In Law We Trust — Can environmental legislation protect the commons now?

The following is excerpted, with permission, from an article that first appeared in the July/August 2003 issue of Orion, the magazine of the Orion Society. The Orion Society’s mission is “to inform, inspire, and engage individuals and grassroots organizations across North America in becoming a significant cultural force for healing nature and community.” The Orion Society can be contacted at

By Mark Dowie

[The] idea of the public trust has a long and venerable history. It was codified back in 528 AD, when the Roman Emperor Justinian decided to gather and condense all the unpublished rules and edicts handed down by his predecessors into a unified, coherent code of imperial law. To the task he appointed a com­mission of ten legal experts, who delivered the Codex Justinianus in 529 and a year later its attendant textbook, known as the Institutes of Justinian, to which the emperor added a few words of his own. Among them were the following: “By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea.”

During its first millennium and a half, this edict was used almost exclusively to protect the public’s interest in one very vital aspect of the commons: water, and sometimes land covered by water. As Justinian had ruled, navigable water, whether in the sea or flowing to it, was, along with the shorelines, beaches, and river bottoms, the common property of a nation’s citizens, owned by everyone and no one at once, an unwritten public ease­ment protected by their steward – the state.

Over time, the Public Trust Doctrine has established millions of miles of river and shore throughout the world as the common property of the people. Air, forests, public lands, natural beauty, and cultural artifacts have also been defended as common assets worthy of public trust protection.

Over the course of its fifteen-hundred-year history, […] As the Public Trust Doctrine was eventually interpreted in England, the king actually owned public lands, but held them in trust for the public. Thus the notion of ‘sovereign’ property was born, and with sovereignty under the Public Trust Doctrine came the inescapable duty of state stewardship, a concept that survives today in all manifestations of the doctrine. The Colonial Ordinance of 1647 stipulated that government could not relin­quish its public trust obligations to a private party or a popular vote.

As new colonies were created in North and Meso-America by English, French, and Spanish kings, “the doctrine of the public trust,” as it was then known, was adopted without argument as common law. When new states joined the original thirteen American colonies under the rule of equal footing, they too were bound by a doctrine that granted state governments sovereign rights to common land and sovereign responsibility for its care. The idea of the public trust was synonymous with America’s promise of freedom, and several states eventually wrote some form of the ancient code directly into their constitutions. These interpretations were based on English, French, or Spanish com­mon law, depending on the nationality of the colonists.

During the early nineteeth century,the impover­ished children of New Jersey commoners began appearing at council meetings in towns and cities along the state’s coast and waterways. After patiently awaiting their turn to speak, they testified that the fake patek philippe astronomical celestial watches livelihood of their families was being threatened by wealthy oyster planters who had persuaded local courts to uphold the privatization of coastal and estuarian oyster beds from which the children’s parents had freely gathered food.

Should oyster beds, thriving in the estuaries and inlets of the Atlantic Coast long before hominids evolved on the planet, be com­mon holdings or private property? That was the question that river-bed oystermen took to the New Jersey Supreme Court in 1821. To the surprise of both parties, in the landmark case of Arnold v. Mundy, a court of patrician men of wealth ruled for the commoners, and in so doing upheld the ancient principle of public trust. Twenty one years later, in Martin v. Waddell, the United States Supreme Court affirmed the New Jersey court’s interpretation of the public trust – another landmark case, because the public trust is not a federal doctrine.

A decade later came Eddy v. Simpson, where the California Supreme Court ruled that a property right in water “consists not so much of the fluid itself as the advantage of its use.” The “usufructuary” rule, first used to outlaw wasteful practices such as hydraulic gold mining and later to control the use of pesticides or heavy metals that found their way into streams and aquifers, is now widely interpreted to mean that all users of water are subject to a “beneficial use doctrine,” which prohibits unreasonable use or waste. This concept could conceivably be expanded to other elements of the commons, such as soil and public forests.

Then in 1892 came the granddaddy of them all. In Illinois Central Railroad v. Illinois, the U.S. Supreme Court held that a state legislature could not grant ownership of land under naviga­ble waters to a private party, in this case the railroad, which had in effect been handed, fee simple, one thousand acres of Lake Michigan shoreline and underwater land – at the time, the entire waterfront of Chicago. In Illinois Central the court acknowledged a state’s right to sell non-public trust properties. But water and the ground beneath it “is a title held in trust for the people of the state, that they may enjoy the navigation of waters, carry on com­merce over them and have liberty of fishing therein, freed from the obstruction or interference of private parties.”

It was a fitting finish for the nineteenth century. But as the Industrial Revolution accelerated and private property continued its ascendancy in the early twentieth, things slowed down for the concept of public trust. Courts looked the other way as state leg­islators granted and sold public properties, including shorelines, tidal flats, and wetlands, to residential developers, landfill opera­tors, and industrial parks. If considered at all, the Public Trust Doctrine was used only against obstacles to commerce and nav­igation. Manufacturers with no reason to invest in costly toxic disposal dumped their waste into public waters, while courts enamored of free enterprise ignored the pleas of fishermen, swimmers, and other downstream water users. Gradually the public began to realize that relinquishing the public trust to cor­porate polluters was a bad deal.

