,and to comment on and monitor international treaties. Ater three ailednominations, the Hungarian Parliament elected an environmental lawyer as the

rst ombudsman in May 008.

and_Environment/Environmental_Assistance/sb_compliance.asp (last visited Mar. 9. 008). Law CXLV o 007, 10, 1/007 Magyar Kzlny [MK.] 1-19 (Hung.) (amendmentto Law LIX o 199) (translation by the International Human Rights Clinic o Harvard LawSchools Human Rights Program). Id. See also Zsolt Balla,New Ombudsman Gets Green Light, BUDAPEST SUN, Nov. 1, 007,http://www.budapestsun.com/cikk.php?id=755 (last visited Feb. 10, 008); Axel Gosseries andBenedek Jvor, First-ever Ombudsman or the Future, http://www.alternatives.ca/article9.html(last visited July 10, 008). Robin Marshall,A Dierent Way to Do Politics, BUDAPEST SUN ONLINE, June 11, 008,http://www.budapestsun.com/cikk.php?id=88 (last visited July 10, 008). For inormation onpast nominations, seeMPs Reject Presidents Nominees or Ombudsman, POLITICS.HU, Dec. 1,007, http://www.politics.hu/00711/mps-reject-presidents-nominees-or-ombudsman (lastvisited Mar. 9, 008); President Announces Ombudsman Candidates, BUDAPEST TIMES, Jan. 1,008, http://www.budapesttimes.hu/index.php?option=com_content&task=view&id=8&Itemid=159 (last visited Mar. 9, 008).



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From 001 until 007, the Commission or Future Generations operatedpursuant to enabling legislation passed by the Knesset.5 The idea at thebase o the law is the creation o an inner-parliamentary entity that has acomprehensive view o the legislative picture with regard to any potentialeect on the needs and rights o uture generations together with the meansto prevent such legislation rom taking place. The commission perormedour basic unctions: To give opinions regarding bills brought . . . that areo concern to uture generations; [t]o give opinions regarding secondarylegislation and regulations . . . that are o concern to uture generations;[t]o provide parliament . . . with recommendations on any matter the

Commissioner [head o the commission] considers to be o importance touture generations; and [t]o provide the members o the parliament withadvice on matters that are o special interest regarding the uture generations.7The commissioner had the authority to review any prospective primary orsecondary legislation and participate in all top-level debate on the legislation.8Crucial to the eective unctioning o the commissioner was his right to accessrelevant inormation:

The Knesset Commissioner or Future Generations mayrequest rom any organization or body being investigated . . .any inormation, document or report . . . in the possession othat body and which is required by the Commissioner or theimplementation o his tasks; the aoresaid body will give theCommissioner the requested inormation.9

These powers gave the commissioner broad authority to act eectively as anombudsman or uture generations. Although the Knesset later disbanded thecommission,70 it oers a useul model. In another example, France in 199

5 Knesset Law (Amendment No. 1), 571-001 [hereinater Knesset Law], unocial transla-tion reprinted in The Knesset, Commission or Future Generations 1-0 (00), available athttp://www.knesset.gov.il/sponsorship/uture/eng/uture_index.htm. The Knesset, Commission or Future Generations, supra note , at .7 Id. at -5. Secondary legislation is akin to a regulation in U.S. administrative law.8 Knesset Law, supra note , art. (a), unocial translation reprinted in The Knesset, Com-mission or Future Generations, supra note , at 1 (The Knesset Secretariat will pass to theKnesset Commissioner or Future Generations all bills tabled in the Knesset.); art. (g) (TheCommissioner is permitted to participate in any debate o any Knesset Committee, at his discre-tion; i the debate is secret by law, the Commissioner will participate on the authorization o theCommittee Chairman.).9 Knesset Law, supra note , art. 5(a), unocial translation reprinted in The Knesset, Com-mission or Future Generations, supra note , at 1.70 Knesset Legislation No. P/17/19, published in 18 knEssEt lEGIslAtIon ProPosAls 58 (Dec. ,



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established a Council or Future Generations that is empowered to oeradvice on such issues on its own initiative.71 Future generations ombudsmen,whatever orm they take, provide a layer o review to ensure that the executiveand legislative branches take into account the interests o uture generations ina healthy environment.

