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Searching for Intergenerational Green Solutions: The Relevance of the Public Trust Doctrine to Environmental Preservation

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Written by: Lucas Bento

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1. Introduction

The biotic community produces a variety of societal benefits which ordinarily flows well beyond the system's physical boundaries.[1] Conservation biology suggests that the activities caused by human activities are adversely affecting the health of ecosystems, which could, in the long run, threaten our very own existence.[2] It is axiomatic that the conservation of the natural world is a difficult task and therefore necessitates the synergy of many tools.

In the Common Law jurisprudence, a trust is 'the legal relationship between one person having an equitable ownership in property and another person owning the legal title to such property.'[3] In the context of the Public Trust Doctrine, the legal title is vested in the state and the equitable title in the public. Thus the state is responsible as trustee to manage the property in the interest of the public. The PTD has been praised by the environmentalist community as 'the most promising legal basis upon which individual members of the public could maintain a lawsuit to protect natural resources from needless degradation and destruction.'[4] In contrast, critics contend that it is 'more rhetorically than legally charged.' [5] The purpose of this article is to assess the relevance of the PTD to environmental protection. First, precautionary principles of environmental policy will be explored. Then, the PTD will be examined, focusing primarily on the US jurisdiction. It is argued that the doctrine has been manipulated at two levels: the conservative view and the conservationist view. Third, the application and use of the doctrine as a branch of trusts law will be analysed. Its scope and efficacy will then be assessed in light of environmental protection. Finally, I will consider the PTD's relevance in the UK and other jurisdictions.

2. Environmental Protection and the Precautionary Principle

In Lead Industries Association v Environmental Protection Agency,[6] the court held that 'man's ability to alter the environment often far outstrips his ability to foresee with any degree of certainty what untoward effects these changes may bring.' Accordingly, when an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.[7] There are four central components of the principle: taking preventive action in the face of uncertainty; shifting the burden of proof to the proponents of an activity;[8] exploring a wide range of alternatives to possibly harmful actions; and increasing public participation[9] in decision making.[10]

Contrasted with other common law doctrines, the PTD can be invoked to prevent the destruction of trust property in advance of the occurrence of any destruction:[11] 'it does not require that dead fish float on the surface of rivers and streams before its farsighted environmental protections can be invoked.' [12]

3. The Public Trust Doctrine

Any attempt to define the doctrine is automatically met by entrenched terminological difficulties. In the US, the doctrine has developed and been enforced at the state level, leading to its uneven application[13] and amorphous nature.[14] Legal classification is important because this affects the application of the doctrine, its reach in scope, and therefore its relevance. Environmental protection rules require uniformity in their application so as to strengthen the public's confidence in it and in order to avoid any disparity in their implementation. Indeed, an effective legal doctrine must be cohesive, consistent, and predictable.[15] A precise definition may not, however, be desirable because as environmental concerns increase, legal tools must contain a certain degree of flexibility in order to respond to ecological changes. In essence, the PTD is the legal receptacle for the government's long-term duty, as supported by the judicial system, to manage and perpetuate the public enjoyment of natural resources.[16]

3.1 The Origins of the Public Trust Doctrine

The origins of the doctrine can be traced back to Roman times. According to The Institutes of Justinian, 'by the law of nature, these things are common to mankind - the air, running water, the sea, and consequently the shores of the sea.'[17] However, Roman principles of acquisition of property were based on the premise of abundance.[18] Nowadays, the enlarging world community has made some resources scarce which resulted in economic and ecological interdependence.[19]

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Bracton introduced the doctrine to the English common law heritage in the mid 13th century.[20] He borrowed the Roman concept of res communes declaring the shores of the sea common to all and inalienable.[21] However, in the 17th century, it is arguable that the doctrine of laissez faire somewhat curtailed the apparent resurgence of the public ownership concept that originated in Roman times. This aversion towards communally owned property led to the view that everything capable of ownership should be possessed.[22] Land in England was to be held by private individuals subject to limited public rights akin to 'easements for public use'.[23] The PTD did not, as a result, fully develop in England. It has, however, influenced other common law jurisdictions, primarily the jurisprudence of the US.[24]

3.2 Transplanting the Doctrine into American jurisprudence

A piscatorial expedition to inquire into the true origin of the public trust doctrine in the US could be an entire essay in its own right. The doctrine became part of the US jurisprudence via the 'Equal Footing Doctrine.' Under this latter, every US state starts with the same rights and duties, but the precise interpretation of the doctrine is left to the judicial and public policy decisions of each individual state, so that the outcomes in the several states will necessarily differ.[25] This is not necessarily disadvantageous for it allows states to effectively tailor public trust concepts so that they best protect the public's interest in the common natural landscape of each state. Two cases can be identified giving birth to the doctrine in the US. In Arnold v Mundy,[26] the court rejected a claim of a private party's exclusive right to oyster beds, affirming that 'the rivers that ebb and flow, the bays, and the coasts are common to all citizens and are sources from which they can find their sustenance.' [27]

The other case, Illinois Central Railway Co. v. Illinois,[28] has been described as the 'lodestar' case involving the public trust in America.[29] In this case the Illinois state legislature tried to repeal a fee simple grant of submerged lands in Lake Michigan to the Illinois Central Railroad Company. The US Supreme Court held that navigable waterways were to be held in trust for the benefit of the entire population.[30]

3.3 The Three Original Uses of the Doctrine

At that period in time, the public trust was used to protect, and prohibit interference with, three uses of the trust property, namely for the purposes of commerce, navigation, and fishing.[31] However, contemporary societal concerns with environmental protection and resource conservation extend beyond navigable waters to include far ranging elements of our ecosystem, such as the ozone layer and terrestrial wildlife. Moreover, our economy no longer depends so exclusively on water navigation. The economy nowadays navigates by air, by motor vehicle, and indeed by way of the electromagnetic spectrum.[32] As Lazarus rightly points out, the protection of commerce is 'hardly a focus of resource protection values - indeed more often than not it serves as a counterweight'[33] and can present significant risks to ecological resources.[34] Furthermore, recent studies have demonstrated how fishing - a commercial activity - can adversely impact the environment.[35] It is therefore submitted that the doctrine originally protected uses that arguably are antithetical to environmental protection. However, the PTD emerged in the era of the American industrial revolution, a time where commerce was promoted as the national interest and where environmental protection had, at best, a secondary role in society.

