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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:

SagarinTurnipseedOpEd.June11.2010.McClatchy

Short: A paper in Science by Mary, me, Steve Roady (our legal guru) and Larry Crowder:

TurnipseedEtAl.2009.PublicTrust.Science

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:

TurnipseedEtAl.2010.PublicTrustQ&A.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:

SagarinTurnipseed.2012.PublicTrustConservation.ARER

Looong: Mary’s tour de force law review in Ecology Law Quarterly:

TurnipseedEtAl.2009.PTDlaw.ELQ

6 Comments leave one →
  1. zlatan permalink
    June 12, 2010 2:09 am

    i love politics

  2. June 14, 2010 9:12 pm

    Correction, MMR was headed by an Obama appointee who was also head under Clinton. If the problem with that oversight agency was systemic it was ongoing across MANY administrations both Dem and GOP.

    So, we have Bernie Maddoff, AIG, now BP all of which fell under strict federal regulatory agencies who’s existence is solely to protect the “Public Trust”. So we are suppose to give MORE support to the federal government to continue their ‘exceptional’ work?

    Open your eyes or at least take a step outside the beltway and your ‘policy wonk office’ and breath some real air.

    • sagarin permalink*
      June 14, 2010 9:24 pm

      I spend far more time on the coast doing research than in any DC policy wonk office. Our Op-Ed explicitly acknowledges the Clinton era policy of “royalty relief” and the trouble that caused. All of the examples you cite are private companies or individuals who were able to cheat either public trusts or private trusts because of inadequate government oversight. Restoring the public trust doctrine to its rightful place requires no new legislation or regulation. Rather, it requires more balance in the way that current regulations are implemented. Saying that government can do a better job protecting the trust (which is what we are arguing) and saying that government has done a good job in the past are two different things. But it’s hard to argue that any of the disasters you mention point to the need for less government oversight, especially the BP disaster. If private corporations won’t pay $500 k for failsafe devices against multi-billion dollar risk, there is a need for government to step in and assert its responsibility to protect the public trust, which as we say, includes the oil, the fish, the fishing jobs, the tourism jobs, etc.

  3. November 7, 2011 1:56 am

    Yes, your basic sense of the unifying effect of the public trust doctrine has much promise, and should be central to Rio + 20. In more recent decades, one of the aspects that is important that it can and has been used as a basis for pospitive or statutory or constitutional law, e.g. Hawai’i, Vermont, Virginia, Wisconsin, among others. Where this has been done, the courts have interpreted the trust in natural resources, most oftent water, as the public trust doctrine, and applied the doctrine’s basic principles, although these vary from state to state. This has included the developing branch of a “procedural duty” under the doctrine, requiring fairly strict scrutiny of agency decisions that fail to consider and determine effects on public trust waters, related resources such as wildlife, and public trust uses. Once more, this duty implies, although it has been occassionaly expressed, that the value of public trust resources and uses is presumed, and the burden would shift on those who seek to obtain use of public trust waters or resources to demonstrate no impairment or interference and a valid public trust or primarily public purpopse. Flow for Water, Great Lakes, a coalitioin of organizations, http://www.flowforwater.org, seeks to declare and enact express recognition of the public trust extant in these magestic waters – international, except for Lake Michigan, and essential to the life of 35 million people who live there. While Illinois Central case imposes public trust in these waters and submerged lands, recent efforts to regulate consumptive uses and diversions have omitted express reference and implied or potentially created expectations to the contrary, thus opening the door to NAFTA or international trade law claims. Hence, the doctrine can also be important when a state faces trade law or commerce clause challenges or claims. States that expressly declare public trust I think will have a better chance in defending against such claims or challenges.

    • sagarin permalink*
      January 4, 2012 6:00 pm

      Jim – thanks for you comments. Mary Turnipseed and I are now writing a review of the PTD and the issue I am struggling with the most is how variable the responses and interpretations of PTD have been in different courts and legislatures. Hawai’i and Pennsylvania are a good contrast – both having strong PTD language in constitutions, but very different interpretations in the courts. Obviously a lot of this has to do with its uncertain origins (which I don’t believe are as clean cut as some commentators would have us believe). Babcock has said it is essentially an acceptable “legal fiction” but that idea makes me fairly nervous – what is and is not an acceptable legal fiction? I’d call Citizens United a legal fiction that I find unacceptable–so, in other words, who gets to determine what legal fictions are masterpieces and which are junk?

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