C. Guardians, or Trustees

Guardians provide a voice to the underrepresented. Guardians are advocatesrather than advisors and seek, in specic situations such as litigation and

negotiations, to maximize the best interests o those who cannot speak orthemselves. Trustees, related to guardians, play a similar role, generally usinga duciary duty rather than best interests standard. 7 In the environmentalcontext, guardians, or trustees, could help protect and promote the interests outure generations, who lack voice. (A proposed description o a guardian oruture generations is included in Appendix B.)

The National Guardianship Association provides guidelines or theestablishment and responsibilities o guardians in U.S. law in two documents:A Model Code o Ethics or Guardians7 and Standards o Practice.7 Explainingthe principle on which guardianship is based, the ormer says:

In its purest orm, guardianship represents an exercise othe states parens patriae authority to protect individualswho are incapable o making decisions or themselves. In

theory, the concept o guardianship is rooted in the moral

007); Gosseries and Jvor, supra note .71 In 199, France established a Council or Future Generations that is empowered to oeradvice on such issues on its own initiative. Alexandre Kiss, The Rights and Interests o FutureGenerations and the Precautionary Principle, inthE PrECAutIonAry PrInCIPlEAnd IntErnAtIonAllAw: thE ChAllEnGEoF ImPlEmEntAtIon 19, (David Freestone and Ellen Hey, eds., 1995) (citingDcret No. 9-98 o 8 March 199,Journal Ofciel de la Rpublique Franaise, March 10, 199.7 Blacks Law Dictionary denes duciary duty as [a] duty o utmost good aith, trust, con-dence, and candor owed by a duciary (such as a lawyer or corporate ocer) to the beneciary(such as a lawyers client or a shareholder); a duty to act with the highest degree o honesty andloyalty toward another person and in the best interests o the other person (such as the duty thatone partner owes to another). BlACks lAw dICtIonAry 155 (8th ed. 00).7 nAtl GuArdIAnshIP AssoC., A modEl CodEoF EthICsFor GuArdIAns (1988), available athttp://www.guardianship.org/pd/codeEthics.pd.7 nAtl GuArdIAnshIP AssoC., stAndArdsoF PrACtICE (00), available athttp://www.guardian-ship.org/pd/standards.pd.



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duty o benecence. Under this theory, individuals subject toguardianship are entitled to enhanced protection rom thestate.75

Because there is no basis on which to determine the decision wards themselveswould make in the case o uture generations, the duty o guardians would beto ll the role o a parent and act in the wards best interest.7 That interest isbased on what a responsible person would decide in similar circumstances.77Guardians should seek and receive all relevant inormation and evaluate allalternatives.78 Making the best decisions and avoiding a confict o interest are

imperative. To ulll their mission, guardians may request a third-party reviewo actions by courts, lawyers, or others.79 These guidelines could easily beadapted to guardians o uture generations.

The government-appointed natural resource trustees established under the U.S.Superund Amendments and Reauthorization Act o 198 provide a relevantmodel or guardians on environmental issues.80 These trustees act on behalo the public environmental interest at specic Superund cleanup sites andexist at the ederal, state, and tribal levels. Environmental Protection Agency(EPA) ocials must coordinate with the trustees in site characterization,response actions, and settlement negotiations.81 The act requires the EPAto share available inormation and to work cooperatively with trustees sothat the trustees can adequately ulll their mandate. All the trustees assistwith natural resource preparedness and response actions and develop andimplement restoration plans. Federal trustees also have the ollowing authority:

