The

 Public  Trust  Doctrine  and  

Environmental  Decision  Making  
A White Paper of the University of Oregon School of Law
Environmental and Natural Resources Law Center’s Conservation Trust Project

Prepared by ENR Bowerman Fellow Gordon Levitt, ENR David Brower Fellow Nathan Bellinger,
ENR Research Associate Jared Margolis, and ENR Research Associate Douglas Quirke

March 2016
© 2016 University of Oregon School of Law Environmental and Natural Resources Law Center
 The Environmental & Natural Resources Law Center
University of Oregon School of Law
1515 Agate Street
Eugene, Oregon 97403

Cover photo by Wendell - https://www.flickr.com/photos/intherough/

License covering work https://creativecommons.org/licenses/by-nc-nd/2.0/legalcode

DISCLAIMER
This paper was prepared as the result of work by students and faculty of the University
of Oregon School of Law’s Environmental and Natural Resources Law (ENR) Center. It
does not necessarily represent the views of the University of Oregon, The University of
Oregon School of Law, or the ENR Center. The University, the School of Law, and the
ENR Center make no warranty, express or implied, and assume no legal liability for the
information in this paper; nor does any party represent that the uses of this information
will not infringe upon privately owned rights.

ii
Acknowledgments
Thank you to ENR Managing Director Heather Brinton and Program Manager Emily Johnson, who
provided incredible support and valuable insight and assistance during the course of this project.
UO Professor Mary Christina Wood, Faculty Director of the ENR Center, has provided a career of
scholarly work regarding the Public Trust Doctrine, and her accomplishments in this field and
contributions to this work cannot be overstated. Thank you to the following scholars for their work
in this field, which has served to enlighten and inform this white paper: University of Texas Law
Professor Gerald Torres, University of Colorado Professor Charles Wilkinson, Lewis and Clark Law
School Professor Michael Blumm, Widener Law Professor John Dernbach, University of
Washington Law Professor William Rodgers, University of Oregon Political Science Professor John
Davidson, and the late Professor Joseph Sax. Thank you to ENR Bowerman Fellow Rance Shaw
for his assistance with research for this paper.

About this Paper

This white paper was created through the University of Oregon Environmental and Natural
Resources Law (ENR) Center’s Conservation Trust Project, an interdisciplinary research project
focused on public trust theory and private property law as tools to protect natural resources. This
white paper and its companion paper (“The Public Trust Doctrine: A Primer”) were produced to
assist government trustees in fulfilling their trust responsibilities, and citizen beneficiaries in holding
government trustees accountable for fulfilling these responsibilities.

About the Authors

The authors of this white paper are ENR Bowerman Fellow Gordon Levitt, ENR David Brower
Fellow Nathan Bellinger, ENR Research Associate Jared Margolis, and ENR Research Associate
Douglas Quirke.

ENR Directors and Staff

Heather Brinton, ENR Director
Emily Knobbe, ENR Program Manager
Mary Christina Wood, ENR Faculty Director

About the ENR Center

As part of the ENR Center’s mission of "engaging the law to support sustainability on earth," the
ENR Center administers seven theme-based, interdisciplinary research projects that team law
student enthusiasm with faculty expertise in an effort to bring intellectual energy to bear on some of
the most challenging and cutting-edge environmental issues of our day. The seven interdisciplinary
research projects include the Conservation Trust Project; the Energy Law and Policy Project; the
Food Resiliency Project; the Global Environmental Democracy Project; the Native Environmental
Sovereignty Project; the Oceans Coasts and Watersheds Project; and the Sustainable Land Use
Project. Each academic year, the Center awards one-year fellowships to a select group of University
of Oregon School of Law students to work with ENR faculty members on specific research projects
within each of the theme-based, interdisciplinary research projects.

About the Conservation Trust Project

The Conservation Trust Project is one of seven theme-based, interdisciplinary research projects
administered by the University of Oregon ENR Center. The Project is led by faculty leader Mary
Christina Wood. The mission of the Conservation Trust Project is to utilize public trust theory and
iii
private property tools to achieve landscape conservation. Through student and faculty-led research,
the Project explores innovative private and market mechanisms such as conservation easements and
trust acquisitions to protect natural resources. Important issues the Project has recently explored
include incorporation of the public trust doctrine in local, state and federal regulatory codes, legal
and policy initiatives for natural resource damages, and use of natural resource damages to restore
atmospheric equilibrium to stem climate change.

