Chapter 5 2021 PUBLIC TRUST DOCTRINE UPDATE

• Jurisdiction: United States

Water Law Institute
Chapter 5

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2021 PUBLIC TRUST DOCTRINE UPDATE
Sean Lyness Faculty Fellow New England Law Boston, MA

SEAN LYNESS is a faculty fellow at New England Law | Boston where he teaches Civil Procedure, Constitutional Law, Administrative Law, and environmental law courses. His research interests focus on environmental law at the state and local levels. His most recent publication explores the impact of local governments on the public trust doctrine. He received his J.D. cum laude from Harvard Law School and his B.A. from Brown University. Before teaching, Sean was a special assistant attorney general at the Rhode Island Office of the Attorney General where he enforced state environmental laws, defended the state in civil actions, and adjudicated public records and open meetings act disputes.

Introduction

As we move into the third decade of the twenty-first century, the public trust doctrine remains as vital as ever. A potent common law concept, the public trust doctrine is deceptively simple: some resources are so important that we have given them to the government to hold in trust for the public.¹ Traditionally, these natural resources have included navigable waters and tidal lands.² But that simplicity belies the doctrine's significance; the public trust doctrine underlies some of the most critical and intractable issues we face, from disappearing groundwater to climate change. And it poses questions that strike at the foundations of our legal system: what are the limits of governmental authority over public resources? Who can enforce those limits? And how can the law respond to climate change's existential threat? Not too bad for a doctrine that traces its roots back to Roman law.³

This essay provides an update for 2021 on the public trust doctrine as it has developed in the United States. But it is admittedly not a comprehensive one. Instead, I focus on three main evolving threads: (1) whether common law trust principles are part of the public trust doctrine; (2) whether the doctrine applies to groundwater; and (3) how

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the doctrine is being used to fight climate change.

Although discussed separately, make no mistake that all three threads relate to the exacerbating effects of climate change. Extreme weather is becoming both more frequent and extreme, droughts are increasing, and temperatures are rising.⁴ Climate change's myriad effects will continue to test and stress our legal system, the public trust doctrine included.

The essay begins with a background on the public trust doctrine, briefly explaining its history and tracing out the contours of the doctrine. I then continue to each of the three developing threads.

I. Background on the Public Trust Doctrine

Before diving into the substantive recent changes in the public trust doctrine, it is helpful to have an understanding of the doctrine as it has existed.

Let's begin with the doctrine's origins. Many courts and scholars have traced the doctrine back to its Roman roots.⁵ And, indeed, the oft-cited Institutes of Justinian does state that "[b]y the law of nature these things are common to mankind--the air, running water, the sea, and consequently the shores of the sea."⁶ However, recent scholarship by J.B. Ruhl and Thomas A.J. McGinn highlights the doctrine's more complex formulation as part of the res communes omnium ("things common to all") as well as the res publicae ("public things").⁷ In short, there was a Roman public trust doctrine, albeit one much

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different and less developed than our own.⁸

These Roman roots blossomed in English law. Early notions of the public trust doctrine exist in the Magna Carta of 1215 and the Grand Remonstrance of 1640.⁹ Importantly, both are in the context of checks on sovereign authority, underscoring the public trust doctrine's role in restraining government action.¹⁰

English notions of the public's right to use certain natural resources permeated into the various North American colonies.¹¹ For example, many New England colonies had a founding charter which explicitly guaranteed a right to fishing along the coast.¹² And the transition from colony to state carried forward those rights.¹³

The modern public trust doctrine as we know it owes a debt to Professor Joseph Sax. In 1970, he authored a law review article that reinvigorated the doctrine and placed it at the forefront of American environmental law.¹⁴ Just as the nation's legislative and executive branches sought to tackle growing environmental problems, so too could the judiciary, at least according to Professor Sax.¹⁵

Since Professor Sax's clarion call, the public trust doctrine has engendered real results. Litigants all across the country have used the doctrine to prevent development of, curtail impairment of, and open up public access to

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natural resources.¹⁶ The doctrine has been extended from its traditional shoreline and tidal waters focus to wildlife,¹⁷ dry sand areas of beaches for public recreation purposes,¹⁸ and the atmosphere.¹⁹ The doctrine holds a prominent place in American environmental law as a vital tool for advancing environmental goals.