75 nAtl GuArdIAnshIP AssoC., A modEl CodEoF EthICsFor GuArdIAns, supra note 7, at 9.7 Id. at . In other cases where it is possible to know what the ward would have done, the guard-ian uses substituted judgment, acting a surrogate who strives to make the choice the wardwould have i competent. Id. at 8.77 Id. at 11.78 nAtl GuArdIAnshIP AssoC., stAndArdsoF PrACtICE, supra note 75, at 5-. Best Interest is thestandard o decision-making the guardian should use when the ward has never had capacityor when the wards wishes cannot be determined. . . . The Best Interest standard requires theguardian to consider the least intrusive, most normalizing, and least restrictive course o actionpossible to provide or the needs o the ward. Id. at .79 nAtl GuArdIAnshIP AssoC., A modEl CodEoF EthICsFor GuArdIAns, supra note 7, at 1.80 E. Brown wEIss, In FAIrnEssto FuturE GEnErAtIons, supra note 9, at 1; ComprehensiveEnvironmental Response, Compensationand Liabilities Act (CERCLA) U.S.C. 907()()(00).81 See Memorandum rom Acting Assistant Administrator at the Oce o Solid Waste andEmergency Response Timothy Fields, re: CERCLA Coordination with Natural Resource Trustees1 (Jul. 1, 1997), available athttp://www.epa.gov/superund/programs/nrd/elds.pd.



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to ask the attorney general to seek damages and costs rom a responsibleparty, to participate in negotiations between the United States and potentiallyresponsible parties, to require compliance with inormation gatheringprovisions, and to initiate damage assessments.8

Rooted in the tradition oGayanashagowa, the Bemidji Statement lays outindigenous peoples articulation o the need or a uture generations guardian.It explains that exploitation and industrialization o the land and water havealtered the relationships [between people and the land] that have sustained ourIndigenous communities.8 It also notes that government agencies have ailed

to protect these relationships. To address these concerns, it pledges to designateGuardians or the Seventh Generation.

The health and well being o our grandchildren are worthmore than all the wealth that can be taken rom these lands. Byreturning to the collective empowerment and decision makingthat is part o our history, we are able to envision a uture thatwill restore and protect the inheritance o this, and uturegenerations.8

The Indigenous Environmental Network (IEN) interprets the responsibilitieso this position as assuming responsibility to assess and monitor the chosenpiece o the web o lie, restore it when necessary, and report the status otheir responsibilities to other guardians.85 That piece can range in size romall water to a specic pond, but like most guardians, the Bemidji guardians

deal with a particular issue. Such guardians, appointed specically or uturegenerations, would ensure representation o this otherwise unrepresentedgroup and actively promote its best interests.

Despite Bemidijis vision, guardians designed specically or uture generationsdo not yet exist. They could, however, be extensions o court-appointedguardianships involving children or others who are not able to representadequately their own interests. Future generations guardians would dier inthat they would put themselves in the position o representing a group rather

8 Id., app. A, 00.15(d).8 Bemidji Statement, supra note .8 Id. An important acet o implementation o the Bemidji regime is that it can be applied acrossall levels o decision-making []rom the smallest unit o society to the largest unit o govern-ment. Id. (quoting rom IENs introduction to the Bemidji Statement).85 Id. (quoting rom IENs introduction to the Bemidji Statement).



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than an individual (akin to the natural resources trustee), but the missionwould be essentially the same. In the context o uture generations, guardianscould be, though not necessarily would be, appointed by a court or limitedto in-court representation.8 Alternatively, negotiating parties might appointa guardian to represent uture generations in discussions over a new projectthat that threatens the environment, or the government might appoint oneto review an environmental impact assessment. Like the more traditionalguardians, uture generations guardians could also be given standing to sue toprotect the best interests o their wards.