3.4 Sax and Democracy

A major proponent of the doctrine, Professor Sax, called for citizen's greater participation in protecting natural resources and thus greater utilization of the doctrine to achieve that aim. He interprets the doctrine as the 'name courts give to their concerns about the insufficiencies of the democratic process.'[36] Indeed, as will be demonstrated throughout this essay, the doctrine has been invoked in litigation by private parties, such as citizens, against government,[37] between private parties,[38] and by public officials against private and/or public bodies.[39]

4. The Mechanics of the Public Trust Doctrine

The trust relationship existent in the PTD is particularly analogous to that of a charitable trust, which may incorporate a public purpose, government trustee, and generalized beneficiaries.[40] The trust law device thus adds a dimension of classes of beneficiaries which expands its scope beyond the two party framework present in private law systems and introduces an intertemporal dimension which greatly benefits the task of protecting the environment.[41]

4.1 The Duties of the Trustee

The PTD's capacity to protect trust resources from contemporary environmental threats is highly dependent on the individual natural resource managers who, as trustees, have the responsibility to implement the doctrine. In the US, each state is a trustee for the public trust property within state territory. The duties of individual states are duties of a trustee and not simply the duties of a 'good business manager.'[42] In other words, the doctrine places states under fiduciary obligations to protect trust resources[43] and prevent private appropriation. Trustees have an obligation not only to preserve property subject to the public trust, but also to seek injunction against and compensation for any diminution of the trust corpus.[44] According to Illinois Central,[45] this duty obliges the state to ensure that the public trust property 'can never be lost, except as to such parcels as are used in promoting the interests of the public therein, a disposition to fulfil Public Trust purposes or a disposition of trust lands that will not substantially impair trust use."[46]

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The doctrine has been characterised as the unification between democratic management[47] of the environment and an efficient legal device to ensure protection of resources. Indeed, the state legislature, as trustee, is the one best placed to manage such resources for the benefit of the public in a democracy, because the 'legislature most closely mirrors the will of the public.'[48] However, governmental power to protect the environment is not currently absolute, nor is governmental accountability for its environmentally destructive activities total.[49] Moreover, governmental trustees are not insulated from political pressure. Decision makers are particularly vulnerable to persuasion from special interest groups and where a strong and vocal minority has a political advantage over a diffuse majority, decision-making may not be truly democratic.[50]

It is generally accepted throughout American states that in managing trust resources, trustees must undertake a balancing of interests exercise between the impairment of the public trust and another public interest. In State v. Public Service Commissioners,[51] the court held that 'the degree of impairment must be weighed against the other pubic interests to be served and unless the impairment so viewed is substantial the impairment is not a violation of the trust.'[52] Thus, the doctrine was clearly not designed to be a barrier to progress. It is used to promote rational and balanced development.[53] This compromise undermines the doctrine's strength in the protection of the environment, as 'protection must be absolute, not partial.'[54] Ideally, the state should not engage in balancing social policies or cost benefit analyses. Accordingly, the doctrine should be recognised as an 'inviolable shield protecting the environment.'[55]

Court decisions are heavily studied, examined and criticised. However, little is known about natural resource managers, the trustees of the public trust. Indeed this is important because it is ultimately trustees who determine what activities are in the public interest.[56] A powerful criticism of entrusting the public trust to the state is that it places responsibility for protection of natural resources in the hands of individuals who share 'our society's presuppositions and understandings and thus are unlikely to provide far-reaching protection for the environment.'[57] Thus, it is arguable that no human trustee, burdened with the types of natural impulses that drive humans to over consumption, will be capable of transcending this nature to manage natural resources in a responsible fashion.[58]

4.2 Critical Analysis on the Trust Doctrine

Delgado strongly argues that that the trust model is inherently antagonistic to the promotion of innovative environmental thought. He points out that 'a trust is by its nature, conservative: its purpose is to protect a corpus and put it to some use.'[59] Arguably, modern environmental thought dictates that some resources must indeed be conserved which is antithetical to 'putting something to some use.' However, one of the rationales for the trust doctrine is said to be that it serves a function not performed by ordinary market transactions, which cannot reflect gains or losses to common resources, or may do so only with difficulty. Indeed, 'from the bald eagle to the blue whale and snail darter, natural resources have values which are not fully captured by the market system.'[60] Planning law already exists in order to balance development[61] and environmental concerns, but planning law may operate with a presumption in favour of development and subsequent alterations of land use may give rise to the requirement to pay compensation.[62] The Public Trust, on the other hand, is immune[63] from a 'takings claim' which holds that private property shall not be taken for public use, without just compensation.[64] Scientific uncertainties surrounding the management of the natural environment complicates the design of prophylactic strategies and  thus calls for a greater reliance on precautionary principles. Critics of the doctrine point out that the trust concept was adopted before we had explored adequately humanity's relationship with the environment.[65] However, the PTD is not immutable.[66] Indeed, the trust device is probably one of the most flexible legal instruments in the common law.[67] Thus, the focus of the trustees' duties can change in response to modifications in human habits that threaten environmental resources while leaving the essential trust obligation intact.[68] However, utilizing environmental concepts under an 'ownership model' such as the trust creates a system in which the doctrine can be ineffective because it 'leaves traditionally phrased trusts vulnerable to shifting public visions of what constitutes a beneficial use,'[69] which could benefit development interests.

