Climate Change, State Public Trust Doctrines, and PPL Montana
The Water Report, February 2014
11 Pages Posted: 19 Jan 2014 Last revised: 15 Mar 2014
Date Written: January 17, 2014
The world, including in the United States, is already feeling the impacts of climate change, necessitating investment in adaptation measures. In no context is this fact more true than in water resources management. State and local governments will and should be using a variety of legal techniques to facilitate adaptation to these climate change impacts. Especially in the initial stages of adaptation, however, one particularly valuable legal tool available is the common law.
in general, the common law provides states with a mechanism for adjusting legal doctrines to fit emerging social, cultural, and ecological realities, such as the changes that climate change is already bringing. This is equally, and perhaps especially, true with regard to property rights. Despite trends in property law scholarship and constitutional “takings” jurisprudence that increasingly figure private property rights as absolute, they have never been so. Indeed, even the U.S. Supreme Court has recognized that private real property rights are subject to a variety of pre-existing, and generally public-minded, common-law doctrines, including public nuisance law, the federal navigation servitude, and the doctrine of public necessity. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 & n. 16 (1992).
States’ abilities to adjust private property rights — both real property rights and water rights — are likely to become increasingly important as they progressively cope with the weather, water, ecological, and public health realities of climate change. The public trust doctrine, this article argues, is a state common-law doctrine that can inject needed flexibility into the law of water resource management and climate change adaptation more generally. Over the course of the United States’ history, state public trust doctrines have already demonstrated considerable flexibility and adaptability, adjusting themselves from English common law to both the different geographic realities of the United States and the public resource management needs of individual states. Indeed, many states explicitly describe their public trust doctrines as evolutionary, and many have broadened the scope of the public concerns that their doctrines protect — including recent decisions that extend state public trust doctrines explicitly to the atmosphere and to climate change’s impacts.
Keywords: property rights, water rights, public trust doctrine, climate change, state common law, ecological public trust, adaptation
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