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1. Letter from Thomas Jefferson to John Eppes (June 24, 1813), in 13 THE WRITINGS OF
THOMAS JEFFERSON 272 (Albert Ellery Bergh ed., 1905).
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2. A number of interesting and important issues lie beyond this article’s scope. For
instance, questions regarding state secession, long-term public debt, and abortion are not
addressed in this article. (As regards abortion, however, it seems worth noting that at least
some of the arguments proffered here more clearly apply to protection of generalized,
public interests, in breathable air for instance, than to such individualized rights—to
continue a specific life, inherit specific property, etc.—such as might be alleged on behalf of
individual fetuses or fetuses as a class.)
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‘Tis not the concern of a day, a year, or an age; posterity are virtually
involved in the contest, and will be more or less affected, even to the
3
end of time, by the proceedings now.
The present generation of humanity is pursuing a multitude of
policies and practices that jeopardize fundamental interests of
future generations. This is not news; it is a fact that we increasingly
take for granted.
We deplete freshwater aquifers many times faster than nature can
replenish them.4 We wash precious topsoil, built up over millennia,
into the rivers and oceans.5 We allow the manufacture of
radioactive waste (expected to encumber the health of the planet
virtually forever) before developing safe, permanent disposal
technologies for that waste.6 We introduce thousands of previously
3. THOMAS PAINE, COMMON SENSE 82 (Isaac Kramnick ed., Penguin Classics 1986)
(1776).
4. A case in point is the Ogallala, which provides water for one-fifth of all agriculture in
the United States. See generally Robert Verchick, Dust Bowl Blues: Saving and Sharing the
Ogallala Aquifer, 14 J. ENVTL. L. & LITIG. 13 (1999). At present usage rates, the aquifer will be
exhausted in twenty to thirty years. Once drained, it will take 6,000 years to recharge at its
natural rate. Id. at 13, 17 (citing Erla Zwingle, Ogallala Aquifer: Wellspring of the High Plains,
NAT’L GEOGRAPHIC, Mar. 1993, at 80, 83, 99–100). The state of Oklahoma, one of several
states dependent upon the aquifer, has adopted a policy of “planned depletion in fifty
years.” Lori L. Triplett, The Ogallala Aquifers: Living in the Present, Planning for the Future, in
THE GREAT PLAINS SYMPOSIUM 1999: THE OGALLALA AQUIFER —STEPS TO SUSTAINABILITY 13,
14 (Lori L. Triplett ed., 1999); see also Ronald Kaiser & Frank F. Skillern, Deep Trouble: Options
for Managing the Hidden Threat of Aquifer Depletion in Texas, 32 TEX. TECH L. REV. 249 (2001).
5. See Robert Benson, The Seventh Generation Act: A Model Law Allowing Law Suits for Damage
to Natural Resources Needed to Sustain Future Generations, 54 GUILD PRAC. 185, 186 (1997)
(reporting that the U.S. topsoil erosion rate (over five billion tons per year) is sixteen times
the rate of natural soil formation; one-third of original U.S. cropland is removed from
production due to unsustainable farming practices; the U.S. has lost $44 billion in decreased
production, water contamination, and dam siltation) (citing U.S. DEP’T OF AGRICULTURE,
MISC. PUB. NO. 1482, THE SECOND RCA APPRAISAL, SOIL, WATER AND RELATED RESOURCES
ON NON-FEDERAL LAND IN THE UNITED STATES: ANALYSIS OF CONDITIONS AND TRENDS (June,
1989)); Donella H. Meadows, Ecology and Agriculture: A Marriage That Must Be Made on Earth,
L.A. TIMES, Nov. 19, 1989, at M4; James Stephen Carpenter, Farm Chemicals, Soil Erosion, and
Sustainable Agriculture, 13 STAN. ENVTL. L.J. 190, 203 (1994).
6. See generally MICHAEL GERRARD, WHOSE BACKYARD, WHOSE RISK: FEAR AND FAIRNESS IN
TOXIC AND NUCLEAR WASTE SITING 27–28 (1994); Lawrence Flint, Shaping Nuclear Waste Policy
at the Juncture of Federal and State Law, 28 B.C. ENVTL. AFF. L. REV. 163, 163 (2000) (“The
spent nuclear fuel that reactors generate remains radioactive for hundreds of thousands of
years; however, all the spent fuel that has been generated to date is stored in temporary,
short-term facilities.”); Ted F. Peters, Ethical Considerations Surrounding Nuclear Waste
Repository Siting and Mitigation, in NUCLEAR WASTE: SOCIOECONOMIC DIMENSIONS OF LONG-
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TERM STORAGE 41, 51 (Steven H. Murdock et al. eds., 1983) (“How morally appropriate is it
for one group to satisfy its own consumptive desires for a few decades and then exact
payment from countless as yet to be born civilizations for hundreds of thousands of years?”);
EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON
PATRIMONY, AND INTERGENERATIONAL EQUITY 169–91 (1989) (noting the impracticality of
purely national disposal and oversight plans for nuclear waste, given that national territorial
boundaries and governments cannot be relied upon to remain unchanged for centuries or
even decades).
7. See GERRARD, supra note 6, at 7 (80,000 chemicals are in present commercial use; 1,000
chemicals are introduced annually, very few are regulated; only a small fraction of the
remainder are thoroughly tested for long term toxicity); Richard L. Williamson et al.,
Gathering Danger: The Urgent Need to Regulate Toxic Substances That Can Bioaccumulate, 20
ECOLOGY L.Q. 605, 608 (1993) (regulatory attention is inadequate to deal with persistent,
bioaccumulating toxics); Carpenter, supra note 5, at 196–97 (approval process for new
pesticides by EPA and FDA is deficient in calculating exposures and risks, particularly
synergistic risks) (citing NAT’L RESEARCH COUNCIL, COMPLEX MIXTURES: METHODS FOR IN
VIVO TOXICITY TESTING 3 (1988); NAT’L RESEARCH COUNCIL, DIET, NUTRITION, AND CANCER
14–29 (1982)).
8. See Sophia Kolehmainen, Precaution Before Profits: An Overview of Issues in Genetically
Engineered Food and Crops, 20 VA. ENVTL. L.J. 267, 274, 281, 292 (2001); Miguel A. Altieri, The
Environmental Risks of Transgenic Crops: An Agroecological Assessment, in BIOTECHNOLOGY AND
BIOSAFETY: PROCEEDINGS OF AN ASSOCIATED EVENT OF THE FIFTH ANNUAL WORLD BANK
CONFERENCE ON ENVIRONMENTALLY AND SOCIALLY SUSTAINABLE DEVELOPMENT 31 (Ismail
Sergeldin & Wanda W. Collins eds., 1999).
9. See REED F. NOSS ET AL., ENDANGERED ECOSYSTEMS OF THE UNITED STATES: A
PRELIMINARY ASSESSMENT OF LOSS AND DEGRADATION (1995) (in the 48 contiguous states,
95% of “old growth” forest is lost or seriously degraded, 99% of eastern hardwood forest,
and 70% of riparian forest); NAT’L RESEARCH COUNCIL, WETLANDS: CHARACTERISTICS AND
BOUNDARIES (1995) (30%, 117 million acres, of U.S. wetlands have been lost since European
settlement or 53% if Alaska is excluded); John Harte, Land Use, Biodiversity, and Ecosystem
Integrity: The Challenge of Preserving Earth’s Life Support System, 27 ECOLOGY L.Q. 929, 938
(2001) (habitat destruction is the greatest threat for most endangered species); Peter
Vitousek et al., Human Domination of Earth’s Ecosystems, 277 SCI. 494 (1997).
