Time and the Public Trust Doctrine: Law's Knowledge of Climate Change

Abstract

Climate change challenges the law and in particular challenges the capacity of law to incorporate into present day reasoning and doctrine those aspects of climate change that are already in the pipeline, that already are a part of our collective future. In this article, I consider how the law builds into itself an appreciation, a knowledge, of the coming effects of climate change. Certainly statutes may be – and indeed have been – drafted so as to require, for example, in planning decisions that consideration be given to the future changes in the climate. This article considers whether a particularly significant common law doctrine, the public trust doctrine, likewise gives consideration now to the yet to be realized consequences of climate change. This article reaches a surprising conclusion. Ordinarily, the question is posed as whether the public trust doctrine can anticipate change yet to be realized. A close analysis of the doctrine as it is applied in my view reframes the question dramatically. The question is not whether the doctrine can anticipate change yet to be realized, I conclude it clearly does. The issue actually is whether the future can be known with adequate certainty. And although the manner in which climate change will impact particular locations remains somewhat uncertain, it is widely agreed that a rising sea level will be experienced across the globe.