Two standards o best interest would be particularly appropriate or guardianso uture generations: the precautionary principle common in internationallaw and the best alternative approach in U.S. law.87 Although there has beensome debate about the exact meaning o the precautionary principle, aconsensus is developing around the denition enunciated at the WingspreadConerence o 1998: When an activity raises threats o harm to human healthor the environment, precautionary measures should be taken even i somecause and eect relationships are not ully established scientically.88 Theconcept appears in a multitude o international legal instruments,89 and courts

8 Under the National Guardianship Association, which is based in the United States, guardian-ships are established through a legal process and are subject to the supervision o the court.nAtl GuArdIAnshIP AssoC., stAndArdsoF PrACtICE, supra note 75, at .87 In addition to the precautionary principle, Lothar Gndling lists the obligation to reduceenvironmental protection to a minimum; and the obligation to develop technologies that do notharm the environment as possible guides or present generations to ollow in seeking to protect

the interests o uture generations. Gndling, supra note 19, at 1.88 Wingspread Statement on the Precautionary Principle (Jan. 1998), http://www.sehn.org/state.html#w (last visited July 19, 008).89 The Rio Declaration, or example, looks to the precautionary principle as a mechanism orenvironmental protection. Rio Declaration, supra note 1, princ. 15 (In order to protect theenvironment, the precautionary approach shall be widely applied by States according to theircapabilities. Where there are threats o serious or irreversible damage, lack o ull scientic cer-tainty shall not be used as a reason or postponing cost-eective measures to prevent environ-mental degradation.). Some o the other environmental treaties, agreements, and protocols toespouse the precautionary principle are the London Dumping Convention Protocol, 199, I.L.M. 1; Maastricht Treaty on European Union, July 9, 199, Ocial Journal C 191; Conven-tion on Biological Diversity, Dec. 9, 199, 170 U.N.T.S. 019; Bamako Convention on theBan o Import to Arica and the Control o their Transboundary Movement and Management oHazardous Wastes within Arica, Jan. 0, 1991, 101 U.N.T.S. 508; Cartagena Biosaety Proto-col to the 199 Convention on Biological Diversity, 000, available athttp://www.cbd.int/doc/legal/cartagena-protocol-en.pd; Agreement on Fish Stocks, Aug. , 1995, 17 U.N.T.S. 79;Helsinki Convention on the Protection o the Marine Environment o the Baltic Sea Area, Mar., 197, 1507 U.N.T.S. 598; Stockholm Convention on Persistent Organic Pollutants, June 19,001, C.N. 11.001; European Energy Charter Treaty, Dec. 17, 199, 080 U.N.T.S. 11; and



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and executive agencies have validated recourse to the precautionary principlein a variety o settings.90 In U.S. law, government agencies are required toconsider all possible alternatives when evaluating a project proposal. Accordingto the National Environmental Policy Act, ederal agencies must study,develop, and describe appropriate alternatives to recommend courses o actionin any proposal which involves unresolved conficts concerning alternativeuses o available resources.91 A best interest standard can be interpreted as areasonable person standard; a reasonable person, represented by a guardian,would preer the least harmul alternative. While the precautionary principleand alternatives approach acknowledge the needs and rights o present

generations, they also support the protection o an ecologically healthyenvironment or uture generations. Both support the proposition thateach generation depends on its predecessors to bequeath it an inhabitableenvironment.

IV. Conclusion

Future generations have legal interests in environmental protection. There isalso an emerging understanding that present generations have responsibilityto preserve the environment so that generations to come can enjoy it.Frameworks or articulating the connection between these premises include

ASEAN Agreement on Transboundary Haze Pollution, Jun. 10, 00, available at: http://www.aseansec.org/agr_haze.pd. Some scholars have argued that the precautionary principle itsel hascrystallized into a principle o general customary international law. Owen McIntyre & Thomas

Mosedale, The Precautionary Principle as a Norm o Customary International Law, 9J. Envtl. l

