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Environmental Law Review

Established 1969         

Welcome to the home page for Environmental Law, the nation’s oldest law review dedicated solely to environmental issues. Environmental Law is a premier legal forum for environmental and natural resources scholarship.

Environmental Law is published quarterly by the students of Lewis & Clark Law School, 10015 S.W. Terwilliger Blvd., Portland, OR 97219, in the Spring, Summer, Fall, and Winter. The views expressed in the volumes do not necessarily reflect those of the editorial boards.

Online Journal 

Visit Environmental Law’s companion online journal, where you will find selected articles and essays from our print journal, web-only articles, and an archive of our 9th Circuit case reviews. You can also share your thoughts on what you see there by posting comments and engaging in an online conversation with other legal minds. 

Current Issue: Vol. 45 No. 2

 

Symposium: Public Trust Doctrine

Developments in the Public Trust
 Ryan Shannon

 

Articles

Atmospheric Recovery litigation: Making the Fossil Fuel Industry Pay to Restore a Viable Climate System
Mary Christina Wood & Dan Galpern

At its core, the public trust principle encompasses the reserved and inalienable rights of citizens to a healthy environment. The principle imposes a sovereign duty on government to protect crucial natural resources for the benefit of present and future generations of citizens. The climate system and atmosphere support all life on Earth, yet governments worldwide continue to allow carbon dioxide pollution that propels climate disruption. Scientists have made clear that such pollution imperils the habitability of Earth and jeopardizes the stability of human civilization, yet governments do vanishingly little to force major carbon polluters to change their ways. Irreversible tipping points loom dangerously ahead. The public trust commands governments to protect a viable climate system and authorizes citizens to turn to the courts when government fails.

Leading scientists have developed a climate stabilization strategy consisting of two parts: 1) aggressive emissions reduction, and 2) natural removal of carbon dioxide from the atmosphere. Global public trust litigation called Atmospheric Trust Litigation is underway to force governments to lower carbon emissions within their jurisdictions. Spearheaded by the organization Our Children’s Trust, Atmospheric Trust Litigation seeks judicial remedies in domestic courts requiring governments to develop and implement climate recovery plans that accomplish necessary emissions reduction.

This Article focuses on the second part of the climate stabilization strategy, which calls for the drawdown of atmospheric carbon dioxide through natural methods. Projects aimed toward reforestation, soil sequestration, mangrove restoration, and regenerative grazing can be planned in targeted areas throughout the world to achieve the necessary drawdown, but such projects require significant funding. Invoking the public trust principle, this Article proposes a legal strategy of Atmospheric Recovery Litigation to hold the major fossil fuel corporations liable for funding such natural sequestration. Public trust law traditionally holds polluters liable for natural resource damages to public trust assets. Sovereign trustees are obligated to seek recovery of such damages and apply them toward restoration of the asset. While ecosystem recovery on a global scale is unprecedented, the underlying legal principles and approach bear striking similarity to those traditionally applied to discrete resources. With respect to both parts of the climate stabilization strategy, domestic courts in nations throughout the world may prove indispensable to forcing effective action before it is too late.

Why Liberating the Public Trust Doctrine is Bad for the Public
James L. Huffman

Since the beginning of the modern environmental movement in the 1960s, environmental advocates have been in search of ways to circumvent the twin obstacles of political compromise and vested property rights. In a 1970 article, Professor Joseph Sax suggested that the common law public trust doctrine might provide an avenue for judicial intervention in the name of claimed public rights in a wide array of natural resources. Because the traditional doctrine was narrowly limited in terms of both public rights and affected resources, Sax published a second article ten years later, calling for courts to liberate the public trust doctrine from its historical parameters. While a few judges responded with generally limited extensions of the doctrine, Sax’s plea has been ignored by most courts—but not by academics. A flood of law review articles have resorted to shoddy history, retrospective theorizing about the origins and purposes of the doctrine, appeals to higher law and moral imperatives, and confusion of the idea of public trust in representative government with the public rights protected by the public trust doctrine in efforts to persuade courts to liberate the doctrine. Implicit, if not explicit, in all of these arguments is the claim that the common law origins of American law and the American judicial system vest courts with authority to amend old law and make new law. At risk in this vast and imaginative effort to liberate the public trust doctrine from its common law confines are the constitutional separation of powers, the rule of law, due process and secure property rights, and the economic prosperity on which environmental protection ultimately depends.

