1. INTRODUCTION
This article is set against the backdrop of two contemporary political realities. The first is the election of Donald Trump as President of the United States (US). The second is the decision of the British people to leave the European Union (EU). Both have potentially negative implications for environmental regulation generally and specifically for developing an effective response to the problem of climate change. In the US, President Trump has already begun to deliver on his election promise to unshackle the fossil fuel industry from burdensome regulation. In March 2017, he signed an Executive Order designed to begin the process of dismantling a wide array of Obama-era policies on global warming – including emissions rules for power plants, limits on methane leaks, a moratorium on federal coal leasing, and the use of the social cost of carbon to guide government actions.Footnote 1 In the UK, withdrawal from the EU regulatory regime of strict standards and long-term targets raises the prospect of a loosening of ‘environmental fetters’ and the loss of an important mechanism for calling government to account on environmental commitments. This mechanism, writes one observer, ‘may be far from perfect, but the EU does enable action to be taken to ensure that governments do meet their obligations, even when that is difficult or expensive or just not viewed as a top priority’.Footnote 2
This article explores the following question. If, in the US, there is at best a political failure and at worst a political animus in respect of environmental regulation, and if, in the UK, the existing mechanisms of environmental regulation face dismantling or undermining, can the common law step up to the breach? Can judges on both sides of the Atlantic find doctrinal resources within our shared legal heritage to fill the gap?
In the US, the existence of a regulatory regime has so far proved a significant barrier to federal common law actions in respect of global warming. In American Electric Power v. Connecticut,Footnote 3 the US Supreme Court ruled that corporations cannot be sued for greenhouse gas (GHG) emissions under federal common law, primarily because the Clean Air ActFootnote 4 delegates comprehensive authority to address air pollution to the US Environmental Protection Agency (EPA). In Kivalina Village v. ExxonMobil Corp.,Footnote 5 the US Court of Appeals for the Ninth Circuit employed similar reasoning in a claim for common law damages brought against ExxonMobil by a group of Alaskan villagers whose village was inundated as a result of the effects of climate change. Disappointing though these outcomes undoubtedly were, under an Obama administration committed to tackling climate change via regulation, common law principles were not the tactic of choice for environmentally motivated court challenges. Under a Trump administration and a Congress controlled by Republicans with a very different environmental agenda, climate change litigation is once more on the table. This time, however, a different set of common law principles is in play.
On 10 November 2016, federal judge Ann Aiken of the US District Court for the District of Oregon denied the motions of the US government and fossil fuel industry to dismiss a groundbreaking climate change lawsuit filed by 21 young people, aged between 9 and 20 and coming from all over the US. Filed initially against the US, President Barack Obama, and numerous executive agencies, the plaintiffs allege that, despite knowledge ‘for more than fifty years’ that the use of fossil fuels was destabilizing the climate system in a way that would ‘significantly endanger plaintiffs, with the damage persisting for millennia’, the defendants, ‘[b]y their exercise of sovereign authority over our country’s atmosphere and fossil fuel resources, ... permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels, ... deliberately allow[ing] atmospheric [carbon dioxide] CO2 concentrations to escalate to levels unprecedented in human history’.Footnote 6
The plaintiffs argue that the defendants’ actions violate their substantive due process rights to life, liberty, and property. They also argue that the defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations.Footnote 7 Both arguments seek to break new ground. The first is constitutional and derives from the guarantees of the Fifth Amendment to the US Constitution. The second is an assertion of a federal public trust obligation and derives from common law principles. Already heavily contested by fossil fuel companies and the Trump administration, the case is currently set down for hearing on 29 October 2018.