.1, (1997).90 Internationally, the European Court o Justice relied on the principle in a decision to ban beeimports rom the United Kingdom during a mad cow disease scare. The Queen v. Ministry oAgric. Fish and Food, Case C-157/9 (199); UK v. Commn. o the EC, Case C-180/9 (199).In the United States, Hawaiis Supreme Court has explicitly adopted the precautionary principleas a guide or decisions related to natural resources. In re Water Use Permit Applications, 9 P.d09 (Haw. 000). Within the United States, the principle is fourishing in various governmentalagencies, including most prominently the Food and Drug Administration, whose approach toregulation involves a precautionary shiting o the burden to drug manuacturers to demonstratethat their products are not unreasonably harmul.91 National Environmental Policy Act, 10, U.S.C. (E) (00). The Science and En-vironmental Health Networks proposed state version o NEPA oers another articulation othe approach. It requires proponents o proposed projects to submit alternatives, including theno-action alternative, in their environmental impact statements (EIS) and identiy signicantadverse eects. The state agency reviewing the proposal must then preer alternatives that ei-ther improve environmental quality or cause no eect over those that cause degradation. Scienceand Environmental Health Network,Model State Environmental Quality Act o 2007, . (B), .(C)(ii), http://www.sehn.org/lawpd/DesigningModelEQAct.pd.



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the duty-right, guardian-ward, and trustee-beneciary relationships. A varietyo means exist to implement these relationships. In addition to receiving helprom judicial decisions, present generations can live up to their responsibilityto ensure intergenerational equity by adopting and creating appropriateprotection mechanisms and institutions, such as ombudsmen or guardians oruture generations. These positions can take dierent orms to t the needso a given society, providing both independent evaluations and representativeadvocacy. Although eective alone, a combination will better protect andpromote environmental health or the benet o uture generations. Given thesignicant and urgent threats acing the environment today, more eorts to

develop and deploy such tools are needed in the immediate uture.



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APPENDIX AA Proposed Structure or an Ombudsman or Future Generations

The ollowing proposal outlines how an Ombudsman or Future Generations

might be structured. This outline is intended to identiy only the essential

requirements or such a position.

Government Body or Private Party Consultation with Ombudsman or

Future Generations

When a government body requests the assistance o an Ombudsmanor Future Generations in evaluating a proposed law, policy, orreviewable action that may aect the environment or a private partycalls or an investigation o a specic action, the responsibilities andobligations o the government body and the ombudsman shall be as

ollows:

I. Defnitions

An ombudsman or uture generations (Ombudsman) is a personwho has the duty to ensure that an existing or proposed law, policy,or reviewable action protects and promotes the environmental legalinterests o uture generations.9

A reviewable action is an action proposed by a government bodyor private party that can be reviewed under the governments

environmental laws.

II. Conduct o the Consultation

A. The Government Bodys Duties in InitiatingConsultation

9 The environmental legal interests o uture generations vary by juridication and can be basedon international law, constitutional provisions, legislative statutes, regulations, court decisions,and in some cases, private agreements.



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(c) Identiy violations o any legal obligations towarduture generations that the proposed law, policy, orreviewable action may cause; and

(d) Recommend alternatives to the proposed law,policy, or reviewable action, including modicationsto it that could reduce or eliminate any potentialadverse eects on uture generations.

. The Ombudsman may request that a public hearing

be held specically devoted to the Report. TheOmbudsman may revise the Report in response.

. The Ombudsman shall also engage in meetings,hearings, and other ora with government bodies todiscuss the proposed law, policy, or reviewable action.

C. The Duties o All Parties ater an OmbudmansEvaulation

1. The government body shall consider theOmbudsmans Report on the Eects on FutureGenerations when it evaluates the proposed law,policy, or reviewable action.

. The government body may not approve anylaw, policy, or reviewable action that violates theestablished legal interests o uture generations.

. I the government body decides to approve the law,policy, or reviewable action, either as proposed oras modied, it shall prepare a written Response to

the Ombudsmans Report on the Eects on FutureGenerations. The Response:

(a) shall establish that any approved law, policy, orreviewable action meets all legal obligations to uturegenerations; and



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(b) i the approved law, policy, or reviewable actionmay cause any adverse eects on the interests outure generations, shall establish that those eects arepermitted by law and set orth the government bodysreasons or allowing such adverse eects to occur.

. The Ombudsman shall have a reasonable opportunityto prepare a reply to the government.

5. [Optional] The Ombudsman shall have standing

to sue the government body or violating any oits duties, laid out in this document, to protect theenvironment or uture generations.