10. RICHARD E. LEAKEY & ROGER LEWIN, THE SIXTH EXTINCTION: PATTERNS OF LIFE AND
THE FUTURE OF HUMANKIND 245 (1995) (“Dominant as no other species has been in the
history of life on Earth, Homo sapiens is in the throes of causing a major biological crisis, a
mass extinction, the sixth such event to have occurred in the past half billion years.”); Harte,
supra note 9, at 939 (reporting global annual extinction from habitat loss is estimated
between 1,000 and 10,000 species lost each year—an extinction rate “orders of magnitude
higher than the ‘natural background’ (that is, the pre-human) rate”); Joby Warrick, Mass
Extinction Underway, Majority of Biologists Say, WASH. POST, Apr. 21, 1998, at A4; Vitousek et al.,
supra note 9, at 495 (42% of bird species driven to extinction; one-fourth of ocean fisheries
severely depleted, 44% of ocean fisheries at limit of exploitation).
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11. See Lakshman Guruswamy, Climate Change: The Next Dimension, 15 J. LAND USE &
ENVTL. L. 341, 347 (2000); Henry D. Jacoby et al., Kyoto’s Unfinished Business, 77 FOREIGN AFF.
54, 56–57 (1998); Claire Breidenich et al., The Kyoto Protocol to the United Nations Framework
Convention on Climate Change, 92 AM. J. INT’L L. 315, 316 (1998); Vitousek et al., supra note 9,
at 496 (since the beginning of the Industrial Revolution, atmospheric concentration of
carbon dioxide has increased thirty percent); Patrick Parenteau, Rearranging the Deck Chairs:
Endangered Species Act Reforms in an Era of Mass Extinction, 22 WM. & MARY ENVTL. L. & POL’Y
REV. 227, 227 (1998) (during the same period, average global temperature has increased 1o
C.) (citing WORLD METEOROLOGICAL ORGANIZATION/UNITED NATIONS ENVIRONMENT
PROGRAMME, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE: THE
IPCC SCIENTIFIC ASSESSMENT xii (J.T. Houghton et al. eds., 1990)); John J. Fialka, Kyoto
Treaty’s Foes in U.S. Could Kill Pact Around the World, WALL ST. J., Oct. 19, 1999, at B1
(describing human-caused climate change as probability accepted by “many scientists”); see
also Arno Rosemarin & Armin Rosencranz, CFC’s and the Stratospheric Ozone Layer, 19 AMBIO
279, 279 (1990).
12. See, e.g., Eileen Claussen, Climate Change: Present and Future, 27 ECOL. L.Q. 1373, 1378
(2001) (United States, with less than 5% of global population, is responsible for 25% of
greenhouse gas emissions) (citing U.S. Energy Info. Admin., Issues in Focus, at
http://www.eia.doe.gov/oiaf/aeo/issues.html#kyo, which no longer publishes the numbers
in question); Donald A. Brown, The U.S. Performance in Achieving Its 1992 Earth Summit Global
Warming Commitments, 32 Envtl. L. Rep. (Envtl. L. Inst.) 10,741, 10,760 (2002) (“President
Clinton acknowledged that ‘the United States has a special responsibility for the [global
warming] problem: The United States has less than 5[%] of the world’s population, enjoys
22[%] of the world’s wealth, but emits more than 25[%] of the world’s [greenhouse gas
emissions].’”) (citing Joby Warrick & Peter Baker, Clinton Details Global Warming Plan, WASH.
POST, Oct. 23, 1997, at A1).
13. William Boyer, Environmental Rights: Legal Standing for Future Generations 3–4
(Sept. 1997) (unpublished paper presented at 15th World Conference of the World Futures
Studies Federation, Brisbane, Australia) (on file with author); see Rodger Schlickeisen,
Protecting Biodiversity for Future Generations: An Argument for a Constitutional Amendment, 8 TUL.
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ENVTL. L.J. 181, 182, 219 (1994) (“[N]ormal legislative processes are systemically biased in
favor of current benefits as opposed to the long-term future. . . . Elected officials align
themselves with beggar-the-children policies . . . to provide immediate economic benefits for
constituents who vote now to the detriment of future generations who cannot.”); R. George
Wright, The Interests of Posterity in the Constitutional Scheme, 59 U. CIN. L. REV. 113, 113, 122
(1990) (“Once a society chooses, consciously or not, to take advantage of future generations,
the democratic process of electoral competition tends to facilitate, rather than inhibit such a
choice.”); Richard A. Epstein, Justice Across the Generations, 67 TEX. L. REV. 1465, 1465 (1989)
(“Democratic processes with universal suffrage cannot register the preferences of the
unborn, and dialogue between generations is frustrated when future generations, or at least
some future generations, are of necessity silent.”); J.A. Doeleman, On the Social Rate of
Discount: The Case for Macroenvironmental Policy, 2 ENVTL. ETHICS 45, 51 (1980) (“Most . . .
politicians, are caught up in the myopic demands of their work, making grass-roots decisions,
compromising the environment when it seems optimal to do so under the immediate
pressure of scarcity.”).
14. See Boyer, supra note 13; Schlickeisen, supra note 13; Wright, supra note 13; WEISS,
supra note 6; CATHERINE REDGWELL, INTERGENERATIONAL TRUSTS AND ENVIRONMENTAL
PROTECTION (1999); BRUCE EDWARD AUERBACH, UNTO THE THOUSANDTH GENERATION:
CONCEPTUALIZING INTERGENERATIONAL JUSTICE (1995); Clark Wolf, Contemporary Property
Rights, Lockean Provisos, and the Interests of Future Generations, 105 ETHICS 791 (1995); Benson,
supra note 5; Timothy Patrick Brady, Comment, “But Most of It Belongs to Those Yet To Be Born:”
The Public Trust Doctrine, NEPA, and the Stewardship Ethic, 17 B.C. ENVTL. AFF. L. REV. 621
(1990).
15. See, e.g., Stockholm Declaration of the United Nations Conference on the Human Environment,
at 3, U.N. Doc. A/CONF.48/14/Rev.1 (1973), reprinted in 11 I.L.M. 1416, 1417–18 (1972)
(Principle 1: “Man . . . bears a solemn responsibility to protect and improve the environment
for present and future generations.” Principle 2: “The natural resources of the earth
including the air, water, land, flora and fauna and especially representative samples of
natural ecosystems must be safeguarded for the benefit of present and future
generations . . . .” Principle 5: “The non-renewable resources of the earth must be
employed in such a way as to guard against the danger of their future exhaustion and to
ensure that benefits from such employment are shared by all mankind.”); Convention on
International Trade in Endangered Species of Wild Fauna and Flora, opened for signature Mar.
3, 1973, 993 U.N.T.S. 243, 244 (recognizing that “wild fauna and flora in their many
beautiful and varied forms are an irreplaceable part of the natural systems of the earth which
must be protected for this and the generations to come”); World Charter for Nature, Oct. 28,
1982, G.A. Res. 317/7, 37 U.N. GAOR, 37th Sess., Supp. No. 51, at 17, U.N. Doc. A/37/51
(1983) reprinted in 22 I.L.M. 455, 456 (1983) (resolving to “conduct [the member states’]
activities in recognition of the supreme importance of protecting natural systems,
maintaining the balance and quality of nature and conserving natural resources, in the
interests of present and future generations”); Report of the World Commission on Environment
and Development, U.N. GAOR, 42nd Sess., Annex 1, Agenda Item 83e, U.N. Doc. A/42/427
(1987), reprinted in GRO HARLEM BRUNDTLAND, WORLD COMM’N ON ENV’T & DEV., REPORT OF
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THE WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT: “OUR COMMON FUTURE ” 348
(1987)(“States shall ensure that the environment and natural resources are conserved and
used for the benefit of present and future generations.”); Declaration on the Responsibility of the
Present Generations Towards Future Generations, UNESCO, 29th Sess., Agenda Item 6.6, at 2,
U.N. Doc. 29c/18/Add.1 (1997).
