Yves here. While in theory the public trust angle seems a promising mechanism for preventing or impeding private control and resulting rentierism of essential resource, my impression is this article is very misleading as to the trajectory of these rights. Perhaps some well informed readers will beg to differ and if so, please pipe up in comments.
The privatization of former public rights, such as hunting and common pastureland, started in a big way with the enclosure movement in England. Fast forward, and in the US, the ownership and sale of water and mineral rights is well established. In New York City, there are even “air rights,” so if a developer doesn’t max out on the density of a project, he can sell his unused air rights to another developer.
So I don’t see how our Anglo conceptualization of property rights gets turned around any time soon.
By Aric Sleeper, an independent journalist whose work, which covers topics including labor, drug reform, food, and more, has appeared in the San Francisco Chronicle and other publications local to California’s Central Coast. In addition to his role as a community reporter, he has served as a government analyst and bookseller. Produced by Local Peace Economy, a project of the Independent Media Institute
With the reality of climate change becoming more apparent in the form of extreme weather events such as heat waves, droughts, and floods, it is clear that the future of all life on the planet is in peril. To stress the immediacy and seriousness of human-caused climate change and its effects, United Nations Secretary-General António Guterres addressed the leaders and representatives of nearly 200 countries at COP27 in November 2022.
“Our planet is fast approaching tipping points that will make climate chaos irreversible,” said Guterres at the conference. “We are on a highway to climate hell with our foot still on the accelerator.”
As the climate rapidly changes largely due to the environmentally damaging practices of large corporations, unchecked by government officials that receive campaign contributions from the polluting industries, it may seem like there isn’t much that can be done to combat this problematic pattern.
However, there are underutilized legal weapons already on the books that can help fight big corporations and preserve the planet’s natural resources, such as watersheds and large forests, like those in Oregon—which can either serve as a sponge for carbon dioxide or an emitter when the forest cover is cut down. That legal weapon, a component of property law, is a concept known as the public trust.
“The public trust lies in the realm of fundamental rights law,” says University of Oregon Philip H. Knight Professor Mary Christina Wood. “Its roots actually go back to Roman law and the institutes of Justinian, which does seem like a long time ago, but every court case today that deals with the public trust mentions those Roman roots, literally.”
The institutes of Justinian or Justinian the Great, a Roman emperor ruling in the sixth century, declared that certain natural resources are always considered under public ownership, and those resources are air, water, and coastlines, according to Wood.
“The public trust has its origins in public property rights,” says Wood. “The Roman law became the basis of civil and common law systems around the world.”
The Roman concept that the public has ownership of natural resources subsequently became embedded in English law. After the Magna Carta was established in 1215, the king of England could not assert full dominion over fisheries, forests, or water, according to Wood.
In the law of the United States, the public trust principle is also present but is expressed in a slightly different way than the English monarchy.
“In this country [the U.S.], it was announced as the most simple and logical principle,” says Wood. “The government is a sovereign with the people giving it power, and the government does not have the power to fully privatize resources that are crucial. Those stay in trust for the people—and the government works as a trustee or fiduciary steward of those resources, and the beneficiaries are present and future generations of citizens.”
Wood points out that the public trust has always been a part of United States law, but isn’t always utilized in the context of protecting natural resources, with statutory laws such as the Clean Air Act of 1963 and others being more commonly used in court cases.
“I’m just sort of taking it off the shelf,” says Wood.
When Wood was a student at Stanford Law School, one of her professors was Joseph Sax, who was a pioneer of public trust scholarship. Wood was inspired by Sax’s work and took the concept of the law further by devising a litigation strategy based on the public trust, which continues to evolve.
She has also written a book called Nature’s Trust: Environmental Law for a New Ecological Age, which critiques statutory environmental law, in the sense that the laws don’t go far enough to protect natural resources. She also discusses established public trust principles in her book and identifies the responsibilities the government has to protect natural resources in the context of the public trust.
To put the concept in different terms, Wood explains the public trust through a financial example.
“Say you have a college-age daughter and you have $500,000 to pay for her college, but you don’t want to deal with the money management because you’re too busy,” says Wood. “So you appoint me as a trustee for the college account. As the trustee, I am the legal owner of that account. I manage it, safely invest it and pay [your daughter] the dividends, and she is the beneficial owner. If I screw up in some way or buy a condo with the money, which is what our political representatives are kind of doing by using our resources as a payback for political contributions, I have violated a fiduciary obligation to your daughter.”
