Nicholas A. Robinson
Nicholas A. Robinson
Gilbert & Sarah Kerlin Distinguished Professor of Environmental Law, Pace University School of Law
© 2010 Ken Rimany
Nicholas A. Robinson is Pace University Professor for the Environment, and Pace Law School’s Gilbert and Sarah Kerlin Distinguished Professor of Environmental Law. He founded Pace’s environmental law programs in 1978. He was Deputy Commissioner and General Counsel of the NYS Department of Environmental Conservation from 1983-1985. His many accomplishments for the DEC included drafting New York’s wetlands and wild bird laws. He inaugurated the first environmental law practice at a major firm in New York City. He has also served as legal advisor and first American chairman of the Commission on Environmental Law of the International Union for the Conservation of Nature and Natural Resources (IUCN) from 1996-2004. Nick edited the proceedings of the 1992 United Nations Earth Summit in Rio de Janeiro, Brazil. He has a particular interest in the education of members of the judiciary in the United States and around the globe about applying principles of ecology to environmental legal proceedings. As shown in this paper, he is an articulate leader broadening the reach of New York’s State Forever Wild Constitution to contemporary national and global environmental issues such as global warming.
Nick is a member of the Executive Committee of the Environmental Law Section of the NYS Bar Association. He was Vice President of the Association for the Protection of the Adirondacks, later Protect the Adirondacks. He is honorary Vice President of the Sierra Club, and founder of its international program.
Please note: The following paper may be read in its entirety by selecting Robinson.pdf
“The Lands of the state, now owned or hereafter acquired, constituting the forest preserve
as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased,
sold or exchanged, or be taken by an corporation, public or private,
nor shall the timber thereon be sold, removed or destroyed.”
These words within Article XIV, Section 1, of the Constitution of New York State,1 inaugurated the concept of “wilderness” into the world of law for the first time ever, anywhere. At the time, 1894, the science of ecology was still in its infancy, but the conservation ethic had emerged from its early roots in Ralph Waldo Emerson’s essay “Nature,” published in 1830.2 Conservationists urged appreciation of nature’s beauty, acknowledgement of the healthful influence of mountains and forests, and support for the stewardship of fauna and flora. Maintaining an environment that is healthful, pleasing to the senses and intellect, now and in the future, was to become a legitimate duty of government, and be a fundamental norm of Environmental Law. Emerson’s vision acknowledged that while humans derived wealth from the commodities extracted from nature, yet these natural resources are but “temporary and mediate, not ultimate, like its service to the soul.”3 In enacting Article XIV, first in 1894 and then again in 1938, New Yorker voters have come to embrace the conservation ethic as a rule of law.
Yet despite the repeated adoption of this constitutional norm, defiance of its provisions characterized the first ten decades of its life. It has been an uphill struggle to secure its observance, and efforts to evade its mandate abound. Just as the Civil Rights movement had to emerge in order to make real the amendments to the Constitution of the United States adopted following the Civil War, so there will need to be an Ecological Rights movement if we are to fully realize the mandate of Article XIV. There is a growing urgency in our present state of affairs; the effects of climate change magnify the importance of the Forest Preserve. We need to expand the reach of the “forever wild” clause throughout the Adirondacks, if the people and nature of this region are to prosper in the future. New York’s “forever wild” Forest Preserve has been far too neglected at home, while serving as a model for wilderness laws nationally and internationally. In the coming decades it must be embraced again at home, once again to be a model for the changes that humans will need to find as we adapt to climate change all over the Earth. We must build nature’s systems into our own social and economic lives, if we and nature are to endure in the future as we have in the past
May I invite you; therefore, to explore with me some of the evident, and also some of the less apparent legal implications that can be drawn from recognizing the implicit “land ethic” that resides within the “forever wild” conception of the Forest Preserve in New York’s Constitution. It is my thesis that the executive branch of State government, our Governors and most of our other State and local authorities, have observed the mandates of Article XIV most shallowly. They have ignored their stewardship duties to promote “forever wild forest lands.” Civic groups, and courts should not only concern themselves with the task of keeping government from evading the land ethic; rather we should be changing government to embrace the land ethic derived from this “forever wild,” both in the Adirondacks and Catskills, and as a role model throughout the State and nation.
