(,1 2 1/,1(...6. See generally MICHAEL GERRARD, WHOSE BACKYARD, WHOSE RISK: FEAR AND FAIRNESS IN...

Citation: 28 Colum. J. Envtl. L. 185 2003

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Tomorrow's Standing Today: How theEquitable Jurisdiction Clause of ArticleIII, Section 2 Confers Standing Upon

Future Generations

John Edward Davidson*

Introduction: Treating Posterity Like Dirt .......................... 186I. Overview: The Stewardship Doctrine and the Call for

Posterity Standing ................................................................. 188II. Equitable Standing ............................................................... 195

A. "Arising ... in Equity". ................................................. 195B. Equity's Application to Cases Involving

Legal Incom petents ....................................................... 197C. Equity's Application to Cases Involving

Unforeseen Circumstances ........................................... 199D. Equity's Application to Cases Where Injunctive

Relief is Sought to Prevent IrreparableConstitutional H arm ...................................................... 201

E. Equity's Application to Class Actions ............................ 203F. Equity's Application to Trusts and Cases

Alleging W aste ............................................................... 204III. Objections and Responses .................................................... 208

A. Are Future Persons Unreal? .......................................... 208B. Cases, Controversies, Political Questions, and

Injury-in-Fact .................................................................. 2121. Injury-In-Fact ............................................................ 2122. Posterity andJustice Scalia ....................................... 2133. Posterity Considered as an Unrepresented

M ajority ..................................................................... 216

* B.A. University of Wisconsin (1985), J.D. University of Oregon (1992). Professor of

Constitutional Law, Pioneer Pacific College. Senior Research Fellow, Constitutional LawFoundation (CLF). The author extends his deepest appreciation to CLF, without whoseencouragement and financial support this article would not have been possible. Contact:

[email protected], 50 W. 36thAvenue, Eugene, Oregon 97405.

COLUMBLAJOURNAL OF ENVIRONMENTAL LAW

4. Generational Sovereignty as a StandingC onsideration ........................................................... 216

5. Posterity and Madison: The Present GenerationConsidered as a "Faction" ......................... 217

C. M anaging the Floodgates .............................................. 219C on clusion ............................................................................ 220

INTRODUCTION: TREATING POSTERITY LIKE DIRT

Are [later generations] bound to... consider the precedinggeneration as having had a right to eat up the whole soil of theircountry, in the course of a life ... ? Every one will say no; that thesoil is the gift of God .... 1The way in which a society cares or does not care for its dirt-its

land-reflects the degree to which it cares or does not care for itsown long-term future. As a result of farming, logging, grazing,mining, land development, and other activities, topsoil in theUnited States is washing away sixteen times faster than new topsoilis naturally generated. We thereby allow the biological capital onwhich our future sustenance depends to disappear as sedimentdown our streets, ditches, and rivers, into the irrecoverable depthsof the ocean. Our willingness to treat our dirt carelessly betrays ourwillingness to treat our posterity carelessly.

The same carelessness can be found in our willingness to drain indecades the Great Plains aquifers that take millennia to recharge,or our willingness to risk long-term climate disruption in exchangefor short-term economic benefit, or our willingness to saddle ourdescendants with massive national debt. In all these instances, wedefer payment for our own lifestyle choices to later generations.

This degradation begs a difficult legal question: Can posteritysue? Are future generations protected from discrimination in thesame way that politically disadvantaged minority groups are? Doour descendants have a legal mechanism for challenging adversewater allocation decisions resembling the one that allows adownstream state to sue an upstream state?

Objections begin to crop up as fast and thick as dandelions: Onwhat grounds would posterity sue? What would be the cause ofaction? How could an attorney prove that posterity appointed her?

1. Letter from Thomas Jefferson to John W. Eppes (June 24, 1813), in 13 THE WRITINGSOF THOMASJEFFERSON 269, 272 (Albert Ellery Bergh ed., 1905).

[Vol. 28:1

Tomorrow's Standing Today

(Bring a Ouija board to court?) Perhaps most important, how canpeople who are not yet born-who are not yet real-have legalstanding to sue? This article touches on a few of these questions,focusing primarily on the knotty central question of posteritystanding.

Part I provides an overview of some intergenerational inequitiesinvolving the environment. It also summarizes a constitutionaltheory of intergenerational justice: the Stewardship Doctrine.According to that doctrine, the existing language of theConstitution, taken together with the expressed views of theConstitution's framers, provides legal grounds for controlling theclearest and worst instances of generational overreaching. Part Iacknowledges standing as the foremost practical obstacle to fullimplementation of the Stewardship Doctrine and sets out thearticle's primary theses: 1) Present representatives of futuregenerations do have standing to sue in federal court; and 2) thisstanding for future generations and their representatives may bederived from the grant of equitable powers in Article III, Section 2of the Constitution.2

Part II of the article examines the role of equity as it wasunderstood by the framers and as it has historically been applied bythe Supreme Court. It explains how the history and principles ofequitable jurisprudence support posterity standing, attendingespecially to equity's traditional role in the representation of legalincompetents, as well as its role in applying general legal principlesto circumstances unforeseen by a law's creators.

Part III offers responses to some potential philosophic and legalobjections to posterity standing, giving particular consideration toseparation of powers concerns as those concerns have beenformulated in recent years by Justice Scalia.

2. A number of interesting and important issues lie beyond this article's scope. Forinstance, 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 leastsome of the arguments proffered here more clearly apply to protection of generalized,public interests, in breathable air for instance, than to such individualized rights-tocontinue a specific life, inherit specific property, etc-such as might be alleged on behalf ofindividual fetuses or fetuses as a class.)

2003]

COLUMBIAJOURNAL OF ENVIRONMENTAL LAW [Vol. 28:1

I. OVERVIEW: THE STEWARDSHIP DOCTRINE AND THE CALL FOR

POSTERITY STANDING

'Tis not the concern of a day, a year, or an age; posterity are virtuallyinvolved in the contest, and will be more or less affected, even to the

3end of time, by the proceedings now.

The present generation of humanity is pursuing a multitude ofpolicies and practices that jeopardize fundamental interests offuture generations. This is not news; it is a fact that we increasinglytake for granted.

We deplete freshwater aquifers many times faster than nature canreplenish them.4 We wash precious topsoil, built up over millennia,into the rivers and oceans. We allow the manufacture ofradioactive waste (expected to encumber the health of the planetvirtually forever) before developing safe, permanent disposaltechnologies 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 inthe United States. See generally Robert Verchick, Dust Bowl Blues: Saving and Sharing theOgallala Aquifer, 14J. ENVTL. L. & LITIG. 13 (1999). At present usage rates, the aquifer will beexhausted in twenty to thirty years. Once drained, it will take 6,000 years to recharge at itsnatural 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 severalstates dependent upon the aquifer, has adopted a policy of "planned depletion in fiftyyears." Lori L. Triplett, The Ogallala Aquifers: Living in the Present, Planning for the Future, inTHE 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: Optionsfor 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 Damageto 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 timesthe rate of natural soil formation; one-third of original U.S. cropland is removed fromproduction due to unsustainable farming practices; the U.S. has lost $44 billion in decreasedproduction, water contamination, and dam siltation) (citing U.S. DEP'T OF AGRICULTURE,MISC. PUB. No. 1482, THE SECOND RCA APPRAISAL, SOIL, WATER AND RELATED RESOURCESON 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, andSustainable Agriculture, 13 STAN. ENVTL. L.J. 190, 203 (1994).

6. See generally MICHAEL GERRARD, WHOSE BACKYARD, WHOSE RISK: FEAR AND FAIRNESS INToxIc AND NUCLEAR WASTE SITING 27-28 (1994); Lawrence Flint, Shaping Nuclear Waste Policyat the Juncture of Federal and State Law, 28 B.C. ENvTL. AFF. L. REV. 163, 163 (2000) ("Thespent nuclear fuel that reactors generate remains radioactive for hundreds of thousands ofyears; 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 WasteRepository Siting and Mitigation, in NUCLEAR WASTE: SOCIOECONOMIC DIMENSIONS OF LONG-

20031 Tomorrow's Standing Today

unknown chemicals7 and gene sequences into the environmentwithout adequately testing for their long-term effects upon humansand other life forms. We eliminate natural habitats9 and drive plantand animal species into extinction ' ° at unprecedented rates,ensuring that our children will inherit a world with less biodiversitythan our own. By continuing to utilize technologies that we know

TERM STORAGE 41, 51 (Steven H. Murdock et al. eds., 1983) ("How morally appropriate is itfor one group to satisfy its own consumptive desires for a few decades and then exactpayment from countless as yet to be born civilizations for hundreds of thousands of years?");EDITH BROWN WEISS, IN FAIRNESS To FUTURE GENERATIONS: INTERNATIONAL LAW, COMMONPATRIMONY, AND INTERGENERATIONAL EQUITY 169-91 (1989) (noting the impracticality ofpurely national disposal and oversight plans for nuclear waste, given that national territorialboundaries and governments cannot be relied upon to remain unchanged for centuries oreven decades).

7. See GERRARD, supra note 6, at 7 (80,000 chemicals are in present commercial use; 1,000chemicals are introduced annually, very few are regulated; only a small fraction of theremainder are thoroughly tested for long term toxicity); Richard L. Williamson et al.,Gathering Danger: The Urgent Need to Regulate Toxic Substances That Can Bioaccumulate, 20ECOLOGY 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 newpesticides by EPA and FDA is deficient in calculating exposures and risks, particularlysynergistic 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, TheEnvironmental Risks of Transgenic Crops: An Agroecological Assessment, in BIOTECHNOLOGY ANDBIOSAFETY: 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 ANDBOUNDARIES (1995) (30%, 117 million acres, of U.S. wetlands have been lost since Europeansettlement or 53% if Alaska is excluded); John Harte, Land Use, Biodiversity, and EcosystemIntegrity: 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); PeterVitousek et al., Human Domination of Earth's Ecosystems, 277 SCI. 494 (1997).