Backing the litigation is Our Children’s Trust, an environmental non-profit organization with a mission ‘to protect earth’s atmosphere and natural systems for present and future generations’.Footnote 8 Its founder is Julia Olsen, now Executive Director and Chief Legal Counsel, who represents the Trust in the Juliana litigation and leads a team of lawyers committed to advocate on behalf of youth and future generations for legally binding, science-based climate recovery policies. Influencing their strategy is the work of University of Oregon law professor Mary Wood, and specifically her conception of what she terms atmospheric trust litigation. Atmospheric trust litigation finds its roots in the public trust doctrine, which Wood calls ‘the oldest doctrine of environmental law’ – the idea that governments must hold certain things in trust for public use, such as rivers, seas, and the seashore. It is a concept, she claims:
as old as the Romans, but in the [US], it was used first to great effect by the Supreme Court in 1892 to declare that navigable waters and submerged lands constituted part of the public trust – the government, in other words, had to preserve them for its citizens.Footnote 9
For Wood and the scholar advocates of Our Children’s Trust the doctrine has a much broader application, with transformative potential for fighting climate change:
What [the Oregon] litigation does is it fast forwards that ... principle to the modern urgency of climate crisis, ... . It’s a very simple extension of logic. If navigable waters were crucial to the public back then, certainly the air, atmosphere, and climate systems warrant protection as public trust systems as well.Footnote 10
This article proceeds as follows. In the next section (Part 2) I introduce the work of Joseph Sax, which provides the basis for the arguments upon which the Juliana litigators now draw. I then consider, in Part 3, the often repeated claim that the doctrine is an attribute of sovereignty inherited from the English common law and suggest that this narrative of origin is largely myth. I comment in Part 4 on the interest shown by UK Supreme Court Justice Lord Carnwath in the potential UK application of the doctrine and note the claim that the doctrine is now equated with environmental protection. In Part 5, I consider the connection between common law principles and the constitutional values or nomos within which they operate. I argue that the doctrine of public trust as an attribute of sovereignty can have traction in the US where sovereignty is conceptualized in fiduciary terms but, as I discuss in Part 6, this is not the case in the UK, which continues to define sovereignty in terms of authority rather than obligation. In conclusion, I note the observations of US Supreme Court Justice Oliver Wendell Holmes Jnr on the capacity of the common law to respond to ‘the felt necessities of the times’,Footnote 11 but suggest that, absent a significant change in UK constitutional formulations, the public trust doctrine is unlikely to sustain arguments in environmental litigation in the UK in the foreseeable future.
2. JOSEPH SAX AND THE REINVENTION OF THE PUBLIC TRUST
The doctrine of public trust in its modern form in the US is closely associated with Joseph Sax, whose exhumation, reinvention, reformulation – call it what you will – of the doctrine has been well rehearsed. His seminal 1970 article features in the Shapiro list of the 100 most-cited law review articles of all time.Footnote 12 However, as his critics point out, the doctrine is amorphous, its jurisprudential basis unclear and its democratic claims questionable.Footnote 13
In effect, Sax’s article was a call to arms with an avowed purpose: to promote a then little-known doctrine as a powerful tool for ‘effective judicial intervention’ on behalf of environmental protection and natural resource conservation.Footnote 14 He wrote:
[T]he idea of a public trusteeship rests upon three related principles. First, that certain interests – like the air and the sea – have such importance to the citizenry as a whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status. And, finally, that it is a principal purpose of government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit.Footnote 15
As Carol Rose’s retrospective appraisal explains, Sax’s ideas drew on his own intellectual background of water law, and reflected a contemporary frustration with the ability of vested interests to manipulate or even subvert the mechanisms of agency regulation. From this point of view, his ideas were as much about empowering a democratic citizenry as about environmental protection.Footnote 16 As extrapolated from 19th century precedentFootnote 17 recognizing and protecting public rights of access, navigation and fishing, the ‘public trust’ conception became for Sax ‘a vehicle for insisting that public bodies pay attention to – and adequately vindicate – the changing public interest in diffuse resources’.Footnote 18
As Rose argues, the public trust doctrine for Sax began as ‘a common law version of the then-novel “hard look” doctrine for environmental impacts’ – in effect, a rule requiring close attention to the procedural aspects of environmental decision making.Footnote 19 As his ideas developed, Sax began to argue for a broader application with a normative emphasis that would ‘liberate’ the doctrine from the ‘historical shackles’Footnote 20 which tied the doctrine to its roots in water law, and bring out instead its ‘core’ idea of justice expressed in terms of trust and trusteeship. Thus, ten years after the publication of his seminal article he wrote:
The public trust doctrine is not just a set of rules about tidelands, a restraint on alienation by the government or an historical inquiry into the circumstances of long-forgotten grants. ... The essence of property law is respect for reasonable expectations. The idea of justice at the root of private property protection calls for identification of those expectations which the legal system ought to recognize.Footnote 21
The task, then, became ‘to identify the trustee’s obligation with an eye toward insulating those expectations that support social, economic and ecological systems from avoidable destabilization and disruption’.Footnote 22 In the hands of its current proponents, the doctrine is recast in the form of an inherent limitation on sovereign power, which applies to states and federal government alike, coupled with a judicial mechanism for calling governments to account for failing to effectively tackle air pollution and climate change.Footnote 23
At federal level, the US Court of Appeals for the DC Circuit has given this argument short shrift, citing the US Supreme Court decision in PPL Montana LLC v. Montana to the effect that ‘the public trust doctrine remains a matter of state law’ and that ‘the contours of that public trust do not depend upon the Constitution’.Footnote 24 In Alec L. ex rel Loorz v. McCarthy, the DC Circuit dismissed the argument that Montana applied ‘only to the state public trust doctrine and thus casts no doubt on the potential existence of any federal public trust doctrine’.Footnote 25 The Juliana case currently scheduled for trial in Oregon will address this argument. Ultimately, it may be for the US Supreme Court to resolve if the case gets that far.Footnote 26 At the state level, however, as Robin Kundis Craig’s work demonstrates, the doctrine is alive and well. In some states it has developed well beyond its origins in water law to the point where, she argues, it is not unreasonable to conclude that not one but 50 public trust doctrines exist.Footnote 27
