Changing Conceptions of Property and Sovereignty in Natural Resources Law: Questioning the Public Trust Doctrine

Abstract

This Article considers and evaluates the 'public trust doctrine," one of the most remarkable legal bases upon which natural resources law has relied in this ongoing transformation. The public trust doctrine is based on an amorphous notion that has been with us since the days of Justinian - the notion that the public possesses inviolable rights in certain natural resources. Commentators first hailed the doctrine in 1970 as offering the most promising legal basis upon which individual members of the public could maintain a lawsuit to protect natural resources from needless degradation and destruction. In the seminal article on the trust doctrine, Professor Joseph Sax reconstructed how the mostly dormant doctrine had historically functioned in the United States to safeguard public rights in navigable waterways, and he predicted that the doctrine could expand to embrace broader environmental concerns.

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