10. RICHARD E. LEAKEY & ROGER LEWIN, THE SIXTH EXTINCTION: PATTERNS OF LIFE ANDTHE FUTURE OF HUMANKIND 245 (1995) ("Dominant as no other species has been in thehistory of life on Earth, Homo sapiens is in the throes of causing a major biological crisis, amass 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 estimatedbetween 1,000 and 10,000 species lost each year-an extinction rate "orders of magnitudehigher than the 'natural background' (that is, the pre-human) rate"); Joby Warrick, MassExtinction 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 fisheriesseverely depleted, 44% of ocean fisheries at limit of exploitation).

COLUMBIAJOURNAL OF ENVIRONMENTAL LAW

create a likelihood of global climate change," we jeopardize thevery existence of the human race.

These various forms of environmental degradation, according tomany indicators, have been particularly acute in the United States. 2

The question naturally arises then: In this putatively enlighteneddemocratic republic, how can such short-sighted conduct persist?

One answer is that the systematic disregard of society's long-terminterests is a natural, predictable outcome of the democraticprocess. As one commentator states the problem:

Established rules of what has been called democratic government arebased on constituencies that predetermine that the future will bediscounted and future generations will be exploited .... Anyconstituency without power loses out .... [F]uture generations arenever present, and no penalty results from their exploitation.Pollution, resource depletion, and debt are conveniently passed on.Fly now, let future generations pay later. This is the effect of"constituency democracy." 13

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 FOREIGNAFF.

54, 56-57 (1998); Claire Breidenich et al., The Kyoto Protocol to the United Nations FrameworkConvention 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 ofcarbon 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. & POLYREv. 227, 227 (1998) (during the same period, average global temperature has increased 1°

C.) (citing WORLD METEOROLOGICAL ORGANIZATION/UNITED NATIONS ENVIRONMENTPROGRAMME, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE: THE

IPCC SCIENTIFIC ASSESSMENT xii (J.T. Houghton et al. eds., 1990)); John J. Fialka, KyotoTreaty's Foes in U.S. Could Kill Pact Around the World, WALL ST. J., Oct. 19, 1999, at BI(describing human-caused climate change as probability accepted by "many scientists"); seealso Arno Rosemarin & Armin Rosencranz, CFC's and the Stratospheric Ozone Layer, 19 AMBIO279,279 (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% ofgreenhouse gas emissions) (citing U.S. Energy Info. Admin., Issues in Focus, athttp://www.eia.doe.gov/oiaf/aeo/issues.html#kyo, which no longer publishes the numbersin question); Donald A. Brown, The U.S. Perfor nance in Achieving Its 1992 Earth Summit GlobalWarming Commitments, 32 Envtl. L. Rep. (Envtl. L. Inst.) 10,741, 10,760 (2002) ("PresidentClinton acknowledged that 'the United States has a special responsibility for the [globalwarming] problem: The United States has less than 5[%] of the world's population, enjoys22[%] of the world's wealth, but emits more than 25[%] of the world's [greenhouse gasemissions]."') (citing Joby Warrick & Peter Baker, Clinton Details Global Warming Plan, WASH.POST, Oct. 23, 1997, at Al).

13. William Boyer, Environmental Rights: Legal Standing for Future Generations 3-4(Sept. 1997) (unpublished paper presented at 15th World Conference of the World FuturesStudies Federation, Brisbane, Australia) (on file with author); see Rodger Schlickeisen,Protecting Biodiversity for Future Generations: An Argument for a Constitutional Amendment, 8 TUL.

[Vol. 28:1

2003] Tomorrow's Standing Today

To counteract this bias, a number of scholars, activists, andpolitical leaders have begun to advocate for the recognition ofintergenerational justice as an overriding political principle, one towhich subordinate public and private policies must be made toconform.14 The principle has become well-established ininternational law, 15 and is also explicitly recognized in several

ENvTL. L.J. 181, 182, 219 (1994) ("[N]ormal legislative processes are systemically biased infavor of current benefits as opposed to the long-term future.... Elected officials alignthemselves with beggar-the-children policies.., to provide immediate economic benefits forconstituents who vote now to the detriment of future generations who cannot."); R. GeorgeWright, 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 achoice."); Richard A. Epstein, Justice Across the Generations, 67 TEX. L. REv. 1465, 1465 (1989)("Democratic processes with universal suffrage cannot register the preferences of theunborn, and dialogue between generations is frustrated when future generations, or at leastsome future generations, are of necessity silent."); J.A. Doeleman, On the Social Rate ofDiscount: 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 immediatepressure 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 ENVIRONMENTALPROTECTION (1999); BRUCE EDWARD AUERBACH, UNTO THE THOUSANDTH GENERATION:CONCEPTUALIZING INTERGENERATIONAL JUSTICE (1995); Clark Wolf, Contemporary PropertyRights, 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. ENVrL. 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 theenvironment for present and future generations." Principle 2: "The natural resources ofthe earth including the air, water, land, flora and fauna and especially representative samplesof natural ecosystems must be safeguarded for the benefit of present and futuregenerations .... Principle 5: "The non-renewable resources of the earth must beemployed in such a way as to guard against the danger of their future exhaustion and toensure that benefits from such employment are shared by all mankind."); Convention onInternational 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 manybeautiful and varied forms are an irreplaceable part of the natural systems of the earth whichmust 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 theinterests of present and future generations"); Report of the World Commission on Environmentand 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


national constitutions,"' state constitutions, 7 and U.S. federalstatutes. 18

Moreover, careful historical and legal research has led somescholars to conclude that a mandate for intergenerational justicecan be fairly derived from the existing language of the U.S.Constitution.'9 The suggested mandate20 derives its form and itssubstance from several constitutional clauses. The EqualProtection Clause of the Fourteenth Amendment, for instance, isread to protect remote future generations from discrimination justas it protects other politically disenfranchised groups.2 ' TheTakings and Due Process Clauses of the Fifth Amendment, both of

THE WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT: "OUR COMMON FUTURE" 348(1987) ("States shall ensure that the environment and natural resources are conserved andused for the benefit of present and future generations."); Declaration on the Responsibility of thePresent 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 ofnational 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 suchmanner 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]ppropriateprecautions 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, supranote 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 variouslyas 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. SeeWright, supra note 13, at 122-24.


which are historically rooted in the writings of John Locke, areconstrued to harmonize with that philosopher's highly developedsystem of intergenerational rights and obligations.22 Theseprovisions, and the remainder of the Constitution, are allinterpreted in the light of the Preamble's Posterity Clause, whichprovides that "We the People... to ourselves and our Posterity, doordain and establish this Constitution., 23 Aside from such textualmandates, the doctrine also derives support, and much of itsspecific shape, from the abundant discussions of intergenerationaljustice that the framers (and their intellectual predecessors) saw fitto preserve in writing.

The doctrine just described, however elegant and well groundedit may be, will make little difference if it is not conjoined withpractical procedural mechanisms for asserting posterity'sconstitutional interests in court. 4 The pragmatic lawyer needsmore than principles and statements of right; she needsjurisdiction and standing.

22. SeeJOHN LOCKE, TWO TREATISES OF GOVERNMENT 1 7, at 312, 25, at 327, 27, at328-29, 31, at 332, 1 116, at 390 (Peter Laslett ed., New American Library 1965) (1698)(among Locke's intergenerational precepts: that preservation of the human species is theprimary and fundamental law from which all other natural laws depend; that "God gave theworld to Adam and his posterity in common"; that private property interests in naturalresources 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 maylegitimately infringe upon the sovereignty of a later generation-for "whateverEngagements 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 moreperfect Union, establish Justice, insure domestic Tranquility, provide for the commondefence, promote the general Welfare, and secure the Blessings of Liberty to ourselves andour 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 onlysolution, the present generation, has not, and cannot be expected, to account for theinterests of succeeding generations, given people's natural bias toward current needs.

Urging government officials to carefully consider the interests of posterity is meaninglessunless 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 FutureGenerations, 1 J.L. & TECH. 67, 71 (1986) ("For the purpose of this note, I assume theexistence of [future generations'] rights. The rights, however, are worthless without a voiceto assert them and a mechanism by which to enforce them.").


Should the proposed doctrine be adopted, federal courtjurisdiction can be readily established. Article III, Section 2 grantsthe Supreme Court original jurisdiction over controversies "arisingunder" the federal Constitution, and the lower federal courts aresimilarly authorized to hear such actions pursuant to 29 U.S.C. §1331.25 There is at least some authority confirming the existence ofa private cause of action for the defense of constitutional rights inthe absence of any more specific congressional authorization than§ 1331.26

The issue of standing is somewhat more problematic, however, 7

especially when considered in light of some recent Supreme Courtdecisions. 8 If living litigants so often have difficulty establishingtheir standing to sue, what chance is there for plaintiffs who do notyet physically exist?29

25. 28 U.S.C. § 1331 (2002) ("The district courts shall have original jurisdiction of all civilactions arising under the Constitution, laws, or treaties of the United States.").

