Public Trust Doctrine Research Articles

Implications of Climate Change Litigation for Environmental Law and Policy in Ghana

Purpose: The aim of the study was to examine implications of climate change litigation for environmental law and policy in Ghana Methodology: This study adopted a desk methodology. A desk study research design is commonly known as secondary data collection. This is basically collecting data from existing resources preferably because of its low cost advantage as compared to a field research. Our current study looked into already published studies and reports as the data was easily accessed through online journals and libraries. Findings: The study found that the implications of climate change litigation for environmental law and policy in Ghana underscore the urgent need for robust legal frameworks and adaptive policy responses to address the multifaceted challenges posed by climate change. While Ghana has made strides in enacting environmental legislation and participating in international climate agreements, the increasing frequency and severity of climate-related impacts necessitate greater legal clarity, enforcement mechanisms, and stakeholder engagement to enhance climate resilience and adaptation efforts. Climate change litigation provides a crucial avenue for affected communities, civil society organizations, and environmental advocates to hold governments and corporations accountable for their contributions to climate change and their obligations to protect the environment and uphold human rights. Unique Contribution to Theory, Practice and Policy: Legal Mobilization Theory, Policy Diffusion Theory & Ecological Modernization Theory may be used to anchor future studies on implications of climate change litigation for environmental law and policy in Ghana. Encourage strategic litigation that targets key actors, industries, and policy arenas to maximize the impact of legal interventions on environmental protection and climate action. This involves identifying leverage points within existing legal frameworks and leveraging innovative legal strategies, such as public trust doctrines and rights-based approaches, to advance environmental objectives. Foster greater integration of climate change litigation outcomes into national and international environmental policy-making processes. Governments and intergovernmental organizations should proactively incorporate legal precedents, court decisions, and settlement agreements into policy development, implementation, and evaluation.

The Public Trust as an International Solution to Climate Inaction

AbstractThe public trust doctrine holds promise as a tool for combatting international climate inaction. A global public trust in the Earth’s atmosphere may be a feasible avenue for generating international cooperation in this issue. The public trust doctrine is a viable and underutilized mechanism of understanding our collaborative obligations with respect to natural resources. This Article looks to the historical origins and current presentations of public trusts to extract features which indicate its effectiveness and appeal for modern climate change applications. Additionally, it presents two circumstances under which a global public trust in the atmosphere could eventually develop.

Localizing the Public Trust

The public trust doctrine is the manifestation of a simple principle: certain natural resources are too important to entrust to private par-ties. Instead, those natural resources are held by the government in trust for the public. When we think of the contemporary public trust doctrine, we usually think of the doctrine as a state-level phenomenon. After all, the State is the sovereign entrusted with ownership of the public trust.
 But the doctrine also includes local governments, which play im-portant and substantive, if under-appreciated, roles. Missing from the conversation, however, is how local governments should be incorpo-rated into the doctrine. Should local governments be permitted auton-omy as co-trustees of the public trust? Do we trust local governments to safeguard public trust assets?
 This Article develops a framework for the normative relationship be-tween state and local governments in the public trust context. Doing so formally recognizes the role of local governments, thus localizing a doctrine that exists almost exclusively at the state level. This Article begins by reframing the doctrine as part of the lived experience of the public rather than merely a tool of the judiciary. Next, this Article cat-alogs the benefits of localizing the public trust doctrine, including the impacts local actors already have on the doctrine, localism’s tradition-al benefits, environmental justice, and environmental federalism.
 This Article then proposes localizing the public trust doctrine through three principles: (1) minimum state requirements; (2) increased local autonomy; and (3) shared responsibilities between local and state governments. This framework mirrors cooperative federal-ism and shares its advantages. Finally, the Article looks at local cli-mate adaptation as a case study of how states and local governments can begin localizing the public trust doctrine.