16. See, e.g., BRAZ. CONST. tit. VIII, ch. VI, art. 225; PORT. CONST. pt. I, § 3, ch. 2, art. 66,
para. 1; GUY. CONST. art. 36; IRAN CONST. § IV, art. 50; PAPUA N.G. CONST. pmbl: National
Goals and Directive Principles § 4; NAMIB. CONST. ch. XI, art. 95; VANUATU CONST. ch. 2, pt.
2, art. 7.
17. PA. CONST. art. I, § 27 (“Pennsylvania’s public natural resources are the common
property of all the people, including generations yet to come. As trustee of these resources,
the Commonwealth shall conserve and maintain them for the benefit of all the people.”);
MONT. CONST. art. IX, § 1; HAW. CONST. art. XI, § 1; ILL. CONST. art XI, § 1.
18. See, e.g., National Environmental Policy Act of 1969 § 101(b)(1), 42 U.S.C. §
4331(b)(1) (2000) (“[I]t is the continuing responsibility of the Federal Government to . . .
fulfill the responsibilities of each generation as trustee of the environment for succeeding
generations . . . .”); National Park Service Organic Act, 16 U.S.C. § 1 (2000) (The purpose of
national parks, monuments and reservations “is to conserve the scenery and the natural and
historic objects and the wildlife therein and to provide for the enjoyment of the same in such
manner and by such means as will leave them unimpaired for the enjoyment of future
generations.”); Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451–1464, 1452 (2000)
(national policy “to preserve, protect, develop, and where possible, to restore or enhance,
the resources of the Nation’s coastal zone for this and succeeding generations”); Nuclear
Waste Policy Act of 1982, 42 U.S.C. §§ 10,101–10,270, 10,131(a)(7) (2000) (“[A]ppropriate
precautions must be taken to ensure that [high level radioactive waste and spent nuclear
fuels] do not adversely affect the public health and safety and the environment for this or
future generations.”); Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2000).
19. See, e.g., Jim Gardner, Discrimination Against Future Generations: The Possibility of
Constitutional Limitation, 9 ENVTL. L. 29 (1978); Bradley C. Bobertz, Toward a Better
Understanding of Intergenerational Justice, 36 BUFF. L. REV. 165, 170–71 (1987); Wright, supra
note 13, at 113; Charlie Ogle, Does the United States Constitution Provide Environmental
Protection? (Mar. 7, 1998) (paper presented at Public Interest Law Conference, University of
Oregon), at http://www.conlaw.org.
20. The appropriate name for the doctrine remains unsettled. It is referred to variously
as the Stewardship Doctrine, the Posterity Doctrine, the Seventh Generation Doctrine, or the
Intergenerational Equity Doctrine, with the first label being perhaps the most common.
21. See Wright, supra note 13, at 122–24.
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22. See JOHN LOCKE, TWO TREATISES OF GOVERNMENT ¶ 7, at 312, ¶ 25, at 327, ¶ 27, at
328–29, ¶ 31, at 332, ¶ 116, at 390 (Peter Laslett ed., New American Library 1965) (1698)
(among Locke’s intergenerational precepts: that preservation of the human species is the
primary and fundamental law from which all other natural laws depend; that “God gave the
world to Adam and his posterity in common”; that private property interests in natural
resources are only legitimate if “there is enough and as good left in common for others”;
that “[n]othing was made by God for man to spoil or destroy”; and that no generation may
legitimately infringe upon the sovereignty of a later generation—for “whatever
Engagements or Promises any one has made for himself, he is under the Obligation of them,
but cannot by any Compact whatsoever, bind his children or Posterity”). See generally Wolf,
supra note 14; Robert Elliot, Future Generations, Locke’s Proviso and Libertarian Justice, 3 J.
APPLIED PHIL. 217 (1986).
23. U.S. CONST. pmbl. (“We the People of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and
our Posterity, do ordain and establish this Constitution for the United States of America.”)
(emphasis added).
24. See Ted Allen, Note, The Philippine Children’s Case: Recognizing Legal Standing for Future
Generations, 6 GEO. INT’L ENVTL. L. REV. 713, 732 (1994) (“While lawsuits are not the only
solution, the present generation, has not, and cannot be expected, to account for the
interests of succeeding generations, given people’s natural bias toward current needs.
Urging government officials to carefully consider the interests of posterity is meaningless
unless there are procedural means for challenging the officials when they do not.”); E.
Joshua Rosenkranz, Note, A Ghost of Christmas Yet to Come: Standing to Sue For Future
Generations, 1 J.L. & TECH. 67, 71 (1986) (“For the purpose of this note, I assume the
existence of [future generations’] rights. The rights, however, are worthless without a voice
to assert them and a mechanism by which to enforce them.”).
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25. 28 U.S.C. § 1331 (2002) (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”).
26. See, e.g., Ex Parte Young, 209 U.S. 123 (1908). In fact, there are a number of existing
federal statutes that have been interpreted as providing more specific authorization for
posterity suits. See Brady, supra note 14 (suggesting a role for posterity plaintiffs in NEPA
litigation); Raymond A. Just, Comment, Intergenerational Standing under the Endangered Species
Act: Giving Back the Right to Biodiversity after Lujan v. Defenders of Wildlife, 71 TUL. L. REV. 597
(1996) (recommending posterity suits under the auspices of the ESA).
27. See, e.g., J. William Futrell, Environmental Rights and the Constitution, in BLESSINGS OF
LIBERTY: THE CONSTITUTION AND THE PRACTICE OF LAW 43, 58 (ALI/ABA Comm. on
Continuing Prof’l Educ. ed., 1988) (“[F]ederal courts may well be barred by the “case” or
“controversy” requirement of article III, section 2 of the Constitution and by standing
doctrines from considering the rights of future generations. . . . Only a constitutional
amendment could ensure that this currently unrepresented class will have . . . legal reality.”).
28. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
29. This is not to say that the absence of posterity standing would render a Stewardship
Doctrine completely ineffectual. There may be circumstances in which living parties, with
independent standing, could assert posterity’s interests through a theory of jus tertii. See
generally Robert Allen Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71
YALE L.J. 599 (1962); Note, Standing to Assert Constitutional Jus Tertii, 88 HARV. L. REV. 423
(1974); Gardner, supra note 19, at 50–52. There may also be situations in which present
persons could assert their own intergenerational rights vis-à-vis earlier generations. Imagine,
for instance, a situation in which the government of a prior generation has purported to
convey perpetual private property rights in some public resource, and the present
recognition and exercise of said rights, individually or cumulatively, will severely and
permanently prejudice the interests of the present generation (as well as the interests of
future generations). The overallocation of private water rights within a finite watershed
would constitute one of several possible scenarios. In such a circumstance, the original
transaction could be challenged by aggrieved members of the present generation as an
unsupportable violation of principles of intergenerational justice. The aggrieved plaintiffs
might ask the court to read an implied equitable servitude on behalf of later generations into
the original transactions. In the absence of such implied servitudes, they could argue that
the original transactions were (and remain) unconstitutional and unenforceable. Such an
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A. “Arising . . . in Equity”
Article III, Section 2 of the U.S. Constitution provides that the
federal judicial power extends “to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority.” 31
approach would have profound implications for the law of “regulatory” takings
compensation. See Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 15
THE PAPERS OF THOMAS JEFFERSON 392–98 (Boyd 1950) [hereinafter Boyd] (“It
[generational sovereignty] enters into the resolution of the questions: Whether the
nation . . . may change the appropriation of lands given . . . in perpetuity? Whether they may
abolish the charges and privileges attached on lands . . . and it renders the question of
reimbursement a question of generosity and not of right.”) (emphasis added).