. [Optional] The Ombudsman shall have standing tosue private parties or violating the legal interests outure generations to protection o the environment.9

7. [Optional] The ombudsman may also seekauthorization to join ongoing litigation.

D. The Duties o All Parties when the Ombudsman is a

Mediator

1. The Ombudsman shall in some cases serve as a

mediator among the government body; other parties,including private ones; and/or a representative outure generations, such as a guardian.

. The representative o uture generations may requestthat the Ombudsman review an action that willallegedly aect uture generations.

. Upon receiving a meritorious request, theOmbudsman shall investigate the action and makerecommendations to the government body or other

9 This may be particularly relevant in jurisdictions that do not have guardians (see Appendix B)although both an ombudsman and a guardian could be given standing to sue in some jurisdic-tions.



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parties on means o mitigating the harm to uturegenerations.

. The government body or other parties shallconsider the Ombudsmans recommendations andreview its action. It may ollow the Ombudmansrecommendation. I it does not, the duties and rightso the government body and Ombudsman parallel

those in section C(-).



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APPENDIX BA Proposed Structure or a Guardian or Future Generations

The ollowing description outlines how a Guardian or Future Generations might

be structured. This outline is intended to identiy only the essential requirements

or such a position. Such a position could be established to review specifc actions

by a government body or, as indicated in brackets below, by a tribal council or

private party.

Government Body [or Tribal Council or Private Party] Consultation

with and Representation Duties o Guardian or Future Generations

When a government body [or tribal council or private party] requeststhe assistance o a Guardian or Future Generations in evaluating aproposed action that may aect the environment or when a courtappoints a Guardian to represent uture generations in litigation or

negotiations, the responsibilities and obligations o the governmentbody [or tribal council or private party] and the Guardian shall be as

ollows.

I. Defnitions

A guardian or uture generations (Guardian) is a person

representing the best interests o uture generations who has the dutyto ensure that a proposed action will provide ecologically healthy land,

water, and air or the benet o uture generations.

II. Conduct o the Consultation

A. The Duties o the Government [or Tribal Council or

Private Party] in Initiating Consultation

1. The government body [or tribal council or privateparty] shall engage the assistance o the Guardian atthe outset o the process o evaluating a proposedaction, which may include negotiations between oramong parties.



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. The government body [or tribal council or privateparty] shall identiy and ully describe the proposedaction and provide the Guardian with access toinormation that is necessary or helpul to theGuardians evaluation.

. The government body [or tribal council or privateparty] shall provide the Guardian access to relevantmeetings, hearings, or other orums so that the

Guardian can acquire inormation and advocate orthe best interests o uture generations orally as well inwriting.

. The duties o this section are waived i litigation is

involved.

B. The Guardians Duties in Advocating or the Best

Interests o Future Generations

1. The Guardian shall seek all relevant inormationto determine the best interests o the ward, who in

this case is uture generations.

. The Guardian shall evaluate all alternatives anddetermine which one best provides or the interests othe ward.

. The Guardian shall actively advocate or the bestinterests o the ward in whatever way the Guardiansees t, including providing written and oral

arguments or litigating.

C. The Duties o All Parties in Response to the Guardians

Advocacy

1. The government body [or tribal council or privateparty] shall consider the Guardians arguments when



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it evaluates the proposed action.

. The government body [or tribal council or privateparty] may not take or approve any action thatviolates the established legal interests o uturegenerations.

. I the government body [or tribal council or privateparty] decides to approve the action, either asproposed or as modied, it shall prepare a written

Response. The Response:

(a) shall establish that any approved action meets alllegal obligations to uture generations; and

(b) i the approved action may cause any adverseeects on the interests o uture generations, shallestablish that those eects are permitted by law andset orth the government bodys reasons [or thereasons o the tribal council or private party] orallowing such adverse eects to occur.

. The Guardian shall have a reasonable opportunity toprepare a reply to the government [or tribal councilor private party].

D. The Guardians Role in Litigation

1. The Guardian shall have standing to sue on behal outure generations i:

(a) the government body [or tribal council or private

party] did not ollow the proper process or reviewingand ruling on proposed actions, or

(b) the government body [or tribal council orprivate party] violated its legal obligations to uturegenerations.