5. The Scope of the Public Trust Doctrine

In some states, the scope is restricted to the original economic uses of the doctrine,[70] namely fishing, navigation and commerce. However, a change in the application of the doctrine from protecting these uses to preventing overexploitation of the environment is occurring. Indeed, in some states, the doctrine has been invoked to protect hunting, swimming, recreational boating, aesthetical values, climate scientific study,[71] environmental and ecological quality, open space,[72] wildlife habitat preservation,[73] water allocation[74] and ecotones such as wetlands.[75]

5.1 The Conservative View:[76] Maintaining the Economic Precedent

5.1.1 Environmental Justiciability under the Public Trust Doctrine

The conservative view argues that expansion of the PTD for no other reason than to protect the environment simply ignores the economic precedent established by the original doctrine itself. Courts have been reticent to allow advances in ecological knowledge or the potential of new environmental threats to invade the sanctity of private property interests that some jurists and legal scholars[77] perceive as the most essential element of

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American culture.[78] This approach arguably undermines the doctrine's relevance to environmental protection. As a result of the Western trend favouring individualism, locus standi requirements militate against group or aggregate interests. On the other hand, the PTD recognises the justiciability of current environmental issues in actions brought by citizens, and no requirement of land ownership is involved. However, there is some authority[79] limiting the considerations of public trust to state residents, which, as Redgwell argues, has important ramifications for the efficacy of the PTD in environmental litigation.[80] Stone went as far as to argue that trees should have standing,[81] but unsurprisingly, this has not been popularly received within the jurisprudential arena.

5.1.2 The Tragedy of the Commons

The doctrine protects public property. Collective ownership is subject to the familiar 'tragedy of the commons' where the lack of well-defined property rights in a commonly used resource leads to waste by overuse.[82] It is therefore the duty of the State to protect the environmental rights of citizen beneficiaries from the exploitive tendencies of the beneficiaries themselves.[83] However, people, including trustees themselves, do not always act rationally; their market behaviour may be distorted by the 'tyranny of small decisions'[84] which essentially means that people lack the ability to foresee the wider consequences of their decisions. Indeed, many of our current environmental problems can be traced to the tyranny of small decisions.[85] The tragedy of the commons therefore undermines the doctrine's capability to protect individual elements of the environment, subject, however, to active trusteeship which would prevent any such tragedy from occurring.

5.1.3 Anthropocentricism

Some courts have found it increasingly difficult to expand the doctrine to environmental protection because of its anthropocentric nature. Indeed, Tribe points out that the present approaches to resource management and environmental policy formation emanate from a homocentric perspective.[86] In the context of PTD, rarely has a court acted to protect the resource itself from destruction or degradation.[87] The goal of the doctrine is therefore to protect certain resources not because it is either an ethical thing to do or a positive amenity, but because these resources are absolutely essential for human physical, spiritual and, economic well-being. This undermines the doctrine's relevance to environmental protection because it fails to value the importance of the environment per se, and as a result protects uses which are beneficial to human beings which are not necessarily always consonant with environmental conservation. This anthropocentricism is evidently attributable to basic private trusts law. A trust must[88] benefit a human beneficiary. In Re Kelly,[89] Meredith J. stated  that the trust must benefit the lives of 'human beings, not of animals or trees in California.'

5.1.4 Judicial Incompetence in Environmental Litigation

Scientific uncertainty surrounding the natural environment complicates judicial ability to adjudicate on the matter. Decisions in environmental claims are different from those in other private law disputes. The former requires not only an appreciation of often highly technical scientific data, but also that distinct policy choices be made concerning the allocation of scarce resources within society.[90] The creation of specialist environmental tribunals, such as those in Australia, could remedy these difficulties. In the meantime, it is submitted that a precautionary approach ought to be taken by courts.

The flexibility of the common law to respond to societal changes may be one factor weighing in favour of judicial review. Proponents of the doctrine nonetheless place an undue reliance on a pro-environmental judicial

bias.[91] However, judges are not scientifically trained and depend only on submissions made in court. The conservative view holds that technically incompetent courts should despise efforts to make themselves 'balancing artists that are intent on finding balancing points of environmental protection with competing social values.'[92] Indeed, judicial activism has the effect of pre-empting a full and balanced discourse both to test and to shape society's relationship with the natural environment.[93] Judges may frame opinions to avoid discussing certain issues, particularly in a politically sensitive area like public trust[94] and which in result would deprive the claimant an opportunity to successfully invoke the doctrine in an environmentally sensitive case.

5.2.The Conservationist View:[95] Expanding the Doctrine

While the traditional version of the doctrine protected discrete elements of the natural world i.e. a river, a stretch of shoreline or tidal area,[96] we now understand that this is not sufficient.[97] Biotic systems are too complex, humanity's scientific understanding too rudimentary to attempt to isolate individual components of the environment as essential.[98] In Just v. Marinette County,[99] the court upheld the use of the doctrine for environmental protection as a valid public purpose, reasoning that without protection of the environment, individual trust rights, such as recreation and fishing, would become impossible. While it is impossible, given the scope of this paper, to identify how each jurisdiction has dealt with the public trust doctrine, it is useful to highlight some of the instances where the courts have expanded the doctrine.

