Towards Environmental Entrepreneurship: Restoring the Public Trust Doctrine in New York

Abstract

The public trust doctrine provides that government holds title to certain lands and waterways in trust for the public benefit and public use. While the common law doctrine varies from state to state, historically it “requires that . . . trust land[s] be accessible and used for a public purpose; that [they] be put to . . . uses appropriate to the resource; and, in some cases, that [they] not be sold.” It does not, however, foreclose the private lease and license of public lands; rather, it requires that such lands be utilized primarily for the public benefit, and only incidentally for private benefit. Thus, fundamentally, the public trust doctrine incorporates a public use test. The New York public trust doctrine, as it applies to public parkland, has nebulously defined “public benefit” and “public use” as a “park,” in contrast to a “non-park,” use. In this Comment, I argue for