Is the Public Trust Doctrine a Potential Vehicle for Climate-Change Litigation?

By: Anita Voskovykh

The public trust doctrine’s foundation lies in English common law and was initially established to protect public commerce along navigable waterways. It has since been recognized in the United States in the landmark case, Illinois Central Railroad Company v. Illinois. In this case, the Court determined that all navigable waters in the United States and land under them are held in public trust by the government for the public interest. “Water is a ‘commons’ good that no single person government should keep for their own.” The primary purpose of this doctrine exists as a way to hold the government accountable by maintaining some level of quality in the state’s resources, namely water, and to protect those resources from being depleted by private interests or expended to the detriment of future generations. This is done by requiring the government to act as a trustee in ensuring that the irreplaceable national waters are not tarnished by private or other uses. The doctrine has since been interpreted to remain as a matter of state law and states have the authority to define the limits and scope of the doctrine as they see fit.

While the public trust initially served to maintain the quality of national waters particularly for commercial operations, it has since been expanded to include the atmosphere and soil in certain states. In recent years, plaintiffs seeking climate-change action have relied on the doctrine as a basis for bringing claims against their state government as a substantive basis for such claims. The doctrine identifies the government’s fiduciary obligation to ensure the public’s right to recreational use of the water, and other resources, are not interfered with by private parties for their own personal benefit at the detriment of the public good. A key feature of the public trust doctrine is that it includes the public’s right to sue to enforce it, effectively making it a potential weapon when utilizing it in climate-change action. This has already been seen in several novel cases such as Juliana v. United States and Held v. Montana. While the doctrine was not intended to be the primary claim in either of these cases, the courts acknowledged its relevance in both. This is particularly important for future cases, as well as courts, as these cases may provide an example to follow. While this is good news, judges often refer to the doctrine as a general principle of fairness and justice rather than a practicable tool to be utilized in litigation contexts.

Despite the existence of this doctrine and its intended goals, the application of it remains varied and complicated. Climate-change related litigation are unpredictable based on the jurisdiction, circumstances surrounding the case, parties involved, injuries etc. Given this, the public trust doctrine is an attractive vehicle for climate-related cases as it explicitly states that the government owes a duty to its citizens in maintaining water quality for the public good. In theory, this effectively gives plaintiffs the power to bring claims against their government for breaching its duty and causing the plaintiffs’ harms. However, the doctrine has shown to be rather unsuccessful given its broad language, making it challenging to apply, mainly in the courts. Further, because the doctrine is addressed by state law, state court opinions vary widely and are often abstract. Cases in which the use of the doctrine is successful is “where it is doing work to both afford the public access to water resources, as well as affirmatively protecting water resources from private interests if necessary.” Due to the variance in state laws, it is difficult to determine why the doctrine is more successful in certain cases and not others based on the varied interpretations, ultimately failing to set any solid, persuasive precedent. “The public trust doctrine is more likely to be used as a platitude than it is an actionable doctrine in everyday cases… [c]ourts most often treat the public trust as a background principle. Given the lack of uniformity across states on the application and scope of the public trust doctrine, it is difficult to determine whether it has the potential to become a successful tool in bringing climate-related issues.

While the success rate of using the public trust doctrine as a grounds for climate-change litigation is rather limited, the doctrine’s flexible language may be an advantage. Given the broad wording and unpredictable nature of its interpretation in different jurisdictions, the potential for creating new, successful precedent exists. There is no strict formula to follow. The lack of precedent effectively leaves the door open for new, creative arguments on how the doctrine can and should be expanded to apply to a broader range of issues than which it currently does. Thus, while the current success-rate for successfully using the public trust doctrine remains low, opportunities exist for incorporating it differently, ultimately pinpoint the winning application.