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5.2.1. Water Protection[100]

It is hard to imagine another natural resource that supports as many people, and is equally threatened by them, in such a significant way than water.[101] Traditionally, the doctrine applied to all navigable waters but its application has been extended so as to apply to non-navigable and nontidal waters.[102] In this context, the PTD can override prior legal claims. As a result, water rights that are demonstrably harmful to a navigable river or estuary can be set aside by application of the PTD, regardless of how old those prior proprietary claims may be.[103]

Most jurisdictions incorporating ecological protection into the purposes of their public trust doctrine have cited the seminal California decision in Marks v. Whitney.[104] In that case the California Supreme Court held that environmental preservation of tidelands in their natural state was encompassed by the public trust. Such protection was necessary,

'so that [tidelands] may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favourably affect the scenery and climate of the area.'[105]

This is a significant departure from the reasoning of traditional public trust application, as the California precedent recognizes protection for 'environmental resources in their own right, not simply because humans use them.'[106]

In National Audubon Society v. Superior Court of Alpine County (the Mono Lake litigation)[107] the plaintiffs, invoking the PTD, successfully sought protection of, inter alia, 'scenic views of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds.'[108] This may lead to the conclusion that 'Mono Lake may stand for the proposition that the PTD is capable of reaching out and encompassing the ecological values of an entire functioning ecosystem.'[109] In similar fashion, a court in Wisconsin applied the doctrine to protection of wetlands on the grounds that wetlands play an important role in a healthy environment.[110]

5.2.2 Wildlife and Biodiversity

Humans are responsible for the most rapid process of extinction of species in the history of the planet.[111] Although no Public Trust case has applied the doctrine to protect biodiversity per se, it seems clear by analogy to existing case law that the doctrine could be an effective tool for protecting biodiversity, particularly, but not exclusively,[112] where the species at issue are aquatic or associated with riparian ecosystems.[113] In Greer v. Connecticut,[114] the US Supreme Court held that individual states owned wildlife (ferae naturae)[115] found within their borders for the common benefit of all the people.[116] Following that decision, a court in Virginia held that 'under the PTD, the state [of Virginia] and the US have the right and the duty to protect and preserve the public's interest in natural wildlife resources. Such right does not derive from ownership of the resources but from a duty owning to the people.'[117] These judicial pronouncements are remarkable but no state has gone as far as the States of Alaska and Hawaii. Those States have constitutionalised principles of the doctrine so as to protect biodiversity.[118] The marine biodiversity in Alaska is a rich ecological heritage as its continental shelf waters provide habitat for most of the nation's marine mammal population.[119] Inevitably, decisions will be made to sacrifice part of our common heritage to promote growth to support current and future generations. However, by applying the public trust doctrine,  governments and trust managers will be forced to take hard look at activities that adversely affect wildlife ecosystems.[120]

5.2.3 Parks and National Heritages

In 1935, the US Historic Sites and Buildings Act was enacted to protect certain common resources. These include elements of the natural environment such as national parks, seashores forests and wilderness areas. All are owned or managed by the government in trust for the people. Creation of the National Parks was based on the wider public trust doctrine's principle that 'certain interests are so particularly the gifts of nature's bounty that they ought to be reserved for the whole of the populace.[121]

5.2.4 Questioning Judicial Expansion

It is arguable that all this expansion is in fact a failure. Judges are attempting the impossible by trying to identify which specific natural quality and uses are necessary for social-well being and therefore deserving of Public Trust protection. However, the most expansive development of the PTD will likely occur in state courts.[122] Indeed, as courts began to realize the importance of certain natural resources in sustaining the human species, they extended the scope of the doctrine.[123] On this ground, the Common Law's capacity to adapt to societal and environmental needs is to be praised. Furthermore, Sax defends the use of courts as judges are outsiders to environmental conflicts and therefore they come to the problem with no preconceived views. 'They are relatively immune from political pressures and are without the institutional restraints of administrators.'[124]

5.2.5 Is Access Enough?

The central preoccupation of the doctrine has been to maintain the broadest possible access to certain natural resources for public use.[125] Indeed, even if alienation of the trust property is permissible, public access must still be available.[126] Access however can be antithetical to environmental protection, as the latter sometimes requires the limitation of access for preservation purposes. Moreover, it is argued that 'to preserve access is not enough […] the PTD must therefore be applied as an affirmative instrument for ecological protection.'[127]

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5.2.6 The 'Constitutionalization' of the Public Trust Doctrine

The US Constitution does not provide for environmental protection and only a mere third of state constitutions mention it. US jurisprudence lacks strong and useful mechanisms to support, analyze, or regulate either the cumulative effects of decisions affecting the environment or the downstream effects on future generations.[128]  As a result of this federal constitutional handicap, the doctrine has been incorporated in several state constitutions.[129] For instance, Art.11 of the Hawaii Constitution provides that 'all public natural resources are held in trust by the State for the benefit of the people.' These provisions protect policy judgments from the ebb and flow of the political tide.[130] Such added protection is particularly desirable at a time when States engage in a 'race to the bottom', where the lowest permissible environmental regulation requirements are adopted in order to pursue economic goals through industrial gains. Indeed, if environmental protection is to be effective, it must be intergenerational. As Thompson argues, there is a lack of accounting for the future in environmental legislation[131] because the current generation will have an inevitable bias toward present consumption.[132] Thus, as Van Tol points out, 'it appears that the most satisfactory approach to expanding the doctrine has been through the elevation of environmental protection to a constitutional level followed by legislation which specifically defined the resource covered by the trust, and the rights and duties created by the trust.'[133]

5.2.7 Expanding the Doctrine: A Final Critique

The precise legal basis for the doctrine's application remains fairly vague and this undermines the ability to adopt this expansive interpretation uniformly. The doctrine was described by one commentator as 'a misguided effort to dredge up ancient flotsam in a way that obscures contemporary environmental issues instead of illuminating them.'[134] Arguably, the laissez faire pro-development government upon which doctrine is premised is an apparition of the past.[135] However, it is submitted that nowadays, although governments engage in rhetorical efforts to protect the environment, their practice suggests otherwise.[136]