30. See Cape May County Chapter, Inc. v. Macchia, 329 F. Supp. 504, 514 (D.N.J. 1971)
(finding, in a NEPA suit, that “the members of [the plaintiff] class are so numerous, in being
and in generations yet unborn, as to make it . . . impossible to bring them all before the
Court” but holding that the already born plaintiffs adequately represented the unborn
generations for purposes of the action); CHRISTOPHER D. STONE, SHOULD TREES HAVE
STANDING? TOWARD LEGAL RIGHTS FOR NATURAL OBJECTS 65–77 (1974); Allen, supra note
24, at 732, 740; Rosenkranz, supra note 24, at 99–102 (advocating recognition of “posterity
suits” brought by self-appointed court-certified “posterity lawyers”); Boyer, supra note 13, at
3–4 (advocating “political and legal standing for future generations” and asserting that
“anything less constitutes structural obsolescence and generational exploitation”); Gardner,
supra note 19, at 50; Bobertz, supra note 19, at 172–78; Benson, supra note 5; Just, supra note
26. See also Oposa v. Factoran, G.R. No 101083 (Sup. Ct. of the Philippines, July 30, 1993)
reprinted in 33 I.L.M. 173, 185 (1994) (“We find no difficulty in ruling that [the plaintiff
children] can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding generations
can only be based on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. . . . Put a little differently, the minors’ assertion
of their right to a sound environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for generations to come.”).
31. U.S. CONST., art. III, § 2 (emphasis added).
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32. See, e.g., Comm. Nat’l. Bank v. Parsons, 144 F.2d 231, 240–41 (5th Cir. 1944), reh’g
denied, 145 F.2d 191 (1944), cert. denied, 323 U.S. 796–97 (1944).
33. GARY MCDOWELL, EQUITY AND THE CONSTITUTION 4 (1982).
34. See Smith v. Alabama, 124 U.S. 465, 478 (1887) (“The interpretation of the
Constitution of the United States is necessarily influenced by the fact that its provisions are
framed in the language of the English common law, and are to be read in the light of its
history.”); Rule of Court, 2 U.S. (2 Dall.) 411, 413–14 (1792) (“The Court considers the
practice of the courts of King’s Bench and Chancery in England, as affording outlines for the
practice of this court.”); Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 164 (1938); 27A AM.
JUR. 2D Equity § 84 (1996).
35. Letter from James Madison to Thomas Jefferson (Feb. 4, 1790), in 1 THE REPUBLIC OF
LETTERS: THE CORRESPONDENCE BETWEEN THOMAS JEFFERSON AND JAMES MADISON 651
(James Morton Smith ed., 1995).
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36. See 27A AM. JUR. 2D Equity § 63 (1996) (“As part of the inherent power of equity, a
court of equity has full and complete jurisdiction over the persons of those who labor under
any legal disability, and over their property.”) (footnotes omitted).
37. WILLIAM BLACKSTONE, 3 COMMENTARIES 729 (Bernard C. Gavit ed., 1941); 3 id. at
543, 1 id. at 203; GEORGE SPENCE, 1 THE EQUITABLE JURISDICTION OF THE COURT OF
CHANCERY 605–15 (1846).
38. 1 BLACKSTONE, supra note 37, at 132; 3 id. at 543; 1 SPENCE, supra note 37, at 618–20
(stating that the equitable oversight of “idiots and lunatics” included a responsibility to
ensure “that their lands and tenements shall be safely kept, without waste and destruction”).
39. FED. R. CIV. P. 17(c) (“Whenever an infant or incompetent person has a
representative, such as a general guardian, committee, conservator, or other like fiduciary,
the representative may sue or defend on behalf of the infant or incompetent person. An
infant or incompetent person who does not have a duly appointed representative may sue by
a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an
infant or incompetent person not otherwise represented in an action or shall make such
other order as it deems proper for the protection of the infant or incompetent person.”); see
also Doe v. Shalala, 862 F.Supp. 1421, 1426 (D. Md. 1994) (referring to 17(c) and suggesting
that, if a human embryo had legally assertable interests, those interests would have to be
asserted through the person of a guardian ad litem; also holding that a fetus has no such
rights under the Fourteenth Amendment).
40. Uniform Guardianship & Protective Proceedings Act §§ 305(b), 406(b) (1997)
(allowing the court to appoint a lawyer to represent a person alleged to be incapacitated if
the court determines that representation is necessary).
41. See, e.g., In re Zawisza, 73 B.R. 929, 936 (E.D. Pa. 1987) (allowing attorney to file
voluntary Chapter 13 petition on behalf of incompetent as incompetent’s “next friend,”
pursuant to Fed. R. Civ. P. 17(c), even though attorney had never communicated with client,
DAVIDSON MACRO 7.DOC 2/1/03 6:25 PM
had not been retained by client, and had not been appointed as guardian ad litem; “In light
of the Debtor’s incompetence, any court-appointed guardian would have to function under
the same handicap of no communication and ‘lack of authorization’ to retain counsel.
Hence any court-appointed guardian would be in no better a position to represent the
debtor than the next friend.”); Superintendent of Belchertown State School v. Saikewicz,
370 N.E.2d 417, 431 (Mass. 1977) (a guardian may order discontinuation of leukemia
treatment for a severely mentally retarded sixty-seven-year-old patient because, had patient
been competent, he would have ordered discontinuation himself).
42. See, e.g., AUERBACH, supra note 14, at 14; Allen, supra note 24, at 721 n.47 (“While
future generations do not exist in the same way that children do, both have legal rights
which they cannot express without assistance. While specific interests of individual children
and members of future generations are difficult to ascertain, both share certain group needs,
including the need for a habitable environment.”).
43. See AUERBACH, supra note 14, at 14 (rejecting the argument sometimes made by social
contract theorists that future generations are owed no consideration precisely because they
lack the ability to either help or harm the present generation: “[T]hese are not reasons for
absolving the present generation of the obligation to act justly towards (past or) future
generations. On the contrary, they are reasons for us to be even more scrupulous in fulfilling
our obligation to act justly towards other generations.”) (emphasis added).
44. See Rosenkranz, supra note 24, at 75 (“To the extent that we accept an incompetent’s
incapacity to speak on her own behalf as a justification for allowing her father (or anyone
else) to speak for her, we must also accept the future generation’s incapacity to speak as a
justification for allowing some party—perhaps the posterity lawyer—to speak on its behalf. A
future generation is, in effect, incapacitated.”); Allen, supra note 24, at 723, 728–29;
AUERBACH, supra note 14, at 199–200; Just, supra note 26, at 630; see also EDMUND BURKE, An
Appeal from the New to the Old Whigs (1791), in FURTHER REFLECTIONS ON THE REVOLUTION IN
FRANCE 91 (Daniel E. Ritchie ed., 1992) (“With regard to futurity, we are to treat it like a
ward. We are not so to attempt an improvement of his fortune, as to put the capital of his
estate to any hazard.”). Parallels may also be drawn to the representation of the dead in
probate proceedings, and the appointment of trustees to represent the interests of
incompetent corporations during bankruptcy proceedings.