26. See, e.g., Ex ParteYoung, 209 U.S. 123 (1908). In fact, there are a number of existingfederal statutes that have been interpreted as providing more specific authorization forposterity suits. See Brady, supra note 14 (suggesting a role for posterity plaintiffs in NEPAlitigation); Raymond A. Just, Comment, Intergenerational Standing under the Endangered SpeciesAct: 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 OFLIBERTY: 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 standingdoctrines from considering the rights of future generations.... Only a constitutionalamendment 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, withindependent standing, could assert posterity's interests through a theory of jus tertii. Seegenerally Robert Allen Sedler, Standing to Assert ConstitutionalJus Tertii in the Supreme Court, 71YALE L.J. 599 (1962); Note, Standing to Assert ConstitutionalJus Tertii, 88 HARV. L. REV. 423(1974); Gardner, supra note 19, at 50-52. There may also be situations in which presentpersons could assert their own intergenerational rights vis-A-vis earlier generations. Imagine,for instance, a situation in which the government of a prior generation has purported toconvey perpetual private property rights in some public resource, and the presentrecognition and exercise of said rights, individually or cumulatively, will severely andpermanently prejudice the interests of the present generation (as well as the interests offuture generations). The overallocation of private water rights within a finite watershedwould constitute one of several possible scenarios. In such a circumstance, the originaltransaction could be challenged by aggrieved members of the present generation as anunsupportable violation of principles of intergenerational justice. The aggrieved plaintiffsmight ask the court to read an implied equitable servitude on behalf of later generations intothe original transactions. In the absence of such implied servitudes, they could argue thatthe original transactions were (and remain) unconstitutional and unenforceable. Such an

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Undaunted by such considerations, many legal scholars andjudges who have addressed the issue have concluded that judicialstanding for future generations is both possible and desirable.0

This article is offered as yet another voice in the growing chorus; itstheses being that 1) present representatives of future generationsdo have standing to sue in federal court; and 2) this standing forfuture generations and their representatives may be derived fromthe grant of equitable powers in Article III, Section 2 of theConstitution.

II. EQUITABLE STANDING

A. "Arising ... in Equity"

Article III, Section 2 of the U.S. Constitution provides that thefederal judicial power extends "to all Cases, in Law and Equity,arising under this Constitution, the Laws of the United States, andTreaties made, or which shall be made, under their Authority."01

approach would have profound implications for the law of "regulatory" takingscompensation. See Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 15THE PAPERS OF THOMAS JEFFERSON 392, 396 (Julian P. Boyd ed., 1958) ("It [generational

sovereignty] enters into the resolution of the questions Whether the nation... may changethe appropriation of lands given ... in perpetuity? Whether they may abolish the chargesand privileges attached on lands...?... and it renders the question of reimbursement a question ofgenerosity 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 beingand in generations yet unborn, as to make it... impossible to bring them all before theCourt" but holding that the already born plaintiffs adequately represented the unborngenerations for purposes of the action); CHRISTOPHER D. STONE, SHOULD TREES HAVE

STANDING? TOWARD LEGAL RIGHTS FOR NATURAL OBJECTS 65-77 (1974); Allen, supra note24, at 732, 740; Rosenkranz, supra note 24, at 99-102 (advocating recognition of "posteritysuits" brought by self-appointed court-certified "posterity lawyers"); Boyer, supra note 13, at3-4 (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 note26. 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 plaintiffchildren] can, for themselves, for others of their generation and for the succeedinggenerations, file a class suit. Their personality to sue in behalf of the succeeding generationscan only be based on the concept of intergenerational responsibility insofar as the right to abalanced and healthful ecology is concerned.... Put a little differently, the minors' assertionof their right to a sound environment constitutes, at the same time, the performance of theirobligation to ensure the protection of that right for generations to come.").

31. U.S. CONST., art. III, § 2 (emphasis added).


Although Rule 2 of the Federal Rules of Civil Procedure (adoptedin 1938) abolished the formal distinction between actions at lawand suits in equity, the federal judiciary's substantive equitablepowers are embedded in the Constitution and remainundiminished. s2

In order to discern the implications of this grant of "equitable"jurisdiction, it is helpful to understand what, exactly, the term"equity" signified for the framers. The text of the Constitutiondoes not itself elaborate or clarify the term, but as one scholarnotes: "[T] he lack of constitutional definition in no way obscureswhat the Framers meant by 'all cases in law and equity.' For theFramers, as for us, the word was backed by several centuries ofjurisprudence., 33 We may adequately determine what the framersmeant by reviewing relevant comments made contemporaneouslywith the Constitution's passage and by consulting the extensiverecord of the English common law.3

First and foremost, "equity" was about fairness (or "equal"treatment, as the word's etymology suggests). Using this sense ofthe word, James Madison, in a letter to Thomas Jefferson,characterized the chain of intergenerational obligations that existwithin a healthy society as an "equitable" matter: "There seemsthen to be a foundation in the nature of things, in the relationwhich one generation bears to another, for the descent ofobligations from one to another. Equity requires it. Mutual goodis promoted by it." 35

Equity involved much more than this rudimentary fairnessprinciple, however. Historically, equity served as a primary sourceof standing and jurisdiction in a wide variety of situations thatwould otherwise have been nonjusticiable. Many of the

32. See, e.g., Comm. Nat'l. Bank v. Parsons, 144 F.2d 231, 240-41 (5th Cir. 1944), reh'gdenied, 145 F.2d 191 (1944), cert. denied, 323 U.S. 796-97 (1944).

33. GARY McDowELL, EQUITYAND 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 areframed in the language of the English common law, and are to be read in the light of itshistory."); Rule of Court, 2 U.S. (2 Dall.) 411, 413-14 (1792) ("The Court considers thepractice of the courts of King's Bench and Chancery in England, as affording outlines for thepractice of this court."); Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 164 (1938); 27A AM.JUR. 2D Equity § 84 (1996).

35. Letter fromJames Madison to ThomasJefferson (Feb. 4, 1790), in I THE REPUBLIC OF

LETTERS: THE CORRESPONDENCE BETWEEN THOMAS JEFFERSON AND JAMES MADISON 650, 651(James Morton Smith ed., 1995).

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jurisdictional difficulties and standing issues that equity wasoriginally designed to address are precisely the same sorts ofdifficulties and issues that would be presented by intergenerationallitigation today.

B. Equity's Application to Cases Involving Legal Incompetents

For instance, equitable jurisdiction traditionally extended to allcases involving legal incompetents. At the time of this country'sfounding, the Court of Chancery (read: court of equity) wasresponsible for defending the rights of infants as guardian adlitem.37 It similarly served as the trustee for "lunatics and idiots. 3 s

These traditional, equitable roles of the judiciary continue to berecognized through such instruments as the Federal Rules of CivilProcedure 17(c)3 9 and the Uniform Guardianship and ProtectiveProceedings Act.4 These rules provide standing andrepresentation for incompetent parties who would otherwise bedenied standing on the grounds that they lack capacity to requestcounsel, communicate with counsel, or otherwise express theirpreferences.4'

36. See 27A AM. JUR. 2D Equity § 63 (1996) ("As part of the inherent power of equity, acourt of equity has full and complete jurisdiction over the persons of those who labor underany legal disability, and over their property.") (footnotes omitted).

37. WILLIAM BLACKSTONE, 3 COMMENTARIES 729 (Bernard C. Gavit ed., 1941); 3 id. at543, 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 toensure "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 arepresentative, 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. Aninfant or incompetent person who does not have a duly appointed representative may sue bya next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for aninfant or incompetent person not otherwise represented in an action or shall make suchother order as it deems proper for the protection of the infant or incompetent person."); seealso Doe v. Shalala, 862 F.Supp. 1421, 1426 (D. Md. 1994) (referring to 17(c) and suggestingthat, if a human embryo had legally assertable interests, those interests would have to beasserted through the person of a guardian ad litem; also holding that a fetus has no suchrights 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 ifthe 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 filevoluntary 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,


Future generations occupy a position that resembles, both legallyand practically, the position of these other equitably protected"incompetent" classes.42 They cannot request attorneyrepresentation. They cannot directly express any of their owninterests or preferences. They have no access to the usual legalmechanisms for protecting their interests (such as voting); hence,there can be no presumption of legislative representation. Relativeto other members of society, future generations are defenseless,dependent, and incapable of doing harm.43 Numerouscommentators, noting these similarities between the situation offuture generations and the other protected incompetents, havereasoned that the same principles thatjustify standing for the latterclass must also require it for the former."

Of course, as with lawyers for other classes of incompetents, theposterity lawyer will not have the benefit of client consultation and

had not been retained by client, and had not been appointed as guardian ad litem; "In lightof the Debtor's incompetence, any court-appointed guardian would have to function underthe 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 thedebtor 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 leukemiatreatment for a severely mentally retarded sixty-seven-year-old patient because, had patientbeen 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 ("Whilefuture generations do not exist in the same way that children do, both have legal rightswhich they cannot express without assistance. While specific interests of individual childrenand 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 socialcontract theorists that future generations are owed no consideration precisely because theylack the ability to either help or harm the present generation: "[T]hese are not reasons forabsolving the present generation of the obligation to act justly towards (past or) futuregenerations. On the contrary, they are reasons for us to be even more scrupulous in fulfillingour obligation to actj ustly towards other generations.") (emphasis added).

