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Invoking the Public Trust Doctrine to Combat Climate Change

By Abhinav VijayPublished March 11, 2015

The Public Trust Doctrine is the foundation of public resource management and yet has remained under the radar during discussions on environmental law. Until now. A new movement is bringing PTD to the forefront of climate change action.

By Abhinav Vijay, 3/11/15

The relationship between humans and nature has always been contentious, forming the basis for many schools of thought. It is irrefutable that, as a civilization and a species, we are highly dependent on the resources that nature provides. Furthermore, as humans we should have the inalienable right to a healthy, clean environment- a right that is conspicuously absent from the UN Declaration of Human Rights.

However, many people are becoming frustrated with the failure of governments across the world to come to a consensus on climate change action. One of the main reasons for this inaction is the vocal opposition from special interests groups who stand to benefit from climate change denial ( i.e. big oil and gas companies) which lead to bizarre and rather amusing hearings. The Secret Science Act of 2014, recently passed by congress, appears to extend the bureaucracy that slows down any and all forms of initiatives proposed by the Environment Protection Agency.

The widespread gridlock in climate change legislation, coupled with the increasingly dire predictions made by climate scientists, has made people restless, especially students and young adults. In an age where people view combating climate change as a "moral obligation", the disconnect between legislators and the public is all the more apparent. This is an excellent example of how the Public Trust Doctrine (PTD), which has been developed from language originally established in Ancient Rome, has remained relevant throughout the history of civilization.

PTD is essentially a legal framework that maintains that certain resources must be preserved for public use and that it is the duty of the government to ensure on behalf of the public that these resources are managed effectively for both current and future generations to enjoy. PTD ultimately builds a trust between both those who govern and are being governed

PTD could play an important role in mobilizing the public to demand more from legislators with regards to environmental policy. The main reason for evoking PTD is that it offers a chance to fight back at corporate interests who extract as many resources as possible for profit. As Mary Christina Wood writes in her book, Nature's Trust: Environmental Law For A New Ecological Age, "At its core, the doctrine declares public property rights originally and inherently reserved through the peoples' social contract with their sovereign governments. The trust remains an attribute of sovereignty that cannot be alienated by any legislature". The doctrine also requires government to act in a fiduciary capacity to preserve natural resources for the benefit of both current and future generations. This is arguably the foundation for the concept of sustainability.

PTD enables communities to fight unlawful exploitation of resources that damages the local environment. It is with this consideration of future generations that holds the key for future battles for proper environment legislation. Remarkably, several of these legal cases are brought on by teenagers who are fighting for our future. A version of PTD has been developed in Oregon known as Atmospheric Trust Litigation. Petitions based on this legal notion have been successfully brought forward in New Mexico, Texas, Alaska, Oregon, Colorado, and Pennsylvania. It shows that if the public is able to band together to evoke PTD, there is potential to create the necessary pressure required to ensure a consensus both federally and internationally on climate change action.