6. The Doctrine's Relevance in the UK and Other Jurisdictions

6.1 The UK

The doctrine did not mature in England but its legal spirit can be identified in different instruments. The National Parks and Access to the
Countryside Act 1949 ('The Trust') was enacted to ensure 'the permanent preservation for the benefit of the nation of lands…of beauty or historic interest and…the preservation of their natural aspect, features and animal and plant life.' Such lands may only be declared alienable with the authority of Parliament. This is analogous to trustee-like responsibilities under the PTD. However, the Trust suffers from a lack of systematic protection of species and habitat because, in practice, it is dependent both upon individual bequests and fundraising campaigns to finance the acquisition of property. The law of charities in the UK also provides for environmental protection. The charitable trust is an inherently more democratic and public spirited mechanism than the private trust, and less exclusionary in scope. To this end, it shares common characteristics with the public trust doctrine. Whereas the latter can be invoked by individual beneficiaries the task of enforcing charitable trusts falls on the Attorney-General, as parens patriae of the public interest. It is not evident why the public trust doctrine has failed to evolve in England, but it is arguable that this may have been caused by the common law's abhorrence of ownerless things.[137] The Public Trust, as public property, had to therefore yield to principles of private proprietary ownership. Moreover, the combination of the omnipresence and dominance of central government in the making of environmental policy as well as the evolution of other instruments, such as charities, have denied any opportunity for the doctrine to be resurrected in England. In contrast to the position in England, the doctrine of Regalia Majora in the land law of Scotland comprises rights which are held by the Crown in trust for the public and which cannot be alienated. 'In effect the concept operates similarly to the PTD.[138]

6.2 Other Jurisdictions

In India, the courts have accepted the public trust doctrine as part of common law, applying it expressly to three recent cases.[139] In Hong Kong, the doctrine is part of the Basic Law.[140] In Sri Lanka, the doctrine has also been relied upon to protect the environment.[141] The doctrine has, however, little role to play in contemporary Australian environmental protection[142] but nevertheless it has been upheld by the New South Wales Land Appeal Court.[143] In Canada, the doctrine is virtually non-existent,[144] although the Yukon Environment Act [145] codifies the public trust concept.[146] The international presence of the doctrine, albeit limited, strengthens the use of the trust concept as a tool for global and intergenerational environmental justice and equity. To this end, and as environmental issues migrate beyond national frontiers, it has been suggested that an international body, the Common Heritage Authority, be created to hold certain natural resources of the planet in trust for the benefit of present and future generations.[147]

6.3 Conclusion

This article has considered the PTD's relevance to environmental protection in multiple jurisdictions. It is evident that the degree of relevancy ultimately depends on different interpretations and implementations of the doctrine in different states and different jurisdictions. In some of these, the doctrine has been shackled to its original precedent, namely protecting the uses of commerce, fishing and navigation. It is submitted that restricting the PTD to those uses is incompatible with modern environmental thought. In other states, however, the doctrine is being extended to encompass conservation needs, at a time where the environment is being lethally threatened. Our analysis has demonstrated that the PTD's focus may be moving from anthropocentric to biotic protection, thus strengthening its relevance to environmental protection. As environmental concerns increase, other jurisdictions are equipping their legal frameworks by adopting the PTD as part of their conservation armoury. It is clear that other tools, such as charities, taxation policy, legislation and education, will be of equal value to the everlasting mission of protecting our natural habitat. With its foundations in trusts law, the PTD, however,holds the potential to provide the groundwork for intergenerational environmental justice. To this end, the expansion of the doctrine's application is to be welcomed, and encouraged, if its relevance to environmental protection is to be uniformly strengthened throughout American states, and hopefully, throughout the world.

Lucas VM. Bento is a Senior Consultant at Storti & Schmidt LLP. He will be joining Holman Fenwick Willan in 2010 as a Trainee Solicitor in London. He studied at the Universities of Warwick, Bristol and Oxford. He is currently undertaking a post-graduate qualification at the Federal University of Rio de Janeiro in Oil & Gas Law. In parallel to his work, he is an adviser to Cambridge Social Responsibility. 

 

