The recent passing of renowned environmental law pioneer Professor Joseph Sax creates an exceptional moment to revisit his greatest legacy: the expansion of the public trust doctrine. The public trust doctrine is a concept rooted in ancient Roman and English law. The tenet of this traditional common law doctrine is the public interest in navigation and, to a lesser extent, fishing. The interest is secured by holding or preserving the properties of the seashore and running water for the benefit of the public. Property held in public trust cannot be privately held.
The doctrine carried over in American law to navigable waters and the seashore between high and low tide. Firmly establishing the doctrine in American law was the 1892 United States Supreme Court opinion in Illinois Central Railroad v. Illinois, 146 U.S. 387. The Court invalidated the Illinois Legislature in granting the Illinois Central Railroad ownership of 1,000 acres of Lake Michigan shoreline, holding such land to be “held in trust for the people of the state.” Today the doctrine exists in every state, including in at least a dozen states constitutions, but the trust obligation varies. At the federal level, the status of the doctrine is currently being parsed out in the courts.
In 1970, Sax published his seminal vision for the expansion of the public trust doctrine to protect the environment beyond the seashore. The same year, 20 million Americans participated in Earth Day, President Richard Nixon signed the Clean Air Act, and Congress created the Environmental Protection Agency. Sax initially proposed expanding the doctrine to include the air, non-navigable water, and all natural resources. Since then, Sax and others have expanded the vision of the doctrine to include lands management, wildlife, ecological resources, and cultural resources. Under Sax’s vision, citizens would have standing in the courts to bring actions for the protection of the public trust. They would take the lead in environmental law by balancing the general interest of the public against government, business, and individuals who threaten harm to the environment. Under the doctrine, Sax advocated for the courts to take a “hard look” at environmental impacts.
Following less than a decade after the publication of Sax’s expansive vision, the California Supreme Court handed down a broadening of the doctrine in its opinion in National Audubon Society, 33 Ca.3d 419 (1983). The Audubon Society sued the State of California for allowing Los Angeles to tap tributaries of Mono Lake. While Mono Lake was a navigable body subject to the traditional public trust doctrine, its tributaries of creeks and streams were not. The court expanded that state’s doctrine, championing Sax by name, holding that non-navigable waters merit the same protection as navigable waters under the doctrine.
More recently, the Pennsylvania Supreme Court handed down a powerful embrace of the doctrine in striking down a statute that promoted fracking. Pennsylvania has become one of the central battlegrounds over the controversial practice of hydraulic fracturing to release natural gas from shale deposits often found thousands of feet below aquifers. In striking down the Pennsylvania Oil and Gas Act, which promoted the exploitation of the Marcellus Shale, the court held the air, groundwater, and other resources are held in public trust and that all levels of government have a fiduciary duty to protect these assets.
Today, the doctrine is found in many countries, such as India, Pakistan, the Philippines, Uganda, Kenya, Nigeria, South Africa, Brazil, Ecuador, and Canada. A famous example on the international level is the case of Manila Bay. Philippine government agencies were given the duty to protect Manila Bay, but failed to do so. The Supreme Court of the Philippines relied on the public trust doctrine in ordering the government to carryout their responsibilities and clean up Manila Bay.
Some see the future of the public trust doctrine as a means of using the courts to force government action on climate change by an atmospheric trust. Under this view of the doctrine, citizens have standing to ask courts not to impose limits on greenhouse gases, but order the legislature and executive branches to carry out their duty of protecting the natural resources everyone relies on. In such cases, courts commonly hold the issue to be one of public policy for the other branches of government, failing to address the underlying issue that the other branches are neglecting their responsibilities to protect these resources.
Soon we will have a better view of how the federal courts, if at all, will use the common law public trust doctrine to order the federal government to carryout their responsibilities. In 2012, the United States District Court for the District of Columbia dismissed the case of Alec L. v. Jackson, No. 11-cv-2235. Plaintiffs alleged that, “six federal agencies had violated their fiduciary duties to preserve and protect the atmosphere as a commonly-shared resource under the public trust doctrine.” In dismissing the case, the court cited the matter to be political and best suited for the executive and legislative. The court held that the common law public trust doctrine does not exist in federal law because it is supplanted by the Clean Air Act. The case is set for appeal as Alec L. v. Gina McCarthy and will be heard on Friday, May 2, 2014, at 9:30 A.M. before the United States Court of Appeals for the District of Columbia Circuit.