In its classical form, as recognized by the US Supreme Court in the 19th century case of Illinois Central,Footnote 28 the American public trust doctrine replicated the English common law of public rights in respect of navigable waters, including rights of commercial navigation and fishing, as well as rights of access to submerged lands for the purpose of exercising those rights. The only significant change from the English law was to extend the definition of navigable waters to include waters that were navigable-in-fact as well as waters that were tidal.Footnote 29 In Illinois Central itself, the doctrine also operated to restrain alienation by the state on the basis that ownership of submerged lands was an attribute of sovereignty that could not be divested. As Huffman has argued, the facts of the case were extreme and ‘most courts understood that the public rights functioned in the nature of an easement or servitude without regard to ownership of the submerged lands’.Footnote 30
While this may have remained the case in most states ‘through the first many decades of the twentieth century’,Footnote 31 recent research undertaken by Kundis Craig reveals the flexibility and adaptability of 21st-century public trust state doctrines that, she asserts, in the hands of a willing state judiciary have the potential to provide an effective judicial response to the environmental challenges of climate change. As of 2010, she reports, at least 16 states:
have at least nascent ecological public trust doctrines, representing an evolution of the American public trust doctrine far beyond its classic protection of public rights to navigate, fish in, and engage in commerce on navigable waters. In addition, since 1971, courts in at least six states have consciously characterized their states’ public trust doctrines as adaptive and evolutionary, and four of these states have used those evolutionary doctrines to rebalance private rights and public values in public trust waters.Footnote 32
This is not the place to rehearse the range and detail of state-level responses to climate change. It suffices to note that some states have amended their constitutions to include a commitment to environmental protection,Footnote 33 thereby, as the Pennsylvania Supreme Court observed, ‘installing the common law public trust doctrine as a constitutional right to environmental protection, subject to enforcement by an action in equity’.Footnote 34
3. THE PUBLIC TRUST AND A NARRATIVE OF ORIGIN
In 2015, these US state cases attracted the attention of UK Supreme Court Justice Lord Carnwath in Newhaven, a case concerning public rights of access and recreational use of coastal beaches.Footnote 35 At issue was the decision of a county council to register an area of beach as a village green pursuant to the provisions of the Commons Act 2006. This required a finding that public rights of access and recreation had been enjoyed ‘as of right’ (i.e., without express or implied right or licence) as opposed to ‘by right’ (i.e., in the exercise, for example, of rights conferred by common law).
The only reported case directly on point was the 1821 decision of Blundell v. Catterall.Footnote 36 The defendant in that case had used the beach ‘between the high-water mark and the low-water mark of the River Mersey’ at Great Crosby in Lancashire for the purpose of providing bathing facilities, including bathing machines and carriages for members of the public who wished to swim in the sea. The Supreme Court endorsed the Blundell majority ruling that, absent a right established by usage and custom, there was no ‘common law right for all the King’s subjects to bathe in the sea and to pass over the seashore for that purpose’,Footnote 37 but paid some attention to a strong dissent from Best J. In Newhaven, Lord Neuberger summarized the views of Best J by explaining that the latter:
in effect followed the view expressed in Bracton’s De Legibus et Consuetudinibus Angliae, where it is written ‘Naturali vero iure communia sunt omnium haec: aqua profluens, aer et mare et litora mare, quasi mari accessoria. Nemo igitur ad litus maris accedere prohibetur’ (By natural law these are common to all: running water, air, the sea, and the shores of the sea, as though accessories of the sea. No one therefore is forbidden access to the seashore).Footnote 38
Lord Neuberger took the view that for the Blundell majority led by Holroyd J, Best J was stating the civil law rather than the common law position,Footnote 39 but, with respect, this is oversimplification. The decision of Best J is not a model of clarity but at its conclusion comes this passage:
My opinion is founded on these grounds. The shore of the sea is admitted to have been at one time the property of the King. From the general nature of this property, it could never be used for exclusive occupation. It was holden by the King, like the sea and the highways, for all his subjects. The soil could only be transferred, subject to this public trust; and general usage shews that the public right has been excepted out of the grant of the soil.Footnote 40
It was this passage that led Lord Carnwath – who agreed with the overall decision but wrote separately in search of a comparative dimension – to the US state court decisions concerning the existence and contours of a doctrine of public trust. These US state court cases, he suggested, offered an ‘illustration of how the law in this country might have developed (and might yet develop) if the view of Best J had prevailed over that of the majority’.Footnote 41
Having mooted the possibility, Lord Carnwath ultimately did not pursue the capacity of the doctrine of public trust to resolve English common law disputes concerning public rights of access to the foreshore for recreational use. English law, as it currently stands, does not recognize a doctrine of public trust, either in terms of rights of common ownership or of restrictions upon alienation, and certainly not in terms of a public obligation of environmental protection. Nevertheless – and this is the irony that prompted this article – on the other side of the Atlantic, commentators and indeed courts at both state and federal level continue to rehearse in mantra-like fashion a narrative that ties the doctrine to asserted roots in English common law. As recounted by Huffman, the ‘generally accepted storyline’ goes something like this:
Roman law, as communicated to us across the centuries by Justinian, recognized and protected public rights in especially important natural resources. These public rights constituted the jus publicum. ... Justinian recorded – to paraphrase – that air, flowing water, the sea and the shores of the sea are by natural law common to all.Footnote 42
[...]