44. See Rosenkranz, supra note 24, at 75 ("To the extent that we accept an incompetent'sincapacity to speak on her own behalf as a justification for allowing her father (or anyoneelse) to speak for her, we must also accept the future generation's incapacity to speak as ajustification for allowing some party-perhaps the posterity lawyer-to speak on its behalf. Afuture 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, AnAppeal 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 award. We are not so to attempt an improvement of his fortune, as to put the capital of hisestate to any hazard."). Parallels may also be drawn to the representation of the dead inprobate proceedings, and the appointment of trustees to represent the interests ofincompetent corporations during bankruptcy proceedings.


may, therefore, represent the client's preferences imperfectly. But,again as with other incompetent clients, future generations wouldappear to be better off with such imperfect advocacy than with noadvocacy at all. Moreover, as is the case with children, certain ofposterity's fundamental needs (e.g. clean air and water, arableland) and fundamental harms (e.g. high doses of radiation, toxicwaste) can be presumed with a fair degree of confidence. 5 AsTerence Ball suggests:

[I]t seems a safe bet... that our distant descendants are unlikely tosubscribe to some theory of justice and the human good such thatthey would respect, revere, or even excuse us for having bequeathedto them an eroded, poisoned, polluted and overpopulated planetwhose inhabitants experience increased rates of skin and othercancers, of infant mortality, birth defects, mental retardation,radiation sickness, and other preventable ills.

C. Equity's Application to Cases InvolvingUnforeseen Circumstances

Equity also served, in the founders' time, as authority for theexercise of judicial flexibility in the face of unforeseencircumstances. Blackstone describes this aspect of equity in thefollowing manner:

[Equity involves] the correction of that, wherein the law, by reason ofits universality, is deficient. For since in laws all cases cannot beforeseen or expressed, it is necessary that when the general decrees ofthe law come to be applied to particular cases, there should

45. See Allen, supra note 24, at 731 ("[T]he vast majority of those represented byappointed guardians, such as infants and the incapacitated, cannot convey their views totheir attorneys. Nevertheless, their appointed lawyers are entrusted by the courts to expresswhat is in their clients' interests. Likewise, representatives of future generations will notknow the unborn's precise wishes, but can reasonably conclude that all members ofsucceeding 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 toFuture Generations?, in RESPONSIBILITIES TO FUTURE GENERATIONS: ENVIRONMENTAL ETHICS

78-79 (Ernest Partridge ed., 1980) ("While our ignorance of the desires of futuregenerations 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 couldhardly excuse our nuclear weapons testing on the grounds of our ignorance of what wouldbe 'relevant' to the life of those generations."); AUERBACH, supra note 14, at 70 ("[W]e donot need to know much about a people to know that high doses of radiation or toxic wasteare harmful to them."); Gregory S. Kavka & Virginia Warren, Political Representation for FutureGenerations, in ENVIRONMENTAL PHILOSOPHY: A COLLECTION OF READINGS 25 (Robert Elliot &Arran Gare eds., 1983).

46. Terence Ball, The Incoherence of IntergenerationalJustice, 28 INQUIRY 334 (1985).

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somewhere be a power vested of defining those circumstances, which,47had they been foreseen, the legislator himself would have expressed.

By extending the judicial power to cases arising "in equity underthe Constitution," Article III, Section 2 provides the federal courtswith the authority and the responsibility to apply "universally"worded constitutional principles to specific situations that wereunforeseeable when the document was drafted.48

To apply this principle to the topic at hand: The framers of theConstitution made a "universal" statement in the Preamble thatgovernment must serve the interests of the entire intergenerationalcommunity.49 Elsewhere, the framers made universal statementsregarding government's obligation to accord all persons equalprotection. In specific instances where they foresaw a potential forintergenerational injustice, the drafters, consistent with these otherdirectives, included specific language to prevent the violation ofposterity's rights.0 However, during the intervening centuries,

47. 1 BLACKSTONE, supra note 37, at 34 (citing GROTIUS, 3 HISTORY OF THE LAW OFNATIONS: 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 casearises on it which is not covered by the universal statement, then it is right... to say what thelegislator himself would have said had he been present, and would have put into his law if hehad known.... And this is the nature of the equitable, a correction of law where it isdefective owing to its universality."); 27A AM. JUR. 2D Equity § 90 (1996) ("Ordinarily, thefact that an action in equity is based on unusual facts is not sufficient to condemn thepetition or complaint, since equity jurisdiction will apply settled rules to unusualconditions .... While sitting in its equitable capacity, a court may avail itself of powersbroad, 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 equityjurisdiction, 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 inlight 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 reliefin 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 sameprinciple, albeit without explicitly invoking the tradition of equity: "The framers of theConstitution wisely spoke in general language and left to succeeding generations the task ofapplying that language to the unceasingly changing environment in which they wouldlive.... Where the framers of the Constitution have used general language, they have givenlatitude to those who would later interpret the instrument to make that language applicableto cases that the framers might not have foreseen.").

49. U.S. CONST. pmbl; see also MAX FARRAND, 1 THE RECORDS OF THE FEDERALCONVENTION OF 1787, 422 (1911) (notes and remarks of James Madison) ("In framing asystem which we wish to last for ages, we [should] not lose sight of the changes which ageswill 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


opportunities for intergenerational injustice and harm have arisenthat the founders were not in a position to foresee. As RogerSchlickeisen suggests, "It was... impossible for the drafters of theConstitution to anticipate that within a mere two centuries anexploding population with incredible nature-devouring technologywould fundamentally threaten the future welfare of the nation.'51

The possibility of widespread, long-term environmentaldestruction-a contingency both unanticipated by the foundersand inimical to the universal principle of intergenerationalprotection set out in the Preamble-represents precisely the sortof unforeseeable situation the framers would have expected thefederal courts to respond to by exercising their equitable flexibility.

The equitable principle of "unforeseen circumstances" supportsboth federal court standing (for posterity as a class) and federalcourt jurisdiction (over issues involving intergenerational rightsand resources).

D. Equity's Application to Cases Where Injunctive Relief is Soughtto Prevent Irreparable Constitutional Harm

Courts of equity were the traditional venue for all cases in whichremedies of injunctive relief or specific performance were sought.52

In this country, it has long been recognized that an equitableaction seeking injunctive relief for a violation of the federal

76 (critiquing hereditary nobility as "an insult and an imposition on posterity"); see alsoGardner, supra note 19, at 46 (characterizing art. I, §2, cl. 3 as the translation of "a generalconstitutional policy-intergenerational fairness-into certain specific guidelines forgovernmental action, such as permitting newly formed states to gain a numerical superiorityand allocating future representation in the House of Representatives on the basis of adecennial census").

51. Schlickeisen, supra note 13, at 201; see also id. at 220 (identifying "a value that [theConstitution's] drafters undoubtedly would have embraced had they possessed the necessaryknowledge and foresight.., one of society's most fundamental: to provide for properstewardship 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 physicalenvironment would become degraded or depleted, or its technological and industrialcapacity advanced to the point at which certain types of decisions made by a presentgeneration could threaten the physical well-being or standard of living of futuregenerations.").

52. See 1 BLACKSTONE, supra note 37, at 47 (Chancery was established "to give a morespecific relief, and one more adapted to the circumstances of the case, than can always beobtained by the rules of the common law."); 1 SPENCE, supra note 37, at 668-76.

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Constitution may be asserted in a federal court, notwithstandingthe lack of express statutory authority for such relief. 3

The availability of such equitable relief, however, is generallyheld to be dependent upon the nature and degree of the harmwith which the plaintiff is threatened. Injunctive relief is notordinarily available unless the threatened injury to the plaintiff isirreparable or irreversible. 4 Interestingly, most modern theories ofintergenerational responsibility likewise limit the scope of ageneration's moral or legal duty towards later generations to theavoidance of irreparable or irreversible harms. 55 This principle issometimes expressed, especially in the economic literature, interms of "preservation of options."06

53. See Ex Parte Young, 309 U.S. 123 (1908); Bivens v. Six Unknown Federal NarcoticsAgents, 403 U.S. 388, 404 (1971) (Harlan, J., concurring) (acknowledging "the presumedavailability of federal equitable relief against threatened invasions of constitutionalinterests"); Davis v. Passman, 442 U.S. 228, 242 (1970) ("[1It is established practice for thisCourt to sustain the jurisdiction of federal courts to issue injunctions to protect rightssafeguarded 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 equitablerelief for constitutional violations has long been established."); PETER W. LOW & JOHNCALVIN JEFFRIES, JR., FEDERAL COURTS AND THE LAW OF FEDERAL-STATE RELATIONS 407 (2ded. 1989).

54. Parker v. Woolen, 67 U.S. (2 Black) 545, 551 (1862) ("A Court of Equity will interferewhen the injury by the wrongful act of the adverse party will be irreparable, as where the lossof health ... the destruction of the means of subsistence, or the ruin of property mustensue."); Younger v. Harris, 401 U.S. 37, 43-44 (1971) (equity only provided in event ofirreparable 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 FutureGenerations: Future Rights. and Present Virtue, 24 COLUM. J. ENVTL. L. 249, 251 (1999) (" [T]heissue of our moral relationship to future generations has a distinct component only for thoseactions that have irreversible consequences that will be experienced more than twogenerations 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 thethreshold for consideration as unconstitutional harm to posterity."); Schlickeisen, supra note13, at 196 (proposing a multi-factor constitutional analysis focused on three variables:degree of impact, degree of reversibility, and degree of government constraint required inorder to assure the desired outcome).

56. See CHRISTOPHER D. STONE, Should We Establish a Guardian for Future Generations, inSHOULD TREES HAVE STANDING? AND OTHER ESSAYS ON LAW, MORALS AND THE ENVIRONMENT65, 76 (1996) (explaining "option value" and the "flexibility premium": "We [the presentgeneration] bear the costs of postponing development, to 'purchase' an option to exploitthe possible benefits of a biological [resource] if, at some later time, with the advance ofknowledge 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 theExtinction of Species, 4 ADVANCES IN APPLIED MICRO-ECONOMICS 169 (1986)); Robert E.Goodin, Ethical Principles for Environmental Protection, in ENVIRONMENTAL PHILOSOPHY: A


The gravest of irreversible harms appear to be posed by privateand public policies that threaten the complete destruction ofcritical natural resources, destruction of the human species, orpermanent reduction in biodiversity (species extinction) .5 Theseare injuries that will not be remedied with monetary damages; noamount of money will bring back a lost species, or recharge anempty aquifer. Such injuries, if they are to be effectively addressedat all, must be enjoined before they occur.