Footnotes

  1. See e.g. McCurdy. Application of the Public Trust: Public Trust Protection for Wetlands. [1989] 19 Envtl. L. 683; United States v. Riverside Bayview Homes, 474 U.S. 121 (1985)
  2. Basset, Y. Aggregation and Synecology of Arboreal Arthropods Associated with an Overstorey Rain Forest Tree in
    Australia. [1992] 8(3) Journal of Tropical Ecology, pp. 317-327
  3. Huffman, J. A. Fish Out of Water: The Public Trust in a Constitutional Democracy. [1989] 19 Envtl. L. Rev. 527.
  4. Lazarus, R.J. Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public
    Trust Doctrine. [1986] 71 Iowa L. Rev 631.
  5. Ryan, E. Public Trust and Distrust: The Theoretical Implications of the Public Trust Doctrine for Natural Resources Management. [2001] 31 Envtl. L. 477, p. 490.
  6. 647 F.2d 1130 (D.C.Cir. 1980), cert. denied, 426 U.S. 941. 19 Id
  7. Raffensperger, C. and Tickner J. (eds.). Protecting Public Health and the Environment: Implementing the Precautionary Principle. Washington, DC: Island Press, 1999.
  8. See Part. 5.2 of this article.
  9. See Sax J. The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention. [1970] 68 Mich. L. Rev. 471.
  10. Raffensperger, C., op. cit., footnote 7.
  11. Van Tol, E. The Public Trust Doctrine: A New Approach to Environmental Preservation. [1978-79] 81 W. Va. L. Rev. 455.
  12. Originally by Justice Trieweiler, quoted in Raffensperger, C. Constitutional Experiments: Protecting the Environment and Future Generations. [2003] 1(6) Conservation Biology.
  13. Wilkinson. The Headwaters of the Public Trust: Some Thoughts on the Source and Scope of the Traditional Doctrine'. [1989] 19 Envtl. L. 425.
  14. Huffman, J., op. cit., footnote 3.
  15. Bader, H.R. Anateus and the Public Trust Doctrine: A New Approach to Substantive Environmental Protection in the Common Law. [1991-1992] 19 B.C. Envtl. Aff. L. Rev. 749.
  16. Manus, P. To a Candidate in Search of an Environmental Theme: Promote the Public Trust'. [2000] 19 Stanford Environmental Law Journal, pp. 315-269.
  17. Sanders, T.C. (ed.). The Institutes of Justinian. Book II, Tit. I(1), 8th Ed. London: Longmans, Green & Co., 1888, at 90; see Richard J. Lazarus, op. cit., footnote 4, p. 634; Scott, Geoffrey R. The Expanding Public Trust Doctrine: A Warning to Environmentalists and Policy Makers. [1998] 10 Fordham Envtl. L.J. 1, pp. 25-26.
  18. Baslar, K. The Concept of the Common Heritage of Mankind in International Law. Martinus Nijhoff Publishers, 1998, p. 14.
  19. Baslar, K., ibid.
  20. See Bracton, H. On the Laws and Customs of England 29-40 (S. Thorne trans. 1968); see particularly the numerous citations of the Magna Carta; see Gann v. Free Fishers, 11 Eng. Rep. 1305 (H.L. 1865).
  21. See Bracton, H., op. cit., footnote 20.
  22. Trachtenberg, Z. The Environment: Private or Common Property? [1997] 50 Okla. L. Rev. 399, p. 399.
  23. Note. The Public Trust Doctrine in Tidal Areas: A sometime Submerged Traditional Doctrine. [1970] 79 Yale L. J.
    762, p. 769
  24. Althaus, H.F. Public Trust Rights. Washington, DC: US Government Printing Office, 1978, p. 38.
  25. Archer et al. The Public Trust Doctrine and the Management of America's Coasts. [1994] Univ. of Massachusetts Press, p. 58.
  26. 6 N.J.L 1 (1821)
  27. Arnold v Mundy 6 N.J.L 1 (1821) at 76 - 78
  28. Illinois Central Railway Co. v. Illinois 146 US 387 (1892).
  29. Sax J., op. cit., footnote 9.
  30. Lazarus, op. cit., footnote 4, pp. 638-639 where Lazarus claims the Illinois Central case is ambiguous at best on its authority as "the court did not cite any relevant precedent in Illinois law to support the decision."
  31. Neptune City v. Avon-by-the-Sea 61 N.J. 296, 304, 294 A.2d 47, 52 (1972)
  32. See Ryan. P.S. Application of the Public Trust Doctrine and Principles of Natural Resource Management to Electromagnetic Spectrum. [2004] 10 Mich. Tel. Tech. L. R, p. 285.
  33. Lazarus, R.J., op. cit., footnote 4, p. 711.
  34. See Henquinet, J.W. and Dobson, T. The Public Trust Doctrine and Sustainable Ecosystems: A Great Lakes Fisheries Case Study. [2006] 14 N.Y.U Envtl. L.J. 322, pp. 335-38.
  35. Henquinet, J.W. and Dobson, T., ibid.
  36. Sax, J., op. cit, footnote 9, p. 521.
  37. National Audubon Society v. Superior Court of Alpine County (the Mono Lake litigation) 33 Cal. 3d 419; 658 P.2d 709; 189 Cal. Rptr 346(1983)
  38. Marks v Whitney 491 P.2d 374, 380 (Cal. 1971)
  39. Illinois Central Railway Co. v. Illinois 146 US 387 (1892).
  40. Manus, P., op. cit., footnote 16, p. 323.
  41. Redgwell, C. Intergenerational Trusts and Environmental Protection. Manchester University Press: 1999, p. 3.
  42. In re Waiola O Molokai. Inc., 83 P.3d 664 (Hawaii, 2004) at 684
  43. King. The Mono Lake Problem and the Public Trust Solution. [1987] 7 UCLA Journal of Envtl. L. & Policy 67, p. 70
  44. State Department of Environmental Protection v. Jersey Central Power & Light Co., 125 N.J. Super. 97, 102, 308 A.2d 671, 674 (1973)
  45. Illinois Central Railroad v. Illinois 146 U.S. 387, 452-53 (1892).
  46. Illinois Central Railroad v. Illinois 146 U.S. 387, (1892) at 452-453.
