2024 Articles

Localizing the Public Trust

Lyness, Sean

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.