Public Trust Doctrine
THE LATEST: My review, with Mary Turnipseed, of the Public Trust Doctrine and it’s role in conservation. (in Annual Reviews of Environment and Resources)
The Public Trust Doctrine (PTD) is a very simple and appealing idea that natural resources (and the benefits we derive from them) belong to all citizens, and future generations of citizens. The government only holds them in trust for us. As a trustee, the government has certain grave obligations–to protect the trust, to grow the trust and to repair the trust should it be damaged. The PTD is basal to US law and has been mostly quietly upheld and expanded in the courts to clearly pertain to natural resources, access to natural areas, ecosystems and livelihoods derived from them.
Obviously, the government abdicated its responsibilities with the BP Deepwater Horizon oil fiasco. Most fingers point at Minerals Management Service, which had become (especially under the George W. Bush administration) a revolving door for oil industry execs to get influential government jobs and then high paying lobbyist positions. MMS had essentially shifted from a regulator to a partner with industry. But the failure to protect the public trust goes beyond MMS–if all agencies (e.g., the Coast Guard, NOAA, EPA, etc.) had been truly free to carry out their public trust responsibilities, they would not have allowed MMS to put the trust at such risk. It is because we haven’t strongly asserted a public trust doctrine that our government agencies continue to operate in isolation, as if carrying out the narrow scope of their mandate is enough to protect the trust.
We feel that the PTD could be the unifying force in modern conservation. It doesn’t lock up resources, but it doesn’t allow them to be squandered. The best analogy is to a financial trust–you want your trust managers to return some dividends, but also to grow the trust for the future. A financial trust (or a mutual fund) is managed by several people who try to balance short term returns and long term growth. We’ve seen clearly–with Bernie Madoff, with Goldman Sachs and the subprime mortgage crisis–what happens when financial trust responsibility is abdicated. Now, sadly in the Gulf we have seen what happens when our public trust is abandoned.
I owe most of my thinking on this topic to former Duke grad student Mary Turnipseed, who got fired up about this largely forgotten legal concept and ran with it. Here’s some writings we’ve done on the topic:
Very Short: An op-ed by Mary and me in McClatchy papers:
Short: A paper in Science by Mary, me, Steve Roady (our legal guru) and Larry Crowder:
Medium: Mary and I asked several legal experts what the PTD is all about – their answers are a good overview of the Doctrine in Federal and International Law and appeared as the cover story in the Sept./Oct. 2010 Environment:
Long: Our review on how public trust can fit within the modern context of conservation, how public trust relates to fiduciary law and fundamental concepts of human rights:
Looong: Mary’s tour de force law review in Ecology Law Quarterly: