Democracy, Distrust, and the Public Trust: Process-based Constitutional Theory, the Public Trust Doctrine, and the Search for a Substantive Environmental Value

Abstract

The public trust doctrine has enjoyed a significant renaissance over the last twenty-five years as a tool for judicial review of government decisions to alienate natural resources. The analysis most responsible for the doctrine's rebirth, Joseph Sax's 1970 Michigan Law Review article, characterizes the doctrine as a tool for perfecting inadequacies in the political and administrative process that may result in inappropriate discounting of environmental values. In this Article, Professor William Araiza considers this democracy- reinforcing conception of the doctrine by exploring the analogy between it and the political-process theory of the Equal Protection Clause. This latter theory justifies a searching judicial scrutiny of legislation burdening certain groups on the grounds that prejudice limits those groups' ability to participate fully in the political process. Essentially, Professor Araiza asks whether public trust resources can be meaningfully analogized to such "discrete and insular minorities," for which heightened judicial protection is appropriate. He concludes that while it may be theoretically possible to draw this analogy, a process-justified public trust doctrine nevertheless fails to provide principles limiting that which would otherwise be an extraordinarily broad scope for judicial review. Moreover, environmental protection is a politically powerful rallying cry in contemporary America; when combined with existing mechanisms for channeling that political power into administrative action, this fact undermines the appropriateness of special judicial solicitude for environmental conservation based on alleged defects in the government decision-making process. Professor Araiza consequently rejects a purely process-justified public trust doctrine and instead considers sources of a substantive political commitment to public trust preservation. He argues that many state constitutions provide this commitment through provisions addressing environmental protection. Professor Araiza concludes that many of these provisions, carefully read, can provide the foundation for a public trust doctrine that seeks not to second- guess government decisions, but that merely attempts to ensure that environmental values are appropriately considered in the decision-making process. This conclusion both gives effect to these provisions, most of which have laid dormant since their enactment, and limits the judicial role in areas in which the need for technical expertise and political accountability make judicial policy making especially inappropriate.