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45. See Allen, supra note 24, at 731 (“[T]he vast majority of those represented by
appointed guardians, such as infants and the incapacitated, cannot convey their views to
their attorneys. Nevertheless, their appointed lawyers are entrusted by the courts to express
what is in their clients’ interests. Likewise, representatives of future generations will not
know the unborn’s precise wishes, but can reasonably conclude that all members of
succeeding generations will share a common interest in having clean air, potable water,
biodiversity, and places of natural beauty.”); Daniel Callahan, What Obligations Do We Have to
Future Generations?, in RESPONSIBILITIES TO FUTURE GENERATIONS: ENVIRONMENTAL ETHICS
78–79 (Ernest Partridge ed., 1980) (“While our ignorance of the desires of future
generations may make it practically impossible to know what to work for on their behalf . . .
we cannot claim total ignorance of what might be very harmful to them. . . . [W]e could
hardly excuse our nuclear weapons testing on the grounds of our ignorance of what would
be ‘relevant’ to the life of those generations.”); AUERBACH, supra note 14, at 70 (“[W]e do
not need to know much about a people to know that high doses of radiation or toxic waste
are harmful to them.”); Gregory S. Kavka & Virginia Warren, Political Representation for Future
Generations, in ENVIRONMENTAL PHILOSOPHY: A COLLECTION OF READINGS 25 (Robert Elliot &
Arran Gare eds., 1983).
46. Terence Ball, The Incoherence of Intergenerational Justice, 28 INQUIRY 334 (1985).
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47. 1 BLACKSTONE, supra note 37, at 34 (citing GROTIUS, 3 HISTORY OF THE LAW OF
NATIONS: RIGHTS OF WAR AND PEACE ch. 16 ); see ARISTOTLE, 5 NICOMACHEAN ETHICS 111
(W. D. Ross trans., J.L Ackrill ed., 1980) (“When the law speaks universally . . . and a case
arises on it which is not covered by the universal statement, then it is right . . . to say what the
legislator himself would have said had he been present, and would have put into his law if he
had known. . . . And this is the nature of the equitable, a correction of law where it is
defective owing to its universality.”); 27A AM. JUR. 2D Equity § 90 (1996) (“Ordinarily, the
fact that an action in equity is based on unusual facts is not sufficient to condemn the
petition or complaint, since equity jurisdiction will apply settled rules to unusual
conditions . . . . While sitting in its equitable capacity, a court may avail itself of powers
broad, flexible, and capable of being expanded to deal with novel cases and conditions. . . .
The fact that there is no precedent for the precise relief sought is not fatal to equity
jurisdiction, since precedent is only a guide and not a bar.”).
48. See Brutus (Robert Yates), N.Y. JOURNAL, Jan. 31, 1788 (interpreting Art. III, § 2 in
light of Grotius and Aristotle); THE FEDERALIST No. 83, at 505 (Alexander Hamilton)
(Clinton Rossiter ed., 1961) (“The great and primary use of a court of equity is to give relief
in extraordinary cases, which are exceptions to general rules.”); see also William H. Rehnquist,
The Notion of a Living Constitution, 54 TEX. L. REV. 693, 694 (1976) (articulating the same
principle, albeit without explicitly invoking the tradition of equity: “The framers of the
Constitution wisely spoke in general language and left to succeeding generations the task of
applying that language to the unceasingly changing environment in which they would
live. . . . Where the framers of the Constitution have used general language, they have given
latitude to those who would later interpret the instrument to make that language applicable
to cases that the framers might not have foreseen.”).
49. U.S. CONST. pmbl; see also MAX FARRAND, 1 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787, 422 (1911) (notes and remarks of James Madison) (“In framing a
system which we wish to last for ages, we [should] not lose sight of the changes which ages
will produce.”).
50. See U.S. CONST. art. III, § 3 (renouncing the “corruption of blood” doctrine); id.
amend. XIII (prohibiting the intergenerational injustice of slavery); id. art. I, § 9, cl. 8, §10,
cl. 1 (prohibiting the intergenerational injustice of nobility). Compare PAINE, supra note 3, at
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76 (critiquing hereditary nobility as “an insult and an imposition on posterity”); see also
Gardner, supra note 19, at 46 (characterizing art. I, §2, cl. 3 as the translation of “a general
constitutional policy—intergenerational fairness—into certain specific guidelines for
governmental action, such as permitting newly formed states to gain a numerical superiority
and allocating future representation in the House of Representatives on the basis of a
decennial census”).
51. Schlickeisen, supra note 13, at 201; see also id. at 220 (identifying “a value that [the
Constitution’s] drafters undoubtedly would have embraced had they possessed the necessary
knowledge and foresight . . . one of society’s most fundamental: to provide for proper
stewardship of the natural estate upon which human life depends”); Gardner, supra note 19,
at 46 (The founders “did not contemplate the possibility that the nation’s physical
environment would become degraded or depleted, or its technological and industrial
capacity advanced to the point at which certain types of decisions made by a present
generation could threaten the physical well-being or standard of living of future
generations.”).
52. See 1 BLACKSTONE, supra note 37, at 47 (Chancery was established “to give a more
specific relief, and one more adapted to the circumstances of the case, than can always be
obtained by the rules of the common law.”); 1 SPENCE, supra note 37, at 668–76.
DAVIDSON MACRO 7.DOC 2/1/03 6:25 PM
53. See Ex Parte Young, 309 U.S. 123 (1908); Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388, 404 (1971) (Harlan, J., concurring) (acknowledging “the presumed
availability of federal equitable relief against threatened invasions of constitutional
interests”); Davis v. Passman, 442 U.S. 228, 242 (1970) (“[I]t is established practice for this
Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights
safeguarded by the Constitution . . . .”) (citation omitted); Carlson v. Green, 446 U.S. 14, 42
(1980) (Rehnquist, J., dissenting) (“The broad power of federal courts to grant equitable
relief for constitutional violations has long been established.”); PETER W. LOW & JOHN
CALVIN JEFFRIES, JR., FEDERAL COURTS AND THE LAW OF FEDERAL-STATE RELATIONS 407 (2d
ed. 1989).
54. Parker v. Woolen, 67 U.S. (2 Black) 545, 551 (1862) (“A Court of Equity will interfere
when the injury by the wrongful act of the adverse party will be irreparable, as where the loss
of health . . . the destruction of the means of subsistence, or the ruin of property must
ensue.”); Younger v. Harris, 401 U.S. 37, 43–44 (1971) (equity only provided in event of
irreparable injury and absence of adequate remedy at law); 27A AM. JUR. 2D Equity § 45
(1996).
55. See, e.g., Jeffrey M. Gaba, Environmental Ethics and Our Moral Relationship to Future
Generations: Future Rights and Present Virtue, 24 COLUM. J. ENVTL. L. 249, 251 (1999) (“[T]he
issue of our moral relationship to future generations has a distinct component only for those
actions that have irreversible consequences that will be experienced more than two
generations in the future.”); Ogle, supra note 19, at 3 (“Perhaps only deliberate, significant,
and irreversible impacts to the integrity of the infrastructure of life on earth pass the
threshold for consideration as unconstitutional harm to posterity.”); Schlickeisen, supra note
13, at 196 (proposing a multi-factor constitutional analysis focused on three variables: degree
of impact, degree of reversibility, and degree of government constraint required in order to
assure the desired outcome).