In all, there are about 10 fiduciary obligations or legal responsibilities that the government has to its citizens with regard to vital natural resources that are a part of the public trust, which are outlined in Wood’s book and recent talk.
“The most basic fiduciary obligation is the duty of protection,” says Wood. “You protect the wealth of the trust.”
Wood notes that clear-cutting of forests is a violation of the public trust, as it releases large amounts of carbon. Although she points out that it is debatable whether a forest is considered part of the public trust, there is no debate about water and air’s inclusion. When a forest is clear-cut, it affects the watershed and releases carbon into the atmosphere, which violates another fiduciary obligation.
“That violates the duty to maximize benefit to the public,” says Wood. “The public has many interests in that ecology. It serves as a watershed and a habitat, and typically speaking, the agencies are taking actions for the primary benefit of a private party and not for the public.”
Because of the Citizens United court case, Wood can’t legally do anything about timber companies that give contributions to political campaigns, but with the public trust law she found a loophole with the fiduciary duty of loyalty.
“The government has many functions, and one of those is dealing with natural wealth,” says Wood. “The agencies in those dealings are public trustees, and courts say this across the board.”
In this context, when a legislator accepts a campaign contribution and makes a decision about the wealth of the public trust—say, a watershed—that benefits the contributor, then that is a violation of the public trust. This allows lawyers like Wood to challenge and legally invalidate the actions of legislators who try to give favors to their financial backers, but only in the sphere of natural resources protected in the public trust.
“It’s a full frame change of the law,” says Wood.
One group fighting to protect natural resources in the public trust in Oregon is called North Coast Communities for Watershed Protection (NCCWP), a grassroots organization of Oregon residents. The group is concerned with the protection of drinking water that comes from forested watersheds, and air quality, which are both negatively impacted by common timber industry practices like clear-cutting, slash burning, and pesticide spraying in forests that surround communities in Oregon. The group’s awareness-raising petition, launched in summer 2022, calls for the cessation of logging operations and pesticide use in drinking watersheds across the northern Oregon coast. Because the petition is not a legal petition but instead aims at increasing public awareness, anyone from anywhere can sign it. The group plans to present the petition to city, county, and state-level lawmakers in Oregon, as well as a number of relevant stakeholders, in an effort to increase consciousness about the ways communities are impacted by industrial timber practices.
Wood points out that the work of groups like NCCWP is vital to combating environmental degradation and fighting climate change, but changing the status quo will take even more audacious actions.
“We are going over Niagara Falls, all of us,” says Wood. “We really need some bold thinking, and I think that the public trust is that because it reorients government back to the basic principles of substantial impairment. So I try to create legislative approaches that hit hard and hit big.”
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In Europe one attempt in a step in this direction was the Aarhus Convention, which established more fundamental rights for the public in environmental matters (but stopping short of the type of public trust advocated in this article).
One problem the Convention has encountered in Europe is the fundamentally different way Common Law jurisdictions deal with property rights compared to the various European legal traditions. This has led to highly varying interpretations at national level. One lawyer I know has joked that the Irish and UK delegates must have been out on the town drinking the night before it was signed, because none of them noticed that it changed fundamentally the rights of the public relative to landowners when interpreted under common law. In effect, it created a highly legalistic, rather than regulatory environment for environmental disputes, which arguably made things worse.
From working in water resources, I am not an expert in water law; but I know there are two systems afoot in the USA; there is Eastern Water Law, and there is Western Water Law. In the former, each state indeed ‘owns’ the right to use ground and surface water, and it administers it via ‘beneficial use permits’. You apply, and your permit is granted for any reasonable use which does not obviously damage the aquifer much. You are required to throttle back if requested in time of drought, and you reapply every x years.
Western water law I never dealt with, but the state is secondary to the property owner’s ‘water rights’.
I think a couple of the initiatives the author mentions are dubious; really, petitions to stop timber operations signed by various people including New Yorkers? Forbidding lumbering in toto? Presumably these folks are going to grow Trex and paper in their backyard gardens.
BUT, there is a huge strain of truth in the article; large and life-changing lawsuits need to be filed against legislators clearly taking bribes”contributions” to allow degrading of the environment.
And we need to change the definition of ‘legal standing to sue’ from those directly financially ruined by an action, and allow it to be from any group of people who want to defend nature from a harmful action. I know the Sierra and others do take action, but I think their hands are tied in many cases and they can only work through regulation and hearing procedures.
