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Saturday, May 14, 2011

The Public Trust Doctrine in the Modern World

As threatened promised, I want to say a little bit about the public trust doctrine beyond my earlier post commenting on the multi-state climate change lawsuits filed last week.  I've had the occasion to think about this recently because a couple of months ago I participated in a really wonderful symposium on the topic at U.C. Davis, whose law review was celebrating the thirtieth anniversary of an earlier Davis symposium on the doctrine, which featured an important article by Joseph Sax calling for an expansion of the doctrine's scope.

I come to the topic with a lot of sympathy for the project of using the doctrine for environmental protection.  The idea that western law back to Roman times provides for common use rights of resources that today we identify largely in terms of their value as environmental resources is quite attractive.  Moreover, as an administrative law professor, Sax's original idea -- that the doctrine should be understood as a requirement of reasoned decision-making that accounts not just for private interests but the public interest -- resonates deeply with me, given its relationship to the crucial developments in American administrative law in the 1970's.

But still, I wonder.  With the enactment of a whole array of federal environmental statutes and the previously-mentioned development of a more intricate administrative law system (at least some of which can be attributed to Sax), it's a fair question to ask whether the doctrine has become a victim of its own success.  Of course, as I argue in my article, this is not the full story.  Indeed, I've argued that scholars who in the 1980's called for the doctrine's demise may have underestimated the effectiveness of those reforms, with the result that the doctrine has not been rendered superfluous.

In my article I argue that the doctrine should best be understood as an interpretive canon, rather than as an independent substantive protection for environmental resources.  This means that it can be overcome by an explicit statement in the law.  I think this at least partially obviates the critique that the doctrine is undemocratic -- a concern reflected most recently (in a different context) in the discussion of the American Electric Power case currently before the Supreme Court.  Indeed, this approach answers the obsolescence argument, as it suggests that legislative recognition of the doctrine's values satisfies the doctrine's requirements, and thus allows it to take a back seat when the political process has recognized the doctrine's basic concerns.  It also reflects Sax's original understanding of the doctrine as a tool to ensure deliberation, akin to what became NEPA.

But even given this relatively limited understanding of the doctrine, questions remain about its legal foundation.  The doctrine's legal basis in American law is notoriously murky, as every likely candidate -- the common law, state constitutional law, the federal navigational servitude, and others -- suffers from some logical flaw or disconnect with the way the doctrine has developed.  Even more fundamentally, scholars such as James Huffman have asked some difficult questions  about the doctrine's supposed grounding in Roman law.  I'm a little less concerned about that deeper issue, since the doctrine, whatever its original provenance, has been recognized to exist in American law for at least over a century, if not longer.  But Professor Huffman's concerns do make it more important that a coherent foundation for it be found somewhere in American law.

This debate might be seen as purely academic, or at best a side-show, even within the world of environmental law.  But the lawsuits I blogged about last week, and their requests for exceptionally broad judicial remedies, mean that the doctrine will play at some role in environmental discourse for the foreseeable future. 

Posted by Bill Araiza on May 14, 2011 at 02:17 PM | Permalink

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