For more information, please visit enr.uoregon.edu

For media inquiries contact Emily Knobbe at eknobbe@uoregon.edu

iv
 Table  of  Contents  
I.  Introduction  .......................................................................................................................................  1  
II.  Constitutional  Amendments  .......................................................................................................  1  
A.  Amending  the  United  States  Constitution:  ..............................................................................................  2  
B.  Amending  State  Constitutions:  ................................................................................................................  2  
Advantages:  .............................................................................................................................................  3  
Disadvantages:  ........................................................................................................................................  4  
Barriers:  ...................................................................................................................................................  5  
III.  Executive  Orders:  ..........................................................................................................................  6  
Advantages:  .............................................................................................................................................  7  
Disadvantages:  ........................................................................................................................................  7  
Barriers:  ...................................................................................................................................................  8  
IV.  Statutory  Amendments  ................................................................................................................  8  
A.  National  Environmental  Policy  Act  ..........................................................................................................  9  
B.  Clean  Air  Act  and  Clean  Water  Act  ..........................................................................................................  9  
C.  National  Forest  Management  Act  .........................................................................................................  11  
D.  General  Mining  Act  of  1872  and  Surface  Resources  Act  of  1955  ..........................................................  12  
E.  The  Federal  Insecticide,  Fungicide,  and  Rodenticide  Act  .......................................................................  12  
Advantages:  ...........................................................................................................................................  13  
Disadvantages:  ......................................................................................................................................  13  
Barriers:  .................................................................................................................................................  13  
V.  Regulatory  Changes  ......................................................................................................................  14  
Advantages:  ...........................................................................................................................................  16  
Disadvantages:  ......................................................................................................................................  16  
Barriers:  .................................................................................................................................................  17  
VI.  Local  Initiatives  ............................................................................................................................  18  
Advantages:  ...........................................................................................................................................  18  
Disadvantages:  ......................................................................................................................................  19  
Barriers:  .................................................................................................................................................  19  
VII.  Conclusion  ....................................................................................................................................  19  
Appendix  A:  Model  Constitutional  Amendment  -­‐  Colorado  .................................................  23  
Appendix  B:  Model  Local  Initiative  ..............................................................................................  24  
Endnotes  ...............................................................................................................................................  31  

