Public trust and distrust: the theoretical implications of the public trust doctrine for natural resource management.

• Author: Ryan, Erin

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.

1. 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."(13) Whereas constitutional provisions modeled on the traditional doctrine guaranteed that "[t]he title to lands under navigable waters, within the boundaries of the state ... is held by the state, by virtue of its sovereignty, in trust for all the people,"(14) the new public trust in Pennsylvania guaranteed that "[t]he people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment."(15)

   Environmental activists widely hailed the emergence of the new public trust as the legal tool that would finally empower them against powerful private and government interests they believed imperiled natural resources nationwide.(16) Scholars and practitioners have responded to Sax's call and have advocated extending public trust protection to wildlife,(17) parks,(18) cemeteries,(19) and even works of fine art.(20) Sax's 1970 article influenced the development of numerous environmental statutes, including the National Environmental Policy Act.(21) Judged by the pace and scope of the public trust revival, Sax's project has met with resounding success.(22) And yet, voices of dissent have arisen even from within the environmentalist camp, represented most persuasively in the work of Professor Richard Lazarus.(23)

   This Comment explores the debate among natural resource lawyers over the true value of the public trust theory in environmental advocacy. While activist deployment of the new public trust doctrine has mostly stirred controversy between those who would privilege natural resource protection(24) and those who would prioritize the protection of private property rights,(25) an important divide has also developed between legal scholars who stand shoulder-to-shoulder in the environmentalist camp. While some, like Sax, see the public trust doctrine as the environmentalist's best hope for securing needed protection for natural resources in court, others, like Lazarus, fear that resort to the doctrine will obstruct the development of a more progressive body of natural resource law. After reviewing the arguments, this Comment reflects on whether the empirical progress of natural resource law has restructured the debate since the 1984 publication of Lazarus's critique of Sax's public trust manifesto. The Comment concludes that the modern trend of constitutionalization may propel the doctrine beyond the theoretical constraints of its common law roots.

2. PUBLIC TRUST AND DISTRUST

   [F]ew public interests are more obvious, indisputable and independent of particular theory than the interest of the public of a State to maintain the rivers that are wholly within it substantially undiminished, except by such drafts upon them as the guardian of the public welfare may permit for the purpose of turning them to a more perfect use. This public interest is omnipresent wherever there is a State, and grows more pressing as population grows. It is fundamental, and we are of opinion that the private property of riparian proprietors cannot be supposed to have deeper roots ... The private right to appropriate is subject not only to the rights of lower owners but to the initial limitation that it may not substantially diminish one of the great foundations of public welfare and health.(26) Byzantine law declared that "[b]y natural law, these things are common property of all: air, running water, the sea, and with it the shores of the sea."(27) As Professor Lazarus notes, it remains unclear whether this represented true Roman practice or mere Justinian aspiration,(28) but this seminal promulgation of the public trust doctrine ultimately infused customary and common law throughout medieval Europe.(29) In the United States, the public trust doctrine serviced arguments in state courts against private ownership of water resources as early as the 1820s,(30) and most case law that followed over the subsequent 150 years invoked the trust to preserve public access to waterways for the purposes of fishing and navigation.(31)

   1. Sax and the New Public Trust

      Professor Sax's argument was revolutionary because it sought to expand the scope of the public trust doctrine to encompass environmental preservation, and it proved consequential in documenting a common law basis for courts to legitimately assume a normative stance in adjudicating natural resource questions. In the 1970 article and subsequent work,(32) Sax focuses less on the public trust doctrine's substantive potential and more on the procedural protections it offers defenders of natural resource values against democratic failures of the political process: "public trust law is not so much a substantive set of standards for dealing with the public domain as it is a technique by which courts may mend perceived imperfections in the legislative and administrative process."(33) Essentially, Sax argues that the doctrine enables judicial oversight when inadequacies in legislative and administrative processes result in wrongful discounting of natural resource values vis a vis competing economic use values, noting that "the public trust concept is, more than anything else, a medium for democratization."(34)

      Interestingly, one of the more serious critiques of the new public trust doctrine unleashed by Sax is that it is anything but democratic in empowering publicly unaccountable judges to overturn the democratic deliberations of legislatures(35) and to frustrate very recently reasonable expectations of private property owners without affording them compensation.(36) Related critiques allege that the unbounded scope of the new public trust has so far departed from its doctrinal origins that it lacks jurisprudential legitimacy(37) and may conflict with other constitutional values.(38) Even leading environmental...