. In ongoing litigation relevant to uture generations,



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the Guardian may seek authorization to join or thecourt may appoint a Guardian to represent uturegenerations.

. Regardless o who appointed the Guardian, theGuardian shall represent the best interests o uture

generations in litigation.



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APPENDIX CExamples o International Legal Frameworks to

Protect Future Generations

Declarations:

Rio Declaration on Environment and Development

Principle , U.N. Doc. A/CONF.151/ (Vol. I) (199),

The right to development must be ullled so as to equitably meetdevelopmental and environmental needs o present and uture generations.(Principle o sustainable development, recognition o needs o both present and

uture generations)

Stockholm Declaration on the Human Environment o the United Nations

Conerence on the Human EnvironmentPrinciple 1,Jun. 1, 197, 11 I.L.M. 11

[Humanity] bears a solemn responsibility to protect and improve theenvironment or present and uture generations. (General responsibility to

present and uture generations)

United Nations Educational, Scientifc and Cultural Organization

Declaration o the Responsibilities o the Present Generations Toward

Future Generations

Articles 1-5, Records o the General Conerence, Paris, Oct. 1 Nov. 1, 1997

Article 1 - Needs and interests o uture generations

The present generations have the responsibility o ensuring that the needs andinterests o present and uture generations are ully saeguarded.

Article - Freedom o choice

It is important to make every eort to ensure, with due regard to human rightsand undamental reedoms, that uture as well as present generations enjoy ull



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reedom o choice as to their political, economic and social systems and areable to preserve their cultural and religious diversity.

Article - Maintenance and perpetuation o humankind

The present generations should strive to ensure the maintenance andperpetuation o humankind with due respect or the dignity o the humanperson. Consequently, the nature and orm o human lie must not beundermined in any way whatsoever.

Article - Preservation o lie on Earth

The present generations have the responsibility to bequeath to uturegenerations an Earth which will not one day be irreversibly damaged by humanactivity. Each generation inheriting the Earth temporarily should take careto use natural resources reasonably and ensure that lie is not prejudiced byharmul modications o the ecosystems and that scientic and technologicalprogress in all elds does not harm lie on Earth.

Article 5 - Protection o the environment

1. In order to ensure that uture generations benet rom the richness othe Earths ecosystems, the present generations should strive or sustainabledevelopment and preserve living conditions, particularly the quality andintegrity o the environment.

. The present generations should ensure that uture generations are notexposed to pollution which may endanger their health or their existence itsel.

. The present generations should preserve or uture generations naturalresources necessary or sustaining human lie and or its development.

. The present generations should take into account possible consequencesor uture generations o major projects beore these are carried out. (Generalresponsibility to present and uture generations)



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upon women and, through them, upon uture generations. (Recognition opotential to aect present and uture generations)

UN Framework Convention on Climate Change

Preamble, Article , opened or signature May 9, 199, U.N. Doc. A/AC.7/18(Part II) (Add. 1), 1 I.L.M. 88.

Recallingthe provisions o General Assembly resolution /8 o December 1989 on the United Nations Conerence on Environment and

Development, and resolutions /5 o December 1988, /07 o December 1989, 5/1 o 1 December 1990 and /19 o 19 December 1991on protection o global climate or present and uture generations o mankind,. . .

Determined to protect the climate system or present and uture generations . . .Article

PRINCIPLES

In their actions to achieve the objective o the Convention and to implementits provisions, the Parties shall be guided, inter alia, by the ollowing:

1. The Parties should protect the climate system or the benet o present and

uture generations o humankind, on the basis o equity and in accordancewith their common but dierentiated responsibilities and respectivecapabilities. Accordingly, the developed country Parties should take the lead incombating climate change and the adverse eects thereo. (Recognition o needso both present and uture generations)



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APPENDIX DExamples o Domestic Legal Frameworks

to Protect Future Generations(with a ocus on U.S. Law)

Non-U.S. Constitutions:

Constitucin Poltica de la Repblica de Bolivia

Article 7 (197, as amended 00), available athttp://pdba.georgetown.edu/Constitutions/Bolivia/consboliv005.html

Every person has the ollowing undamental rights . . . m) to enjoy ahealthy environment, ecologically balanced and adequate or his wellbeing,saeguarding the rights o uture generations.