Boom or Bust: The Public Trust Doctrine in Canadian Climate Change Litigation

Boom or Bust: The Public Trust Doctrine in Canadian Climate Change Litigation

A human rights approach to climate litigation before the ECOWAS court

Climate change can be litigated through tort, common law, statute/policy, public trust doctrine or human rights among others. While climate change litigation appears to have developed in states of the Global North, its use is still relatively recent in states of the Global South. Nor has it been seriously considered from the perspective of international tribunals from the Global South. Therefore, this study examines a human rights approach to climate change litigation in the Economic Community of West African States Court of Justice (ECOWAS Court). This study finds that there are some developments in certain jurisdictions which make a human rights approach promising in terms of locus standi, justiciability, causation and separation of powers and that they can be related to the jurisprudence of the ECOWAS Court. It also finds that the doctrine of exhaustion of local remedies does not apply to the ECOWAS Court. Based on these findings, it is argued that a human rights approach can be successfully deployed to litigate climate change before the ECOWAS Court and that it can wake up West African States from their lethargy in terms of policy on, and treatment of, climate issues. The study concludes that individuals and NGOs may adopt a human rights approach before the ECOWAS Court to influence policy change and/or state behaviour in West African States.

What's hot and why?

What's hot and why?

Too Simple Rules for a Complex World? Prior Appropriation Water Rights as Natural Rights

This Article assesses the fit of Professor Claeys’s theory of Natural Property Rights to traditional prior appropriation, the regime that allocates water in the West, and its capacity to fit the future of the regime. Natural Property Rights does not offer clear answers to the conflicts under the prior appropriation doctrine of water when there is scarcity. This Article explores the lack of determinacy of Claeys’s theory and the maladjustment between the theory and some of the foundational prior appropriation principles, which cannot be ignored even in the most stylized form of the regime. In particular, the Article analyzes the interaction between the definition of the right and the type of use, the necessity proviso in a market context, the role of greed in prior appropriation trades, and the public trust doctrine.

Mixing Writs with Rights: The Implications for Public Law in Sri Lanka

AbstractBeginning around 1990, judicial interpretation transformed public law in Sri Lanka by blending writs with fundamental rights. On the one hand, the Supreme Court has defined and expanded the constitutional right ‘to equality and equal protection of the law’ by drawing on administrative law concepts of natural justice, reasonableness, legitimate expectation, the duty to provide reasons for decision-making, and proportionality. On the other hand, judges have relied on the Bill of Rights as a standard to assess the decisions of public authorities in writ matters. This relationship between the writs and the rights has had important implications for the growth of public law in Sri Lanka. There has also emerged an incipient ground of review, ‘rights-based review’, as part of the writ jurisdiction, and the ‘public trust doctrine’ in fundamental rights review. Public law has been strengthened by the growth of public interest litigation and the use of new judicial remedies. This article looks at how the writ jurisdiction and rights-based review have evolved in recent times and considers how the two remedies have been used and fused, in a country where the legal and constitutional history has taken a different trajectory to some other post-colonial societies. The article concludes by arguing that this fusion of constitutional and administrative law concepts, together with the expansion in the rules of standing and the emergence of the new concepts of public trust doctrine and fairness, have generated a more robust legal framework that can better protect constitutional rights and democratic freedoms.

Youth-Led Climate Change Litigation: Crossing the North-South Divide

This article provides a critical overview of youth-led climate change litigation, an emerging practice which could go some way towards redressing the injustice the Global South suffers as a result of global warming. It preliminarily explores the political background of such phenomenon, emphasising young people’s growing mistrust of adults, their desire to build a global generational alliance, but also the need to ally with older generations in a world where adults generally monopolise power, money and accepted expertise. It then delineates youth-led litigation’s distinctive features, both substantive and procedural, highlighting its radicality. Children’s and youth’s vulnerabilities enable innovative claims under the public trust doctrine, rights-of-nature approaches, and human rights law. Youth-led litigation is no less radical in terms of the procedural avenues it is exploring, which include generational class actions, direct multistate complaints before international adjudicating bodies, and transnational complaints. The article concludes by offering some thoughts on the prospects of youth-led climate change litigation.