In 1970 two things happened that placed the Public Trust Doctrine in a whole new light. Legal scholar Joseph Sax pub­lished a landmark article in the Michigan Law Review titled “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention.” In the article Sax opined that the Public Trust Doctrine could be used for more than protection of navigation and commerce. The doctrine should, he wrote, be expanded far beyond navigable water to protect the soil, air; and other species – things “so particularly the gifts of nature’s bounty that they ought to be preserved for the whole of the populace.”

And in April of that year, twenty million people came out to celebrate the first Earth Day. President Richard Nixon took notice that American voters were getting serious about the notion of having government protect the nation’s land, air, and water from deadly pollutants, and, with minor reluctance, signed into law the National Environmental Protection Act (NEPA) and later the Clean Water Act, Clean Air Act, Coastal Zone Management Act, Endangered Species Act, and legislation creat­ing the Environmental Protection Agency.

These two events stimulated a debate in legal circles between Sax and a new breed of environmental attorneys who believed that NEPA and its attendant bills, if dutifully enforced by the fed­eral government, would obviate the need for an expanded Public Trust Doctrine. Richard Lazarus led this camp, arguing that the Public Trust Doctrine was safely imbedded in the elaborate patchwork of federal environmental laws, which held that public assets like endangered species could not be traded away for the sake of market expansion or real estate development. Lazarus wasn’t against the idea of the commons, but he feared that canonization of the Public Trust Doctrine would stifle the advancement of stronger natural resource law.

As the environmental movement grew in strength and num­bers, and its ability to mandate enforcement of the new federal laws improved, the green bar did rely on existing legislation and eschewed public trust litigation, until the legendary 1983 Mono Lake case – Audubon Society v. the Los Angeles Department of Water and Power – in which ecological preservation was held to justify a potentially major change in vested private property rights. The Department of Water and Power was drawing a sub­stantial amount of water from the feeder streams supplying Mono Lake, causing the lake to recede at a rate that threatened the entire surrounding ecosystem.

The California Supreme Court, invoking the Public Trust Doctrine, ruled against Los Angeles and for the lake, extending the state’s public trust authority to the control of water diver­sions from non-navigable tributaries of a navigable lake. The decision asserted that common interest in some resources take precedence over long-term private use and invoked the princi­ple of jus publicum – that certain resources are of so common a nature they defy private ownership. It was a triumphant expan­sion of existing case law, building on the ’97’ California state Supreme Court case of Marks v. Whitney, which determined that public trust values included not only tidelands, lakes, rivers, and riverbeds, but also wildlife habitat, recreational value, and the sheer beauty of place.

As much as the idea of the commons may seem an integral part of the democracy Americans so proudly defend, it is a con­cept often ignored by environmental lawyers and frequently attacked by their opponents. Many steps have been taken over the past two hundred years to affirm and advance the Public Trust Doctrine as a tool for protecting pieces of our country where the public interest should prevail. But the long intervals between triumphant cases illuminate the glacial advance of any legal strategy that is up against the enormous forces of industri­al expansion, urban sprawl, and the overwhelming judicial pref­erence for private property.

Those interests and their attorneys have never relented in their effort to toss the Public Trust Doctrine into the dustbin of history. The result, quite naturally, is compromise. “The trust doctrine, as it has developed in American law, has never held to the rigorous view that common property resources must be held from all private development or always maintained in their tra­ditional purity,” Joe Sax reminds us. “Instead a balance has been struck which is designed to retain the largest measure of public use consistent with needful development and industrialization.”

There have been periods in every civilization when the Public Trust Doctrine was close to sacred, followed by periods when it was derided, ignored, or unknown. At this moment in America it appears to be somewhere between derided and ignored. But thankfully, there is still sentiment expressed in respectable law journals for enforcing a stricter doctrine and expanding the public trust to cover ecological resources in general. And attempts are being made to revive and reinvigorate it in the courtroom and law school, where judges and teachers alike are rediscovering the stan­dards that have protected public interests for fifteen centuries

[However,] It’s important to real­ize that public trust litigation is unlikely to succeed in the absence of community activism and public education. As pub­lic trust legal scholar Michael Warburton notes, “The Doctrine is too valuable a public resource to leave with the legal profes­sion, particularly at a time when so few of my colleagues are defending public interests and resources are being privatized on a truly massive scale.”

And why shouldn’t a broad spectrum of protestors come out to protest the rampant enclosure of the commons that is unfold­ing today? It seems to me that this doctrine, and the whole notion of an expanded commons, should be able to transcend the traditional right-left, public-private divisions that have long plagued debate over property and the commons. We’re talking here about things that people of any and all political persuasions must value.

In this regard it would be wise to view the Public Trust Doctrine as more than a legal construct, for it is also a philoso­phy, a way of thinking that sees the public good as an ideal to be pursued. Don’t we all want breathable air, arable soil, and swim­mable rivers? Does not the fate of humanity lie, as it always has, in our care of the commons.

Mark Dowie is an investigative journalist and author of Losing Ground: American Environmentalism at the Close of the Twentieth Century (MIT Press) as well as 4 other books. He is  recipient of 17 major journalism awards including 4 National Magazine Awards;Losing Ground was nominated for a Pulitzer Prize. He a former editor and publisher of Mother Jones magazine and Editor-at-Large of InterNation.