Public trust doctrine to protect climate: Roman civil law says natural resources are for the use of the public and governments have duty to protect as part of a public trust

November 17, 2015

The public trust doctrine, which dates back to Roman civil law is being used to fight against climate change.  A Dutch court recently ruled that greenhouse gas reduction is a state obligation, that states are legally required to protect citizens against climate change.  A case, relying on the public trust doctrine is now being fought in the US.


“Climate change is the most urgent issue of inter-generational justice that perhaps our species has ever faced. I do not understand how our courts continue to absolve the federal government from responsibility to care for the only planet which we call home…We will continue bringing claims to the courthouse steps until our voices are heard and action is being taken to protect our future. I do believe that one day we will find a judge who has the courage to issue the necessary orders and secure the rights of my generation to a healthy and stable climate system.”

– Comment by a young Californian, Alec Loorz of Ventura, in reaction to the Supreme Court’s order last Monday denying review of a case pursued by Alec and four other teenagers, seeking to impose on federal government agencies the duty to take specific action to protect the atmosphere from further global warming. The lawsuit relied on the “public trust doctrine,” arguing that the atmosphere is a natural resource that is held in trust by the U.S. and other governments, for the benefit of all of the people and future generations. When Alec was 12 years old, he founded a non-profit advocacy group, Kids vs. Global Warming; he was 16 when the lawsuit began.

CHECKING THE US CONSTITUTION where this is being fought right now and…

For some years, legal scholars and practicing lawyers have been pondering the possible ways to include within the Constitution’s meaning some version of an ancient legal notion, the “public trust doctrine.” Tracing its origins back to Roman civil law, the doctrine expresses the view that natural resources are preserved for the use of the public, and that governments have a special duty to protect that as part of a public trust.

The Supreme Court has not been ready to put the doctrine into the Constitution and, in a comment two years ago, said “the public trust doctrine remains a matter of state law” and added that its scope does not “depend upon the Constitution.” Those comments continue to be a subject of debate in the legal community about whether the Court intended to put severe limits on the doctrine.

That debate unfolded in a variety of legal forums, including in a federal court lawsuit filed by five teenagers, worried about the climate that they would live in as they grow up, who sought court orders requiring a group of federal government agencies to take specific steps to treat the atmosphere as part of the public trust, and to safeguard it from the effects of global warming.   They lost in lower courts and, when they tried to get the Supreme Court interested, the federal government took so little interest in it that the Justice Department simply waived its right to file any reply.   The Court turned aside the appeal without comment, and apparently without any dissenting votes.

The lawsuit had attempted to make the government “the trustee of the atmosphere” with a specific obligation to protect it. The atmosphere, it said, “is one of the crucial assets protected by the public trust doctrine.” The claim applied the principles of trust law, not the Constitution, but it did include some of the rhetoric of rights, suggesting that each of the five teenagers involved were beneficiaries “of the public trust in our atmosphere” and were “owed a duty” by the federal government to restore and preserve the global climate.

The use of rights-like language was not inadvertent.   The doctrine has always been understood to mean that publicly owned resources were for the benefit of the many, not the few. But finding specific clauses or wording in the Constitution to interpret as embracing the concept has not been an easy task.

In addition, characterizing the global climate problem as one specifically confronting the next generation was an intentional point of emphasis in the lawsuit. Having sympathetic parties who seem vulnerable named in a lawsuit was aimed at helping its chances in court.

While that particular case did not try directly to provide a link to the Constitution, there does appear to be some sentiment, perhaps spreading, that the Constitution’s doctrine of equality may serve as the place to locate the idea of equal access to natural resources.

Just recently, in fact, that very idea has been written into a lawsuit that is getting started in a federal trial court in Chicago.  A conservation-minded group, Friends of the Parks, is suing the city of Chicago under the “public trust doctrine” to try to undo an agreement by city officials to allow the building of a new museum – to house the artifacts of movie-maker George Lucas, of “Star Wars” fame – along Lake Michigan’s shore. It is to be called the Lucas Museum of Narrative Art.

Because the park land on which the museum would rise (now used as a public parking lot) is reclaimed from the formerly submerged shoreline of Lake Michigan, the lawsuit contends that it is public trust land.   But the constitutionally significant fact about the lawsuit is that it relies specifically upon the 14th Amendment’s guarantee of equal protection of the laws.

The conveyance of the property, according to the lawsuit’s civil rights claim, means that the land will be reclassified for the benefit of a private entity and a private person, in violation of the 14th Amendment.   That, it argued, will violate the rights of Chicago’s citizens to the land’s preservation “as a free and open space not occupied by a giant building.”

The public trust doctrine, the legal complaint contended, is the only legal route available to challenge the plan to build the museum on the shoreline site.

One of the ironies of this new legal challenge is that some scholars who are strong supporters of private property rights, and thus resist aggressive use of public authority to take over lands for public use, have been arguing that the 14th Amendment guarantee of legal equality might well incorporate the public trust doctrine – but, of course, they say it does so in the interest of protecting property rights against government exercise of eminent domain, to convert private property to public use.

A curious facet of this new lawsuit is that the public trust doctrine, as a part of American law, got its fullest expression by the Supreme Court in an 1892 decision, in the case of Illinois Central Railroad v. Illinois – a case specifically about the development of the shoreline of Lake Michigan, the same area at the center of the dispute over the Lucas Museum. Both sides in the modern property rights debate, as each focuses on the public trust doctrine, seek to use that precedent to buttress their arguments.

The old legal doctrine, obviously, has a lot of life left in it, and the children advocates – and others – will continue to try to use it to promote a variety of causes, with potential constitutional implications.