The Public Trust Doctrine


Cambridge University Press

The world has changed. We now live in the “Anthropocene,” a new ecological age where humans and the rest of nature are so tightly interconnected that we are forced to take a broader, whole systems view of the world and humanity’s place in it.

Mary Wood has produced a compelling and comprehensive analysis of what this means for environmental law. In a nutshell, it means that the “public trust doctrine” has to become the guiding legal principle on matters concerning the environment. The public trust doctrine has its roots in ancient Roman law and occurs in the many legal systems derived from it. It holds that certain natural resources should be held in trust as assets for public use. It is the government’s responsibility as trustee to protect these assets from harm and maintain them for the public’s use. It also asserts that the government cannot sell off these public assets to private parties.

The public trust doctrine has been used in many countries in the past to protect water bodies, shorelines, fresh water, wildlife and a few other resources1, but Mary Wood forcefully argues that the time has come to expand reach of the doctrine to cover all of the critical natural capital and ecosystem services that support human well-being, including the atmosphere, the oceans, and biodiversity. She argues that governments have been shirking this responsibility to protect “nature’s trust” and instead have retreated to a statutory and regulatory approach to the environment that has allowed the decimation of natural capital by private interests. She makes the case that, under the public trust doctrine, governments cannot legally shed their responsibility to protect the environment in trust. Ms Wood also notes that “Properly understood, the public trust stands as a fundamental attribute of sovereignty – a constitutive principle that government cannot shed”2.

Perhaps the most compelling example of the devastation of natural capital for private gain is global climate disruption. This problem is complicated by the fact that the atmosphere is a global asset, shared by and benefiting all the world’s sovereign nations. From the nature’s trust perspective, all the world’s nations are co-trustees and are no less responsible for protecting the asset than are individual sovereigns for protecting assets like shorelines or open water bodies that occur exclusively within their borders.

The United Nations is the obvious venue for developing agreements to protect the atmospheric trust. However in the wake of COP19 ((United Nations Climate Change Conference, 2013) in Warsaw, it is becoming increasingly obvious that negotiations at the Nation-State scale have little chance of solving the climate crisis facing the planet. Governments are influenced too much by special interests that prevent binding commitments and effective economic instruments.

The Nature’s Trust idea that Mary Wood describes implies that the atmosphere, like other critical natural capital, should be seen as a community asset that belongs to all and should be held in trust for the benefit of current and future generations. The problem is that it is currently an open access resource – anyone can emit carbon dioxide into the atmosphere with no consequences to themselves, but with huge cumulative consequences to the climate and the global community. Many agree that an effective approach would be to charge for the damages these emissions cause, for example a comprehensive carbon tax or cap/auction/dividend system3.. However, implementing this system via international negotiations has proven close to impossible.

Establishing a trust to manage the atmosphere as a common asset on behalf of current and future generations has been suggested as one way to overcome this bottleneck4,5. The Nature’s Trust idea implies that the public can hold governments responsible for failure to fulfill their responsibilities to protect public assets under the public trust doctrine. It also implies that governments can claim natural resource damages from responsible parties in order to restore the asset and make the public “whole.” For example, the US government claimed damages from BP for the Deepwater Horizon oil spill and for the Exxon Valdez oil spill. Kuwait claimed environmental damages from Iraq for the first Gulf War6. Estimating these damages is difficult but not impossible. To deal with this uncertainty, one suggestion is that private interests should post assurance bonds to cover potential damages before they are given the right to use public assets7. If damages do not occur then the bond can be refunded. If damages do occur then a part of the bond is forfeited to cover them.

The Nature’s Trust idea can also significantly change the whole discussion about how to deal with climate disruption. Rather than national governments negotiating with each other about emissions reductions, governments can be seen as co-trustees with a fiduciary responsibility to protect the atmospheric trust. To do this they can claim damages from the private interests that are causing the problem. As Wood notes: “Trustees have an affirmative obligation to recoup monetary damages against third parties that harm or destroy trust assets”8.

It has been estimated that 90 companies globally are responsible for introducing 2/3 of the carbon into the atmosphere9. This means that damage claims could target a relatively small number of private interests. In addition, all governments would not need to agree in order to employ this tactic. Since all governments are co-trustees in the global atmospheric asset, a subset of nations could bring the damage claims.

But government action may not be quick enough on its own. A well-planned civil society movement may be required to pressure governments to act. An effort to “claim the sky” on behalf of all of global society as a public trust, in combination with the solid legal framework provided by Wood’s work, may just do the trick.

Nature’s trust is an important idea, which has the potential to be a significant new legal and social force in the battle to bring human activities on the planet into compliance with “nature’s laws”.