Commentators and the occasional judge pick up the story about seven centuries later with the English judge, Henry of Bracton, who reported in his De Legibus et Consuetudinibus Angliae that the jus publicum of Roman law was also the law of England. Sometimes Magna Carta is part of the story ...
‘British settlers brought the concept of the public trust to America when they claimed ownership by the right of discovery’. ... Lord Chief Justice Matthew Hale’s treatise De Jure Maris et Brachiorum Ejusdem is most often cited as the authority relied upon by American courts .... The New Jersey Supreme Court decision in Arnold v. Mundy is generally cited as the first case to apply the doctrine on American soil. But it is always best to have a United States Supreme Court opinion to rely upon, even when we are talking about state law, so the story of the history of the public trust doctrine concludes with Illinois Central Railroad Co. v. Illinois. Footnote 43
The problem, claims Huffman, is that much of the account is either distortion or wrong. Relying on extensive but largely overlooked research, he concludes that Arnold v. Mundy ‘announced an American law of title to submerged lands that reflected neither the law nor the fact of English practice’, an error that Illinois Central Railroad then compounded.Footnote 44 Nevertheless, the fact that this narrative is largely fictitiousFootnote 45 does not appear to have diminished its force or prevented its repetition, not just by Sax 40 years ago and now by contemporary advocates of his ‘expansive public trust doctrine’, but also in more recent statements at the highest judicial level. Thus in Idaho v. Coeur d’Alene Tribe of Idaho (1997),Footnote 46 we find the US Supreme Court affirming that the principle (of public trust) arose from ‘ancient doctrines’ – the Court cited the Institutes of JustinianFootnote 47 – and came into English law via Bracton, Magna Carta and Lord Hale,Footnote 48 while as recently as 2012, in PPL Montana LLC v. Montana the Court asserted: ‘The public trust doctrine is of ancient origin. Its roots trace to Roman civil law and its principles can be found in the English common law on public navigation and fishing rights over tidal lands and in the state laws of this country’.Footnote 49
Given the meticulous research of his sources and the compelling nature of his analysis, it is difficult to refute Huffman’s conclusion: an initial misunderstanding of English law has given rise to a myth of common law origin that is now firmly established at both state and federal level and has received the imprimatur of the US Supreme Court. His admonition – ‘[t]hey (the judiciary) are making it up as they go’ – is similarly difficult to resist. However, note his rider: they may indeed be making it up as they go, but in so doing they are acting ‘in the tradition of some of the common law’s greatest lawyers’.Footnote 50
The final part of his article then focuses on the requirement of common law precedential reasoning and its potential for non-democratic lawmaking.Footnote 51 The arguments are often rehearsed, are well-known and no less significant for that. In the words of Indiana Supreme Court Justice Donald Hunter, ‘[t]he strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs’.Footnote 52 In the words of Huffman, ‘American courts function within a constitutional separation of powers that assigns the lawmaking function to the legislative branch of government’.Footnote 53 Judicial recognition of an expanded public trust doctrine, he claims, will constitute not only a usurpation of the legislative function; it will also require the courts to declare new public rights at the expense of existing private rights in ‘double violation of the principle of the rule of law’.Footnote 54 Given the opportunity, the US Supreme Court may or may not rule on this issue.Footnote 55 The question I now want to pick up concerns the potential for a public trust doctrine, in ‘traditional’ or ‘expanded’ form, in its alleged alma mater jurisdiction, the common law of England.