  47. Sax, J., op. cit., foonote 9.
  48. Lazarus, R.J., op. cit., footnote 4.
  49. Ibid, at p.715
  50. Kelly, S.M. The Public Trust and the Constitution: Routes to Judicial Overview of Resource Management Decisions in Virginia. [1989] 75 Virginia Law Review 895, p. 898.
  51. 275 Wis. 112, 81 N.W.2d 71 (1957).
  52. State v. Public Service Commissioners 275 Wis. 112, 81 N.W.2d 71 (1957).
  53. Nanda, V.P. and Ris, W.K. The Public Trust Doctrine: A Viable Approach to International Environmental Protection. [1975-76] 5 Ecology L.Q. 291.
  54. Bader, H.R., op. cit., footnote 15, p.757.
  55. Bader, H.R., ibid.
  56. Cohen. The Constitution, The Public Trust Doctrine, and The Environment. [1970] Utah L. Rev. 388.
  57. Delgado. Our Better Natures: A Revisionist View of Joseph Sax's Public Trust Theory of Environmental Protection, and Some Dark Thoughts on the Possibility of Law Reform. [1991] 44 Vand. L. Rev. 1209.
  58. Hirokawa, K. Some Pragmatic Observations about Radical Critique in Environmental Law. [2002] 21 Stan. Envtl. L.J. 227, p. 243.
  59. Delgado, op. cit., footnote 57, p. 1214.
  60. Ohio v. United States Department of the Interior 880 F.2.d 432 (1989)
  61. This is consonant with the decision in Lucas v. South Carolina Coastal Council (91-453), 505 U.S. 1003 (1992); see Babcock, M. Has the U.S. Supreme Court Finally Drained the Swamp of Takings Jurisprudence? The Impact of Lucas v. South Carolina Coastal Council on Wetlands and Coastal Barrier Beaches. [1995] 19 Harv. Entl. L.Rev. 1 36-54.
  62. Redgwell, C., op. cit., footnote 41.
  63. But see Lucas v. South Carolina Coastal Council (91-453), 505 U.S. 1003 (1992)
  64. Fifth Amendment to the US Constitution
  65. Delgado, op. cit., footnote 57, p. 1214.
  66. Redgwell, C., op. cit., footnote 41, p.54.
  67. See further, Moffat, G. Trusts Law: Text and Materials. 2nd ed. London: 1994, Ch. 2.
  68. Manus, P., op. cit., footnote 16.
  69. Ryan, E., op. cit., footnote 4.
  70. See West Virginia jurisprudence; Van Tol, E., op. cit., footnote 10.
  71. Marks v Whitney 6 Cal.3d 251 (1971)
  72. Marks v Whitney 6 Cal.3d 251 (1971)
  73. National Audubon Society v. Superior Court of Alpine Count 33 Cal. 3d 419; 658 P.2d 709; 189 Cal. Rptr 346 (1983)
  74. Kelly, S.M. The Public Trust and the Constitution: Routes to Judicial Overview of Resource Management Decisions in Virginia. [1989] 75 Virginia Law Review 895, p. 898.
  75. Just v. Marinette County, 201 N.W.2d 761, 768-70 (Wis.1972).
  76. This term has been coined by the author.
  77. See e.g. Huffman, op. cit., footnote 3.
  78. Bennett v. Spear, 520 U.S. 154 (1997)
  79. McCready v Commonwealth 68 Va. (27 Gratt) 985 (1876)
  80. Redgwell, op. cit., footnote 41, p. 42.
  81. Stone. Should Trees Have Standing? Toward Legal Rights for Natural Objects. [1972] 45 S. Cal. L. Rev. 450.
  82. Hardin. The Tragedy of the Commons.[1968] 162 Science 1243, contra Cox, No Tragedy on the Commons. [1985] 7 Envtl. Ethics 49.
  83. Manus, P., op. cit., footnote 16.
  84. Kahn. The Tyranny of Small Decisions: Market Failures, Imperfections, and the Limits of Economics' [1966] 19 Kyklos 23, p.28
  85. Odum. Environmental Degradation and the Tyranny of Small Decisions'[1982] 32 Bioscience 728.
  86. Tribe. Ways Not To Think About Plastic Tress: New Foundations for Environmental Law. [1974] 83 Yale L.J. 1315.
  87. Meyers, G. Variation on a Them: Expanding the Public Trust Doctrine to Include Protection of Wildlife. [1989] 19 Envtl. L. 723; but see National Audubon Society v. Superior Court of Alpine County 33 Cal. 3d 419; 658 P.2d 709; 189 Cal. Rptr 346 (1983); Marks v Whitney 6 Cal.3d 251 (1971)
  88. Except in certain circumstances i.e. Musset v. Bingle [1876] WN 170 (monuments); Re Dean (1889) 41 Ch d 552 (care and maintenance of specific animals) but see Re Wedgwood [1915] 1 Ch 38 on (charitable) trusts for the care of animals generally; Re Hetherington [1989] 1 All ER 129 (saying of masses in private); Re Thompson [1934] Ch 342 (fox hunting).
  89. [1932] I.R. 255, at p. 261.
  90. Regdwell, C., op. cit., footnote 41, p. 4; See Merlin v. British Nuclear Fuels plc [1990] 3 W.L.R. 383, where Gatehouse J. made explicit reference to a kind of environmental floodgates argument.
  91. Lazarus, R.J., op. cit., footnote 4, pp. 712-13.
  92. Smith, G.P. and Sweeney, M.W. The Public Trust Doctrine and Natural Law: Emanations within a Penumbra. [2006] 33 B.C. Envtl. Aff. L. Rev. 307, see footnote 222.
  93. Smith, G.P. and Sweeney, M.W, ibid., see footnote 221.
  94. Manus, P., op. cit., footnote 16.
  95. This term has been coined by the author.
  96. For navigation purposes.
  97. Bader, H.R., op. cit., footnote 15, p.756.
  98. Bader, H.R., ibid.
  99. 201 N.W.2d 761, 769 (Wis. 1972)
  100. For an interesting use of the doctrine in the business of snowmaking see O'Donnell. A. Something Old, Something New: Applying the Public Trust Doctrine to Sknowmaking'. [1996-97] 24 B.C. Envtl. Aff. L. Rev. 159.
  101. Smith, G.P. and Sweeney, M.W., op. cit., footnote 92.