v
I. Introduction
This paper serves as a companion piece to
“The Public Trust Doctrine: A Primer.” That
paper provides an overview of the public trust
doctrine, while this paper explores various
legal avenues (specifically, constitutional
amendments, statutes, regulations, and local
initiatives) for implementing the public trust
doctrine in environmental decision making at
various levels of government. For each legal
avenue explored, we provide a discussion of
the specific actions that the particular avenue
could seek, some relevant provisions that
would need to be amended or added to
existing law to incorporate the doctrine, and a
discussion of the advantages, disadvantages
and legal barriers that may exist for
implementation.
This is not intended to be an exhaustive list of
every potential method or means of
reinvigorating the Public Trust Doctrine in
environmental decision making, and is instead
intended to provide an analysis of a number
of possible approaches that could provide an
effective means of achieving that goal. In this
paper we provide a discussion of what the
Public Trust Doctrine would require and how
it would work if properly incorporated into
environmental decision making. Options
discussed focus on amending existing laws or
creating new mechanisms that would
recognize and reinvigorate the Public Trust
Doctrine to accomplish these changes. This
paper provides some examples of how to do
that, and identifies where changes are needed
to incorporate the doctrine into
environmental decision making.
Following the discussion of these various
options, we provide suggestions for a course
of action that we believe would be most
effective in the effort to have Federal, State
and local governments recognize and
incorporate the Public Trust Doctrine into
environmental decision making.
1
II. Constitutional
Amendments
The first three words of the United States
Constitution—“We the People”—affirm that
the government of the United States exists to
serve its citizens. The Constitution provides
for a framework of checks and balances, with
specific enumerated powers of the federal
government; all other authority being granted
to the states or the people themselves.1 The
Constitution and its amendments provide
specific obligations and limitations on
government, and therefore can be used to
limit or preclude certain actions, or dictate
that governmental entities incorporate certain
policies into decision making, including
legislative and agency actions that pertain to
natural resource exploitation. An amendment
to the United States Constitution could be
used to recognize the special relationship that
the government has with the people of the
United States regarding natural resource
management, and could therefore require
Congress and executive agencies to
incorporate public trust principles into
environmental decision making through
recognition of the trust as an attribute of
sovereignty. Similarly, state constitutions have
the ability to incorporate language that
requires the state to act as a trustee of its
natural resources pursuant to its
responsibilities as a sovereign (and some
states already have such constitutional
provisions).
While the process to amend both the federal
and state constitutions is challenging and
overtly political, the amendment process
could be utilized to have the government
recognize and enumerate its public trust
responsibilities in a manner that allows for
statutory and regulatory change to flow
naturally from the inherent duties of the
sovereign as trustee of our natural resources.
This “top down” approach could therefore be
instrumental in any effort to reinvigorate the
trust, and to provide a legal basis—beyond
the trust as inherent attribute of
sovereignty2—that allows for judicial
enforcement of the government’s trust duties.
A. Amending the United States
Constitution:
An initiative to amend the United States
Constitution to incorporate the PTD should
seek to include specific language recognizing
the Public Trust Doctrine and the duties it
imposes on government. The key to such an
initiative would be to provide specific
language regarding the trust and the resources
it encompasses, while at the same time
allowing for flexibility so that the trust may be
molded and extended to encompass changing
conditions. It would need to recognize that
the public trust is a fundamental attribute of
sovereignty, unable to be displaced by statute,
and inherent in the authority granted to
government by the people. It should make
clear that the beneficiaries of the trust include
future generations, and that to protect the
beneficiaries, the government must use the
best available science to prevent substantial
impairment of trust resources.
B. Amending State Constitutions:
Much like a potential Federal constitutional
amendment, a state constitutional amendment
should recognize the general principle of the
doctrine, and establish the basic duties of the
trustee regarding the protection of public trust
resources for the beneficiaries. The
Pennsylvania constitution contains a good
example. It states:
The people have a right to clean air,
pure water, and to the preservation of
the natural, scenic, historic and
esthetic values of the environment.
Pennsylvania’s public natural
resources are the common property of
all the people, including generations
yet to come. As trustee of these
resources, the Commonwealth shall
2
conserve and maintain them for the
benefit of all the people.3
Although this and other “environmental
rights” amendments do not explicitly guide
trustees in the way that purely public trust
constitutional amendments might,
“environmental rights” amendments do
contain principles of the public trust doctrine
(e.g. public natural resources as common
property, inclusion of future generations, and
government as trustee of resources). More
pure public trust amendments, on the other
hand, tend to be much more extensive in their
inclusion of public trust principles.4 Given
the result of the Robinson Township5 case –
discussed in more detail below – it may be
simpler and more effective for advocates to
seek environmental rights amendments rather
than public trust amendments to state
constitutions, with the hope that a reviewing
court would strike down unsustainable
legislative or administrative action that
violated environmental rights. Although only
a few states in addition to Pennsylvania have
affirmed citizens’ environmental rights, here is
the relevant constitutional language from
those amendments:
• Montana: “All persons are born free
and have certain inalienable rights.
They include the right to a clean and
healthful environment. . . .”6
• Rhode Island: “[I]t shall be the duty of
the general assembly to provide for
the conservation of the air, land,
water, plant, animal, mineral and other
natural resources of the state, and to
adopt all means necessary and proper
by law to protect the natural
environment of the people of the state
by providing adequate resource
planning for the control and
regulation of the use of the natural
resources of the state and for the
preservation, regeneration and
restoration of the natural environment
of the state.”7
• Hawaii: “For the benefit of present
and future generations, the State and
its political subdivisions shall conserve
and protect Hawaii's natural beauty
and all natural resources, including
land, water, air, minerals and energy
sources, and shall promote the
development and utilization of these