4. ‘INTERNATIONALIZING’ THE PUBLIC TRUST DOCTRINE
As the UK prepares to leave the EU and, with it, the supervisory and compliance mechanisms of the Commission and the Court of Justice of the EU (CJEU), it faces a potential weakening of the regulatory frameworks of its environmental law.Footnote 56 In this context, Lord Carnwath is not alone in recognizing the attractions of a doctrine of public trust. Marc Willers QC of the English Bar and Emily Shirley, UK representative of Our Children’s Trust, have recently advocated the ‘resurrection’ of the English public trust.Footnote 57 ‘Now is the time,’ they argue, ‘for lawyers and judges to revitalize the PTD so that there is proper oversight and supervision of decisions taken by the UK Government which affect the environment as well as its environmental policy and legislation’.Footnote 58 In similar vein, Bradley Freedman and Emily Shirley have argued that the public trust doctrine offers a mechanism for climate change litigation going forward.Footnote 59 Both pieces repeat the same origins myth; the doctrine is an ‘ancient common law principle’:Footnote 60
[t]he history of the [public trust doctrine] shows that it is universal. Indeed, its roots lie in a melding of civil law and common law. The concept of res communes ... originated in Roman Law and was transported to English common law when English jurists read and applied Justinian’s Institutes ... In the 13th century, Lord Bracton incorporated parts of Justinian’s Institutes into his own treatise ... Lord Chief Justice Matthew Hale’s 1667 treatise Concerning the Law of the Sea and its Arms had a huge influence on English law ... The PTD also finds its roots in Magna Carta .... As seen above, both Justinian and Magna Carta influenced the common law doctrine of Public Trust during this period in time.Footnote 61
As discussed previously, the narrative of descent from English common law origins is largely myth and there is no doctrine of ‘public trust’ currently recognized in English law that can subject government to a fiduciary duty of environmental protection. Indeed, Tito v. Waddell (No. 2),Footnote 62 invoked in argument by Freedman and Shirley, in many ways suggests the reverse. Governmental obligations, such as those owed by the British government to Ocean Islanders in respect of royalties payable under mining agreements, while they may give rise to what might be termed ‘trusts in a higher sense’, do not, in general, give rise to fiduciary obligations enforceable in a court of law.Footnote 63 As Justice Finn explains, in English law and that of his own jurisdiction, Australia, the language of trust, when used in respect of government and agency responsibilities, operates by way of political metaphor only and imposes no legally binding obligation.Footnote 64 Even in its traditional form, as Charles Sampford insightfully argues, the classic trust, or trust in the lower sense, still reflects an 18th century Chancery model of specific property held by nominated trustees upon trust for the benefit of ascertainable beneficiaries – a model that is not well suited to the task that public trust proponents urge for it.Footnote 65 I return to this point presently.
Justice Finn, albeit more optimistic than his compatriot concerning the ‘allure’ of public trust, nevertheless concedes that the doctrine ‘has had almost no discernible impact in Australian law’.Footnote 66 This allure has not gone unnoticed in Canada, another common law jurisdiction. In 2004 the Canadian Supreme Court ‘flirted’ briefly with the doctrine when considering a compensation claim in respect of environmental damage to public lands brought by the Crown against the company largely responsible for the loss.Footnote 67 Rejecting the claim for environmental loss for lack of supporting evidence, the Canadian court noted that the doctrine of public trust had led in the US to successful claims for monetary compensation. Citing specifically New Jersey Department of Environmental Protection v. Jersey Central Power and Light Co.,Footnote 68 in which the State of New Jersey successfully sought compensatory damages from a power plant operator for environmental harm for which the operator was responsible,Footnote 69 Binnie J noted the development potential of the common law as a tool of environmental protection but cautioned that absent a statutory regime to address environmental loss, the court must proceed in a ‘principled and incremental way’, which was not possible in that case.Footnote 70
Other jurisdictions have been less cautious. US public trust advocate, Michael Blumm, and his co-researcher, Rachael Guthrie, have recently claimed that the public trust doctrine has become ‘internationalized’Footnote 71 and leads ‘a vibrant and significant life abroad’.Footnote 72 They identify ‘ten diverse countries on four continents: India, Pakistan, the Philippines, Uganda, Kenya, Nigeria, South Africa, Brazil, Ecuador, and Canada’ where, in their view, ‘the doctrine has become equated with environmental protection’.Footnote 73 The doctrine in Canada is embryonic, and in the other countries, as Blumm and Guthrie acknowledge, the doctrine is at least supported by (and in many cases is explicitly derived from) constitutional or statutory provisions or both. This is true also of India and the Philippines, the two countries they identify as having the most substantial public trust jurisprudence. The Indian doctrine is the most extensive and draws explicitly on the shared English common law heritage. In the seminal case M.C. Mehta v. Kamal Nath, the Indian Supreme Court said:
Our legal system – based on English common law – includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.Footnote 74
However, this paragraph comes at the conclusion of a long recitation of American case law, including the entrenched narrative of doctrinal descent, and Sax’s article and subsequent cases have expressly linked the doctrine to constitutional requirements, including specifically the right to life.Footnote 75
UK Supreme Court Justice Lord Carnwath, who himself ‘flirted’ briefly with the doctrine of public trust,Footnote 76 has spoken positively of the important role that judges can play in the development and enforcement of environmental law at both national and international levels.Footnote 77 Writing for The Guardian in 2012, in the immediate aftermath of the Rio Earth Summit, he commended the ‘decade of progress’ that followed the ‘unequivocal’ recognition of this role during the United Nations Environment Programme (UNEP)-sponsored global judges’ symposium that took place in Johannesburg in 2002. The ‘widespread acknowledgment of an international “common law” of the environment, based on principles such as sustainability and inter-generational equity’,Footnote 78 represented a major achievement. Ten years later, the presence in Rio of ‘more than 150 judges, prosecutors, public auditors and enforcement agencies from some 60 countries’ was testament to the efforts of ‘judges in courts and tribunals across the world .... to give practical effect to laws for the protection of the environment’.Footnote 79 However, what is now required is a system of ‘common laws of the environment:’, doctrinal mechanisms that can operate within different legal frameworks, albeit tailored where necessary towards specific constitutions or statutory codes.Footnote 80
5. JURISDICTIONAL HYBRIDS, COMMON LAW FICTIONS AND CONSTITUTIONAL NOMOS
This article began with a query. As a jurisdictional hybrid with roots in both civil and common law, can the public trust doctrine offer a conceptual framework capable of infusing considerations of intergenerational equity and fiduciary obligation into questions of environmental justice? It has uncovered an example of what the doctrine’s first promoter termed ‘judicial cleverness’Footnote 81 with a largely fictitious foundational narrative that the US Supreme Court has recognized, that some jurisdictions now accept, but others – and notably the UK Supreme Court – so far cannot. The question for this section then becomes less about doctrinal origins, roots or ancestry, and more about the interaction between common law development and the doctrinal narratives within which it must operate.
In one of the most cited observations in legal literatureFootnote 82 Robert Cover memorably remarked:
We inhabit a nomos – a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void. … No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.Footnote 83
Cover’s account of ‘jurisgenesis’, or the creation of legal meaning,Footnote 84 is particularly appropriate to common law jurisdictions where judges draw on historical narratives to ground assertions of principle, and deploy fictions rooted in ancient forms and precedents as legitimizing tools of legal development. I referred earlier to the words of Indiana Supreme Court Justice Hunter concerning the adaptability of the common law as jurisprudential strength.Footnote 85 The US and the UK are common law countries with a normative universe that draws on a common legal ancestry; yet, the doctrine of public trust flourishes in one but not in the other. Public trust law, wrote Sax, ‘is not so much a substantive set of standards for dealing with the public domain as it is a technique by which courts may mend perceived imperfections in the legislative and administrative process’.Footnote 86 Judges in a common law system are no strangers to the task of mending perceived legal imperfections, but the doctrine of judicial precedent with which they work is a normative dynamic of both strength and limitation. Doctrinal continuity ensures legitimacy but requires a narrative of origin and uninterrupted genealogical descent; change or adaptation disrupt the narrative and threaten law’s normative claims. When common law judges attempt to disrupt a precedent, they must first recast the narrative context. The historical narrative that supports the doctrine of public trust in the US has largely been debunked. Continuing judicial references to the doctrine, I would argue, are effectively irrelevant, because it has been supplemented by and reframed within another narrative, that of state sovereignty. The state sovereignty narrative is in its own way also fictitious, but, as I now consider, has significance in US constitutional arrangements that is absent in the doctrine’s so-called alma mater – the UK.