Forging a new path for multi-cultural fishery management

In 2007, the state of Michigan and five tribes entered into a consent decree that provides for collaborative fishery management. The parties desire a productive co-management relationship and realize the need to understand perspectives towards fishery management. State and tribal participants were interviewed, with some tribal agency participants being non-tribal member employees. The findings revealed a lack of understanding between the groups for management priorities and a wide cultural distance between backgrounds in either the Indigenous and/or Western knowledge systems. State employees described their qualifications through Western education and individual learning while tribal member employees identified theirs as community experiences and relations with the natural world. The responsibility to manage was described through the public trust doctrine by state participants, whereas tribal participants described sacred responsibilities, and protecting treaty rights and culture. The purpose of fishery management as described by state participants was through sustainability of the resource and harvest while tribal participants spoke of balance within the Circle of Life concept and suggested the term ‘management’ was inappropriate. The tribal agency employees who were non-tribal members, used both knowledge types expressing scientific concepts while using Indigenous expressions learned partially through their normative presence in tribal communities. Opportunities exist for dismantling cultural distance, forming a collective identity, and sharing power, if state governance structures adapt to include Indigenous knowledge and practices. This may require restructuring governance arrangements to promote power sharing and the normative presence of cross-trained employees within the respective communities where structured learning exist and cultural sharing begins.

Who owns the beach?

Many Americans believe that beaches are “owned” by the public from the vegetation line/dunes to the ocean. However, this is not true on the 70% of land abutting the shoreline that is privately owned. This private land extends down to mean high or low water lines. In contrast to relatively uniform ownership boundaries, beach access varies greatly among states and is based on the Public Trust Doctrine (PTD), that in turn is based on English common law. Under English common law shorelines have two titles. One is the public’s right of use, and the other is private rights of possession and exclusive use. States can convey rights of possession, but they cannot convey the public’s trust rights and are obliged to govern, manage, and protect the public’s trust rights. Therefore, even though a property owner may “own” the beach, that ownership is still subject to paramount rights of the public to use trust lands for public purposes. Some states such as Texas, Oregon, Hawaii, North Carolina, and New Jersey have opened up their beaches by giving the public lateral access from the vegetation line down to the ocean despite part of this land being privately owned. Their actions have been backed by state courts that cite the PTD. It is within the power of all states to do the same. The Corps of Engineers has opened up public access on the 350 miles of shoreline where it has placed beach nourishment, because for a project to be funded the Corps requires a perpetual easement for public use, usually from the vegetation line to the ocean. The Corps also requires states or local governments to provide perpendicular access to beaches by providing parking and other amenities. Conflicts between beach owners and the public have increased with private-beach signs and even fences springing up. Sea level rise will intensify these conflicts. If property owners resort to building structures such as seawalls and revetments, publicly accessible beach widths will decrease. If governments buy coastal properties through managed retreat or if owners support beach nourishment, public access will increase. There also will be increasing pressures for states to follow the lead of those that used the PTD to open up lateral access to beaches.

Ecolawriors: Knights of the Green Law Consciousness

Abstract This article introduces the connected concepts of ecolawfare—legal challenges to violations and violators of environmental law—and ecolawriors, its practitioners. These concepts are extensions of lawfare and lawriors, terms that emerged in this century’s first decade in a military context. The article examines sociological, political economic, and legal literature, as well as black letter law, and argues that many non-US jurisdictions have been eco-friendly trendsetters in law. The article examines the relationships of ecolawfare and ecolawriors with Green social movements, presents a Marxian perspective on intergenerational equity, the public trust doctrine, and rights of nature against the backdrop of capitalist extraction, the climate crisis, and related litigation, and posits a legal parallel between protecting ecosystems and protecting civil rights. The article argues that the climate crisis demands radically new approaches to the law, including lawyers who do not think like traditional lawyers.

