Ecosystem Services and the Public Trust Doctrine: Working Change from within
17 Pages Posted: 3 Oct 2006 Last revised: 28 Dec 2014
What to do with the public trust doctrine? Environmental law scholars have been asking that question for going on 40 years, ever since Professor Joseph Sax surmised in his famous law journal article on the topic that of all the concepts known to American law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems. In this Article we briefly survey reasons why his vision has yet to be fulfilled, and we propose a way the public trust doctrine can be used to achieve a good measure of Sax's vision by working from within the doctrine, not by changing it.
Unlike the outpouring of academic proposals to liberate, expand, and modify the public trust doctrine to fulfill Sax's goals, for purposes of this Article we accept that the doctrine remains bound to its utilitarian origins. Rather than propose expanding the doctrine outside of its traditional boundaries, therefore, we use its core utilitarian purposes as the medium for protecting ecological resources. We employ the concepts of natural capital and ecosystem services to develop the ecological scope of the public trust doctrine from within. Our argument is straightforward: traditional public trust resources often contain natural capital supplying economically valuable ecosystem services to the public; the public's enjoyment of those values is appropriately treated as a use of the trust lands within the meaning of the public trust doctrine; therefore, the restrictions applicable under the public trust doctrine attach to the natural capital found on trust lands. Thus, rather than reshape the public trust doctrine to fit ecological goals, we propose reshaping the way ecological goals are framed to fit the public trust doctrine. This approach both advances Sax's vision and mitigates the concerns other scholars have expressed about stretching the public trust doctrine beyond its traditional scope.
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