Numerous examples highlight how current generations make decisions that produce short term benefits but disadvantage or harm future generations: the production of green-house gases and nuclear energy waste, overfishing in international waters, unsustainable use of ground water, the accumulation of national debt and trade imbalances are just a few. The problem with these decisions is that human nature is inherently short sighted, hamstrung by an age of instant gratification. Hence, it is high time that future generations have their own representation in the legal and political spheres, to properly assert their interests and counterbalance the self-interest of present generation politicians and other lawmakers.
The concept of a representative for future generation interests is not radical. Various state and federal laws and state constitutions expressly mention protection of future generations. Among these are the constitutions of Hawaii, Illinois, and Montana, and the National Forest Management Act, National Environmental Policy Act, and Federal Land Policy and Management Act. Concepts within the legal system, like “future interests” in property law, implicate future generations.
The United States is not the only country where the interests of future generations are integrated into the legal system. Germany and Japan have laws that mention the importance of the environment and future generations. Germany has even gone so far as to incorporate the precautionary principle into its environmental laws. Australia has also recently joined the community of states whose governments must consider the interest of future generations.
Israel presents the most progressive commitment to future generations. It established the Commission for Future Generations in 2001. The commission is an organ of the parliament and its focus is to provide a “comprehensive view of the legislative picture with regard to any potential negative effect on the needs and rights of future generations together with the means to prevent such legislation from taking place.” Parliament has also granted the commission the authority to advance bills that promote the interests of future generations. The Commission is encouraged to focus on various areas, including the environment, natural resources, education, health, quality of life, technology, and law.
The U.S. should model an executive branch position along the lines of the Israeli Commission for Future generations. The U.S. executive branch has an agency or commission for almost every social problem, with some focusing specifically on the environment and others on preserving history for future generations, including the Environmental Protection Agency, Advisory Council on Historic Preservation, and American Battle Monuments Commission, among others. It would not be a significant leap to combine the interests of preserving American heritage for future generations and the concern for protecting the environment, so that an agency could focus on preserving the environment for future generations.
It is extremely important that there is some public body that recognizes the problems future generations will face and advocate for them in the U.S. Congress. Members of congress are elected, and as such, are beholden to their geographically and temporally limited constituency. If politicians started talking about sacrificing the current constituency’s quality for life for the benefit of future generations, they would have a hard time winning an election (except for in the most progressive of districts). The U.S. should not settle for just a political solution to the underrepresentation of future interests though.
The U.S. should actually go a step further than Israel and create a mechanism for future generations to be represented in judicial proceedings. The American legal system already has one way for establishing legal representation of individuals not able to competently represent themselves in court—guardian ad litem. The U.S. legal system also allows for class action lawsuits, where a few plaintiffs can represent an entire class of persons. It would not be difficult to combine these two mechanisms in order to allow a guardian ad litem for future generations to sue or intervene in suits concerning environmental impacts on future generations. In fact, Macchia is an example of a case where the court allowed for citizens to pursue a citizen suit on behalf of future generations alleging a violation of NEPA (329 F. Supp. 504). There, the court allowed the plaintiffs to sue as a class and on behalf of future generations in order to enjoin the dredging and development of an island off the coast of New Jersey. In Environmental Change and International Law: New Challenges and Dimensions, Edith Brown Weiss also points out that the 1986 Superfund Amendments to CERCLA require federal and state governments to appoint “natural resource trustees” who will bring claims for damages to natural resources from oil and hazardous substances.
As one can observe, there are various examples in the U.S. where the actual representation of future generations is but a few small steps away. One can also see how other countries have put into place protection and representation of future generations. Given the increasingly perilous environmental concerns we are going to pass on to future generations, the long shelf-life for many pollutants—particularly green-house gases—and future generation’s inherent lack of political capital, it is imperative that the U.S. provide some sort of legal protection or representation to future generations in order to preserve their basic human rights.