Public Trust Doctrine in Indonesia: Expectation and Prospect

Public Trust Doctrine (PTD) is a principle that states the government holds the trust of natural resources for public interest or public use above all interest, even if it is already a private-owned property. A similar clause can be found in Article 33 (3) of Indonesia’s 1945 Constitution that states all of the vital natural resources are under the control of the State and used for the maximum benefit and prosperity of the people. On the contrary to its Constitution, Indonesia’s government enacted many unfortunate regulations that promote unsustainable exploitation of natural resources and tossing aside public interest and welfare. The research described how other countries perceive PTD and its practices and then follows the possibilities and prospects of conducting PTD in Indonesia’s law perspective. The research is a qualitative research conducted in doctrinal legal method with a comparative and analytical approach. From the arguments and analysis conducted, PTD can be adopted and integrated in Indonesia environmental scenes with amendment and conformation to current applied law.

Ecological Zoos and the Limits of the Public Trust Doctrine

ABSTRACT The Public Trust Doctrine is the key normative premise for American wildlife management. Current interpretations suggest that natural resources, such as game species or all wildlife, are owned by the state and held in trust for the public. I argue that using the doctrine as a normative principle biases decisions in favour of consumptive uses of organisms, contrary to the field’s stated goals to employ an ecumenical normative foundation. I use the Red Cliffs Desert Reserve in Utah as a case study to illustrate how this bias manifests in practice. I also provide a new normative principle for wildlife managers.

Little Island: Its big journey through legal battles

Little Island, also known as Pier 55, is a futuristic-looking 2.4-acre public park with performance venues out to the Hudson River in New York City. The project is primarily funded by the media mogul Barry Diller through the Diller–von Furstenberg Family Foundation. The project is part of the Hudson River Park but operates as a tax-exempt non-profit private entity on which the Foundation holds a 20-year lease. During its development process, the project was criticised by many for its controversies; this led to a lawsuit City Club of New York v. Hudson River Park Trust (2015) in the hope of prohibiting the construction of the island. The petition states that the Trust violated the public trust doctrine, State Environmental Quality Review Act (SEQRA) and City Environmental Quality Review (CEQR), and the park violates the Hudson River Park Act and its accompanying regulations. The Supreme Court of New York State denied the petition and dismissed the proceeding. In 2017, the project faced another lawsuit, City Club of New York v. United States Army Corps of Engineers (2017), concerning the unlawful construction permit issuance. The New York Southern District Court ruled that the Corps violated the Clean Water Act and the Administrative Procedure Act as it failed to consider the environmental impact of the construction in the estuarine sanctuary, but the issues were resolved subsequently. Despite the victory, the project was terminated but revived again with a pledging deal made by the then New York state governor Andrew Cuomo in 2018. The project is now completed and opened to the public in 2021. Little Island epitomises a compelling private-made-public development in New York City during modern times; its challenges and drawbacks from the legal, community and environmental perspective, including the environmental concerns, regulation violations and the fear of capitalisation on public property, are widely applicable to other developments in New York City and beyond.

The Public Trust and the Chicago Lakefront: Review of Kearney & Merrill’s Lakefront: Public Trust and Private Rights in Chicago (Cornell U. Press, 2021)

