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A few words on the Public Trust Doctrine

by: Eric B.

Tue Dec 15, 2009 at 11:00:00 AM EST


Just yesterday I read a stellar treatment of the Public Trust Doctrine in "The Riverkeepers," by John Cronin and Robert F. Kennedy Jr.  It traces the Public Trust Doctrine all the way back through English common law and into basic principles applied by the Romans.  (And, if you believed what you read in the Detroit News, you'd think it was just some wacky new theory...)

Dave Dempsey went through much of the same history in his book on the subject, but what gives this extra bite is that The Riverkeepers, for which Kennedy is the chief prosecuting attorney, have applied these principles in lawsuits brought and won all over the country. One paragraph stood up and yelled from the pages as particularly relevant:

According to Public Trust Doctrine, the public owns common or shared environments -- air, waters, dunes, tidelands, underwater lands, fisheries, shellfish beds, parks and commons, and migratory species. (Some public trust analysis also includes sacred sites and historical monuments.) These things "are so particularly the gives of nature's bounty that they ought to be reserved for the whole of the populace" (Joseph L. Sax, "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention," 68 Michigan Law Review 471, 484 [1970]). Government trustees are obligated to maintain the value of these systems for all users -- including future generation. Like other rights, public trust rights are said to derive from "natural" or God-given law. They cannot be extinguished.

A link to the article cited. Needless to say, we've backed off on what was once a very generous interpretation of the Public Trust, and we should regret it. Property that once belonged to all of us collectively has been turned over to private enterprise, mostly ultimately to our collective chagrin. It should also be noted that as an animal handed down to us by the Romans and then the English that you cannot be a strict legal constructionist and also believe that this is an archaic, outdated principle (on the other hand, if you have no idea about what you're talking about, you can argue that it's a "legal theory" as if it's some half-cocked hippie notion cooked up in Jim Olson's Traverse City office).

There is one commons that we have not yet discussed, and that is the commons of climate.  Today, even as corporations seek to privatize Michigan ground and surface water, to claim that you own it for the period that it is on your property (a preposterous notion), we are also seeing our common global climate damaged by other interests, who seek to pass off the costs of polluting it to the world's populace, to socialize the costs of climate change while privatizing profits.  Such notions are lofty, indeed, and perhaps a step or two down the road, since we still have among us plenty of people who cannot be convinced by mere preponderence of scientific evidence that something is amiss in the first place.

Eric B. :: A few words on the Public Trust Doctrine
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