Or You’ll Sink Like a Stone—Changing Times Call For Revival of the Public Trust Doctrine

Posted on August 4, 2014 by Jeff Thaler

For those who may be interested in the interplay of renewable energy, climate change and the public trust doctrine, I have a new article out in the Ocean and Coastal Law Journal on how federal and state public trust doctrines can be more central in the work and advocacy of environmental lawyers. The article (co-written with one of my students, Patrick Lyons), “THE SEAS ARE CHANGING:  IT’S TIME TO USE OCEAN-BASED RENEWABLE ENERGY, THE PUBLIC TRUST DOCTRINE, AND A GREEN THUMB TO PROTECT SEAS FROM OUR CHANGING CLIMATE”, demonstrates how the public trust doctrine (PTD) can play a role in protecting ocean and coastal resources from climate change.  

More specifically, the Article proposes that both federal and state PTDs can help protect traditional trust values of commerce, navigation and fishing—in addition to modern trust values of protecting tidal wetlands, estuaries, and wildlife—through establishing ocean-based renewable energy (ORE) as a public trust value.  In addition to elevating ORE to equal footing with traditional trust values, we call for placing a “green thumb” on the scales of balancing competing trust values to explicitly guide courts and agencies alike to operate under a rebuttable presumption favoring ORE over other PTD values because of its ability to help reduce carbon and other greenhouse gas (GHG) emissions. This way, ocean based renewable energy would benefit public trust resources that are now being damaged by use of non-renewable energy sources—for example,  the National Research Council (NRC), using 2005 dollars,  that U.S. fossil fuel energy production caused $120 billion in damage, primarily through damages to human health from air pollution, and another $120 billion in damages from climate change, such as harm to ecosystems and infrastructure, insurance costs, negative effects of air pollutants, and national security risks.

The article first provides a brief overview of the history of the PTD in the United States, including its adoption from English common law and its evolution to its present status among the various states, and an introduction to the current legal framework governing federal ocean resources and sets up the argument for recognizing a federal PTD.   It then focuses on climate change, how it is currently impacting the earth’s ecosystems, and the potential detrimental effects to our planet if carbon emissions are left unabated.  We further document how climate change is affecting public trust resources and highlights the degradation and alteration these resources have already experienced, calling on all levels of government to fulfill their fiduciary obligation to protect ocean and coastal resources from the impacts of climate change.  

With that as the foundation, we move to a discussion of offshore wind, tidal and wave energy, and the variety of public trust-like language found throughout the federal legislation that has authority over the permitting and compliance of ORE projects.  We then bring PTD, climate change, and ORE together, in order to establish the basis for a federal PTD and legitimize its inception through common law, legislation, and executive order.  The Article concludes by providing examples of how ORE can be incorporated into both federal and state PTDs, providing courts and governmental agencies with a doctrine that encourages and requires the utilization of ocean and coastal resources for harnessing clean, renewable energy in an effort to mitigate the impacts of climate change.

I hope you find it useful in your law and non-law work. Ironically, it was exactly fifty years ago that one of the leading songwriters wrote and sang these words: 

Come gather around people, wherever you roam / And admit that the waters around you have grown / And accept it that soon you'll be drenched to the bone / If your time to you is worth savin’ / Then you better start swimmin’ or you'll sink like a stone / For the times they are a-changin’. 

Isn’t it well past time to heed that warning and combat the rising levels of greenhouse gases, temperatures, seas, health care costs and storm damages by making maximum use of the clean, renewable energy available and waiting off our shores?



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