For that matter, maybe it’s high time little people in the western states sue to overturn centuries of western water law that has led them to the despicable state the western rivers and aquifers are in right now. When all else fails, sic the tort lawyers on the case!
I’m not a lawyer either, but I have worked for major west coast regulatory agencies (not specifying state or agency out of concern for potential retaliation). In some states (California comes to mind), you have “senior” and “junior” water rights. Determination of which you possess was extremely arbitrary. Basically, if you owned land (usually for agricultural production) before 1915 (IIRC), you were a senior water rights holder whilst after 1915, you were a junior water rights holder. Naturally, senior water rights could be owned by corporate entities or passed down to your kids (which is why we still have senior water rights holders). The state’s involvement is really only in telling who’s first (senior, of course) and who’s second. Also, making sure water rights holders get water no matter what the cost, either monetary or environmental (see the DWR, the SWP, and the Delta Tunnels). Nothing screams out the lie that we live in a democracy more than state water politics.
To your point about suing legislators, I think that could work. But it has to be done in a way that prevents legislators from using their respective AG’s to defend them. Otherwise, the taxpayer is footing the bill for the legal defense of the legislators, which will most certainly make the public hostile towards environmentalists.
>>>Nothing screams out the lie that we live in a democracy more than state water politics.
You mean the wealthy and politically very connected owners of those water “rights.”
I have gone through several droughts. Each time there was shaming of general public for any waste while some farmers, ranchers, and small communities that are not senior rights holder or are large and wealthy enough to effectively resist find themselves without water.
Aquifers get drained, and rivers and creeks get diverted so that the large agribusinesses, which uses the lion’s share, can waste water on almonds and other thirty crops when thirty-nine million people. This is crazy. The greater part of the population that uses less water was being threatened with fines and water cut offs, and in isolated areas actually without water, so that the smaller, wealthier part of the population that uses most of the water, often wastefully, and is wealthy because of their ownership of the water, can keep doing so.
I am sure that many modern libertarians plus much of the Democratic Party are fine with a few thousand people threatening to deny water to tens of millions under the excuse of property rights. Really, it comes from power of money or being able to offer bribes, connections, and profitable opportunities. Some of the families of holders of senior water rights have had 150 years to build their power and some corporations just have a lot of money.
California spent decades building the very system of canals, pumps, and dams plus the power needed to move the water about using taxes from Californians, and this has created a wealthy state that can support thirty-nine million people as well as those agribusinesses. But those owners will refuse to see this.
This year it looks like we will be fine for another 2-3 years even if the drought returns. All those dams are very useful. Of course, that really only pertains to the wetter Northern California. I don’t know about the Rio Grand and the aquifers will take who knows how long to recharge. The state will again be able to support all those farms in the Central Valley for some years by shipping water from the north to them. But I still worry that some angry people will decide to make a point by sabotaging part of the infrastructure for water. Might need explosives instead of bullets, but still.
Does a concept of “ecocide” exist in western world?
Or, U.K. specifically.
In my corner of SW London, a developer bought Metrpolitan land which comprised lots of filter beds (this is like a marina for birds and wildlife in general). Now, developer wants to develop the site into lots of flats, but the local neighborhood put up a big fight and planning approval is being denied.
In order to minimise the wildlife value of land, developer stripped the entire area of any plants, to barebones bedrock. The wildlife followed suit and disappeared.
About 15 acres were bought from a public utility company, into a private Cayman company, for £1m. Flats here would be selling at £10k/m2 at least.
In a normal world, an asset like this would be returned to the public and perpetrators presented with a wrap sheet listing at least corruption, embezzlement of public assets and ecocide. Not so in the old Blighty.
I’m not a legal scholar by any means, and there may be detriments to this approach, Yves – I can only say that I have been the beneficiary on both sides of a public trust argument. Where I live there is a huge reservoir lake that was created back in the ’60s on tribal land. The occasion was that protection was deemed necessary for communities downstream of where I live, from the huge spring floods which would periodically overcome their defenses.
The catch was that this was native land, had been for centuries. I believe it was the ‘public trust’ that overrode native sovereignty and created the dam, seventh largest earthen one in the world, under BLM management. It caused the orchards in the lower fields to have a higher water table, so that the trees could not survive; and the dam looms above what is left of a small cliff that had been (and still is) part of a sacred water way for the tribe. So, much was lost.