But that is not to say, of course, that the doctrine is static. To the contrary, the public trust doctrine remains as contested and active as it is vital. And those disputes have brought about significant developments in the doctrine in just the past few years. The next three parts explore those developments.

II. Are Trust Principles Part of the Public Trust Doctrine?

Is the public trust doctrine a trust doctrine? More than

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an abstract query, how the public trust doctrine is conceptualized--akin to a trust?--shapes how the doctrine is used and applied. And whether traditional common law trust principles are part of the public trust doctrine can have big impacts on its application.

For proof, look to Oregon and Pennsylvania, two states that recently wrestled with this question.

A. Oregon

In 2011, two young Oregonians (and their guardians) filed suit against the state of Oregon and its governor.²⁰ One of the so-called "children's climate lawsuits," this case--Chernaik--sought to hold the state accountable for its inaction on climate change.²¹ Specifically, the Chernaik plaintiffs sought declaratory and injunctive relief on two main grounds: (1) that the atmosphere, water resources, navigable waters, shorelands, wildlife, and fish are public trust resources; and (2) that the state, as trustee, had violated its fiduciary duty to prevent those trust resources' impairment.²² If successful, the suit would have forced the state to take action on climate change by reducing carbon emissions.²³

After a dizzying back and forth between the circuit court (Oregon's trial court) and the court of appeals--totaling years of litigation--the case finally ended up before the Oregon Supreme Court in 2019.²⁴ After nearly a year of silence, the court issued a 6-1 opinion in favor of the state defendants in October 2020.²⁵ First, the court explained that it declined to expand the public trust doctrine to the atmosphere, at least in this case.²⁶

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Second, and of import to the doctrine's function as a trust, the court declined to "imposes obligations on the state like those that trustees of private trusts owe to trust beneficiaries."²⁷ The plaintiffs had argued that common law trust principles "should guide an understanding of the state's duties to protect public trust resources under the public trust doctrine."²⁸ In this case, that means the state-- as a trustee--has a fiduciary obligation to the trust assets--the state's natural resources.²⁹ Most importantly, this includes a duty to prevent substantial impairment of the trust resources.³⁰

The Oregon Supreme Court disagreed. Although the court had, at times, used common law trust principles to illuminate the public trust doctrine,³¹ it does not follow that "all common law trust principles govern the public trust doctrine."³² Why not? Such a "wholesale importation of generalized private trust principles" into the doctrine "could result in a fundamental restructuring" of the doctrine and "impose broad new obligations on the state."³³ As the court did not find an affirmative duty on the state, it avoided opining whether preventing substantial impairment was the correct standard for assessing the state's obligations under the public trust doctrine.³⁴

What, exactly, would come with this parade of horribles? And isn't "impos[ing] broad new obligations on the state" exactly what the plaintiffs were seeking? The Oregon Supreme Court did not answer these questions. But its decision does evince a general discomfort with treating the public trust doctrine as a trust doctrine. Some trust principles--the state as a trustee, for example--help to illustrate the workings of the public trust doctrine.³⁵

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Other trust principles--the trustee's fiduciary duty to the trust assets--go too far and require too much. Chernaik thus exemplifies the power and peril in the trust components of the public trust doctrine.

The lone dissenter, Chief Justice Martha L. Walters, authored a searing dissent.³⁶ Rejecting the majority's "all or nothing" approach, Chief Justice Walters viewed common law trust principles as a "metaphor" that led to the conclusion that the public trust doctrine does impose an affirmative fiduciary duty on the state.³⁷

B. Pennsylvania

Pennsylvania's courts have also recently struggled with how the public trust doctrine operates like a trust. But they have done so from a different starting point: that private trust principles expressly do apply to the public trust doctrine.

Admittedly, Pennsylvania has a very different public trust doctrine than Oregon does, namely in that it is codified. Ratified fifty years ago, Pennsylvania's Environmental Rights Amendment provides a state constitutional right to "clean air, pure water, and to the preservation of the natural, scenic, historic and...