The Public Trust Doctrine and the Climate Crisis: Panacea or Platitude?

Abstract

Over a year of shutting down the global economy during the COVID pandemic achieved about .01 degrees of improvement in global warming. Not even a drop in the bucket. We continue to face a monumental climate crisis. And of the many ways that crisis threatens our environment, winnowing water resources is one of the scariest. One solution that many scholars have turned to is the public trust doctrine. At first blush, this doctrine sounds like a panacea for water management problems: When our water resources are threatened enough that current and future citizen’s access to it is in peril, the trust kicks in. The government must take steps to protect our waterbodies. So no surprise that scholars have flocked to the doctrine and analyzed just about every angle of the public trust. Save perhaps one: Does it even work? Much less attention has been paid to what concrete impact the public trust is having on real litigation. There is no shortage of language in case law or state statutes about the trust. But does that language do any good? This article tries to answer that question, collecting data about state court decisions mentioning the public trust doctrine in thirty states. Our team reviewed the cases and coded them based on how authorities used the public trust doctrine. Our goal was to answer a key question: When does the public trust doctrine matter in real cases? In other words, when do courts use the doctrine to protect natural water resources? Beyond shedding light on how effective the doctrine is on the ground, this article’s goal is to offer insights about both successful and unsuccessful cases. What can we learn from the cases in which it does work that might equip litigants to wield this weapon better in the future? In most cases reviewed, the public trust doctrine was ineffective at combatting climate change or other harms to natural water resources. But the data offers ideas for moving forward towards a version of the public trust that will have teeth in the climate fight.