Public Trust and Distrust: The Theoretical Implications of the Public Trust Doctrine for Natural Resource Management

Article excerpt

This Comment reviews the theoretical underpinnings of the public trust, a doctrine originating in Roman common law and now constitutionalized by many states, and explores its contentious reception by green legal theorists. Since Professor Joseph Sax's revival of the doctrine as a vehicle for environmental legal advocacy in the early 1970s, it has been hailed by many as the most powerful tool available for protecting natural resource commons and attacked by others who argue that use of the property rights-based doctrine will reify an ownership approach to natural resources and obstruct the development of more stewardship-oriented legal theories of natural resource management. Discussion focuses on the work of Professor Sax, representing the public trust advocates, and Professor Richard Lazarus, representing the green dissent. The Comment concludes that the green dissent may elide the theoretical growth of the modern constitutionaIized version of the doctrine beyond its common law roots.

I. INTRODUCTION

   The people have a right to clean air, pure water, and to the preservation
   of the natural, scenic, historic and esthetic values of the environment.
   Pennsylvania's public natural resources are the common property of all the
   people, including generations yet to come. As trustee of these resources,
   the Commonwealth shall conserve and maintain them for the benefit of all
   the people.(1)

Article I, section 27 of the Pennsylvania State Constitution represents an ambitious modern vision of the ancient common law doctrine of the public trust, a doctrine that has traditionally protected public rights of access to navigable waterways. Traced by legal historians to the Justinian Code of ancient Rome,(2) the public trust (jus publicum) doctrine was formally received in the United States via English common law, although scholars have observed an astonishingly universal regard for communal values in water worldwide.(3) After a dramatic debut in Supreme Court jurisprudence preserving public ownership of Lake Michigan in Illinois Central Railroad v. Illinois,(4) the doctrine retreated to the more prosaic realm of state common law,(5) where it served quietly for some seventy years until the environmental awakening of the 1960s thrust it back into the forefront of legal inquiry.

1970 marked the dawn of the new public trust era. Professor Joseph Sax published the seminal disquisition of the new public trust movement, recalling past use of the doctrine to protect water resources and urging future development of a broader public trust that would encompass a greater range of natural resource values.(6) On April 14, in honor of the nation's first celebration of International Earth Day, the Pennsylvania legislature adopted section 27 of their constitution.(7) Other states paralleled Pennsylvania's course, enshrining various forms of the public trust idea in their constitutions.(8)

In the years following, environmental activists began strategizing to put the doctrine to creative use, launching litigation designed to compel protection of public trust resources against formidable adversaries. In 1978, a handful of local residents and college biologists in an isolated mountain hamlet filed a public trust lawsuit against the City of Los Angeles to cease water diversions from the Mono Lake Basin.(9) This classic David-and-Goliath battle culminated in a 1983 victory for the Mono Lake advocates before the California Supreme Court(10) and galvanized the new public trust jurisprudence.(11)

The new public trust laid claim to the seed of the jus publicum, the notion that certain resources are of so common a nature that they defy private ownership in the classical liberal sense. But where the traditional doctrine evolved to protect common rights to access for commerce purposes (hence the criteria of navigability), the new public trust heralded conservationist principles. The California Supreme Court construed a fairly traditional constitutional provision requiring that the state ensure "beneficial use" of water resources(12) to mean that "[t]he human and environmental uses of Mono Lake--uses protected by the public trust doctrine--deserve to be taken into account. …