Federalism in contemporary US constitutional discourse requires a narrative which casts the 50 several states as sovereigns within their own borders and seized of a state police power that does not depend upon the federal constitution, but is assertable if not ‘interposable’Footnote 87 against encroachments by the federal government. This conceptualization of state power depends in turn upon a narrative of transmission from the English king in consequence of the Treaty of Paris of 1783, which acknowledged the sovereignty of the 13 named colonies and ceded to them all claims to their government, property, and territorial rights.Footnote 88 The narrative is fictionalized in relation to the 37 states that came into the union at a later date by means of the so-called equal footing doctrine, which governs the terms of their admittance and endows them with all the attributes of sovereignty enjoyed by the original 13.Footnote 89
In relation to the doctrine of public trust, the twin narratives of common law ‘ancient descent’ and transmission of sovereign power came together in mutual support in the doctrine’s foundational cases of the 19th century. Thus, in the New Jersey case of Arnold v. Mundy (1821), Kirkpatrick CJ said:
[U]pon the Revolution, all those royal rights vested in the people of New Jersey, as the sovereign of the country, ... are now in their hands; and ... they, having themselves both the legal estate and the usufruct, may make such disposition of them, and such regulation concerning them as they may think fit; ... this power of disposition and regulation can be exercised only by the legislative body, who are the representatives of the people for this purpose; but ... they cannot make a direct and absolute grant, divesting all the citizens of their common right; such a grant, or a law authorizing such a grant, would be contrary to the great principles of our constitution, and never could be borne by a free people.Footnote 90
Seventy years later, in Illinois Central – Sax’s ‘lodestar’ case – the Supreme Court quoted, with approval:
Prior to the Revolution the shore and lands under water of the navigable streams and waters of the province of New Jersey belonged to the king of Great Britain, as part of the jura regalia of the crown, and devolved to the state by right of conquest. ... [A]fter the conquest the said lands were held by the state, as they were by the king, in trust for the public uses of navigation and fishery, and the erection thereon of wharves, piers, light-houses, beacons, and other facilities of navigation and commerce. Being subject to this trust, they were publici juris; in other words, they were held for the use of the people at large.Footnote 91
More recently, in Idaho v. Coeur d’Alene Tribe of Idaho,Footnote 92 the US Supreme Court affirmed that public trust principles derive from state ownership of the beds and banks of navigable waters; that this ownership is an attribute of state sovereignty; that this sovereign title was recognized by English common law principles prevailing within the original 13 colonies before the Revolutionary War and that this trust is now attributable to all states by virtue of the equal footing doctrine, the basis on which all states were subsequently admitted to the Union. As the Court explained, ‘[t]he principle which underlies the equal footing doctrine and the strong presumption of state ownership is that navigable waters uniquely implicate sovereign interests’.Footnote 93
However, because sovereignty in US constitutional arrangements is dual and the 50 states share their sovereignty with the people via their directly elected representatives, they are not the only repositories of sovereign attributes and obligations. As the Supreme Court explained in US Term Limits, Inc. v. Thornton, ‘the Congress of the United States is not a confederation of nations in which separate sovereigns are represented by appointed delegates but is instead a body composed of representatives of the people’.Footnote 94
In Alec L. v. McCarthy (2014), a group of respected constitutional scholars and advocates advanced the claim, currently being pursued by the Juliana claimants, that the federal government was subject to a public trust duty to protect the atmosphere. The Court of Appeals for the DC Circuit dismissed the claim for lack of standing. Thus the claim that the doctrine is an ‘inherent limit on sovereignty which antedates the US Constitution and was preserved by the Framers as a reserved power restriction on both the federal and state governments’Footnote 95 has yet to be heard by a higher court. At the federal level, however, the twin narratives of descent and inherited sovereign power and obligation do not work quite so well; the federal government is entirely the creature of the federal constitution. If the doctrine is to succeed it must be cast in broader terms.
In 1980, Charles Wilkinson, writing for the same symposium at which Sax called for the ‘liberation’ of the public trust, attempted to locate an underlying basis for the doctrine in a model of popular sovereignty whereby the federal government acts as trustee on behalf of the general population. Arguing from cases relating to the nature of federal ownership of public lands, he claimed to detect a 19th century jurisprudential shift away from the idea that the US held newly acquired lands only temporarily and upon trust to transfer them to future states, in favour of the idea of permanent holding and management upon trust for the benefit of the population as a whole.Footnote 96 By about 1970, he claimed, the idea of public trust in relation to federal lands was sufficiently established to function not just as a source but, more significantly, as a limit on federal power.Footnote 97
The fallacy of this argument, as Huffman has pointed out, lies in confusing the classic model of the proprietary trust with the legitimate confidence of the nation’s people that their elected representatives will act in the public interest.Footnote 98 The classic proprietary trust cannot work, he explains, where the alleged trustee is at the same time beneficiary and ultimate creator of the obligation.Footnote 99 It is for this reason, he argues, that current advocates seek to frame their claims of ‘inherent limits of sovereignty’ by reference to a higher imperative of ‘nature’s law’ or, in the words of Wood, an approach that ‘defines government’s duty in natural resources management as obligatory and organic to governmental power [and suggests] a trust limitation as an attribute of government itself’.Footnote 100
As Huffman points out, appeals to natural law, which this must be, are by no means unknown in US constitutional jurisprudence but carry with them a history that has not always been positive and remains controversial.Footnote 101 Should a higher US court rule favourably on these grounds, the case will indeed be ‘the case of the century’. The question for this article, however, is whether similar arguments can be satisfactorily deployed in the UK alma mater and, if not, why not.
