Public Trust Doctrine

From Climate Litigation

The Public Trust Doctrine holds that certain natural resources are preserved for natural use, and that the government must maintain and protect these resources for the public use.[1]

The public trust doctrine as a tool of environmental conservation emerged in the United States in the 1970's following an influential law review article.[2] It has since been widely recognized in numerous U.S. States as well as other countries.[3] India, Pakistan, the Philippines, Uganda, Kenya, South Africa, Brazil, and Canada all have robust versions of the public trust doctrine.[2] [3]

Background[edit]

Origins[edit]

The public trust doctrine is said to have its historical roots in Roman and English law concerning property rights in rivers, the sea, and the seashore.[4] The doctrine maintained that navigable waters were held by the sovereign in a public trust and protected for public use. The emergence of the public trust doctrine in United States case law was also concerned with property rights in navigable waters, mainly the rights to fishing, navigation, and commerce.[3]

The case Illinois Central Railroad v. Illinois was a landmark for the development of the public trust doctrine in the United States. The case concerned the decision by the State of Illinois to grant a large amount of Lake Michigan shoreline and submerged lands to the Illinois Central Railroad. The United States Supreme Court ultimately invalidated the grant as in violation of the public trust because Lake Michigan was held in trust for the public and could not be given over to private interests.

United States case law continued to apply the public trust doctrine, most commonly to issues of navigable waters, throughout the early 20th century. In 1970, Joseph Sax published an influential article in the Michigan Law Review making the case that courts had a role in overseeing the proper management of natural resources under the public trust doctrine.[4] The article has highly influential in enshrining the public trust doctrine in the emerging field of environmental law.[2] Indeed, Sax argued the public trust doctrine could be extended beyond issues concerning navigable waters to issues such as air pollution, pesticide dissemination, the location of utilities, strip mining, and wetland filling.[4]

Modern Application - U.S. Law[edit]

Follow the Sax article, the public trust doctrine expanded in United States case law. The doctrine came to be applied not just to navigable waters and tidal lands, but also to shores and beaches, consumptive water rights, groundwater rights, water quality rights, fish and wildlife resources, and air resources.[2]

One of the most important cases in this process was National Audubon Society v. Superior Court (Mono Lake decision) in which the California Supreme Court ruled that water divisions by the City of Los Angeles that were draining Mono Lake were a violation of the public trust. The case extended the public trust doctrine to include water rights administration.[5]

With the passage of landmark environmental legislation in the United States in the 1970's, the public trust doctrine was at least partially enshrined into U.S. federal law. The National Environmental Policy Act of 1969 includes a clause that states it is the duty of government to "fulfill the responsibilities of each generation as trustee of the environment for succeeding generations." The Oil Pollution Act of 1990 requires federal officials to "act on behalf of the public, Indian tribe, or foreign country as trustee of the natural resources to recover for the costs of replacing or restoring such resources."[6]

Public Trust Doctrine Around the World[edit]

India[edit]

The public trust doctrine has had a profound effect in India where the Indian Supreme Court has fully embraced the doctrine over a substantial period of time.[5] The Indian public trust doctrine originated in the 1996 case M.C. Mehta v. Kamal Nath, in which the Supreme Court of India declared the public trust doctrine to be "part of the law of the land," based in English common law and natural law.[5] The Court asserted that the State, as trustee, is under a legal duty to protect the natural resources.[7]

Several years later, in M.I. Builders Private Ltd v. Radhey Shayam Sahu, the court placed the public trust doctrine in Article 21 of the Indian Constitution which protects the right to life and personal liberty. Despite placing the public trust doctrine within the Indian Constitution, the Indian Supreme Court has continued to reaffirm that the public trust doctrine is a principle of natural law.[5]

The public trust doctrine in India extends well beyond the scope established in the United States. The court has ruled it concerns all natural resources and concerns not only traditional purposes of navigation, commerce, and fishing, but also ecological purposes.[5]

In the 2017 case Padhey v. India, a suit was filed on behalf of a nine-year-old plaintiff alleging a public trust doctrine violation in the Indian government's failure to address climate change. The case was ultimately dismissed.

