The public trust doctrine

The public trust doctrine developed in the United States can be defined as “an ancient Roman law doctrine which provides that states must hold certain natural resources, particularly submerged lands under tidal and navigable waters, in trust for the use and benefit of the public and future generations” (Klass 2015, 432-433). In short, it means that states ought to protect natural resources that are included in the trust for future use and enjoyment, and that the alienation of these resources is prohibited (Bhumii and Moses 2017,2). States have “some discretion in managing then trust resources, although many impose a presumption against alienation of public resources, requiring clear legislative intent to accomplish such alienation” (Bhumn and Moses 2017, 17-18). The alienation of resources, parcels of land for instance, will be justified when it furthers the purposes of the trust or “do[es] not substantially impair the public interest’’ in the trust resource that is remaining.⁴

The United States Supreme Court referred to the doctrine for the fust time in 1842^s and articulated the parameters of the theory 50 years later in the 1892 case Illinois Central Railroad Co. v. Illinois.⁶ Its application was then limited to navigable waters and their underlying beds and was extended to wildlife four years later in Geer v. Connecticut.'' Courts subsequently applied the doctrine to these limited common resources until 1970, when Joseph L. Sax suggested that the courts should use the doctrine to compel the government to apply fiduciary duties not only to submerged lands and navigable waters, but also to other natural resources on public lands (Sax 1970, 473). Sax argued that this extension of the doctrine would allow courts to balance conflicting private and public interests when the executive and legislative branches fail to do so for a greater number of resources (1970, 561-562)

In the second half of the twentieth century, mainly in the years following Sax’s article, courts have extended public trust protection to other resources. However, as the public trust doctrine is under state rather than federal jurisdiction, it has evolved in different ways in different state jurisdictions. A number of states added ecological preservation as a trust purpose (Blunun and Moses 2017, 25-26). Some state courts (including California, Hawaii, New York and Louisiana) have developed case law applying the public trust doctrine to a range of environmental problems arising outside of submerged lands, including: gr oundwater,⁸ lakes,⁹ wetlands,¹⁰ parkland,¹¹ the dry sand area of beaches,¹² archaeological remains¹³ and likely problems arising out of a hazardous waste disposal facility’s operation.¹⁴ The recent case of Juliana v. United States could have led to recognition of the atmosphere as a trust resource,¹⁵ but the United States Court of Appeals for the Ninth Circuit agreed with the Trump administration that the questions raised by the case, related to the government's fossil fuel policies violating the human

Trusteeship theory for Canadian public law 151 rights of youth, did not belong before the court but should rather be presented to the executive and legislative branches of government.¹⁶ Despite these developments, for most states, the doctrine remains limited to the protection of use and access to navigable waters, submerged lands and fishing but has evolved to include not only commercial but also recreational water-based resources (Klass 2015,437-438). Therefore, the scope of states’jurisdiction on natural resources is still limited by the high-water mark in many places (Wood 2013, 147).

Federal and state legislation have also referred to the concept of public trust to recognize the government's duty to prevent damages to a wider range of natural resources, and, sometimes, to giant the government legal standing to sue for compensation in case of pollution (Blumm and Wood 2013, 7). For example, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) allows the federal government to recover all costs of removal or remedial action in cases of natural resources’ pollution, which include federal land and water.¹⁷ Legislation has thus been used to expand governmental powers in case of damages, but not to restrict those powers by imposing clear fiduciary' duties. These pieces of legislation can generally not be used to sue the government that wottld have omitted to respect a fiduciary ditty the same way it can be done through the public trust doctrine.

