The Public Trust Doctrine in the USA

Court(s):

• Supreme Court of the United States

Plaintiffs:

• Illinois Central Railroad Company

Defendants:

• State of Illinois

Facts:

• In 1869, the Illinois state legislature passed legislation giving the Illinois Central Railroad Company title (i.e. ownership) to more than 1000 acres of submerged land in the Chicago harbour that extended one mile from the shoreline into Lake Michigan.

• The grant was later revoked by state legislature but the Company continued to build tracks, piers, and other facilities along the lake front.

• The Illinois Attorney General filed a suit against the Company in order to stop the construction.

Judgements and Reasons:

• The Supreme Court of the United States confirmed that the public trust doctrine applies to the lands under the navigable waters of Lake Michigan and the Great Lakes; therefore, the submerged land in the Chicago harbour was held in trust for the public and could not be given away.

• The Court permitted the Illinois state legislature to revoke its grant of the commercial waterfront and set aside the Company’s title to the land.

• The Court held that state legislatures lack the authority to grant title to lands under navigable waters with two exceptions – for grants not impairing the public interest and grants that actually improved the public trust.

Court(s):

• Supreme Judicial Court of Massachusetts

Plaintiffs:

• Five citizens of Berkshire County, Massachusetts

Defendants:

• Greylock Reservation Commission and the Mount Greylock Tramway Authority

Facts:

• In the late 19th century, the State of Massachusetts acquired about 9000 acres of natural forest on Mount Greylock in Berkshire County to create a public park and enacted a statute creating the Greylock Reservation Commission to manage the park.
• In 1953, the state legislature created the Mount Greylock Tramway Authority to build an aerial tramway on Mount Greylock.
• The Authority also started plans to build a ski resort on Mount Greylock in partnership with a private corporation.
• Five citizens of Berkshire County brought an action to stop the development of the tramway and the ski resort. The citizens brought the suit as beneficiaries of the public trust under which the park land was said to be held.

Judgement and Reasons[1]:

• The Court held that the Commission acted in excess of its statutory grant of authority when it leased land in the park to the Authority and that the Authority acted in excess of its statutory grant of authority when it entered into an agreement with the private corporation.
• The Court questioned why the State should subordinate a public park, serving a useful purpose as undeveloped land, to the demands of private investors to build a commercial facility for profit; thus implying use of the public trust doctrine.
• The Court grounded its decision on the presumption that the state does not ordinarily intend to divert trust properties in a manner that lessens public uses and that any legislation that intends to change the uses of public lands must clearly state this intention.
• This case is significant because it shows the evolution of the public trust doctrine beyond application to shorelines and navigable waters to include the use of lands.

Court(s):

• Superior Court of New Jersey

Plaintiffs:

• Borough of Neptune City and two of its residents

Defendants:

• Borough of Avon-by-the-Sea

Facts:

• In the 1950’s, with the advent of the automobile traffic, beachfront municipalities in the state of New Jersey began taking steps to limit congestion by regulating the use of beach facilities and by charging fees.
• Non-residents of Avon-by-the-Sea, such as those from Neptune City, were charged higher fees than residents of Avon-by-the-Sea for beach access.
• The Plaintiffs asked the Court whether or not a municipality could charge non-residents higher fees than residents for beach access.

Judgement and Reasons:

• The Supreme Court of New Jersey held that, while municipalities may charge reasonable fees for the use of their beaches, they may not discriminate between residents and non-residents and set aside the fee scheme.
• The Court expanded the traditional scope of the public trust doctrine from navigation and fishing to include recreational uses such as bathing, swimming, and other shore activities and, therefore, New Jerseys’ beach and ocean waters must be open to all people on equal terms and without preference.

Court(s):

• Supreme Court of California

Plaintiffs:

• National Audubon Society

Defendants:

• Department of Water and Power of the City of Los Angeles

Facts:

• Mono Lake, the second largest lake in California, supports large numbers of nesting and migratory birds and is fed by water flowing from five different streams.
• The Department of Water and Power in Los Angeles diverted water from four of the streams to feed the city of Los Angeles.
• The diversions caused the level of Mono Lake to drop dramatically and damaged the scenic and ecological value of the lake.
• The Plaintiff, a wildlife conservation society, filed a suit to prohibit the diversions on the theory that the lake is protected by a public trust.