E. Equity's Application to Class Action Cases

Courts of equity were historically treated as fora for what todaywould be termed "public interest" or "class action" cases.Blackstone noted that, "Over questions that may be tried at law, ina great multiplicity of actions, a court of equity assumesjurisdiction, to prevent the expense of endless litigation."5 8 Someof the earliest equitable class actions involved disputes over theadministration of commonly held natural resources:

COLLECTION OF READINGS 6 (Robert Elliot & Allan Gare eds., 1983) ("[A]ny choice madenow must be made in such a way that.., a later generation, or the same generation at a laterdate, can reverse the choice and return to the original situation.") (citing DAVID W. PEARCEET 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 totalitariangovernment .... As terrible as those catastrophes would be for us, they could be repaid in afew generations. The one process ongoing.., that will take millions of years to correct is theloss of genetic and species diversity by the destruction of natural habitats. This is the follyour 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 tovital natural resources-defined as biological diversity, topsoil, water, and air); Just, supranote 26, at 628 (identifying Endangered Species Act litigation as an especially suitablecontext 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 aspecies is made extinct, it can neverbe recreated or remade. The damage is irreversible.").

58. 3 BLACKSTONE, supra note 37, at 735; 1 SPENCE, supra note 37, at 656 (suggesting thatthe courts of chancery assumed jurisdiction over cases "where, if the parties were left toproceed according to the ordinary course of law, and only under such regulations as thecourts of law can impose, the result might be a multiplicity of suits, or a course of uncertainand vexatious litigation"). But see McDOWELL, supra note 33, at 10 ("Equity, originally andhistorically a power addressed toward individuals, has been stretched to cover entire socialclasses."). McDowell, a staunch opponent of the equitable remedies proscribed by the courtin the Brown v. Board of Education cases, appears to base his individualist view of equity on anout-of-context remark by Alexander Hamilton in THE FEDERALIST No.78. However, it was nopart of Hamilton's purpose in that piece to describe the appropriate or typical number ofparties to a case in equity.


Thus suits were entertained to ascertain and settle the customs of amanor where they were the subject of dispute; to determine questionsas to right of common and inclosure, liberty of foldage andpasturage, and common of turbary, and apportionment ofcommons.... [M]ost of [the bills] were in effect, on behalf of thebody of tenants or copyholders, or others interested in the question,a proceeding unknown to the common law, where the forms ofproceeding only permitted an action against each individual.59

More recently, the Supreme Court has confirmed that when the"public interest is involved in a proceeding" the equitable powersof the federal district courts "assume an even broader and moreflexible character than when only a private controversy is atstake. "60

The posterity claims most likely to be asserted in court will beclass claims, concerning issues of long-term public interest. This isalmost axiomatic, for remote future persons can have no presentlyrecognizable individuality. The only interests that can bemeaningfully asserted on behalf of such future persons are,therefore, general communal interests61

F. Equity's Application to Trusts and Cases Alleging Waste

Disputes as to trusts, and similar fiduciary relationships, alsocome within the traditional purview of equity. It is, of course,

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, 300U.S. 515, 552 (1937) ("Courts of equity may, and frequently do, go much farther both togive and withhold relief in furtherance of the public interest than they are accustomed to gowhen 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 inshaping its remedies and by a facility for adjusting and reconciling public and privateneeds."); Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944).

61. This article takes no position as to the advisability of more individualized posteritysuits-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 DAMELAw. 349 (1971).

62. 3 BLACKSTONE, supra note 37, at 734-35 (identifying trusts as a province of equity andnoting that "of waste and other similar injuries, a court of equity takes a concurrentcognizance, in order to prevent them by injunction"); 1 SPENCE, supra note 37, at 592 ("Themodern jurisdiction, so exercised, is now generally treated as a mixed jurisdiction,compounded of the general jurisdiction of the Court of Chancery over trusts, and theprerogative jurisdiction committed to the Chancellor by the sovereign as parens patriae, hehaving in that character a general superintending power over public interests where no

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customary for trustees to concern themselves with the will of pastgenerations, and the interests of unborn generations. Notsurprisingly, the trust law model and its judicial precedents haveheavily influenced modem intergenerational theory.63

Trust law provides intergenerational justice theorists with someespecially relevant guidelines in the area of standing. Trust courts,acting in their equitable capacity, have typically employed broadand flexible standing criteria, particularly in cases involvingincompetent parties. For instance, remainder beneficiaries totrusts may sue to protect their interests even if those interests havenot yet vested.6' In the case of unborn (including unconceived) orotherwise incompetent trust beneficiaries, the court will appoint aguardian or guardians ad litem, to ensure adequate representationin judicial proceedings." Where unborn (including unconceived)beneficiaries are involved, the rule is well fixed that the court willnot allow termination of a trust, unless the interests of those"contingent" or "potential" remaindermen have been adequatelyrepresented, through a guardian ad litem or other means, in thetermination hearing.66 If the representative of the unborn,

other person is intrusted with that power."); 27A AM. JUR. 2D Equity § 6 ("[E]quitablejurisdiction may be invoked to remedy a breach of fiduciary duty in the absence of anadequate and complete remedy at law.").

63. See, e.g., Edith Brown Weiss, The Planetary Trust: Conservation and IntergenerationalEquity, 11 ECOLOGY L.Q. 495, 502-40 (1984) (modeling a proposed intergenerationalplanetary 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 aguardian must be appointed for those possible unborn beneficiaries where there was noliving member of the class); MINN. STAT. ANN. § 501B.19 (West 2000) (providing that, intrust litigation, "if an interested person is ... unborn, unascertained, or a person whoseidentity.., is unknown to the petitioner, the court shall represent that person, unless thecourt, upon the application of the trustee or any other interested person, appoints aguardian 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 litemfor any person interested who is legally incapacitated, unascertained or unborn if suchperson is not already represented by a fiduciary having no adverse interest in theproceeding. A guardian ad litem may represent 2 or more such persons where they have asubstantially identical interest in the proceeding.").

66. BOGERT, supra note 64, at § 1007 (citing the following cases where courts refused togrant termination because of unrepresented unborn trust beneficiaries: Ramage v. FirstFarmers & Merchants Nat'l Bank, 30 So. 2d 706 (Ala. 1947); Hills v. Travelers Bank & TrustCo., 7 A.2d 652 (Conn. 1939); Du Pont v. Equitable Sec. Trust Co., 115 A.2d 482 (Del. Ch.


contingent beneficiaries to a trust withholds her consent, authorityholds that a trust may be neither amended nor modified. 67

These equitable standing principles have been routinely appliedin federal courts as well as state courts. As the D.C. Circuit courtheld:

[W]e think basic principles of trust law are in accord withappointment of a guardian ad litem to represent interests of unbornor unascertained beneficiaries, for purposes of consent tomodification or revocation of a trust .... "Courts of justice as anincident of their jurisdiction have inherent power to appointguardians ad litem." The efficacy of a guardian ad litem appointedto protect the interests of unborn persons is no different whether hebe appointed pursuant to statute or the court's inherent power.Given such protection, the equitable doctrine of representationembraces the flexibility, born of convenience and necessity, to actupon the interests of unborn contingent remaindermen to the sameeffect as if they had been sui juris and parties.... Though thepersons whose interests the guardian ad litem represents would beunascertainable as individuals, the4 are identifiable as a class andtheir interest, as such, recognizable.

Moreover, a court's equitable jurisdiction extends to what aretermed "public" or "charitable" trusts, just as it does to privatetrusts.

6 9

The Preamble to the U.S. Constitution stands as the most solemndeclaration of a public trust to be found in our entire legalframework, setting forth as it does "We the People" (of 1788) asthe trust's creators, the government as trustee, and "ourselves andour Posterity" as beneficiaries. One aspect of this public trust

1955), affd 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 anddivision of property, but guardian ad litem for possible future beneficiaries objects, andsettlors' 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), affd 623 F.2d 829 (3d Cir. 1980) (rejecting anti-abortion doctors' motionto 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 ofFed. R. Civ. P. 17(c) or 24(a) (2) and, thus, the appointment of guardians ad litem is neitherwarranted nor required").

69. 1 SPENCE, supra note 37, at 587-93 (indicating that this customary jurisdiction waseventually 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

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must surely be maintenance of the corpus-the land and resourcesthat form the nation's sovereign territory.7' The founders clearlyrecognized that posterity is entitled to inherit an undiminishednatural resource heritage, and that the present generation'sinterest in those trust resources is usufructary.7 2 When a party witha usufructary interest in property acts to diminish the permanentvalue of the property, that party has of course committed waste,waste being defined as "destruction in lands and tenements.... Itis a spoiling of an estate, either in houses, woods or lands, bydemolishing not the temporary profits only, but the very substanceof the thing.,73

Equity has historically served as the proper forum for casesalleging waste.74 Since most of the actions brought to protectposterity's trust interests will be analogous to actions to enjoinwaste, they should be treated as suits in equity. These cases thatallege waste upon the corpus of a constitutional trust and that seekto enjoin the mismanagement of the constitutional trust aretherefore "cases... in equity arising under the Constitution" for

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 tomost persons results likely to be advantageous to the community."); id. at § 394 ("[T]hetrustee for charity has [a duty] to administer the trust according to its terms... [to] protectand preserve the trust property."); id. at § 246 ("Trusts are often established or authorizedby statute for the purpose of protecting the property rights of the weak or disabled... [T]hesame result is sometimes decreed as to the property of the insane or incompetent, infantsand 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 statehas an interest independent of and behind the titles of its citizens, in all the earth and airwithin its domain."); David B. Hunter, An Ecological Perspective on Property: A Call for JudicialProtection 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 trustdoctrine, limited in the past mainly to water ways and sea shores, to all vital naturalresources); BOGERT, supra note 64, at § 378 (listing allowable purposes of governmentalcharitable trusts, and including maintenance of public parks and preservation of naturalscenery). Compare WEISS, supra note 6 (advocating recognition of intergenerational trust inplanetary resources); REDGWELL, supra note 14.