Joe Sax and the Public Trust
Gerald Torres

This Essay situates the work of Professor Sax in a broad intellectual and conceptual framework. Professor Sax’s work is widely understood to be foundational in the modern understanding of both the public trust doctrine and the takings doctrine. It is also viewed as critically important to policy development in water resource management, protection of natural resources, and environmental law as a field.

While most commentators note the signal advances in property theory made by Professor Sax, few have noted the relationship of property theory to democratic political theory. The legitimacy of the state and the constituting role of property relations—both between individual members of the political community and between government and citizen—are implicated by Professor Sax’s work. This Essay suggests that to fully appreciate the scope of Professor Sax’s contributions to the law, one must also appreciate how his work in property and environmental law not only reconfigured the nature of the debate around those issues, but how it speaks to our understanding of what government is for. Moreover, because his arguments engage democratic theory through a variety of methodological approaches, it is not just environmentalists who can learn from his work, but all of us.

The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and Illinois Central Railroad
Michael C. Blumm & Lynn S. Schaffer

In Alec L. v. McCarthy, an atmospheric trust case, the D.C. Circuit, in an unreflective opinion, rejected the plaintiffs’ claim that the public trust doctrine demanded action on the part of the federal government to curb atmospheric greenhouse gas emissions. The court relied on dicta in Supreme Court opinions to declare that the public trust doctrine does not apply to the federal government, but exists instead entirely as a creature of state law. In this Article, we take issue with the D.C. Circuit’s conclusory opinion, maintaining that it rests on a misreading of the Supreme Court’s articulation of the public trust doctrine in Illinois Central Railroad v. Illinois, a century-old opinion in which the Court struck down a state conveyance of Chicago Harbor to the railroad as a violation of the public trust doctrine without any reliance on state law. Consequently, the D.C. Circuit’s interpretation of the Illinois Central opinion as a reflection of state law is erroneous. Similarly, recent statements by Justice Kennedy concerning the distinction between the equal footing and public trust doctrines were misinterpreted by the D.C. Circuit—as well as some other courts.

We maintain that the public trust doctrine is an inherent limit on all sovereign authority, not just states. Illinois Central is best interpreted as an application of the Tenth Amendment’s reserved powers doctrine, which reserved certain rights “to the people.” Just as the Supreme Court limited state sovereignty to enjoin Illinois from privatizing Chicago Harbor, the reserved powers doctrine should apply to the federal government, a government of limited powers. Application of the public trust doctrine to the federal government calls for close judicial oversight of federal conveyance of public resources or attempts to create monopolies, not judicial deference. We think that such judicial skepticism is warranted if the federal government is to fulfill its duties to protect and preserve public resources for future generations.

 This Article looks at the relationship between state environmental rights statutes and the common law public trust doctrine. In addressing this issue, it focuses on the state of Minnesota, where, in the early 1970s, the state legislature enacted a far-reaching environmental rights statute, the Minnesota Environmental Rights Act (MERA), that served to codify many public trust principles. Beginning in the early 1970s and for the next forty years, litigants in Minnesota that might otherwise have brought common law public trust doctrine claims for environmental protection purposes instead channeled that litigation through MERA. As a result, Minnesota courts have rarely been asked to interpret or use the common law public trust doctrine at all in the context of environmental protection. And, more importantly, they did not have an opportunity to use and develop the doctrine during the time the environmental protection movement was at its height in the 1970s and early 1980s. Instead, the lyrical language many courts used in public trust doctrine cases in other states during that era to protect natural resources and expand the scope of the doctrine is found, in Minnesota, in MERA cases, not in public trust doctrine cases. This Article explores the implications of the underuse of the common law public trust doctrine in Minnesota by focusing on a 2012 case, White Bear Lake Restoration Association v. Department of Natural Resources, which is the first case to begin a new conversation on the common law 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. 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. While the district court rejected these contentions, 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.
The Potential Meanings of a Constitutional Public Trust
John C. Dernbach

The Pennsylvania Supreme Court’s 2013 decision in Robinson Township v. Commonwealth (Robinson Township) has lawyers looking at the state’s constitutional Environmental Rights Amendment (Amendment)—including its public trust provision—as if it magically appeared in the state constitution on the date of the decision. The Amendment had been so thoroughly buried by judicial decisions that most lawyers had never given the text much thought. This Article describes the origin of the Amendment, the two primary cases decided shortly after it was adopted that effectively buried the Amendment, and the Robinson Township decision. It then surveys the wide range of issues that have arisen in the courts and other adjudicatory bodies in the immediate aftermath of Robinson Township and provides suggestions for how some of them should be resolved. Taken together, these cases provide a glimpse of what constitutionally protected environmental rights, including a constitutional public trust, could mean if the Pennsylvania courts continue to treat the Amendment as constitutional law.

