Using the Public Trust Doctrine to Balance the Impacts of Renewable Energy Projects

NOTES

Using the Public Trust Doctrine to Balance the

Impacts of Renewable Energy Projects

KAYLA A. STEINBERG*

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293

I. The Traditional Public Trust Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . 294

II. The Expansion of the Public Trust Doctrine . . . . . . . . . . . . . . . . . . . . . . 297

III. The Public Trust Doctrine and Renewable Energy . . . . . . . . . . . . . . . . . 301

IV. The Kahuku and Palehua Wind Projects . . . . . . . . . . . . . . . . . . . . . . . . 303

A. Background on the Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

B. Hawaii’s Public Trust Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . 306

C. Applying the Public Trust Doctrine to Kahuku and Palehua . . . . . . 308

D. How the Application of the Public Trust Doctrine Could Impact

Hawaii’s Renewable Energy Goals . . . . . . . . . . . . . . . . . . . . . . . . 312

V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314

INTRODUCTION

The public trust doctrine, which creates an aff‌irmative duty on the government

to protect natural resources on behalf of the public,

1

is a useful tool for environ-

mentalists. Although it was traditionally limited to resources like navigable

waters and uses like f‌ishing and navigation, the doctrine has since been expanded

in some states to cover resources like groundwater, land, wildlife, and scenic

views, as well as passive uses like hiking and bird watching.

2

The doctrine can be

used to protect such natural resources from development—even when the devel-

opment in question is for environmental purposes, such as renewable energy proj-

ects undertaken to reduce dependence on carbon-intensive energy. In this Note, I

* Georgetown Law, J.D. expected 2021; University of Maryland, M.P.P. 2018; University of

Maryland, B.A. 2017. © 2021, Kayla A. Steinberg.

1. Hope M. Babcock, Using the Federal Public Trust Doctrine to Fill Gaps in the Legal Systems

Protecting Migrating Wildlife from the Effects of Climate Change, 95 NEB. L. REV. 649, 675 (2017).

2. Hope M. Babcock, Is Using the Public Trust Doctrine to Protect Public Parkland from Visual

Pollution Justif‌iable Doctrinal Creep?, 42 ECOLOGY L.Q. 1, 3, 20 (2015); Alexandra B. Klass,

Renewable Energy and the Public Trust Doctrine, 45 U.C.D. L. REV. 1021, 1024–25 (2012).

293

will give a brief overview of the public trust doctrine generally—how it began

and how it has evolved—as well as how it can be in tension with renewable

energy projects. I will then explore how the public trust doctrine could have been

used in Hawaii to f‌ight two wind farms opposed by local communities and how

an expansive doctrine that covers both natural resources and the climate could

help balance competing interests by ensuring that all environmental benef‌its and

harms are considered.

I. THE TRADITIONAL PUBLIC TRUST DOCTRINE

The public trust doctrine claims that the government holds and protects its

lands’ natural resources on behalf of the public.

3

Although the doctrine’s basic

tenet is quite simple, the origins and scope of the public trust doctrine are com-

plex and confusing. The doctrine‘s historical origins arguably go as far back as

Justinian,

4

though the doctrine was largely dormant in American legal theory

until its reemergence in the 1970s through champions like Joseph L. Sax, a noted

environmentalist and legal scholar.

5

Though some scholars, such as Professor

James Huffman, question the accuracy of its historical roots in American juris-

prudence, environmentalists, courts, and state legislatures have continued to use

the public trust doctrine to protect natural resources, giving the doctrine legiti-

macy through recognition.

6

The doctrine’s legal bases are equally complex and confusing. The public trust is

primarily a state-based doctrine. Illinois Central Railroad Co. v. Illinois and subse-

quent Supreme Court decisions held that the public trust “is neither a creature nor a

component of federal law,” but rather a “judicial explication of state . . . law princi-

ples.”

7

As such, we must “look to state law to determine the source and scope of

public trust principles.”

8

Each state has its own version of the public trust doctrine,

with different histories, authorities, and scopes.

The public trust doctrine can be authorized under several sources within state

law: state common law, state constitutions and statutes, and/or state sovereignty

itself. Each state takes a different approach. For example, in Nevada and

Pennsylvania, state constitutions are cited as the main sources of public trust

3. Babcock, supra note 1, at 675.

4. Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources

Law: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631, 632 (1986).

5. Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial

Intervention, 68 MICH. L. REV. 471, 484 (1970).

6. Hope M. Babcock, The Public Trust Doctrine: What a Tall Tale They Tell, 61 S.C. L. REV. 393,

402 (2009).

7. Richard M. Frank, The Public Trust Doctrine: Assessing Its Recent Past & Charting Its Future, 45

U.C.D. L. REV. 665, 684 (2012).

8. Id. at 685. Although some lower courts have said that the federal government has public trust

duties, courts in more recent cases have been hesitant to apply the doctrine to federal lands and off‌icials.

This is a particularly important issue in the western half of the U.S., where signif‌icant portions of land

are federally owned. Id. at 673, 680.

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