72. See Letter from Thomas Jefferson to James Madison (Sep. 6, 1789), in 15 THE PAPERSOF THOMAS JEFFERSON, supra note 29, at 392, 392 ("'that the earth belongs in usufruct to theliving"); Letter from Thomas Jefferson to John W. Eppes (June 24, 1813), in 13 THEWRITINGS OF THOMAS JEFFERSON, supra note 1, at 269, 272 ("Are [later generations] boundto ... consider the preceding generation as having had a right to eat up the whole soil oftheir 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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the purposes of Article III, Section 2. Because they fall under thepurview of that section, the cases are subject to federal courtjurisdiction, and the future generations on whose behalf the casesare brought are entitled to standing as beneficiaries under thetraditional equitable principles of trust law.

All of these factors: the presence of fundamental issues of fairness,the legal incompetence of future generations, the involvement ofcrucial unforeseen circumstances, the possibility of irreparable harmsand the need for injunctive relief to prevent those harms, the classnature of the contemplated actions, and the involvement of aconstitutional public trust and concomitant fiduciary responsibilities,taken together, support application of the federal equitable powerfor the purpose of recognizing posterity's standing to raiseconstitutional claims on its own behalf. In determining whichclaims may be heard, and who may appear on posterity's behalf, thefederal courts should apply such rules and precedents as arenecessary to achieve a full, complete, and just remedy.7 5

III. POTENTIAL OBJECTIONS TO STANDING FOR FUTURE

GENERATIONS

A. Are Future Persons "Unreal"?

While the Constitution itself presents no obstacle to posteritystanding (if anything, it seems to call for such standing), there arelegal and philosophic objections that may nonetheless arise. Onesuch objection-what I will call the "metaphysical" objection-canbe expressed most simply as follows: Since future persons have notyet been born, they are not yet "real," and it is thereforeinappropriate to speak of them having "standing," or bearing"rights," or being owed "duties., 76

In considering this criticism, it is useful to distinguish betweennatural persons and jural persons-jural persons being simply

75. 27A AM. JUR. 2D Equity § 3 ("[T]he primary character of equity persists as thecomplement of legal jurisdiction, in that it seeks to reach and do complete justice wherecourts of law, through the inflexibility of their rules and want of power to adapt theirjudgments 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?, inRESPONSIBILITIES TO FUTURE GENERATIONS: ENVIRONMENTAL ETHICS 151 (Ernest Partridge

ed., 1980) (future generations have no rights of their own because they are not actualpersons; in order to have rights, one must be sentient).

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those entities and artificial constructs that the law chooses to treatas persons for limited purposes. What is, and is not, a 'juralperson," is largely a matter of social convenience and preference.As Christopher Stone remarks in his thoughtful treatment of the"jural person" phenomenon, "We have been making persons ofchildren [for some years] although they were not, in law, alwaysso."77 It is only relatively recently that the federal court system(overcoming longstanding prejudice) has extended juralpersonhood to groups from whom it was routinely denied forcenturies: including African Americans, aliens, the mentally ill,Native Americans, prisoners, and women. Other groups who sufferfrom metaphysical disabilities similar to those of future generationshave their desires and standing routinely recognized. The dead areallowed to rise in court every day,78 yet they are no more "real"than future persons. As discussed in Section II.F, infra, we havetreated the nonexistent, potential future beneficiaries of privateand charitable trusts as jural persons for centuries. We treatcorporations as persons (and accord them a wide range ofconstitutional rights), even though their personhood is moreprofoundly counterintuitive than that of any of the other groupsjust mentioned. 79 Given all these precedents, it is clear that there isno insuperable barrier preventing us from bestowing juralpersonhood on posterity if we should choose to do so.

In evaluating the "metaphysical" objection to posterity standing,it is also important to keep in mind the fundamental differencebetween constitutional interpretation and abstract philosophy. Inconstitutional interpretation, the search for an objective,metaphysical truth is sometimes less relevant than the search forthe subjective intent of the Constitution's human framers. Whiletwo philosophers might profitably debate the merits of state-established religion, their legal counterparts have little use for such

77. Should Trees Have Standing?, in STONE, supra note 56, at 2.78. See 2 JAMES M. HENDERSON, PROBATE PRACTICE § 446 (1928) (The executor or the

administrator is "the representative for purposes of administration of the decedent and of allpersons interested in the estate" and can bring a wide variety of survivor suits-including forpast pain and suffering) (emphasis added).

79. See Rosenkranz, supra note 24, at 78 ("The capacity of future generations to sue is nomore anomalous [than that of corporations]. If we were to grant juridical personhood tofuture generations it would be only a matter of time before their capacity to sue would betaken for granted.").

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a debate, the issue having been effectively settled by the framersuntil such time as the First Amendment should be amended.0

Accordingly, as regards the appropriateness of associatingpresent constitutional rights with persons who do not yet exist, twovery relevant questions are 1) whether the founders themselvesbelieved that posterity had such rights; and 2) whether thefounders themselves felt that present laws or policies could berendered invalid by virtue of violating posterity's future interests.The answer to both questions is a simple and unequivocal "yes."s1

The Virginia Declaration of Rights, enacted in 1776, providedthat "all men are by nature equally free and independent, and havecertain inherent rights, of which, when they enter into a state ofsociety, they cannot, by any compact, deprive or divest theirposterity.8 2

The idea that posterity, as well as the present generation,possessed such "unalienable" rights found frequent expression inthe debates over ratification of the Constitution. As Noah Websterexplained, "A State can never alienate a natural right-for it cannotlegislate for those who are not in existence." 3 The principle hadmany applications. Webster invoked it in the course of argumentsemphasizing the undesirability of perpetual constitutionalprovisions (including perpetual bills of rights).s

In Common Sense, Thomas Paine refuted the notion that anygeneration could legitimately establish a hereditary monarchy,maintaining that such an attempt was an invalid "insult and...imposition on posterity. '"8 5

80. U.S. CONST. amend. I ("Congress shall make no law respecting an establishment ofreligion, or prohibiting the free exercise thereof....").

81. A thorough survey of the framers' views on intergenerational rights lies beyond thescope of this article. The author intends publication of such a survey in the near future. SeeJohn Edward Davidson, The Stewardship Doctrine: Intergenerational Justice in the UnitedStates Constitution, Part II, at http://www.conlaw.org/Intergerational-Intro.htm (last visitedOct. 22, 2002).

82. VA. CONST. OF 1776 art. 1 (emphasis added); see also id., pmbl. ("A Declaration ofRights made by the representatives of the good people of Virginia, assembled in full and freeconvention; which rights do pertain to them and their posterity, as the basis and foundation ofgovernment.") (emphasis added).

83. Giles Hickory [Noah Webster] III AMERICAN MAGAZINE (NY) (Feb. 1788), in 2 THEDEBATE 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 beunalterable. The present generation have indeed a right to declare what they deem aprivilege; 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

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20031 Tomorrow's Standing Today

ThomasJefferson averred that "no generation can contract debtsgreater than may be paid during the course of it's [sic] ownexistence. ,8 6 He further asserted "' that the earth belongs in usufruct tothe living"'17 and that no generation could validly convey land titlesin perpetuity, and he asked: "Are [later generations] bound to...consider the preceding generation as having had a right to eat upthe whole soil of their country, in the course of a life ... ? Everyone will say no; that the soil is the gift of God . 5..",8 Jefferson'sopinions on these matters were commonplace89 and closelyresembled the expressed sentiments of Edmund Burke,90 Plato,91

and others, as well as precepts found in the Bible.9

In short, the framers viewed the concept of present legal rightsfor future generations to be both fundamental and self-evident.93

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.").

86. Letter from Thomas Jefferson to James Madison (Sep. 6, 1789), in 15 THE PAPERS OFTHOMASJEFFERSON, supra note 29, at 392, 393.

87. Id. at 392; see SIR ROBERT CHAMBERS, 2 A COURSE OF LECTURES ON THE ENGLISH LAW,DELIVERED AT THE UNIVERSITY OF OXFORD: 1767-1773 85, 85 (Thomas M. Curley ed., 1986)(defining 'usufruct' as "a right to make all the use and profit of a thing that can be madewithout injuring the substance of the thing itself").

88. Letter from Thomas Jefferson to John W. Eppes (June 24, 1813), in 13 THE WRITINGSOF THOMASJEFFERSON, supra note 1, at 269, 272.

89. HERBERT E. SLOAN, PRINCIPLE AND INTEREST: THOMASJEFFERSON AND THE PROBLEM OFDEBT 5 (1995) ("[W]hat finally makes Jefferson's views [on generational sovereignty]important... is not so much that he held them, but that they were widely shared .... ").

90. EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 108 (Dolphin 1961)("[O]ne of the first and most leading principles on which the commonwealth and the lawsare consecrated is [that] the temporary possessors and life-renters in it [should be mindful]of what is due to their posterity... [and] should not think it among their rights to cut offthe entail or commit waste on the inheritance by destroying at their pleasure the wholeoriginal fabric of society, hazarding to leave to those who come after them a ruin instead of ahabitation .... ).