Joseph Kearney and Thomas Merrill’s brilliantly illustrated LAKEFRONT is sure to win American legal history awards for its riveting history of the machinations behind the preservation of the magnificent Chicago lakefront, now dominated by public spaces. The authors weave together a compelling account of how the law affected the development of the post-fire Chicago in the late 19th and 20th centuries—largely made by lawyers and courts and only ratified by legislatures. The book’s title suggests that the story is largely about the public trust doctrine (PTD). But the doctrine is hardly the centerpiece of the authors’ story. What they have to say about the doctrine is confined to the Illinois version of the PTD, and they do not endeavor to explain where it deviates from the modern direction of the PTD. The book’s history of Chicago and its lakefront is groundbreaking legal history, buttressed by twenty years of exhaustive research, colorful characters, and interesting legal developments, of which the PTD played only a supporting role until the 1970s. The principal lesson of their story, one the authors do not emphasize enough, is a persistent struggle between public and private rights along the lakefront. What is unusual is how long this struggle endured, beginning with Illinois Central Railroad’s dominance in the late 19th century and the so-called “Lake Front Steal” of 1869, in which the Illinois legislature conveyed roughly one thousand acres of submerged Lake Michigan land to the railroad. The legislature soon thought better of the giveaway, and its rescission in 1873 culminated in a famous 1892 Supreme Court decision on the PTD, Illinois Central Railroad v. Illinois, pronounced as the lodestar case of the doctrine by Professor Joe Sax a half-century ago. The authors discuss the controversy over the lakebed conveyance and the Court’s pathbreaking decision, but they view the effect of the PTD on the Chicago lakefront as less significant than other considerations like the public dedication doctrine, which nearby landowners invoked to restrict development of the lakefront and preserve their views of the lake. Still, the Illinois Central Court focused public attention on what was an attempt to create a monopoly of the lake’s outer harbor, and that attention has persisted for a century-and-a-quarter following the Court’s decision. Today, the Chicago lakefront is largely public, the consequence of several factors that LAKEFRONT explains. This struggle between public and private rights over the Chicago lakefront existed long before the dawn of the modern environmental movement a half-century ago, influenced not only by the Court’s surprising 1892 decision but also by the persistent oversight of neighboring landowners protecting their views of the lake. This public-private clash, in which private rights were subject to both public and neighboring landowner challenges, created the glorious Chicago waterfront of today. This review of the Kearney and Merrill book focuses on the public trust doctrine, as articulated in the Lake Front case that culminated in the Illinois Central Court’s decision. There is more to the book, mostly centering on local Chicago interest, so this review concentrates on the public trust. Though in the book’s title, the authors maintain that the PTD was not as central to the story of the lakefront’s preservation as other influences. They remain public trust skeptics.

Great Lakes Restoration and the Public Trust Doctrine: Milwaukee’s Restoration Obstacles and Opportunities

Great Lakes Restoration and the Public Trust Doctrine: Milwaukee’s Restoration Obstacles and Opportunities

The Public Trust Doctrine in Indian Constitutional Law

The Public Trust Doctrine in Indian Constitutional Law

The Public Trust Doctrine, Property, and Society

The Public Trust Doctrine, Property, and Society

Public Client Contingency Fee Contracts as Obligation

Contingency fee contracts predicate an attorney’s compensation on the outcome of a case. Such contracts are widely accepted when used in civil litigation by private plaintiffs who might not otherwise be able to afford legal representation. However, such arrangements are controversial when government plaintiffs like attorneys general and local governments retain private lawyers to litigate on behalf of the public in return for a percentage of any recovery from the lawsuit. Some commentators praise such public client contingency fee contracts, which have become commonplace, as an efficient way to achieve justice. Critics, however, view them as corrupt, undemocratic, and unethical. This Comment contributes to this debate by arguing that public client contingency fee contracts are not only permissible, as some have argued, but that certain legal doctrines obligate government entities to form these contracts. First, this Comment contends that the principle that government litigators have a special duty to “seek justice” obligates government actors to enter into public client contingency fee contracts. The obligation to form such contracts is triggered when civil justice requires enforcement, but constraints prevent government attorneys from pursuing litigation. This contention undermines critics’ claim that the “seek justice” principle means public client contingency fee contracts are impermissible. Second, this Comment argues that the public trust doctrine also obliges government entities to form public client contingency fee contracts in some instances. These arguments undermine attacks on public client contingency fee contracts and demonstrate the existence of a heretofore ignored obligation in public civil litigation.