"Our Better Natures": A Revisionist View of the Public Trust Doctrine in Environmental Theory
In 1970, law professor Joseph Sax proposed a strikingly simple, intuitively appealing approach to environmental protection, namely, that natural resources ought to be regarded as held in common. Because these goods are to be enjoyed by all, the government must assume a trust-like duty not to waste or expend them for the benefit of just a few. Further, the state must take into account future users--later generations who will be harmed if society depletes or damages the environment in irreversible ways. 1
At the time Sax wrote, the environmental movement was in a state of agitation and flux. Commentators were writing about plastic trees and whether we should bestow legal rights on natural objects. The Green Movement was beginning to take hold in Europe, and in the United States scholars, activists, and ordinary citizens were calling for greater attention to decreasing quality of life, increasing pollution, and overdevelopment of the nation's farmlands and wilderness. 2
The time was exactly right for Sax's article. The public was becoming concerned that the nation's natural resources and parklands were limited commodities that, if too rapidly consumed, would not be available to us and later generations. 3 Sax argued that we should address these concerns by regarding ourselves as trustees who hold these precious goods for the benefit of all. The nation's rivers, beaches, and other natural resources are not ours alone to spend; we must deplete them judiciously, setting aside as much as prudence dictates for our own use and for that of future generations. To enforce this idea, courts should consider that the government holds parklands and other natural resources in a trust-like fashion.