The public trust doctrine in the shadow of state environmental rights laws: a case study.

Author:Klass, Alexandra B.
Position:Developments in the Public Trust

    The 1970s and early 1980s were heady times for environmental law and its supporters. Congress enacted the most sweeping federal protections for natural resources, human health, and the environment ever seen then or since in the form of the Clean Air Act, (1) the Clean Water Act, (2) and a host of other federal statutes. President Nixon created the U.S. Environmental Protection Agency (EPA). (3) There was a national conversation about the need to preserve natural resources and protect human health, even if it placed new and significant limits on industrial activities as well as commercial and residential development. At the same time, a similar conversation and related legal developments were taking place in state legislatures. In the late 1970s and early 1980s many states enacted new laws to protect air, water, and open space that built on the new federal environmental laws and created new state agencies to administer them. (4)

    But there was another, related conversation occurring in academia and, ultimately, in the state courts over a different approach to protecting natural resources--the use of the public trust doctrine. The public trust doctrine is 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. (5) Prior to 1970, U.S. courts limited application of the doctrine primarily to cases involving efforts to preserve public access to water resources for commerce, recreation, transportation, and fishing. (6) In 1970, however, Joseph Sax argued in an influential law review article that the public trust doctrine could be an alternative and complementary means of forcing state agency officials to protect natural resources even when strong environmental protection legislation did not require such action or provide standing to those who wished to protect natural resources. (7) Environmental groups and individuals took up the call to arms and convinced courts in many states to adopt a more expansive use of the public trust doctrine to protect a broad range of natural resources. Excellent legal scholarship has catalogued the number and range of cases over the years and serves to emphasize just how important a role the common law public trust doctrine has become in the past several decades. (8)

    The rise of environmental protection statutes coupled with the increasing use of the public trust doctrine led to yet another strand of legal developments that combined the legislative and common law advances. First, several states amended their constitutions in the 1970s and included provisions declaring that the citizens of the state have the right to clean air, pure water, and the preservation of natural resources; these provisions also declare that the government has an obligation to protect those resources for its citizens and future generations. (9) Second, Professor Sax worked with the Michigan legislature to create an environmental rights statute, the Michigan Environmental Protection Act, (10) that grants private citizens the right to sue the government and other private parties to ensure the protection of natural resources even where other substantive environmental protection statutes did not provide such a right of action. (11) A few other states followed suit, most notably Minnesota, which in 1971 enacted the Minnesota Environmental Rights Act (MERA). (12) Modeled after the Michigan statute, MERA grants any private party, state, or local government the right to sue for declaratory or injunctive relief to protect air, water, land, or other natural resources from pollution, impairment, or destruction. (13) Even more than the Michigan statute, litigants in Minnesota have successfully used MERA to protect a broad range of natural resources, and to enjoin or limit a significant number of industrial, commercial, and residential development activities that would adversely impact protected natural resources. (14) While other states enacted environmental rights statutes in the (1970) s, very few have resulted in any significant case law and none as extensive as that in Minnesota. (15)

    The question for this Article is one that, to my knowledge, has not been addressed in the extensive literature on the public trust doctrine. The question is whether environmental rights statutes can stunt the growth of the common law public trust doctrine and how this can be avoided if, in fact, it should be avoided. While there may not be easy answers to this question, a recent case in Minnesota provides some helpful insights into what happens to the common law public trust doctrine when forty years of environmental litigation that would otherwise rely on the public trust doctrine is instead channeled into a fairly robust environmental rights statute. At least in Minnesota, the courts were not asked to interpret or use the public trust doctrine at all in the context of environmental protection. (16) And, more importantly, they were not asked to use and develop the doctrine during the time the environmental protection movement was at its height--in the 1970s and early 1980s. (17) During this era, courts in other states used the public trust doctrine to protect natural resources and gradually expanded the scope of that doctrine, while Minnesota courts used MERA to increase protection for environmental resources instead of strengthening the public trust doctrine. In fact, there are very few public trust doctrine cases involving environmental protection to be found in the state after 1970--an oddity considering the state's history of strong environmental protection in other areas such as its enactment of MERA, the courts' early expansive interpretation of that law, and the enactment of other 1970s-era environmental protection laws.

    However, in 2012, a Minnesota case, White Bear Lake Restoration Association v. Department of Natural Resources (White Bear Lake Restoration Association), (18) began a new conversation on the public trust doctrine in the state--one that never took place in the 1970s. This case involves traditional public trust resources--a lake and a lakebed--as well as efforts by private citizens to compel the state to protect those resources for present and future generations, thus coming squarely within the purview of MERA and even the most narrow reading of the public trust doctrine. (19) The state argued in part that MERA had replaced the common law public trust doctrine in Minnesota and that the doctrine on its own could not be used for environmental protection purposes, citing the lack of any relevant public trust doctrine cases. (20) While the district court rejected these contentions, (21) the arguments of the parties and the court's analysis sheds light on the important relationship between the common law and state legislation in the context of public trust resources and environmental protection more generally.

    Part II of this Article provides a brief history of the common law public trust doctrine, its expansion to more broadly protect natural resources in the 1970s, and its role in creating the constitutional and statutory environmental rights provisions that exist in some states, including Minnesota, today. Part III explores MERA and the White Bear Lake Restoration Association case in detail to show how the channeling of environmental protection litigation toward MERA for forty years created a situation where there is very little public trust doctrine case law to rely on in the state.

    Part IV considers the implications of this lack of case law surrounding the public trust doctrine in Minnesota. Even if MERA does not displace the common law public trust doctrine in Minnesota, is it an adequate substitute? If a statute exists, is there a need for the common law doctrine? This Part contends that the common law public trust doctrine remains important despite the existence of MERA. First, the public trust doctrine has an important role in natural resource protection in the state because of various exemptions and affirmative defenses in the statute. Second, the public trust doctrine provides an important defense to regulatory takings claims when governmental entities act to protect natural resources in a manner that conflicts with private property rights. MERA cannot provide this support for state action and the public trust doctrine has a long history of playing just such a role. Third, and perhaps most important, the public trust doctrine remains important as an ultimate check on legislative and executive branch authority in the context of natural resources protection. Legislatures can amend statutes to provide less protection for natural resources. And courts must give deference under administrative law principles to agencies interpreting statutes and regulations, and that deference may result in reduced protection for natural resources. (22) But the public trust doctrine is a vehicle for the courts to ensure that the state fulfills its common law obligation to protect natural resources even if legislative and executive branch sentiments are otherwise. (23)

    Notably, in focusing on the relationship between MERA and the common law public trust doctrine in Minnesota, the goal of this Article is not at all to criticize MERA or to argue that litigants should ignore it in favor of bringing common law public trust doctrine claims. To the contrary, the Minnesota legislature in 1971 enacted powerful...

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