Others can correct me but next to this dam, with the tribe’s permission, was built the beginnings of a town under commercial management, a retirement community in prospect three times as large as it is now. The enterprise failed, and the tribe regained ownership. Years later I benefited from this; my home is here. I own my house; the tribe owns the land. I am not of the tribe; but I love being here. I am sure there is friction still, some animosity no doubt. Still, the land is looked after, and the people as well.
Fascinating experiences, juliana. Thank you so much for sharing them.
The public trust doctrine is being used to bring a judicial review claim in England challenging the government’s failure to address the dumping of untreated sewage by water companies:
https://goodlawproject.org/update/stop-spilling-sewage/
https://www.localgovernmentlawyer.co.uk/environment/766-environmental-news/52040-claimants-say-government-sewage-overflow-plan-contrary-to-ancient-common-law-rights-in-pre-action-letter
Sorry, there were supposed to be links in that post
https://goodlawproject.org/update/stop-spilling-sewage/
https://www.localgovernmentlawyer.co.uk/environment/766-environmental-news/52040-claimants-say-government-sewage-overflow-plan-contrary-to-ancient-common-law-rights-in-pre-action-letter
In California Mono Lake on the east side of the Sierra Nevada was dramatically degraded by diversions of feeder creeks to the Los Angeles Aqueduct. Over decades the water level in Mono Lake dropped precipitously. The doctrine of a public trust was used in court to force Los Angeles to reduce diversions. As a result Mono Lake is slowly rising and may eventually reach levels not seen since the 1940s.
https://www.hoover.org/research/battle-over-mono-lake
I’m more familiar with wildlife being manged in public trust than the timber itself. Generally all wildlife in the U.S. is considered to be held in the public trust whether it resides on public or private land.
The North American Model of Wildlife … – The Wildlife Society https://wildlife.org/wp-content/uploads/2014/05/North-American-model-of-Wildlife-Conservation.pdf
The Public Trust Doctrine – The Wildlife Society https://wildlife.org/wp-content/uploads/2014/05/ptd_10-1.pdf
So this article seems to be describing an inherent public trust and associated duties for govt agencies. Some of these public trusts are explicit in case law (CA and NJ beaches) with specific line drawing, while others need more case law. Recognizing property rights like this requires a state-by-state fight and resource by resource fight (e.g., forests, fracking, etc). Certain states may not have the agencies or the stewards that can be alleged to be the trustees. That said, the great thing about this strategy is that anti-environmental states tend to also be strong property states with great case law.
In a separate vein, one of my hobbies is cave mapping. The non-profits I work with use explicit public trust (conservation trusts) law to preserve caves when they come up for sale. These trusts name a trustee which can be local government and also preserve specific boundaries while allowing other uses for surrounding land.
The public trust concept is good as far as it goes, but is by no means a complete solution. A major missing piece (though also not complete unto itself) is local control. People far away from a specific environment or deemed resource almost invariably do a poor job managing it, either exploiting it ruthlessly or fetishizing it and preventing it from reasonable use, depending on their proclivities.
Local control is also the best defense and antidote to corruption and exploitation. Outsiders can and will lie about facts, risks and plans to get their short-term goals. People who are deeply rooted in the community stand to lose their reputation, social standing, and income if they lie and cheat. This does not prevent all corruption, of course, but it does tend to reduce it dramatically.
I’ll stop here to avoid writing a book, but along with a public trust concept, add in local control, reasonable education, and viable economic opportunities.
Just as an aside, clearcuts are not necessarily bad for wildlife or the environment. There is a whole host of early successional species that benefit from clearcuts. Two of the Northeast’s most iconic game species, ruffled grouse and New England cottontails both depend on this habitat. The habitat was once created and maintained by fires both natural and man-made. Now in the absence of fire it is maintained through clearcuts.
The “Clear Cut” Advantage for Wildlife and Forest Health – CT.gov https://portal.ct.gov/-/media/DEEP/wildlife/pdf_files/habitat/yfshrubinitiative/clearcutbenefitspdf.pdf
…..only if the clear-cut can be mitigated with erosion control, then I’ll buy your premise
Here’s an approach to combine the public trust doctrine with the intergenerational equity principle to manage mineral wealth.
https://www.jainfamilyinstitute.org/projects/parts/rahul-basu/