The Seas are Changing: It’s Time to Use Ocean-Based Renewable Energy, the Public Trust Doctrine and a Green Thumb to Protect Seas from Our Changing Climate

Abstract

Climate change is having significant impacts on ocean and coastal ecosystems and wildlife, with rising seas inundating wetlands and coastal estuaries, warming waters altering marine species habitat and breeding behavior, and ocean acidification weakening corals, mollusks and marine species, leaving them vulnerable to disease and predation. Though the threat of climate change has been acknowledged by President Obama and in federal statutory language, to date the U.S. government has yet to provide a comprehensive plan to address the detrimental impacts of warming lands and seas. In response to governmental inaction, this Article seeks to demonstrate how the public trust doctrine (“PTD”) can play a role in protecting ocean and coastal resources from climate change. More specifically, this Article proposes that both federal and state PTDs can help protect traditional trust values of commerce, navigation and fishing - in addition to modern trust values of protecting tidal wetlands, estuaries, and wildlife - through establishing ocean-based renewable energy (“ORE”) as a public trust value. In addition to elevating ORE to equal footing with traditional trust values, this Article calls for placing a “green thumb” on the scales of balancing competing trust values to explicitly guide courts and agencies alike to operate under a rebuttal presumption favoring ORE over other PTD values because of its ability to help reduce carbon and other greenhouse GHG emissions as a means to mitigate climate change. As Bob Dylan wrote and sang 50 years ago, the times are changin' and waters are growing rapidly - today it is well past time to heed that warning and combat the rising levels of greenhouse gases, temperatures, seas, health care costs and storm damages by making maximum use of the clean, renewable energy available and waiting off our shores. Establishing a federal PTD and ORE values in all PTDs will enable governments to better fulfill their fiduciary obligations while empowering the doctrine to proactively protect trust resources - both traditional and modern - from the impacts of climate change.

Keywords: public trust, climate change, renewable energy, offshore wind, tidal power, hydrokinetic energy, federal waters

JEL Classification: K23, K32, Q22, Q25, Q28, Q40, Q42, Q48