  102. California v. Superior Court (Lyon), 29 Cal. 3d 210, 625 P.2d 239, 172 Cal. Rptr. 696, cert. denied, 454 U.S. 865 (1981); California v. Superior Court (Fogerty), 29 Cal. 3d 240, 625 P.2d 256, 172 Cal. Rptr. 713, cert. denied, 454 U.S. 865 (1981)
  103. NY/NJ Baykeeper, 'Taking Back What is Rightfully Yours: An Owner's Manual for the Hudson-Raritan Estuary and Guide to the Public Trust Doctrine' Rutgers University Environmental Law Clinic, 2003
  104. 491 P.2d 374, 380 (Cal. 1971)
  105. Marks v Whitney 6 Cal.3d 251 (1971), at 259-60; approved in Mono Lake litigation
  106. Smith, G.P. and Sweeney, M.W., op. cit., footnote 92, p.335.
  107. 33 Cal. 3d 419; 658 P.2d 709; 189 Cal. Rptr 346
  108. National Audubon Society v. Superior Court of Alpine County 33 Cal. 3d 419, at p. 435; 658 P.2d 709 at p. 719
  109. Plater, Z.J.B., Abrams, R.H. and Goldfarb, W. Environmental Law and Policy: A Coursebook on Nature, Law and Society. St Paul, Minnesota: 1992, p. 374.
  110. See Just v. Marinette County, 201 N.W.2d 761, 768-70 (Wis.1972).
  111. Johnson. R.W. and Galloway, W.C. Protection of Biodiversity under the Public Trust Doctrine. [1994-1995] 8 Tul. Envtl. L. J. 21.
  112. See, e.g., Sierra Club v. Dep't of Interior, 398 F. Supp. 284 (N.D. Cal. 1975) (national parks); Wade v. Kramer, 121 Ill. App. 3d 377 (1984) (wildlife); Gould v. Greylock Reservation Comm'n, 350 Mass. 410 (1966) (forest land); Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306 (1984) (dry sand beaches); Mayor & Mun. Council of Clifton v. Passaic Valley Water Comm'n, 224 N.J. Super. 53 (1987) (water supplies).
  113. Galloway, op. cit., footnote 108.
  114. 161 U.S. 519 (1896).
  115. 'untamed, wild by nature'. A legal term that means any animals that are not designated domesticated animals by
    law: Gray. J, Lawyer's Latin, A Vade Mecum, Hale Publishers (2002)
  116. Greer v. Connecticut 161 U.S. 519 (1896) at 549
  117. In re Steuart Transport Company, 295 F. Supp. 38, 40 (E.D. Va. 1980).
  118. Article 8 (2) - (5) Constitution of Alaska; Article 11 Constitution of Hawaii.
  119. Weber, M. Audubon Wildlife Reports. National Audubon Society: 1986.
  120. Meyers, G., op. cit., footnote 87.
  121. Sax, J., op. cit., footnote 8, p. 484
  122. Smith, G.P. and Sweeney, M.W., op. cit., footnote 92.
  123. Bader, H.R., op. cit., footnote 14, p. 757.
  124. Sax, J.L. Defending the Environment: A Strategy for Citizen Action. New York: Alfred A. Knopf, Inc. (1971); see Martin v. Waddell's Lessee 41 U.S. 367 (1842)
  125. CWC Fisheries, Inc. v. Bunker, 755 P.2d 1115, 1118 (Alaska 1988); Orion Corp. v. State, 747 P.2d 1062 (Wash. 1987)
  126. Matthews v. Bay Head Improvement Association, 95 N.J. 306, 326, 471 A. 2d 355 N.E. 2d 355, 365-66, cert. denied, 105 S. Ct. 93 (1984); Boston Waterfront Dev. Corporation v. Commonwealth, 378 Mass. 629, 649, 393 N.E. 2d 356, 367 (1979).
  127. Bader, H.R., op. cit., footnote 15.
  128. Lavigne, P.M. Greening the US Constitution. [2003] 17 Conservation Biology No. 6, p. 1485.
  129. Redgwell, C., op. cit., footnote 41, p. 57
  130. Kirsch, M.T. Note, Upholding the Public Trust in State Constitutions. [1997] 46 Duke L.J. 1169, p. 1170
  131. See however the Virginia Environmental Quality Act 1971.
  132. Thompson, B.H. Environmental Policy and State Constitutions: The Potential Role of Substantive Guidance. [1996] 27 Rutgers L.J. 863, pp. 900-901.
  133. Van Tol, J.E., op. cit., footnote 11.
  134. Rose, C.M. Joseph Sax and the Idea of the Public Trust. [2003] Issues in Legal Scholarship: Joseph Sax and the Public Trust, p. 1.
  135. Lazarus, R.J., op. cit., footnote 4, p.715.
  136. The US is ranked 28th of out 130 in the 2006 Environmental Performance Index, see Pilot Environmental 2006 Performance Index, Yale Centre for Environmental Law and Policy, Yale University available at http://www.yale.edu/epi/2006EPI_Brochure.pdf
  137. Stevens, Jan S. The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right. [1980] 14 U.C. DAVIS L. REV. 195, p. 197.
  138. 'Large, D. The Land Law of Scotland - A Comparison with American and English Concepts. [1986] 17 Envtl. L. 1, p. 22.
  139. M.C. Mehta v Kamal Nath and Others (1997 1 SCC 388); The Majra Singh v Indian Oil Corporation (AIR 1999 J&K 81).
  140. Basic Law of the Hong Kong Special Administrative Region; see Hsu Chung, B.F. Constitutional Protection of a Sustainable Environment in The Hong Kong Special Administrative Region. [2004] 16 (2) Journal of Environmental Law 193.
  141. Compendium of Judicial Decisions on Matters Related to Environment (Nairobi, Kenya: UNEP/UNDP/ Dutch Joint Project on Environmental Law and Institutions in Africa, 2000), p.5. http://www.elaw.org/resources/text.asp?id=163 
  142. Bonyhady, T. A Usable Past: The Public Trust in Australia. [1996] Env. and Plan. L.J. 329, p.330.
  143. Bonyhady, T., ibid.
  144. Elwell, C. Water Grab (2) Province of Ontario's Plans to Transfer Local Water Systems and Services to the Private Sector: A Breach of the Public Trust?. Toronto: Canadian Institute for Environmental Law and Policy: 2002, p.22.
  145. Chapter 5, Statute of the Yukon (1991).
  146. Section 8 and 10, Statute of the Yukon (1991). 
  147. Balsar, K., op. cit., footnote 18.