Over the past 40 years, the United States public trust doctrine has been the subject of many critiques. These critiques touch mainly on two themes: the power of the judiciary' and the doctrine’s reliance on private property (Ryan 2001, 484-485). The power of judges to overturn democratic decisions of the executive or the legislative branch has been criticized because judges are not accountable to the public (Ryan 2001, 483). Some commentators, such as Richard Lazarus, who produced one of the most influential critiques of the public trust doctrine, believe that it relies unduly on pro-environment judicial bias (Lazarus 1985, 712-715; Ryan 2001, 485). For Lazarus, the judiciary lacks the technical competence to decide whether fiduciary duties are performed adequately by the government and its agencies. In his view, agency administrators are more likely to have professional training as resource managers (Lazarus 1985, 712; Ryan 2001, 487). The subjective definitions of fundamental concepts such as “beneficial use” or “public concern” exemplify the problematic reliance on the judiciary (Ryan 2001, 488). Indeed, for a resource (for example, water) to be held in trust, there has to be a beneficial use of the resource for the public (Sax 1988, 476). If the resource is not seen as beneficial or of public concern, it is not considered public property and therefore is not subject to the trust (Sax 1988, 478). Shifting judicial visions of what constitutes a “beneficial use” could be detrimental to resource protection and move courts in favor of more development (Ryan 2001, 488).¹⁸ As Wood explains, “courts must constantly refresh their understanding of ‘public concern' in order to determine the appropriate scope of the trust” (Wood 2013, 144). As a result, some courts modernize the scope of the trust while others keep it at its historic definition (Wood 2013, 146). This also demonstrates how the reliance on property as the basis of the trust can be a problem, which leads us to the second theme of critiques: property rights.

On the one hand, authors defending liberal theories of property argue that the doctrine is incompatible with private property rights, as it can limit these in favor of public property rights (Marzulla 1995, 613-615; Ryan 2001, 484). On the other hand, green property theorists also criticize the fact that the public trust doctrine is deeply rooted in the notion of private property, but for a different reason. They believe classical liberal property theory is outdated, as it fails to take into accoimt the interconnectedness of humans and nonlnunans in favor of individual autonomy (Ryan 2001, 484-485). Richard Lazarus was also of the opinion that a better framework for structuring ottr relationship with nature would not be dominated by property and ownership, nor by the concept of public interest, which he found too vague (Lazarus 1985, 703). Rather, Lazarus’s framework would include a formulation of competing values, based on private expectations in rights of use and subject to communal constraints (Lazarus 1985, 706-710; Ryan 2001, 489).

Room for improvement

Critiques of the pttblic trust doctrine have also suggested strategies for its betterment. If some see judicial oversight to be a problem because judges are unaccountable, then channeling environmental decisions through the executive branch—assuming it has more expertise and is accountable to the public—is preferable (Ryan 2001, 488, 492-493). However, our current institutional structure does not guarantee the protection of environmental interests. Even if it did, when the executive branch is not pro-environment, then the judiciary is the branch most shielded from short-term majoritarian interests. Thus, the judiciary is better-placed to protect trust resotuces (Ryan 2001, 492). Governance of the environment seems to necessitate the contribution of all branches of government, which in turn needs structural change to govern more responsibly.

It also appears that “public properly,” as understood under the public trust doctrine, does not comprise sufficient environmental resources to effectively preserve nature for future generations (Ryan 2001. 488). Blumm and Moses affirm that, so far, the doctrine has served as an antimonopoly doctrine since it has protected against states’ attempts to create private monopolies over natural resources (Blumm and Moses 2017, 6). It has undoubtedly had beneficial impacts on resource protection in past decades, but the rate of ecosystem degradation and species extinction proves that environmental law and the public trust doctrine are unsuccessful.¹⁹ The pttblic trust doctrine’s roots in liberal property law limit its scope (Frazier 1995, 300-301). However, modem use of the doctrine—or of another trusteeship theory—does not require a “backwards-looking appeal to a property law rationale.” As Ryan eloquently put it, “the fact that the public trust [doctrine] is in the common law hardly requires that it be of the common law” (Ryan 2001. 496). Because as long as the doctrine relies on concepts of property to preserve environmental resotuces, it does not reconsider the assumptions on which the law and the economy are based, which is necessary to find a sustainable approach to managing our planet (Lazarus 1985, 633).

What are the necessary changes? Lazarus notes: “[B]etter solutions, suggested by critics of the judicial function in environmental matters, may reside in new modes of administrative decisionmaking that are less dependent on effective judicial oversight of agency action to ensure frill representation of competing considerations” (1985,712-713). This is exactly what Professors Bossehnami and Wood suggest in then^- work.