This is the third of four posts on the application of the public trust doctrine to water resources, based on a forthcoming CPR publication, Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates, which will be released this summer. If you are interested in attending a free web-based seminar on Thursday, July 30, at 3:00 pm EDT, please contact CPR Policy Analyst Yee Huang, or register here.
Water advocacy groups and environmental attorneys have used a myriad of creative tools to protect water resources, including establishing minimum stream flows and lake levels, purchasing or acquiring in-stream water rights for environmental and recreational purposes, and using federal regulations to restore water for fish. While each of these strategies may be an effective microscopic solution, a macroscopic, overarching duty to manage water resources sustainably for both people and the environment is missing.
One solution to this missing duty lies in an ancient legal tool – the public trust doctrine. This doctrine holds that certain natural resources belong to all and cannot be privately owned or controlled because of their inherent importance to each individual and society as a whole. As a clear declaration of public ownership, the doctrine also reaffirms the superiority of public rights over private rights for critical resources. It impresses upon states the affirmative duties of a trustee to manage these natural resources for the benefit of the present and future public and embodies some of the key principles of environmental protection: stewardship, communal responsibility, and sustainability.
CPR’s forthcoming Manual identifies roles that the public trust doctrine can play in water resources litigation:
In the years to come, water could supplant petroleum as the world’s most coveted and contested liquid. This miraculous liquid that sustains life on earth needs a solid framework of legal protections to ensure adequate supplies for present and future generations. This framework is incomplete without a robust public trust doctrine to guide courts and legislatures in rigorously protecting water resources.
Special thanks to the Park Foundation for making this Manual possible.