Thursday, June 20, 2013

The public trust doctrine and origin stories

Michael Blumm and Mary Wood have posted Chapter 1 of their forthcoming The Public Trust Doctrine in Environmental and Natural Resources Law (Carolina Academic Press, 2013) on SSRN. According to the abstract, this casebook has a strong historical component:

The public trust doctrine (PTD) is an ancient property law doctrine which first surfaced in Roman law in the Justinian Code, was revived in medieval England largely through the efforts of Sir Mathew Hale, and became entrenched in American law in the nineteenth century through the process of statehood. In the twentieth century, the doctrine became a favorite of the law professoriate and the environmental community for its potential to recognize public rights in private property. Thus, the doctrine both promotes public access to trust resources and justifies public regulation of them. It also equips the public with the right to challenge governments concerning their management of PTD resources.
We offer the first casebook on the PTD, reflecting the rich history and considerable diversity of the doctrine. The latter is the product of an assumption that the doctrine is one of state law, a perception that we think is erroneous because the origins of the American PTD lie in bilateral federal-state agreements admitting states to the Union. Actually, the PTD is an inherent attribute of sovereignty, and should apply to both the federal and state governments. The doctrine is increasingly recognized as applicable in other as countries as diverse as India, the Philippines, Kenya, and Brazil as well.
The wellspring of the PTD in American law lies in antimonopoly sentiment widespread in the nineteenth century, which continues to produce a vibrant body of case law concerning public access to trust resources. That case law - as well as state constitutions and statutes - has also expanded the scope of trust resources from lands submerged beneath navigable waters to wetlands, beaches, parklands, wildlife, and groundwater. Internationally, the doctrine has encompassed concepts of sustainable development and the precautionary principle, and thus is frequently linked to the public’s right to life, health, and environmental protection. There are ongoing efforts to use the PTD to combat climate change by applying it to curb carbon emissions to sustainable levels. 
The doctrine certainly is "a favorite of the law professoriate and the environmental community" and I hope that somebody someday explores why that is so, given its somewhat limited effects in practice.

I also wonder why every American discussion of the doctrine begins with Justinian, as if Roman jurists carried much weight in American law and legal culture. (For the record, the same is true of Israeli discussions.) There are a wealth of origin stories about the doctrine: Roman law, Hale, English common law, the American "Equal Standing" Doctrine, nineteenth-century antimonopoly sentiment, Joseph Sax, and twentieth-century environmentalism. It's not obvious how these stories mesh, and there is work to be done in fleshing out how they came together and against what environmental, legal, political, social, economic, and cultural backgrounds. The antimonopoly story holds particular appeal for me; I look forward to reading more about this.

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