Judgement and Reasons:

• The Supreme Court of California held that the public trust doctrine applies to flowing waters and water rights, just as it does to tide and submerged lands and beds of inland navigable waters.
• The Court also held that the public trust prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust.
• This case is significant because it placed a duty on the state to protect the public trust and to ensure that the taking and appropriating of water is continually supervised for responsible use.

Court(s):

• Supreme Court of Oregon

Plaintiffs:

• Two Oregon youth: Olivia Chernaik and Kelsey Cascadia Rose Juliana

Defendants:

• Governor of the State of Oregon, Kate Brown

Facts:

• Two Oregon youth filed a lawsuit against Governor Kate Brown and the State of Oregon.
• The Plaintiffs asked the Court to order the State to prepare an annual accounting of Oregon’s carbon dioxide (CO₂) emissions and to create a viable climate recovery plan for reducing CO₂ emissions in order to protect Oregon’s natural resources.
• The Plaintiffs claimed that the State had a fiduciary duty, which it breached, to prevent substantial impairment of those resources caused by emissions of greenhouse gases.
• The Plaintiffs also argued for the expansion of the public trust doctrine to encompass more natural resources, including the atmosphere, and suggested the following test to identify what resources are covered by the doctrine:
  1. Is the resource not easily held or improved; and
  2. Is the resource of great value to the public for uses such as commerce, navigation, hunting, and fishing?

Judgement and Reasons:

• The Supreme Court of Oregon rejected the Plaintiffs’ claims.
• The Court acknowledged that the public trust doctrine in Oregon currently encompasses navigable waters and the submerged and submersible lands underlying those waters.
• Although the Court noted that public trust is capable of expanding to include more natural resources (as has occurred in other states), it decided not to expand the doctrine to encompass other natural resources in Oregon, such as the atmosphere, at this time.
• The Court found that the Plaintiffs’ suggested test was too broad and would fail to provide “practical limitations”, making it difficult to conceive of a natural resource that would not satisfy the test.
• The Court also rejected the claim that the State had a fiduciary duty to protect natural resources from climate change impacts because importing private trust principles (such as obligations that trustees of private trusts owe to beneficiaries) to the public trust doctrine could result in a fundamental restructuring of the public trust doctrine and impose new and unnecessary obligations on the State.

Court(s)

• 2015 filing in US District Court for the District of Oregon; appealed in 2020 to the US Court of Appeals for the Ninth Circuit; motions ongoing in 2021 at the Ninth Circuit Court

Plaintiffs:

• 21 youth between ages eight to nineteen, Earth Guardians (an environmental NGO), and Dr. James Hansen (a climate scientist)

Defendants:

• United States, President Obama, and numerous executive agencies

Facts:

• The Plaintiffs claimed that the Defendants have known for more than fifty years that carbon dioxide (CO₂) produced by burning fossil fuels was destabilizing the climate system in a way that would significantly endanger the Plaintiffs, with damage persisting for millennia.
• The Plaintiffs seek:
  1. A declaration that their constitutional and public trust rights have been violated; and
  2. An order preventing the Defendants from violating those rights and directing the Defendants to develop a plan to reduce CO₂

Judgement and Reasons:

• The District Court for the District of Oregon applied the public trust doctrine to climate change, finding that the Plaintiffs had a right to public trust claims grounded in the Fifth and Ninth Amendments to the US Constitution.
  • The Court denied the government’s motion to dismiss the application of the public trust doctrine, concluding that the Plaintiffs had a due process right to a “climate system capable of sustaining human life.”
  • The Court did not explicitly state that the public trust doctrine could be broadened to apply to the atmosphere and to climate change, but the Court held that the government’s public trust duties, when combined with the Environmental Protection Agency’s duty to protect the public health from airborne pollutants, meant that the Plaintiff’s arguments had some merit. As a result, the Court held that the government’s motion to dismiss the application of the public trust doctrine should be denied until there was further development of the evidentiary record.

• However, the US government appealed the decision to the US Court of Appeals for the Ninth Circuit, which rejected the Plaintiffs’ claim for a lack of Article III standing.
  • Article III courts are federal courts created under Article III of the US Constitution and include the US Supreme Court and the lower courts of the United States established by Congress.
• The Ninth Circuit rejected the Plaintiffs’ claims based on the fact that the specific relief they seek is not within the power of an Article III court to grant.
  • The Ninth Circuit held that it is beyond the judicial power of an Article III court to order, design, supervise, or implement the Plaintiffs’ remedial plan to reduce CO₂
  • The Court further stated: “[t]hat the other branches [of the US government] may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.”
• The Court held that the Plaintiffs’ complaints should be made to the political branches or to the electorate at large, rather than to the courts.
• The Ninth Circuit did not expand or discuss the public trust doctrine in depth due to having established that the Plaintiffs’ claims lack Article III standing.