Pakistan[edit]

The public trust doctrine in Pakistan is embedded in article 9 of the constitution which protects the rights to life and liberty. The Pakistani courts have consistently ruled that article 9 includes a right to a healthy environment. Landmark climate litigation cases in Pakistan such as Leghari v. Federation of Pakistan and Farooq v. Federation of Pakistan have been based, in part, upon the public trust doctrine.

The Philippines[edit]

The public trust doctrine has statutory and constitutional origins in the Philippines. The Water Code of 1976 and the Environmental Policy of 1977 both included public trust language similar to what was developing in the United States at the time. The Filipino Constitution of 1987 entrenched the right to a healthy environment, stating "the State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature."[5]

The 1993 case Oposa v. Factoran located the public trust doctrine in the Philippines' constitutional right to a healthy environment and gave standing to schoolchildren to represent the interest of future generations.

The court reaffirmed the public trust doctrine in the 2008 case Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay. In another class action, the plaintiffs alleged the governmental failure to prevent pollution of Manila Bay violated statutory duties as well as the public trust doctrine.[5] The Supreme Court agreed, basing the decision, in part, on a obligation to future generations of Filipinos, stating "anything less would be a betrayal of the trust reposed in them."[8]

Uganda[edit]

The public trust doctrine in Uganda is based upon constitutional and statutory authority. Article 237 of Uganda's 1995 constitution states federal and local governments "shall hold in trust for the people and protect natural lakes, rivers, wetlands, forest reserves, game reserves, national parks and any land to be reserved for ecological and touristic purposes for the common good of all citizens."[9]

The 1998 Land Act expands upon this adding ground water, natural ponds, and natural streams" to the list of resources protected by the public trust doctrine, and states that governments "shall not lease out or otherwise alienate any natural resource referred to in this section."[9]

In 2012, Our Children's Trust brought a case in Uganda on behalf of four Ugandan minors. The claim argued that Article 237 of the constitution makes the Ugandan government a public trustee of the countries natural resources, including the atmosphere, and that by failing to address climate change it is failing its duty.

Kenya[edit]

As with Uganda the public trust doctrine in Kenya is based in constitutional and statutory authority. In the 2006 case Waweru v. Republic, the Nairobi High Court ruled that the right to a clean and healthy environment under the Environmental Management and Coordination Act and the right to life under the Kenyan constitution meant that the public trust doctrine was implicit in the Kenyan constitutional right to life.[5] In 2010, Kenya adopted a new constitution which expressly incorporated the public trust doctrine.[10]

Nigeria[edit]

The Nigerian public trust doctrine seems implicit in the 1999 Constitution, which declares "the State shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria."[5][11] Article 17 of the Constitution also states "exploitation of human or natural resources in any form whatsoever for reasons, other than the good of the community, shall be prevented"[12] Furthermore, in Gbemre v. Shell, a Nigerian federal court court ruled that oil companies must stop flaring gas in the Niger delta because the practice violates the right to life enshrined in article 33 of the Nigerian Constitution. The guaranteed rights to protect of the environment combined with courts that have ruled a healthy environment is a component of the right to life strongly implies that the public trust doctrine is implicit in the 1999 constitution of Nigeria.

South Africa[edit]

South Africa has a very strong public trust doctrine rooted in constitutional and statutory authority. The South African constitution provides the South African people a right to "an environment that is not harmful to their health or well-being," and a right "to have the environment protected, for the benefit of present and future generations."[13]

The public trust doctrine is present in numerous South African statutes as well. The 1998 National Environmental Management Act stated "the environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people's common heritage."[14] The National Water Act, Mineral and Petroleum Resources Development Act, the Biodiversity Act, and the Coastal Management Act all contain public trust language.[5]

Taken in its entirety, South African public trust doctrine extends to water resources, mineral resources, biological diversity, coastal areas, sensitive ecosystems, and the environment as a whole.[5]

Brazil[edit]

Brazil has environmental protection and the public trust doctrine deeply imbedded in its constitution. Article 225 of the Brazilian Constitution calls for the preservation of "the environment for present and future generations" and mentions numerous elements of the environment that must be protected.[15] Article 20 lays out resources and ecosystems that are the property of the state, mentioning lakes, rivers, watercourses, beaches, riparian areas, tidal lands, mineral resources, archeological sites, and lands traditionally occupied by Indians.[16]