56. See CHRISTOPHER D. STONE, Should We Establish a Guardian for Future Generations, in
SHOULD TREES HAVE STANDING? AND OTHER ESSAYS ON LAW, MORALS AND THE ENVIRONMENT
65, 76 (1996) (explaining “option value” and the “flexibility premium”: “We [the present
generation] bear the costs of postponing development, to ‘purchase’ an option to exploit
the possible benefits of a biological [resource] if, at some later time, with the advance of
knowledge and technology, substantial benefits should materialize.”) (citing Kenneth J.
Arrow & Anthony C. Fisher, Environmental Preservation, Uncertainty, and Irreversibility, 88 Q. J.
ECON. 312 (1974); Anthony C. Fisher & W. Michael Hanemann, Option Value and the
Extinction of Species, 4 ADVANCES IN APPLIED MICRO-ECONOMICS 169 (1986)); Robert E.
Goodin, Ethical Principles for Environmental Protection, in ENVIRONMENTAL PHILOSOPHY: A
DAVIDSON MACRO 7.DOC 2/1/03 6:25 PM
COLLECTION OF READINGS 6 (Robert Elliot & Allan Gare eds., 1983) (“[A]ny choice made
now must be made in such a way that . . . a later generation, or the same generation at a later
date, can reverse the choice and return to the original situation.”) (citing DAVID W. PEARCE
ET AL., DECISION MAKING FOR ENERGY FUTURES 26 (1979)).
57. See ROBERT J. GOODLAND ET AL., ENVIRONMENTAL MANAGEMENT IN TROPICAL
AGRICULTURE 207 (1984) (Loss of the world’s biological diversity would be worse than
“energy depletion, economic collapse, limited nuclear war or conquest by a totalitarian
government . . . . As terrible as those catastrophes would be for us, they could be repaid in a
few generations. The one process ongoing . . . that will take millions of years to correct is the
loss of genetic and species diversity by the destruction of natural habitats. This is the folly
our descendants are least likely to forgive us.”) (quoting E.O. Wilson); Benson, supra note 5,
at 188 (proposed intergenerational tort would apply only in case of long-term damage to
vital natural resources—defined as biological diversity, topsoil, water, and air); Just, supra
note 26, at 628 (identifying Endangered Species Act litigation as an especially suitable
context for intergenerational standing in light of the irreparable injuries involved: “[A]ir,
water, and land can arguably be decontaminated and made clean again. However, once a
species is made extinct, it can never be recreated or remade. The damage is irreversible.”).
58. 3 BLACKSTONE, supra note 37, at 735; 1 SPENCE, supra note 37, at 656 (suggesting that
the courts of chancery assumed jurisdiction over cases “where, if the parties were left to
proceed according to the ordinary course of law, and only under such regulations as the
courts of law can impose, the result might be a multiplicity of suits, or a course of uncertain
and vexatious litigation”). But see MCDOWELL, supra note 33, at 10 (“Equity, originally and
historically a power addressed toward individuals, has been stretched to cover entire social
classes.”). McDowell, a staunch opponent of the equitable remedies proscribed by the court
in the Brown v. Board of Education cases, appears to base his individualist view of equity on an
out-of-context remark by Alexander Hamilton in THE FEDERALIST No.78. However, it was no
part of Hamilton’s purpose in that piece to describe the appropriate or typical number of
parties to a case in equity.
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59. 1 SPENCE, supra note 37, at 657 (citing Lord Tenham v. Herbert, 2 Atk. 483 (1742),
approved Hanson v. Gardiner, 7 Ves. Jun. 306, 310 (1802)).
60. Porter v. Warner, 328 U.S. 395, 398 (1946); see Virginian Ry. Co. v. System Fed’n, 300
U.S. 515, 552 (1937) (“Courts of equity may, and frequently do, go much farther both to
give and withhold relief in furtherance of the public interest than they are accustomed to go
when only private interests are involved.”); see also Brown v. Bd. of Educ., 349 U.S. 294, 300
(1955) (Brown II)(“Traditionally, equity has been characterized by a practical flexibility in
shaping its remedies and by a facility for adjusting and reconciling public and private
needs.”); Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944).
61. This article takes no position as to the advisability of more individualized posterity
suits—for instance, suits brought on behalf of existing fetuses or embryos. See supra note 2.
For arguments addressing the possible personhood and standing of the conceived unborn,
see Raymond B. Marcin, “Posterity” in the Preamble and a Positivist Pro-life Position, 38 AM. J.
JURIS. 273 (1993); William J. Maledon, Note, The Law and the Unborn Child, 46 NOTRE DAME
LAW. 349 (1971).
62. 3 BLACKSTONE, supra note 37, at 734–35 (identifying trusts as a province of equity and
noting that “of waste and other similar injuries, a court of equity takes a concurrent
cognizance, in order to prevent them by injunction”); 1 SPENCE, supra note 37, at 592 (“The
modern jurisdiction, so exercised, is now generally treated as a mixed jurisdiction,
compounded of the general jurisdiction of the Court of Chancery over trusts, and the
prerogative jurisdiction committed to the Chancellor by the sovereign as parens patriae, he
having in that character a general superintending power over public interests where no
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other person is intrusted with that power.”); 27A AM. JUR. 2D Equity § 6 (“[E]quitable
jurisdiction may be invoked to remedy a breach of fiduciary duty in the absence of an
adequate and complete remedy at law.”).
63. See, e.g., Edith Brown Weiss, The Planetary Trust: Conservation and Intergenerational
Equity, 11 ECOLOGY L.Q. 495, 502–40 (1984) (modeling a proposed intergenerational
planetary trust on the common law charitable trust); REDGWELL, supra note 14.
64. GEORGE TAYLOR BOGERT, TRUSTS AND TRUSTEES § 871 (2d ed. 1982).
65. Id.; Maledon, supra note 61, at 351–54; see, e.g., Du Pont v. Du Pont, 159 A. 841 (Del.
Ch. 1932) (living members of a class could represent possible later born members, but a
guardian must be appointed for those possible unborn beneficiaries where there was no
living member of the class); MINN. STAT. ANN. § 501B.19 (West 2000) (providing that, in
trust litigation, “if an interested person is . . . unborn, unascertained, or a person whose
identity . . . is unknown to the petitioner, the court shall represent that person, unless the
court, upon the application of the trustee or any other interested person, appoints a
guardian ad litem to represent the person”); OHIO REV. CODE ANN. § 2307.13.1 (West 1994)
(trustee may be appointed to represent an unborn given a future interest); WIS. STAT. ANN. §
701.15 (West 2002) (“[I]n a trust proceeding . . . the court may appoint a guardian ad litem
for any person interested who is legally incapacitated, unascertained or unborn if such
person is not already represented by a fiduciary having no adverse interest in the
proceeding. A guardian ad litem may represent 2 or more such persons where they have a
substantially identical interest in the proceeding.”).
66. BOGERT, supra note 64, at § 1007 (citing the following cases where courts refused to
grant termination because of unrepresented unborn trust beneficiaries: Ramage v. First
Farmers & Merchants Nat’l Bank, 30 So. 2d 706 (Ala. 1947); Hills v. Travelers Bank & Trust
Co., 7 A.2d 652 (Conn. 1939); Du Pont v. Equitable Sec. Trust Co., 115 A.2d 482 (Del. Ch.
DAVIDSON MACRO 7.DOC 2/1/03 6:25 PM
1955), aff’d 122 A.2d 429 (Del. 1956); In re Rickebach Estate, 34 A.2d 527, 348 Pa. 121
(1943)).
