Modern Public Trust Principles: Recognizing Rights and Integrating Standards

Abstract:     
The public trust doctrine has a long history from its beginnings as an obligation on states to hold lands submerged under navigable waters in trust for the public, to its resurgence in the 1970s as a protector of natural resources, to its influence on state statutory and constitutional law as the public embraced environmental protection principles. However, many have argued that the public trust doctrine has not lived up to its potential as a major player in environmental and natural resources law. This article proposes a new framework for the public trust doctrine as a state tool for environmental protection that relies heavily on state constitutional law and environmental statutes to give additional content and power to this ancient common law doctrine. By using this new theoretical framework based on recent judicial trends, the statutory, constitutional, and common law manifestations of public trust principles can all become mutually reinforcing rather than remain trapped in the either-or dichotomy engrained in prior scholarship.

Keywords: Public Trust Doctrine, Environment, Property, Environmental Rights, Environmental Protection, Constitutional Law, Common Law, Natural Resources

JEL Classifications: K11, K13, K32, K41

Accepted Paper Series