What the Public Trust Doctrine can Teach us about the Police Power, Penn Central, and the Public Interest in Natural Resource Regulation: A Tribute to Joe Sax
Robin Kundis Craig

One of Joseph Sax’s recurring scholarly concerns was how to effectuate and preserve the substantial and long-term public interest in natural resources, and he was drawn to the public trust doctrine in part because that doctrine explicitly recognizes that public rights in those resources, particularly water, do exist. Following in Sax’s tradition, this Article argues that the public trust doctrine can serve to illuminate structural and analytical problems with regulatory takings doctrine, which has had a much more difficult time acknowledging the role of public rights. In particular, while governments do sometimes directly represent the rights of the public—under the public trust doctrine, for example, as the trustee of submerged lands and as protector of the public’s right of navigation—the Penn Central takings analysis both overdeterminedly conflates government action with the public interest, eliding the fact that the private property owner is also a member of the public who benefits from government action, and denies the public its full independent status as a third interest holder in any property rights analysis. Using examples from water law, coastal land use regulation, and fisheries management, this Article argues that regulatory takings doctrine unnecessarily impedes the urgent need for property law to evolve to meet the demands of a post-exploitation United States and that the public and communitarian approach to property rights that the public trust doctrine offers presents a much more useful perspective on property rights for our changing future.

The Public Trust Doctrine, Private Water Allocation, and Mono Lake: The historic saga of National Audubon Society v. Superior Court
Erin Ryan

This Article tells the epic tale of the fall and rise of Mono Lake—the strange and beautiful Dead Sea of California—which fostered some of the most important environmental law developments of the last century, and which has become a platform for some of the most potentially important developments in the new century. It shares the backstory and legacy of the California Supreme Court’s famous decision in National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983), known more widely as “the Mono Lake case.” Inspired by innovative legal scholarship and advocacy, the decision spawned a quiet legal revolution in public trust ideals, which has redounded to other states and even nations as far distant as India.

The Mono Lake dispute pitted advocates for the local ecosystem and community against proponents of the continued export of Mono Basin water to millions of thirsty Californians hundreds of miles to the south. The controversy itself spanned decades, but the story leading up to the litigation stretches back more than a hundred years, adding depth and dimension to the tale that is easily missed on a casual reading of the Mono Lake decision itself. It is a case study on the challenges and possibilities for balancing legitimate needs for public infrastructure and economic development with competing environmental values, all within systems of law that are still evolving to manage these conflicts. And at this particular moment in time, commemorating the hundredth anniversary of the Los Angeles Aqueduct that would threaten the lake and the twentieth anniversary of the State Water Board’s ultimate decision to save it, the Mono Lake story is especially worth revisiting.

Part II introduces the main cast of characters in the Mono Lake story, starting with the public trust and prior appropriations doctrines around which the legal controversy unfolds. Part III introduces the three places at the center of the drama—Los Angeles, the Owens Valley, and the Mono Lake Basin—in recounting the history of the Californian water struggles leading up to the Mono Lake case. Part IV discusses the Mono Lake litigation itself and its aftermath, reviewing the court’s conclusion and the subsequent decision by the California Water Resources Control Board implementing the judicial directive. After analyzing the most important doctrinal innovations in the opinion, Part IV discusses subsequent critiques and new developments in public trust law.

Part V concludes with parting reflections about some important questions that the Mono Lake story leaves us to ponder, including whose interests count when we talk about the “public” trust, how they differ from aggregated private interests, and which to account for when balancing the economic, cultural, and environmental considerations in public trust conflicts. It considers the extent to which the doctrine creates substantive or procedural obligations, and the responsibilities of different legal actors and institutions in implementing them. The contested answers to these questions are what make the public trust doctrine so fascinating, so powerful, and so critical as we continue to confront the inevitable crises between competing natural resource values.


 

 

 

 

 

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