The original text in Spanish reads, Toda persona tiene los siguientes derechos

undamentales: . . . m) A gozar de un medio ambiente sano, ecolgicamenteequilibrado y adecuado para su bienestar, resguardando los derechos de lasgeneraciones uturas.

Constitution o Japan

Articles 11 and 97 (November , 19), available athttp://www.constitution.org/cons/japan.txt

Article 11The people shall not be prevented rom enjoying any o the undamentalhuman rights. These undamental human rights guaranteed to the peopleby this Constitution shall be conerred upon the people o this and uturegenerations as eternal and inviolate rights.

Article 97

The undamental human rights by this Constitution guaranteed to thepeople o Japan are ruits o the age-old struggle o man to be ree; they havesurvived the many exacting tests or durability and are conerred upon this anduture generations in trust, to be held or all time inviolate. (Rights o uture

generations)



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Constitution o the Kingdom o Norway

Article 110(b) (181, as amended 007), available athttp://www.stortinget.no/english/constitution.html#ulltext

Every person has a right to an environment that is conducive to health andto a natural environment whose productivity and diversity are maintained.Natural resources should be managed on the basis o comprehensive long-termconsiderations whereby this right will be saeguarded or uture generations aswell.

In order to saeguard their right in accordance with the oregoing paragraph,citizens are entitled to inormation on the state o the natural environment andon the eects o any encroachment on nature that is planned or carried out.

The authorities o the State shall issue specic provisions or theimplementation o these principles. (Rights o uture generations, trusteeship)

U.S. State Constitutions:

Alabama Constitution

Amendment 5

Establishing the policy o the state to protect certain lands and waterso Alabama with ull recognition that this generation is a trustee o the

environment or succeeding generations and creating the Forever Wild LandTrust. (Explicit trust)

Colorado Constitution

Article IX, 10

State school lands are to be held in a perpetual, inter-generational publictrust or the support o public schools and are to be managed with soundstewardship or long-term productivity. (Explicit trust)



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Hawaii Constitution

Article XI, 1

For the benet o present and uture generations, the State and its politicalsubdivisions shall conserve and protect Hawaiis natural beauty and all naturalresources, including land, water, air, minerals and energy sources, and shallpromote the development and utilization o these resources in a mannerconsistent with their conservation and in urtherance o the sel-suciency othe State. (State and personal duties to present and uture generations)

Illinois Constitution

Article XI, 1

The public policy o the State and the duty o each person is to provideand maintain a healthul environment or the benet o this and uturegenerations. (State and personal duties to present and uture generations)

Montana Constitution

Article IX, 1(1)

The state and each person shall maintain and improve a clean and healthulenvironment in Montana or present and uture generations. (State and

personal duties to present and uture generations)

U.S. Federal Statutes:

Alaska National Interest Lands Conservation Act

1 U.S.C. 101 (00)

The Acts purpose is to preserve or the benet, use, education, and inspirationo present and uture generations certain lands and waters in the State oAlaska that contain nationally signicant natural, scenic, historic, archeological,geological, scientic, wilderness, cultural, recreational, and wildlie values.(Implicit trust)



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Clean Air Act Amendments o 1990

U.S.C. 751 (00)

Finds that acid rain is a major concern because current and uture generationso Americans will be adversely aected by delaying measures to remedy theproblem. (Recognition o potential to aect present and uture generations)

Forest and Rangeland Renewable Resources Planning Act o 1974

1 U.S.C. 109(a) (00)

It describes the National Forest System as a nationally signicant systemdedicated to the long-term benet or present and uture generations. (Implicittrust)

National

models for protecting the environment for future generations

Documents