The Public Trust Doctrine, Parens Patriae, and the Attorney General as the Guardian of the State’s Natural Resources

Abstract

The emergence of a new and pressing environmental problem is usually followed by a chorus of calls for new legislation. Such laws may take years to develop, are watered down by business lobbyists, and are susceptible to the shifting political winds of Washington. Even after their enactment, the effectiveness of these laws is undercut as polluters find loopholes through which to avoid accountability. Superfund is one example. While the passing of new legislation serves the important function of codifying society’s stance on the environment, common law remedies are immediately available to the states to address environmental problems. This is too often overlooked in the “new problems-new laws” paradigm, and thus common law remedies should be resurrected to further the policy goals of environmental enforcement. A state’s Attorney General (“AG”) may bring actions to redress environmental harm under both the public trust and parens patriae doctrines. Under the public trust doctrine, state AGs can sue, as trustee, for damages to natural resources that are held in the public trust. To recover damages, the AG must demonstrate that the public trust has been violated by an “unreasonable interference with the use and enjoyment of trust rights.” Some states allow for the recovery of natural resource damages (“NRD”) to any natural resource, while others only allow for the recovery of damages to natural resources that the state government actually owns. States vary as to what is encompassed by the public trust. AGs can also bring parens patriae suits to recover for damages to a state’s natural resources. Parens patriae (“parent of the country”) allows a state government to sue to redress injury to a state’s sovereign and quasi-sovereign interests, including the environment. Policy arguments support the AG’s use of public trust and parens patriae actions to recover for damages to natural resources. This litigation strategy should have broad based appeal across political ideologies because the notion that a responsible party should pay for the damage it causes is neither a liberal nor a conservative idea. Furthermore, litigation by the state AG, when used in conjunction with a contingency fee arrangement with private litigators, requires little resources or regulatory schemes by the state. This cost-shifting incentive is especially beneficial to states, many of whom are currently experiencing deep budget cuts. Also, AGs can pick and choose which cases and industries to target, so that environmental policy can be balanced against other policy considerations of the state.

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