91. PLATO, THE LAWS OF PLATO 323-24 (Thomas L. Pangle trans., 1980)(11:923b) (TheAthenian: "I, at any rate, being the lawgiver, ordain that neither yourselves nor this propertybelong to you, but they belong rather to your entire family, both past and future, and that toan even higher degree the entire family, as well as the property, belong to the city.")..

92. See Leviticus 25:23 (New International Trans.) ("The land must not be soldpermanently, because the land is mine and you are but aliens and my tenants.").

93. Letter from Thomas Jefferson to James Madison (Sep. 6, 1789), in 15 THE PAPERS OFTHOMAS JEFFERSON, supra note 29, at 392, 392 ("I set out on this ground, which I suppose tobe self-evident, 'that the earth belongs in usufruct to the living.'") (emphasis added); Letter fromThomas Jefferson to Thomas Earle (September 24, 1823), in 15 THE WRITINGS OF THOMASJEFFERSON, supra note 1, at 470, 470 ("[Tihat one generation of men cannot foreclose orburden [the earth's] use to another.., these are axioms so self-evident that no explanationcan make them plainer. .. ").


Contemporary considerations of the matter ought to accord at leastsome weight to that original understanding.

B. Cases, Controversies, Political Questions, and Injury-In-Fact

1. Injury-In-Fact

Another potential objection to posterity standing concerns thetiming of the injuries that would be alleged. Injuries to remotefuture persons will, necessarily, be remote, future injuries. Actionsbrought to prevent such injuries will predictably involve a higherdegree of speculation as to harm and causality than actionsbrought to prevent or remedy present injuries. Since current rulesof federal standing generally require that claims only be heard ifthe injury is "actual and imminent," as opposed to "conjectural orhypothetical, 94 it can be argued that it is unsuitable to bring claimsfor distant future injuries in the present. 95 If the argument wereaccepted, then the judicial injury-in-fact standard would effectivelynullify future generations' rights. 96 By the time a case was ripe foradjudication, posterity's harm would often be irreparable, and itscase moot.

97

On the other hand, it can be argued that there should be a muchstronger presumption of injury in certain types of posterity suits.Because posterity, as a class, includes so many people existing in so

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 actionwould produce some future harm, persuading the Court that the harm is particularized,actual, and imminent and not 'conjectural or hypothetical' would be difficult."). See generallyCass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91MICH L. REV. 163 (1992).

96. Rosenkranz, supra note 24, at 104 ("The root of the problem in posterity suits is thatthe injury is, by definition, not imminent. The ancient structure of the injunction rule mustbe 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 tobe effective for one hundred years, and that is just as certain to catastrophically fail shortlythereafter. If no one currently living will be harmed, does that mean that the severe,foreseeable future harms should be completely impervious to judicial challenge? SeeWright,supra note 13, at 145-46 (delaying litigation until arrival of posterity results in absolute bar tolegal remedy); AUERBACH, supra note 14, at 12 ("[Bly the time future generations suffer [anactionable] harm at the hands of their ancestors, those ancestors will be beyond the reach ofany court.").

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many situations, it is exponentially more likely that one or more ofits members will be adversely affected by, say, the loss of a plant oranimal species than it is that a member of the present generationwill be adversely affected.9

Also, there is reason to question whether the injury-in-fact test inits standard form should be applied to posterity suits. Tounderstand why this might be so, we need to re-examine theoriginal rationale for imposing the standard.

2. Posterity andJustice Scalia

The injury-in-fact element of modern standing doctrine wasdeveloped in large part to serve as a check upon judicialoverreaching. Probably the best known and most ardent modemexponent of the need for such checks is Justice Antonin Scalia, whowrote an article on the topic in 1983, before being appointed to theSupreme Court.99 In that article, Justice Scalia asserts, "[T]hejudicial doctrine of standing is a crucial and inseparable element ofthat principle [of separation of powers], whose disregard willinevitably produce... an overjudicialization of the processes ofself-governance. "10

In Justice Scalia's view, rigorous adherence to appropriatestanding requirements operates to "restrict courts to theirtraditional undemocratic role of protecting individuals andminorities against impositions of the majority, and [to] exclud[e]them from the even more undemocratic role of prescribing how

98. SeeJust, supra note 26, at 625-26 ("[A]lIthough [a plaintiff suing on behalf of himselfand her descendants] may be unable to identify concrete plans to visit and observe a speciesin his personal capacity, and therefore unable to demonstrate an actual or imminent injuryto himself personally, a court could acknowledge the exponentially higher probability thatmembers of the class of plaintiffs descendants-his children, grandchildren, or greatgrandchildren, would desire to make such trips and observe such species. Their injury wouldbe actual or imminent, as they would obviously be precluded from observing suchendangered species if they became extinct before these citizens were born and were able toobserve them.") Mr. Just goes on to compare futurity's injury to the "lost opportunity" injuryrecognized in Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (plaintiffdemonstrated an injury as the result of being unable to compete for all of the entrance slotsfor 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.

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the other two branches should function in order to serve theinterest of the majority itself."' 0

With these aims in mind, Justice Scalia emphasizes the"minimum requirement of injury in fact"' 2 and the need for a"distinctive" harm to any would-be plaintiff.'3 He argues thatcourts should deny access to parties suing over widely shared publicinjuries. Such parties, belonging to the political majority, shouldbe required to pursue their goals through the political process.Where there is an opportunity for "democratic debate in which hemay persuade the rest of us ... there is no reason to remove thematter from the political process and place it in the courts.', 0 4

Justice Scalia concludes-somewhat counterintuitively-thatallowing public interest plaintiffs to prosecute their claims wouldbe anti-majoritarian and anti-republican. °10 Instead of openingtheir doors to public interest plaintiffs, "the courts need to accordgreater weight... to the traditional requirement that the plaintiffsalleged injury be a particularized one, which sets him apart from

101. Id. at 894. For a classic analysis of judicial review's role in the protection ofpolitically under-represented classes, see JOHN HART ELY, DEMOCRACY AND DISTRUST: ATHEORY OFJUDICIAL 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 someare being unjustly excluded from either the process or the benefits with which the effectivemajority has seen fit to favor itself.' ... If a group has access to the process and is equippedto combine with others, then the decision can be left to the political branches ofgovernment.") (citing John Hart Ely, Toward a Representation-Reinforcing Mode of JudicialReview, 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 favordiscrete, well-financed, special interest groups, such as industry lobbyists, over more diffusedpublic interests); Jonathan R. Macey, Promoting Public-Regarding Legislation Through StatutoryInterpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 231 n.44 (1986) (discussinghow the 'free rider' problem also works against the creation and proper enforcement ofpublic interest legislation); E. Donald Elliot et al., Toward a Theory of Statutory Evolution: TheFederalization of Environmental Law, J.L. ECON. & ORG. 313, 342 (1985); Sharon M. Kelly, ThePublic Trust and the Constitution: Routes to Judicial Overview of Resource Management Decisions inVirginia, 75 VA. L. REV. 895, 895 (1989) ("Where a strong and vocal minority has a politicaladvantage over a diffuse majority, decision-making may not be truly democratic.") (citingJoseph 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, 412U.S. 669, 688 (1973) ("To deny standing to persons who are in fact injured simply becausemany others are also injured, would mean that the most injurious and widespread.., actionscould be questioned by nobody.").

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the citizenry at large." °6 Justice Scalia's theory of standing canperhaps be best understood as a particularized application of whatis generally termed the "political question" doctrine, according towhich, courts should refrain from adjudicating abstract questionsof wide public significance that amount to "generalizedgrievances" -those issues being thought to be more appropriatelyaddressed by the representative branches of government. 10 7

While Justice Scalia's arguments do not seem, at first blush, tooffer much promise to public interest plaintiffs (he has sinceauthored several Supreme Court opinions restricting standing for avariety of environmental and other public interest plaintiffs18 ), theunderlying logic of his arguments actually supports recognition ofjudicial standing for future generations. Because futuregenerations have no vote, they are not in a position to pursue theirgoals through the political process. Future generations aretherefore the quintessential unrepresented "minority," in need ofjudicial protection from impositions of the present politicalmajority. 109

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 aboutgovernment-claiming only harm to his and every citizen's interest in proper application ofthe Constitution and laws, and seeking relief that no more directly and tangibly benefits himthan it does the public at large-does not state an Article III case or controversy."). CompareRESTATEMENT (SECOND) OF TORTS § 942 cmt. d ("The public interest may... affect thequestion of whether a particular plaintiff has standing to sue for an injunction. In case of apublic nuisance, the rule is that one cannot maintain a suit for damages unless his injury wasdifferent in kind from that of other members of the public. This is to avoid the burden onthe court and the harassing effect on the defendant of a multiplicity of suits for smalldamages. But if one plaintiff is seeking the remedy of an injunction, this relief may inure tothe 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. SeeWarth 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 premisethat parties asserting majoritarian interests lack standing simply because their interests areshared by many other citizens: "[T]he fact that a political forum may be more readilyavailable where an injury is widely shared... does not.., automatically disqualify an interestfor Article III purposes.").

109. See Davis v. Passman, 442 U.S. 228, 242 (1979) ("[U]nless [constitutional] rights areto become merely precatory, the class of those litigants who allege that their ownconstitutional rights have been violated, and who at the same time have no effective meansother than the judiciary to enforce these rights, must be able to invoke the existingjurisdiction of the courts for the protection of their justiciable constitutional rights.").