6. A PUBLIC TRUST DOCTRINE FOR ENVIRONMENTAL PROTECTION IN THE UK?
Wood has argued that ‘properly cast as intrinsic to government, and reaching back to fundamental understandings that are part of sovereign duty’, the Nature’s Trust framework offers lawyers and judges from all jurisdictions – including those outside the common law world – the tools ‘to unearth the public trust doctrine from their own jurisprudential history and mould it to their modern legal architecture’.Footnote 102 The task, she says, is urgent:
Broadening the jurisdictional reach of the doctrine is essential to arrest the hemorrhage of nature’s destruction currently taking place through the instrument of environmental law at all levels of government.Footnote 103
I have argued that the doctrine of public trust has worked in the US because it taps into and is engrafted upon a constitutional dynamic whereby the states and the federal government define themselves and the extent of their powers largely in opposition to each other. The states possess the inherited police power, and retain sovereignty over their affairs subject to the limits of the Constitution; the federal government represents the people but is endowed with enumerated powers only, the very existence of which can represent the boundaries of state power. The Tenth Amendment preserves state sovereign powers to the extent that they have not been taken away by the Constitution, thereby ensuring that state sovereignty remains not only an important driver of contemporary federalism but also the constitutional battleground upon which those boundaries are tested.Footnote 104
In UK constitutional arrangements, however, where sovereignty is unitary and located within a parliamentary system, this internal power-sharing dynamic does not arise and this is so, devolution notwithstanding. Devolution, UK style, is not federalism and does not as yet encroach significantly, if at all, on the constitutional supremacy of the sovereign parliament.Footnote 105 In this very different context, debates about inherited attributes of kingship become conceptualized in terms of the survival and remaining extent of prerogative power, but this is, of course, exercisable by government ministers on behalf of the Crown. To the extent that the power does not depend upon a grant of Parliamentary authority and its exercise is subject only to limited judicial review, a discourse that invokes the prerogative will necessarily be seen as anti-democratic.
As currently deployed, and as the Brexit experience indicates, sovereignty rhetoric in the UK is directed externally and, as we see presently directed towards the EU, is formulated largely in terms of control of borders and national autonomy. This means that a discourse of fiduciary obligations as an incident of inherited regal power, such as that which underpins the doctrine of public trust in the US, has not only failed to develop in the UK but is unlikely to do so absent an alternative narrative.
It is true, as mentioned earlier, that Justice Paul Finn of the Federal Court of Australia has toyed briefly with the parallels between governmental obligations and the fiduciary nature of trusteeship.Footnote 106 His context was a concern with setting standards of behaviour and establishing a culture of accountability in public office and, although his work attracted considerable interest at the time, in his later work he rowed back from the comparison.Footnote 107 ‘In the age of statutes and of government under statutes,’ he suggests, the task of ‘channelling and controlling the exercise of public power’ requires a focus upon statutory interpretation and judicial review for which abstract principles drawn from the law of trust are not suited. Thus, contrary to his earlier views, he now considers it unlikely that:
the characterisation of the State as a trustee of its powers of government for the people – a trust founded upon the proposition that ‘the powers of government belong to, and are derived from … the people’ – will provide workable criteria upon which to found judicial review of official decision making, save perhaps in bleak, almost unthinkable circumstances. It is too abstract for everyday use.Footnote 108
7. CONCLUSION
Regardless of the fate of Juliana, the public trust doctrine is unlikely to become a lynchpin for environmental litigation in the UK in the foreseeable future. This is not, however, to downplay the capacity of the common law to develop new concepts and principles in response to what US Supreme Court Justice Oliver Wendell Holmes Jnr has termed ‘the felt necessities of the times’.Footnote 109 As an explanation of the relationship between the state and its citizens, the trust metaphor has an undoubted attraction. Contemporary fiduciary theorist Evan Fox-Decent has grounded a normative account of environmental rights, including a human right to a healthy environment, in a fiduciary account of governmental obligation that he claims represents a fundamental principle of the common law.Footnote 110 Environmental lawyer and campaigner Mary Christina Wood argues forcefully that the public trust doctrine gives lawyers and judges at least some of the tools that they need to respond to the environmental problems that represent the necessities of our times.Footnote 111 Her hope is that a ‘path-breaking judge’ with imagination and courage will ‘exert their judicial authority’ by exploiting traditional techniques of common law creativity to develop new legal tools of environmental protection.Footnote 112 However, like Justice Finn, she acknowledges the problematic legacy of decades of modern environmental law: ‘Many judges in common law countries are now so accustomed to issuing rulings within detailed confines of legislation or regulations’, that their appetite for remedial creativity has been eroded and may indeed be lost.Footnote 113 Whether, in the UK, common law judges can develop a fiduciary account of sovereign obligation, as opposed to authority, with which to ground new legal rights and responsibilities in this climate change adaptation era, currently is unlikely. However, one lesson may be there for the learning: when the formal constitutionalism on display in R (Miller) v. Secretary of State for Exiting the European Union Footnote 114 threatens to turn our judges into ‘enemies of the people’, they (our judges) might want to remind themselves that ‘Parliamentary sovereignty is an institutional device, helpful where it secures important values, but a hindrance when it does not’.Footnote 115