“Kept as forever wild forest lands”
The first sentence of Article XIV, the “forever wild” clause, embodies an affirmative mandate to enhance the Forest Preserve. Over the years, however, instead of sustaining governmental actions as stewards to affirmatively keep and enhance wilderness, New Yorkers have too often found themselves defending the minimum standard that this Article requires, relying on the second sentence, and using its express legal norms as a shield, defending the lands and timber from being destroyed. The norms in Article XIV provide much more. Basic constitutional duties and rights exist, which in turn imply the recognition of many further legal corollaries about humans and nature. It is time to elaborate these correlative rules, and to begin to embrace them heartily. In another nation, whose jurisprudence has bonds to the USA, Chief Justice Hilario Davide, Jr. , wrote about the right to the environment. In Oposa v. Factoran, he observed:
There exist today two reasons to refocus on the legal scope and application of Article XIV. First, the conservation norm to safeguard and manage wilderness is now a mature function of government, and our agencies of government are under a continuing duty to improve their observance of Article XIV. As the great constitutional lawyer, Louis Marshall, knew full well, our democracy depends upon the rule of law, and in a government of laws there is no room for illegal acts of men, such as those taken in 2005 by the NYS Department of Transportation when DOT and its agents cut trees in the Forest Preserve along State Route 3.4 Second, this constitutional provision becomes of transcendent importance to all New Yorkers because of the cresendoing effects of climate change. Laws do not exist in a static natural world. The Fourth Assessment Report5 of the U.N. Intergovernmental Panel on Climate Change, released February 3, 2007, describes significant changes in Earth’s biosphere, indicating that lands, such as those within the Forest Preserve, will have even more enormous importance for humans and nature in coming generations than we have known in the past.
The Article XIV “forever wild” provisions are not merely dry legal restrictions, to be forgotten unless tripped over as a technicality, as when an agency of government wants to act to directly harm the Forest Preserve. By establishing a fundamental norm for the “lands” of the Forest Preserve, the Constitution directs all agents of the government, and indeed all citizens, to enhance the “wild” or naturally functioning ecological conditions in and around the Adirondacks. These enhancements can, and should, be realized through diverse legal means. The Department of Environmental Conservation6 and the Adirondack Park Agency7 both possess many, but by no means all, of the statutory legal authority to enhance the Forest Preserve.
In this era of climate change, it is time to examine which other agencies of government are obliged to deploy their powers so as to enhance the Forest Preserve. As Emerson also observed in Nature, “At present, man applies to nature but half his force. He works on the world with his understanding alone. He lives in it, and masters it by a penny-wisdom; and he that works most in it, is but a half-man, and whilst his arms are strong and his digestion good, his mind is imbruted, and he is a selfish savage.”8
All agencies of state and local governments in New York must act to nurture the preserve of forest within the Adirondacks and Catskills.
With reference to the Forest Preserve, does not Ralph Waldo Emerson or Louis Marshall urge us to regard the Forest Preserve as more than just as a place where we should be allowed to extract timber, or build roads, or treat water as merely one more commodity, or extract minerals or wind-energy, or even coax dollars from eco-tourists? Should we not regard the constitutional status of “lands,” which are reserved as “forever wild,” to be a place in which our government shall act `to sustain and enhance a productive and enjoyable harmony between humans and nature, to promote efforts that prevent or eliminate damage to the environment, to enhance human and community resources, and to enrich our understanding of the ecological systems, natural, human and community resources situated within the Forest Preserve?9
When, in 1858, Emerson traveled “to Follansbee Water and the Lake of Loons,” he espied the future of the Adirondacks. Enchanted with the mountains and forest and lakes, with prescience Emerson envisioned that one day the Adirondacks would be full of summer residents, who would all progressively be “more adroit” at living in the wilderness.10
If we who have come to the Adirondacks in the decades subsequent to Emerson are to be “more adroit,” we must know both the ecology and the economy of nature. It is essential to acknowledge that this harmony necessarily includes the economic well being of the humans and their communities within the Adirondack or Catskill Parks, as well as the flora and fauna. Article XIV contemplates a holistic approach to humans in nature, not one that divides humans from nature, or sacrifices natural integrity to human greed. We recognize that human culture is embedded in nature.11 Is it not our own social and collective blindness that led New Yorkers into the “culture” wars that characterized the years of debate from 1988 to 1993 surrounding the work of the Commission on the Adirondacks in the 21st Century?12 Was it not also this very sort of blindness, and a greed for commodities like board feet of timber, that emboldened legislators to introduce bills each year, from 1895 to 1920, which were designed to repeal the “forever wild” provision of the Constitution,13 and also to attempt to repeal this clause in the Constitutional Convention of 1915?14 While all efforts to repeal Article XIV have failed, is it not remarkable that proponents of repeal kept trying to do so and repeatedly failed to understand the meaning of “forever wild”? In like vein, do not New Yorkers today need to lift the cataracts from their eyes in order to see and salvage some of the important recommendations for legislative reforms, especially those which have potential to help our human communities within the Adirondacks, contained within the 1990 study on “The Adirondack Park in the Twenty-First Century”?15 Humans exist within and are part of nature. If from time to time we forget this reality, today the effects of climate change will again remind us of our human dependence on the natural environment. This being so, let us turn to the deep potential to forge the harmony between humans and nature that is contained within the legal provisions of our Constitution’s “forever wild” clause.
This paper may be read in its entirety by selecting Robinson.pdf
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