Ecuador[edit]

Ecuador has one of the world's strongest environmental frameworks enshrined in its constitution. Both the rights of nature and the human right to a healthy environment are present. Although public trust doctrine language is not explicit, the central elements of the public trust doctrine — fiduciary duties over natural resources, vested in the sovereign for the benefit of the people, and enforceable by the people — seem present in the Ecuadorian constitution.[5] The full scope of the Ecuadorian public trust doctrine is likely to include rights to water, access to beaches, and riverbeds, as well as natural resources, mineral resources, biodiversity, and fragile and threatened ecosystems.[5]

Furthermore, of relevance for climate litigation, the Ecuadorian Constitution calls on the State to "promote, in the public and private sectors, the use of environmentally clean technologies and nonpolluting and low-impact alternative sources of energy."[17]

Canada[edit]

The public trust doctrine in Canada has mostly focused on public access disputes, cases based on claims of public nuisance for obstructions to navigable waters and public highways.[5] As early as the 1860's, Canadian courts have found that obstruction of public waterways constitutes a public nuisance and that the Crown has jurisdiction over navigable waters.[5] In the early 20th century, the Supreme Court of Canada extended public access protections to beaches and shorelines.

In more recent years, the public trust doctrine has been used in cases more directly concerning environmental law. In Labrador Inuit Ass'n v. Newfoundland, a court ruled that a proposed mining project must conduct a environmental assessment because not doing so would be failing a commitment to future generations to avoid potential environmental harms.[5] In the 2019 case of La Rose v. Her Majesty the Queen, fifteen children brought a suit against the Canadian federal government claiming that the government had failed its duties under the public trust doctrine by failing to address climate change. A federal judge ruled that the public trust doctrine claim was justiciable but nevertheless dismissed the suit because the claim was extensive, had no definable limits, and was not consistent with incremental evolutions in the law.[18]

Cases Involving the Public Trust Doctrine[edit]

United States[edit]

Canada[edit]

India[edit]

Pakistan[edit]

Philippines[edit]

Kenya[edit]

Uganda[edit]

Sri Lanka[edit]

References[edit]

  1. ↑ https://www.law.cornell.edu/wex/public_trust_doctrine
  2. ↑ 2.0 2.1 2.2 2.3 Frank, R. 2012. The Public Trust Doctrine: Assessing Its Recent Past and Charting Its Future. UC Davis Law Review.
  3. ↑ 3.0 3.1 3.2 Sagarin, R. and Turnipseed, M. 2012. The Public Trust Doctrine: Where Ecology Meets Natural Resources Management. Annual Review of Environment and Resources.
  4. ↑ 4.0 4.1 4.2 Sax, J. 1970. The Public Trust Doctrine in Natural Resource law: Effective Judicial Intervention. Michigan Law Review
  5. ↑ 5.00 5.01 5.02 5.03 5.04 5.05 5.06 5.07 5.08 5.09 5.10 5.11 5.12 5.13 5.14 5.15 Blumm, M. and Gutherie, R. 2012. Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision. UC Davis Law Review, Vol. 45:741
  6. ↑ 33 U.S.C. §1321(f)
  7. ↑ M.C. Mehta v. Kamal Nath et al., ( 1997) 1 S.C.C. 388
  8. ↑ Metro. Manila Dev. Auth. v. Concerned Residents of Manila Bay, G.R. No. 171947-48, 574 S.C.R.A. 661 (S.C., Dec. 18, 2008) (Phil.)
  9. ↑ 9.0 9.1 Constitution of the Republic of Uganda, article 237(2)(b)
  10. ↑ Constitution, articles 42, 61, 62. 2010
  11. ↑ Constitution of Nigeria. 1999. §20
  12. ↑ Constitution of Nigeria. 1999. §17
  13. ↑ South African Constitution. 1996. §24
  14. ↑ National Environmental Management Act. 1998. §2(4)(o)
  15. ↑ Constitution of Brazil. 1993. Art. 225
  16. ↑ Constitution of Brazil. 1993. Art. 20
  17. ↑ Ecuadorian Constitution. 2008. Art. 15
  18. ↑ http://climatecasechart.com/non-us-case/la-rose-v-her-majesty-the-queen/
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