67. In re Schroll, 297 N.W.2d 282 (Minn. 1980); Duffy v. Duffy, 20 S.E.2d 835 (N.C. 1942)
(where trusts created by deed and will and living beneficiaries request termination and
division of property, but guardian ad litem for possible future beneficiaries objects, and
settlors’ purposes were not accomplished, court will not sanction termination).
68. Hatch v. Riggs Nat’l Bank, 361 F.2d 559, 565–66 (D.C. Cir. 1966) (quoting Mabry v.
Scott, 124 P.2d 659, 665 (Cal. Ct. App. 1942)). Compare Roe v. Casey, 464 F. Supp. 483, 486–
87 (E.D. Pa.1978), aff’d 623 F.2d 829 (3d Cir. 1980) (rejecting anti-abortion doctors’ motion
to be appointed as guardians ad litem for unborn children: “we hold that unborn children
(fetuses, embryos) are not persons with a legally protectable interest within the meaning of
Fed. R. Civ. P. 17(c) or 24(a)(2) and, thus, the appointment of guardians ad litem is neither
warranted nor required”).
69. 1 SPENCE, supra note 37, at 587–93 (indicating that this customary jurisdiction was
eventually confirmed by the Statute of Charitable Uses, 43 Eliz. ch. 4).
70. U.S. CONST. pmbl. (“We the People, in Order to . . . promote the general Welfare, . . .
to ourselves and our Posterity, do ordain and establish this Constitution for the United States
of America.”); see BOGERT, supra note 64, at § 370 (“It would seem that a trust to promote
‘social welfare’ or ‘public welfare’ ought to be held charitable since those phrases connote to
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most persons results likely to be advantageous to the community.”); id. at § 394 (“[T]he
trustee for charity has [a duty] to administer the trust according to its terms . . . [to] protect
and preserve the trust property.”); id. at § 246 (“Trusts are often established or authorized
by statute for the purpose of protecting the property rights of the weak or disabled . . . [T]he
same result is sometimes decreed as to the property of the insane or incompetent, infants
and others whose interests are endangered by their disabilities.”).
71. See Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907) (Holmes, J.) (“[T]he state
has an interest independent of and behind the titles of its citizens, in all the earth and air
within its domain.”); David B. Hunter, An Ecological Perspective on Property: A Call for Judicial
Protection of the Public’s Interest in Environmentally Critical Resources, 12 HARV. ENVTL. L. REV. 311
(1988) (surveying judicial trends extending the application of the conventional public trust
doctrine, limited in the past mainly to water ways and sea shores, to all vital natural
resources); BOGERT, supra note 64, at § 378 (listing allowable purposes of governmental
charitable trusts, and including maintenance of public parks and preservation of natural
scenery). Compare WEISS, supra note 6 (advocating recognition of intergenerational trust in
planetary resources); REDGWELL, supra note 14.
72. See Letter from Thomas Jefferson to James Madison (Sep. 6, 1789), in 15 Boyd, supra
note 29, at 392–98 (“‘that the earth belongs in usufruct to the living’”); Letter from Thomas
Jefferson to John Eppes (June 24, 1813), in 13 id. at 269–70 (“Are [later generations] bound
to . . . consider the preceding generation as having had a right to eat up the whole soil of
their country, in the course of a life . . . ? Every one will say no; that the soil is the gift of
God.”).
73. See 3 BLACKSTONE, supra note 37, at 613–14.
74. Id. (“The courts of equity . . . will grant an injunction to stay waste. . . . This has now
become the usual mode of preventing waste.”).
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75. 27A AM. JUR. 2D Equity § 3 (“[T]he primary character of equity persists as the
complement of legal jurisdiction, in that it seeks to reach and do complete justice where
courts of law, through the inflexibility of their rules and want of power to adapt their
judgments to the special circumstances of cases, are incompetent so to do.”).
76. See, e.g., Ruth Macklin, Can Future Generations Properly Be Said to Have Rights?, in
RESPONSIBILITIES TO FUTURE GENERATIONS: ENVIRONMENTAL ETHICS 151 (Ernest Partridge
ed., 1980) (future generations have no rights of their own because they are not actual
persons; in order to have rights, one must be sentient).
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81. A thorough survey of the framers’ views on intergenerational rights lies beyond the
scope of this article. The author intends publication of such a survey in the near future. See
John Edward Davidson, The Stewardship Doctrine: Intergenerational Justice in the United
States Constitution, Part II, at http://www.conlaw.org/Intergerational-Intro.htm (last visited
Oct. 22, 2002).
82. VA. CONST. OF 1776 art. 1 (emphasis added); see also id., pmbl. (“A Declaration of
Rights made by the representatives of the good people of Virginia, assembled in full and free
convention; which rights do pertain to them and their posterity, as the basis and foundation of
government.”) (emphasis added).
83. Giles Hickory [Noah Webster] III AMERICAN MAGAZINE (NY) (Feb. 1788), in 2 THE
DEBATE ON THE CONSTITUTION: FEDERALIST AND ANTIFEDERALIST SPEECHES, ARTICLES, AND
LETTERS DURING THE STRUGGLE OVER RATIFICATION 315 (Bernard Bailyn ed., 1993).
84. Giles Hickory [Noah Webster], On the Absurdity of a Bill of Rights (AMERICAN MAGAZINE
Dec., 1787), in 1 id. at 669–70 (“[N]o constitutions, in a free government, can be
unalterable. The present generation have indeed a right to declare what they deem a
privilege; but they have no right to say what the next generation shall deem a privilege.”).
85. PAINE, supra note 3, at 76. The Constitution’s framers conclusively rejected the
intergenerational injustice of hereditary nobility by explicitly prohibiting it. U.S. CONST. art.
I, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States . . . .”); U.S. CONST.
art. I, § 10, cl. 1 (“No State shall . . . grant any Title of Nobility.”).
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1. Injury-In-Fact
Another potential objection to posterity standing concerns the
timing of the injuries that would be alleged. Injuries to remote
future persons will, necessarily, be remote, future injuries. Actions
brought to prevent such injuries will predictably involve a higher
degree of speculation as to harm and causality than actions
brought to prevent or remedy present injuries. Since current rules
of federal standing generally require that claims only be heard if
the injury is “actual and imminent,” as opposed to “conjectural or
hypothetical,” 94 it can be argued that it is unsuitable to bring claims
95
for distant future injuries in the present. If the argument were
accepted, then the judicial injury-in-fact standard would effectively
nullify future generations’ rights.96 By the time a case was ripe for
adjudication, posterity’s harm would often be irreparable, and its
97
case moot.
On the other hand, it can be argued that there should be a much
stronger presumption of injury in certain types of posterity suits.
Because posterity, as a class, includes so many people existing in so
many situations, it is exponentially more likely that one or more of
its members will be adversely affected by, say, the loss of a plant or
94. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 563–64 (1992).
95. See Allen, supra note 24, at 735 (“Scalia’s language requiring that an injury be ‘actual
and imminent’ . . . could be read strictly by the Court to deny standing for those unborn.
While a representative of future generations could prove that a particular agency action
would produce some future harm, persuading the Court that the harm is particularized,
actual, and imminent and not ‘conjectural or hypothetical’ would be difficult.”). See generally
Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91
MICH L. REV. 163 (1992).
96. Rosenkranz, supra note 24, at 104 (“The root of the problem in posterity suits is that
the injury is, by definition, not imminent. The ancient structure of the injunction rule must
be refurbished in twenty-first century decor if the posterity suit is to survive.”).
