Who owns the Earth and its resources? To what extent may the general public claim the pure water, clean air, rich soil, and the myriad services Earth provides to sustain human life? Across continents and spanning centuries, a dynamic tension continues between those who would circumscribe the Earth’s bounty for private use and those who would carefully allot Earth’s riches to satisfy human needs. Private property—sequestering Earth’s resources for personal, exclusive use—has its zealous advocates, and in many locales its legal status is unimpeachable, and its ideology is unquestioned. But a competing ideology, dating from antiquity, holds that some of Earth’s riches should never be sequestered for private use, must be left for the public’s enjoyment, and must be stewarded by those in power. Codified 1,500 years ago during the Roman Empire, legal scholars labeled this the “Public Trust Doctrine.” The Public Trust Doctrine perseveres as a value system and an ethic as its expression in law mutates and evolves. More recently, scholars, activists, and lawyers have begun discussing the rights of people to access and enjoy various essential resources and services the Earth so generously yields.
The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses.
I begin this article by tracing the historical origins of the Public Trust Doctrine, charting its (r)evolutionary leaps across centuries, legal regimes, and environmental entities. I then shift legal gears and analyze certain current environmental problems vis-à-vis this Doctrine. I explore how the judicial creativity complements and expands the Public Trust Doctrine’s legal connotations, which, for 1,500 years, have constrained how Earth’s resources can be used and have guided who must bear responsibility for stewarding resources for the public good.
Evolution of the doctrine
Roman Law: 1,500 years ago, the Roman Emperor Justinian simplified the jumble of laws governing his Empire. He commissioned dozens of the era’s leading jurists, whose wisdom became codified in the Corpus Juris Civilis. In 529, Justinian’s code contained a Section as: “By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea.” The Public Trust Doctrine, as this notion came to be known, suggests that certain resources—usually water, but now much more—are common, shared property of all citizens, stewarded in perpetuity by the State. Several hundred years after the fall of the Roman Empire, a copy of the Corpus Juris Civilis was rediscovered in Pisa, and scholars spent centuries analyzing the tome. In the peripatetic manner that has come to characterize it, the Public Trust Doctrine migrated with the Corpus Juris Civilis throughout Europe, to both civil law and common law regimes.
English Law: The Magna Carta codified Justinian’s words in England, and in 1225 King John was forced to revoke his cronies’ exclusive fishing and hunting rights, because this violated the public’s right to access these common...