3. Posterity Considered as an Unrepresented Majority

The word "minority" in the previous paragraph has to be placedinside quotation marks because posterity, despite its presentpowerlessness, is actually not a minority at all. Posterity actuallyconstitutes the majority-albeit the politically unrepresentedmajority-of our nation's community. The number of citizens whowill succeed us vastly exceeds the number existing today (assumingthat the human race does not extinguish itself in the near future).

Ordinarily, when courts employ a too-liberal standing policy orotherwise show too much zealousness for administering andcorrecting legislation, they run the risk of appearing anti-democratic, or anti-majoritarian. Viewed in the most uncharitablelight, they have the look of an overreaching, unelected eliteinvading the appointed sphere of the popularly elected legislativeand executive branches. But when it comes to claims ofintergenerational injustice, it is the judicial choice to remove itselffrom the process that would show the greatest disregard formajority self-rule-the relevant majority being that which has notyet been born. Posterity has no vote in the election of eitherexecutives or legislators.

Posterity's status as a majority also means that, in purelyutilitarian terms, harms done to posterity tend to be more seriousthan harms effected entirely within a single generation. Whenintergenerational harms continue into perpetuity-as in the caseof species extinction/loss of biodiversity-the number of peopleharmed, and consequently the overall severity of the harm, ispotentially infinite.

4. Generational Sovereignty as a Standing Consideration

When intergenerational harms -environmental or otherwise-are serious enough, they can jeopardize society's capacity for self-government and unjustifiably restrict future generations' policyoptions. Harms on this scale can be viewed as infringements uponfuture generations' sovereignty. This possibility must be borne inmind when "separation of powers" arguments are raised inopposition to posterity standing. While it is wrong for the judicialbranch to unduly infringe upon the prerogatives of the otherindependent branches of government, it is just as wrong for thegovernment of one generation to unduly infringe upon thesovereign prerogatives of subsequent generations. As Jefferson

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once complained, "We seem not to have perceived that, by the lawof nature, one generation is to another as one independent nationto another." "0

5. Posterity and Madison: The Present Generation Consideredas a "Faction"

Were the judiciary to act to protect future generations fromdiscrimination, it would not thereby violate the framers' vision of arepublic with separated powers. To the contrary, such anundertaking would accord handsomely with the founders'republican spirit. This is because the present generation, viewed asa whole, constitutes what James Madison termed a "faction.""Faction" was Madison's label for "a number of citizens.., whoare united and actuated by some common impulse of passion, or ofinterest, adverse to the rights of other citizens or to the permanentand aggregate interests of the community." '' The presentgeneration is united in interests adverse to the permanent interestsof the community when, and to the extent that, the presentgeneration materially benefits from unsustainable consumption,development, or economic policies that harm later generations.

According to Madison, one of the chief aims of the proposedConstitution was to limit the ill influence of such factions. 12 Withthis in mind, he stressed the advantages that the large size of theUnited States would afford. Madison claimed that the increase interritory would lead to a decrease in factionalism: "Extend thesphere, and you take in a greater variety of parties and interests;you make it less probable that a majority of the whole will have a

110. SeeLetter from Thomas Jefferson to James Madison (Sep. 6, 1789), in 15 THE PAPERS

OF THOMAS JEFFERSON, supra note 29, at 392, 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 effectivemajority 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).

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common motive to invade the rights of other citizens."1 13 What thatargument failed to take into account (because it was not then apressing issue) was that no amount of geographic extension wouldeliminate temporal factionalism -factions in time. To eliminatetemporal factionalism would require an extension of the temporalsphere-some mechanism to ensure representation and protectionof other generations' interests. Without such a mechanism, theframers' intent-government that values "permanent andaggregate interests of the community" over the "temporary orpartial considerations " "' of a temporal faction-cannot beachieved.

Of the several branches of government, it is the federal judiciary,with its tenured lifetime appointments, that will be the leastthreatened by any factional retaliation when it acts to protect theinterests of future generations. 5 It is therefore appropriate for thefederal judiciary to assume some degree of responsibility forcontrolling generational factionalism -just as it acceptsresponsibility for policing other types of majority discrimination-by recognizing intergenerational torts and posterity standing, andby exercising the power of judicial review to ensure legislation'scompliance with constitutional standards of intergenerationalequity.

For all of the reasons just listed, posterity plaintiffs are readilydistinguishable from public interest plaintiffs belonging to theliving generation. Existing Supreme Court standing doctrine,arising as it has exclusively from cases brought by living plaintiffs,and based entirely upon assumptions regarding living plaintiffs andtheir relationships with the various branches of government,cannot be presumed to apply to the cases and controversies whichwill be brought in the future on posterity's behalf. There will be noclear holdings to rely upon when the first posterity suit reaches theCourt. It will be a case of first impression, and it will demand a newconstitutional doctrine rooted in a new rationale. The most clearlyapplicable models and precedents for the development of such adoctrine rest in the jurisprudence of equity.

113. Id; see also THE FEDERALIST No. 51, supra note 48, at 325 (James Madison) ("In theextended republic of the United States, and among the great variety of interests, parties, andsects which it embraces, a coalition of a majority of the whole society could seldom take placeon any other principles than those ofjustice and the general good ...

114. See supra note 110 and accompanying text.115. SeeWright, supra note 13, at 123.

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C. Managing the Floodgates

Most of the other objections likely to be raised to posteritystanding are of the sort that confront any new proposedapplication ofjudicial power. For instance, there will be initial fearthat the doctrine will "open the floodgates" to an unmanageabletide of frivolous litigation.

While it is to be expected that posterity-brought cases will brieflysurge when the new category of litigation is recognized, the tidecan be expected to dwindle as soon as rules and standards begin tobe generated. As standards and guidelines evolve through judicialdecision, and prospective litigants become better able to predictthe likely outcome of cases, the need to actually litigate those casesdecreases. The guidelines will most likely limit application of thedoctrine to a narrow range of serious, irreparable harms. '1 6 Thecore zone of prohibition can accordingly be expected to includeactions and policies that individually or cumulatively threatenextinction of the human species or other species; permanentdiminution or degradation of water, air, arable soil, or other vitalnatural resources; or creation of highly persistent, highly toxicsubstances. There may be injuries outside this core zone that willsuffice to trigger judicial oversight and posterity standing; thosedeterminations will be developed gradually, on a case-by-case basis.

None of the obvious objections to posterity standing seemscompelling when examined closely. The metaphysical objectionthat future persons, and their interests, are not yet "real"contradicts the expressed metaphysics of the founders and ignoresthe many other instances where the law grants personhood andstanding to entities even less "real." Strict enforcement of "actualand imminent injury-in-fact" standards is inappropriate inasmuchas the standards were developed to address separation of powers

116. See, e.g., Allen, supra note 24, at 733 ("[I]n cases such as toxic releases, where thereare irreversible and uncertain long-term consequences, the interests of future generationsshould be heard... [but] [alir and water pollution that can be readily remedied shouldperhaps be left to present generations to address."); AUERBACH, supra note 14, at 69 ("Mostcontemporary thinkers have abandoned the view that we have an obligation to promote thegood of remote generations in favor of a narrower concern with avoiding actions that mightharm remote generations."); Gardner, supra note 19, at 53 (An appropriate doctrine "wouldnot seem to involve an insurmountable dearth of judicially discoverable and manageablestandards." The standards would rule out some categories of claims, but not others, such asthose based on accumulation of non-degradable wastes or extremely long-lived radionuclides.).

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concerns, which have little force in the context of intergenerationaldisputes. Fears of unmanageable tides of litigation exaggerate theimpact of a doctrine that will likely be confined to the regulation ofthe most egregious instances of generational self-dealing. Thelogical and practical shortcomings of a posterity standing policy aremodest, especially when considered in light of the permanent,severe, and irreparable harms that have already occurred and thatare likely to continue to occur in the absence of adequatemechanisms for asserting and protecting posterity's interests.

CONCLUSION

Our society presently pursues a number of policies thatdiscriminate against the interests of future generations. Suchpolicies are ethically and legally unacceptable. The language of theConstitution and the sentiments of the Constitution's framersprovide adequate legal grounds for curbing this generationallyselfish behavior.

In order for the constitutional mandate for intergenerationalequity to be effectively enforced, it will be necessary in somecircumstances for representatives of posterity to bring legal actionson posterity's behalf. Both the representatives' legal standing andthe jurisdiction of the federal courts to hear such actions can bederived from Article III, Section 2's extension of the judicial powerto cases arising in equity under the Constitution. Posterity standing isconsistent with equity's traditional provision of standing for legalincompetents. The finding of federal court jurisdiction also followsfrom the traditional application of equity to cases involvingcircumstances unforeseen by legislators, matters of trust andproperty, irreparable harms, multiple plaintiffs, and pleas forinjunctive relief.

Although there are several potential objections to posteritystanding, none of them are compelling. The fact that futurepersons do not yet exist does not preclude them from being thebeneficiaries of constitutional protection; the founders recognizedthat future persons had rights that limited the legitimate range ofconduct of present governments and individuals. Worries overcounter-majoritarian judicial activism are misplaced in theintergenerational context, because posterity is itself anunrepresented majority. Strict "injury-in-fact" standingrequirements, which were developed to curb counter-majoritarian

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2003] Tomorrow's Standing Today 221

judicial activism, are therefore inapplicable to suits brought onbehalf of future generations. Posterity standing is to bedetermined under the more lenient precedents and standards ofequity, which are designed to ensure, above all else, that theinterests ofjustice are served.

There is nothing to prevent us from honoring our descendantsor hearing their claims. Both our Constitution and our collectiveconscience require this of us.

To hear them, we need only decide to listen.

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