97. One of the more obvious scenarios posing this dilemma involves the creation, siting,
and storage of nuclear waste. Imagine a containment system for such waste that is certain to
be effective for one hundred years, and that is just as certain to catastrophically fail shortly
thereafter. If no one currently living will be harmed, does that mean that the severe,
foreseeable future harms should be completely impervious to judicial challenge? See Wright,
supra note 13, at 145–46 (delaying litigation until arrival of posterity results in absolute bar to
legal remedy); AUERBACH, supra note 14, at 12 (“[B]y the time future generations suffer [an
actionable] harm at the hands of their ancestors, those ancestors will be beyond the reach of
any court.”).
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98. See Just, supra note 26, at 625–26 (“[A]lthough [a plaintiff suing on behalf of himself
and her descendants] may be unable to identify concrete plans to visit and observe a species
in his personal capacity, and therefore unable to demonstrate an actual or imminent injury
to himself personally, a court could acknowledge the exponentially higher probability that
members of the class of plaintiff’s descendants—his children, grandchildren, or great
grandchildren, would desire to make such trips and observe such species. Their injury would
be actual or imminent, as they would obviously be precluded from observing such
endangered species if they became extinct before these citizens were born and were able to
observe them.”) Mr. Just goes on to compare futurity’s injury to the “lost opportunity” injury
recognized in Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (plaintiff
demonstrated an injury as the result of being unable to compete for all of the entrance slots
for a medical school). Id. at n.148.
99. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers,
17 SUFFOLK U. L. REV. 881 (1983).
100. Id. at 881.
101. Id. at 894. For a classic analysis of judicial review’s role in the protection of
politically under-represented classes, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A
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THEORY OF JUDICIAL REVIEW 73–104 (1980) (ch. 4, “Policing the Process of Representation:
The Court as Referee”).
102. Scalia, supra note 99, at 885 (citing Warth v. Seldin, 422 U.S. 490, 498–501 (1975)).
103. Id. at 894.
104. Id; see also Futrell, supra note 27, at 55–57 (“‘Our Constitution [is] concerned . . . in
important measure with whether all the people are in fact being represented or rather some
are being unjustly excluded from either the process or the benefits with which the effective
majority has seen fit to favor itself.’ . . . If a group has access to the process and is equipped
to combine with others, then the decision can be left to the political branches of
government.”) (citing John Hart Ely, Toward a Representation–Reinforcing Mode of Judicial
Review, 37 MD. L. REV. 451, 484 (1978)). But see Bruce A. Ackerman, Beyond Carolene Products,
98 HARV. L. REV. 713, 727 (1985) (describing some of the political dynamics which favor
discrete, well-financed, special interest groups, such as industry lobbyists, over more diffused
public interests); Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory
Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 231 n.44 (1986) (discussing
how the ‘free rider’ problem also works against the creation and proper enforcement of
public interest legislation); E. Donald Elliot et al., Toward a Theory of Statutory Evolution: The
Federalization of Environmental Law, J.L. ECON. & ORG. 313, 342 (1985); Sharon M. Kelly, The
Public Trust and the Constitution: Routes to Judicial Overview of Resource Management Decisions in
Virginia, 75 VA. L. REV. 895, 895 (1989) (“Where a strong and vocal minority has a political
advantage over a diffuse majority, decision-making may not be truly democratic.”) (citing
Joseph Sax, The Public Trust Doctrine in Natural Resource Law, 68 MICH. L. REV. 471, 496
(1970)).
105. Compare United States v. Students Challenging Regulatory Agency Procedures, 412
U.S. 669, 688 (1973) (“To deny standing to persons who are in fact injured simply because
many others are also injured, would mean that the most injurious and widespread . . . actions
could be questioned by nobody.”).
106. Scalia, supra note 99, at 881–82; see also Lujan v. Defenders of Wildlife, 504 U.S. 555,
573–74 (1992) (Scalia, J.) (“[A] plaintiff raising only a generally available grievance about
government—claiming only harm to his and every citizen’s interest in proper application of
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the Constitution and laws, and seeking relief that no more directly and tangibly benefits him
than it does the public at large—does not state an Article III case or controversy.”). Compare
RESTATEMENT (SECOND) OF TORTS § 942 cmt. d (“The public interest may . . . affect the
question of whether a particular plaintiff has standing to sue for an injunction. In case of a
public nuisance, the rule is that one cannot maintain a suit for damages unless his injury was
different in kind from that of other members of the public. This is to avoid the burden on
the court and the harassing effect on the defendant of a multiplicity of suits for small
damages. But if one plaintiff is seeking the remedy of an injunction, this relief may inure to
the benefit of all of the public, and a different rule of standing may be applied.”); id. at cmt.
c; id. at § 821B cmt. i.
107. See Warth v. Seldin, 422 U.S. 490, 499–500 (1975).
108. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 571–78 (1992). But see Fed.
Election Comm’n v. Akins, 524 U.S. 11, 24 (1998) (Court distances itself from the premise
that parties asserting majoritarian interests lack standing simply because their interests are
shared by many other citizens: “[T]he fact that a political forum may be more readily
available where an injury is widely shared . . . does not . . . automatically disqualify an interest
for Article III purposes.”).
109. See Davis v. Passman, 442 U.S. 228, 242 (1979) (“[U]nless [constitutional] rights are
to become merely precatory, the class of those litigants who allege that their own
constitutional rights have been violated, and who at the same time have no effective means
other than the judiciary to enforce these rights, must be able to invoke the existing
jurisdiction of the courts for the protection of their justiciable constitutional rights.”).
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110. See 15 Boyd, supra note 29, at 395; Gardner, supra note 19, at 59 (“[T]he
constitutional policy of intergenerational fairness is of fundamental, if not singular,
importance and . . . judicial review on the basis of such a policy would be justified. Far from
vitiating the primacy of the principles of government by consent and majority rule . . . [b]y,
in effect, rationing and restricting the decision-making prerogatives of earlier generations,
such a judicial approach would tend to maximize and equalize the prospects for effective
majority rule across a multi-generational expanse of time.”).
111. THE FEDERALIST No. 10, supra note 48, at 78 (James Madison).
112. Id. at 80 (“To secure the public good, and private rights, against the danger of such
a faction, and at the same time to preserve the spirit and form of popular government, is
then the great object to which our inquiries are directed.” Consistent with this object,
Madison prayed for political leaders “whose wisdom may best discern the true interest of
their country, and whose patriotism and love of justice will be least likely to sacrifice it to
temporary or partial considerations.”) (emphasis added).
113. Id; see also THE FEDERALIST No. 51, supra note 48, at 325 (James Madison) (“In the
extended republic of the United States, and among the great variety of interests, parties, and
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sects which it embraces, a coalition of a majority of the whole society could seldom take place
on any other principles than those of justice and the general good . . . .”).
114. See supra note 110 and accompanying text.
115. See Wright, supra note 13, at 123.
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116. See, e.g., Allen, supra note 24, at 733 (“[I]n cases such as toxic releases, where there
are irreversible and uncertain long-term consequences, the interests of future generations
should be heard . . . [but] [a]ir and water pollution that can be readily remedied should
perhaps be left to present generations to address.”); AUERBACH, supra note 14, at 69 (“Most
contemporary thinkers have abandoned the view that we have an obligation to promote the
good of remote generations in favor of a narrower concern with avoiding actions that might
harm remote generations.”); Gardner, supra note 19, at 53 (An appropriate doctrine “would
not seem to involve an insurmountable dearth of judicially discoverable and manageable
standards.” The standards would rule out some categories of claims, but not others, such as
those based on accumulation of non-degradable wastes or extremely long-lived radio
nuclides.).
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CONCLUSION