This article explores the development of public trust principles from early Roman and British law through modern U.S. law as a public commons approach to natural resource management, especially with regard to waterways. It then analyzes the tension between the common pool approach underlying the public trust regulation of waterways and the contrasting theoretical premises of American laws that regulate private use of the water within them—especially the privatization model embedded in the doctrine of prior appropriations, which assigns perpetual rights to withdraw from the watercourse on a first-in-time basis.The public trust doctrine, the protagonist of much modern environmental advocacy in the United States, creates a set of public rights and responsibilities with regard to waterways and other natural resource commons. For hundreds if not thousands of years, the common law has recognized that some resources are so critical that they cannot be owned by anyone in particular—instead, they must belong to everyone together. Accordingly, most versions of the doctrine obligate the state to manage resource commons for the benefit of the public. Over the centuries, the doctrine gradually evolved from an affirmation of sovereign authority over these resources to a recognition of sovereign responsibility to protect them for present and future generations. In recent decades, it has evolved substantially in many U.S. states to address a broader variety of natural resources and a broader scope of public values associated with them, including not only navigational but also ecological values. Part I of the article introduces the public trust doctrine as a creatue of common law, constitutional law, and perhaps as an underlying feature of sovereign authority more generally, tracing its history from the Justinian statement of the jus publicum through the British Magna Carta to early American affirmations in both state and federal supreme courts. Parts II and III review the acceptance of public trust principles in modern U.S. law, their ratification in many state constitutions, and the questions that remain open about the extent to which the doctrine applies at the federal level—including its role as a background principle in constitutional takings analyses, and the extent to which it constrains even federal sovereign authority. Part IV explores the intersection of the doctrine with state water allocation law, reviewing the broad mechanics of the riparian and appropriative rights doctrines that can conflict with public trust principles. Conflict is especially pronounced between the public commons model that underlies the public trust and the privatization model embedded in the western doctrine of prior appropriations, as demonstrated by distinct approaches to reconciling them in California, Idaho, and Nevada. The analysis reveals how the unresolved relationship between these two sets of doctrines create ongoing friction in the water governance regimes that follow them, enabling us to better understand the core conflicts within water disputes—and, ideally, prevent them in the future. It concludes with reflections on the evolution of public commons doctrines and contrasting approaches to environmental rights, and the role they can play in helping us locate the dynamic equipoise between the conflicting values at stake in contemporary environmental disputes.
Private environmental governance provides new tools that can fill gaps in government regulatory regimes. The Tennessee Valley Authority (TVA) is a valuable case study for testing the efficacy of private environmental governance because it is one of the largest utility carbon emitters and is largely insulated from near-term federal and state government pressure to reduce emissions. TVA is not on a trajectory to achieve the decarbonization targets necessary to meet the goals of the Paris Agreement, but private governance initiatives can motivate TVA to accelerate its decarbonization process. TVA’s securities filings acknowledge that it faces material threats on the energy supply side from distributed generation and customer preferences for renewable energy, and on the energy demand side from efficiency and conservation. Private governance initiatives could address the supply side by inducing large corporate and institutional customers, bondholders, and households to press for decarbonization of TVA’s generation assets. On the demand side, private initiatives could motivate action by offering TVA accelerated electrification of motor vehicle fleets and buildings in return for accelerated decarbonization of TVA’s generation assets. The Article concludes that these private governance options are not a panacea, but they have the potential to fill an important gap in public climate governance and pose little risk of displacing more effective government action. The TVA example also demonstrates the wide range of private governance options that are available to motivate emissions reductions by other difficult-to-regulate emissions sources.
The Migratory Bird Treaty Act (MBTA) will soon celebrate its 100th birthday, making it one of the oldest federal wildlife protection laws in the United States. The MBTA led a relatively quiet existence for much of its life, but has in recent years been the focus of an intense debate between industry and bird advocacy groups about whether its strict liability criminal and civil penalties for killing a protected bird extend to incidental killings of birds by otherwise lawful commercial activities. This fundamental question about the scope of the MBTA remains unresolved and is the subject of a current circuit split among federal courts of appeal, with the 2nd and 10th Circuits holding that the MBTA’s misdemeanor sanctions attach to incidental takes of protected birds and the 5th, 8th, and 9th Circuits limiting the scope of the law to acts intended to kill a migratory bird, such as hunting and poaching. To date, neither Congress nor the U.S. Supreme Court have shown any inclination to step in to resolve this dispute, creating an unacceptable level of developmental and operational uncertainty for industries whose commercial activities unintentionally kill birds, such as oil and gas companies and renewable energy developers. The unsettled state of the law surrounding MBTA liability for incidental takes recently made headlines across the country when the 5th Circuit, in United States v. Citgo Petroleum Corp., reversed Citgo’s MBTA misdemeanor conviction for migratory bird deaths caused by birds landing in its oil pits. Amazingly, the lack of clarity around the scope of MBTA criminal liability even extends to seemingly innocuous noncommercial activities such as driving a car or owning a cat, both of which, under a plain meaning reading of the MBTA, could result in criminal prosecution. The article traces the byzantine reasoning underlying this circuit split and offer a practical solution to resolve it by using a category-based approach to criminal liability under the MBTA that builds off the clear congressional intent behind the MBTA to criminalize industrial activities directed at killing birds.
Recent frustration with the scope and pace of environmental legislative reform in the United States has prompted suggestions that the federal government incorporate parliamentary methods, like those used in Canada, to decrease the number and scale of veto points and more readily pass environmental protections. This Article argues that the United States should be extremely cautious about adopting such reforms. While the Canadian approach to legislating in this field may be more certain and efficient than that of the United States, that approach can just as easily be used to diminish environmental protections as to enhance them. Advocacy for such reforms assumes that the central characteristics of environmental legislation in the United States—specific legislative commands, limits on executive power, and agency accountability—are a product of cultural norms resulting from political distrust and will therefore remain stable influences in legislative drafting. The authors argue that it would be more accurate to attribute these central characteristics to endogenous factors related to the U.S. presidential system, rather than political culture. Using both a quantitative and qualitative comparative assessment of Canadian and U.S. legislation, the authors conclude that while both countries use similar types of statutes to ensure environmental protections, their unique political systems structure their content and use differently.
In this Article, I will argue that the way in which the concept of environmental crime has developed in Europe, or the way in which environmental crime has been defined in legislation, has dramatically changed in the past thirty years.
