Adapting to Climate Change: The Potential Role of State Common Law Public Trust Doctrines
74 Pages Posted: 11 Jul 2009 Last revised: 12 May 2013
Date Written: September 17, 2010
Climate change is already altering historical expectations regarding water supply and aquatic ecosystems. In turn, changes in water supply may call into question the continued utility of existing water law rules in many areas of the country, unsettling private rights and expectations in water allocations in favor of more public interests and values in water, including protections for ecosystems and their services.
Water law is already more sensitive than many other kinds of law to the ecological conditions that dominate in an area. As a result, water law is a likely legal mechanism for effectuating climate change adaptation, at least as relates to water resources. In particular, and far more than most fields of property law, water law is almost uniquely potentially available to support some of the adaptive management regimes that climate change adaptation will require.
This Article argues that, within water law, state public trust doctrines can be particularly well-suited to providing legal support for adaptive management-based climate change adaptation regimes. In particular, it notes that courts have long adapted public trust doctrines in the United States to local needs and circumstances, and several states now explicitly characterize their public trust doctrines as evolutionary. With respect to water resources, therefore, these common-law public trust doctrines give willing states a means of (1) acknowledging climate change as a threat to public resources; (2) continually reassessing the cumulative impacts climate change is causing; (3) supporting fledgling adaptive management efforts by state agencies; and, at the extreme, (4) engaging in judicial adaptive management, in the sense of rebalancing private rights and public values in impacted aquatic resources, ecosystems, and ecosystem services.
Keywords: Climate Change, Public Trust Doctrine, Common Law, Adaptation, Adaptive Management, Evolutionary, Ecological, Flexibility
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