Court(s):

• Florida Circuit Court

Plaintiffs:

• Eight Florida youth between ages eight and 19

Defendants:

• State of Florida

Facts:

• The Plaintiffs alleged that Florida state officials and agencies violated their fundamental rights under Florida common law and the Florida State Constitution of life, liberty and property, and the pursuit of happiness, which includes a stable climate system.
• The Plaintiffs argued that the State had a legal obligation to protect Florida’s public trust resources, including the atmosphere, from climate change and had contributed to climate change by the creation and operation of a fossil fuel-based energy system.

Judgements and Reasons:

• The Court dismissed the claim, holding that it was not appropriate for a court to provide relief for “inherently political questions” that must be resolved by the political branches of the government.

Court(s):

• Supreme Court of Hawai’i

Plaintiffs:

• Two not-for-profit groups, Life of the Land (LOL) and Hui Aloha Aina o Ka Lei Maile Ali’I (KLM)

Defendants:

• Public Utilities Commission of Hawai’i

Facts:

• LOL and KLM challenged whether the Public Utilities Commission of Hawai’i (PUC) fulfilled its statutory and constitutional obligations in reviewing an application by Hawaii Gas to increase the price of natural gas in order cover the costs of two new liquefied natural gas projects.
• LOL and KLM argued that the PUC failed to fulfill its obligations under Hawaii’s State Constitution as a public trustee to conserve and protect the state’s natural resources.

Judgement and Reasons:

• The Court confirmed that a decision to increase the price of natural gas triggers a state agency’s public trust obligations, even where there is no change in the use of the public trust resource.
• The Court found that the State has a continuing duty to monitor the use of the trust resources, even if the use of the resources has not changed.
• Unfortunately, the Court found that the record was not sufficiently developed for it to address the issue of the public trust.
• The Court sent the decision back to the PUC for further proceedings and ordered the PUC to consider its constitutional obligations in re-deciding the issue.

Court(s):

• Supreme Court of Alaska

Plaintiffs:

• A group of Alaskan youth between ages five to 20

Defendants:

• State of Alaska

Facts:

• The Plaintiffs filed a complaint against the State of Alaska alleging that the State has contributed to climate change through its actions regarding fossil fuels and carbon emissions
• The Plaintiffs sought:
  1. An order that the State conduct an accounting of carbon emissions and create a climate recovery plan in order to stabilize the climate system and protect vital public trust resources; and
  2. A declaration that the State’s actions have violated their fundamental rights to a stable climate system.

Judgement and Reasons:

• The Court dismissed the Plaintiffs’ claims.
• The Court held that the Plaintiffs’ claims were science and policy based, which are “better reserved for executive branch agencies or the legislature,” otherwise, granting their claims would violate the separation of powers between the courts and the government.
• The Court also held that a declaratory judgement would not have any practical effect because it would not impact greenhouse gas emissions in Alaska or protect the Plaintiffs from climate-related harms.

Court(s):

• Pennsylvania Commonwealth Court

Plaintiffs:

• Five children and a young adult

Defendants:

• Governor of Pennsylvania, Tom Wolf; Pennsylvania Public Utility Commission; and other officials in the State’s executive branch

Facts:

• The Plaintiffs assert that their rights granted by the Pennsylvania Constitution to natural resources such as clean air, pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment have been infringed.
• Plaintiffs sought to compel the Pennsylvania Public Utility Commission (PUC) and the Governor to develop and implement a comprehensive plan to regulate greenhouse gases, including studies to determine how to protect their rights from climate change.
• The Plaintiffs also asked for a declaration from the Court that
  • the right to a safe levels of greenhouse gases in the atmosphere is protected by the Constitution and that the State must protect (and not infringe) that right; and
  • the State failed to meet that obligation.

Judgement and Reasons:

• The Court found that the Plaintiffs had failed to point to any legislative enactments or regulatory provisions that mandated the PUC and Governor to implement any regulations to address climate change.
• Therefore, the Plaintiffs had no clear right to have the PUC and Governor conduct the requested studies and requested regulations.
• The Court also dismissed their claim for declaratory relief because doing so would have no practical effect.