resources in a manner consistent with
their conservation and in furtherance
of the self-sufficiency of the State.
All public natural resources are held in
trust by the State for the benefit of the
people.”8
“Each person has the right to a clean
and healthful environment, as defined
by laws relating to environmental
quality, including control of pollution
and conservation, protection and
enhancement of natural resources.
Any person may enforce this right
against any party, public or private,
through appropriate legal proceedings,
subject to reasonable limitations and
regulation as provided by law.”9
• Illinois: “The public policy of the State
and the duty of each person is to
provide and maintain a healthful
environment for the benefit of this
and future generations. The General
Assembly shall provide by law for the
implementation and enforcement of
this public policy.”10
“Each person has the right to a
healthful environment. Each person
may enforce this right against any
party, governmental or private,
through appropriate legal proceedings
subject to reasonable limitation and
regulation as the General Assembly
may provide by law.”11
• Massachusetts: “The people shall have
the right to clean air and water,
3
freedom from excessive and
unnecessary noise, and the natural,
scenic, historic, and esthetic qualities
of their environment; and the
protection of the people in their right
to the conservation, development and
utilization of the agricultural, mineral,
forest, water, air and other natural
resources is hereby declared to be a
public purpose.
The general court12 shall have the
power to enact legislation necessary or
expedient to protect such rights.”13
For an extended discussion of environmental
rights amendments and natural resources
provisions in state constitutions, see Robinson
Township.14
Advantages:
A recent Pennsylvania case emphasizes how
important a constitutional amendment can be
within this arena. In Robinson Township, the
Pennsylvania Supreme Court examined the
state’s Environmental Rights Amendment and
its applicability to statutory law.15 In
determining that a Pennsylvania statute
prohibiting local regulation of oil and gas
operations and requiring all local zoning
ordinances to allow development of oil and
gas resources violated the State’s public trust
duties as established in the Environmental
Rights Amendment, the court noted that such
rights are inherent and inalienable as an
attribute of sovereignty.16 The Pennsylvania
constitution, in enumerating the trust
responsibilities of the government, provided a
solid platform for the court to find that the
state statute violated the state’s duties as a
trustee.
The Pennsylvania Supreme Court’s decision
exemplifies the effectiveness of including
simple public trust language in a constitutional
amendment, and the potential this has for
preventing statutory or regulatory actions that
do not comply with the government’s trust
responsibilities. More recent constitutional
amendment efforts, such as those in
Colorado, have attempted to include a more
thorough explanation of trust duties. See
example at Appendix A. While this may allow
for more consistent and effective
implementation of the trust principles, it may
also make it harder to pass such amendments
for two reasons: 1) due to the unfamiliarity of
the public with the PTD without adequate
education, getting signatures for a ballot
initiative (in states with direct democracy) may
be difficult, and 2) the more precise language
may engender open hostility from private
business interests who currently profit from
natural resource exploitation or use the
commons for pollutant discharge.17 A simpler
version, however, such as the Pennsylvania
example, may not be enforced absent judicial
education and acceptance of the doctrine, due
to its lack of specific standards. It is therefore
imperative that efforts be undertaken to not
only pass these amendments, but that the
public and judges be educated as to the role of
the Public Trust Doctrine in environmental
decision making.
Disadvantages:
The main disadvantage to using a
constitutional amendment to apply the Public
Trust Doctrine to environmental decision
making is the time and expense of the
amendment process. An amendment to the
U.S. Constitution can occur in one of two
ways: It can be proposed by Congress and
ratified via approval by three-fourths of the
states; alternatively, on demand of two-thirds
of the state legislatures, Congress must call a
convention for proposing amendments, which
must then be ratified via approval by three-
fourths of the states. To date, all
amendments, whether ratified or not, have
been proposed by the first of these two
methods. Therefore, to work towards a
constitutional amendment that recognizes the
Public Trust Doctrine, it would be necessary
to convince members of Congress to propose
it through lobbying efforts.
4
It must be noted that over 10,000
constitutional amendments have been
introduced in Congress since 1789.18 During
the last several decades, between 100 and 200
have been offered in a typical congressional
year.19 Most of these ideas never leave
Congressional committee, and of those
reported to the floor for a vote, far fewer get
proposed by Congress to the states for
ratification. This is important in considering
whether to dedicate resources to an initiative
to secure an amendment because the plethora
of proposed amendments before Congress
makes it difficult for such actions to gain
traction and recognition.
At the state level, there are various ways in
which state constitutions may be amended.
Every state except for Delaware allows for
constitutional amendment via passage of
proposed amendments by the state
legislatures,20 followed by referral of proposed
amendments to voters for ratification
(Delaware is the only state that does not
require voter referral). Eighteen states also
have voter-initiated constitutional amendment
processes21 whereby proponents must obtain
a specified number of signatures from
registered voters in order to place a proposed
constitutional amendment on the ballot.22
Getting those signatures may take
considerable time and money, as well as
education efforts. As with the federal
process, this is a highly political process, and
would require extensive lobbying efforts to
secure the necessary support.
The process, however, does not end with the
amendment itself. Even if such an
amendment were to be passed, it would most
likely not have the effect of immediately
altering environmental decision making.
Agencies and legislatures might be unwilling
to undertake efforts to alter their processes or
behavior accordingly. The legislature (state or
federal) may or may not respond with specific
statutory amendments to reflect the
constitutional amendment; however, even if
they did, there would remain questions
regarding precisely what such an amendment
would require of government, and how to
codify the trust in a meaningful way—
especially if the amendment used generalized
language, as constitutional amendments
typically do, and did not include specific
standards or requirements.
It would, therefore, most likely be necessary
to enforce the amendment through litigation,
as was the case recently in Pennsylvania. This
might include efforts to challenge existing
regulations that do not comply with the
constitutional amendment, proposing new
regulations that would comply and challenging
agency denial of those proposed regulations,
and challenging specific statutes that violate
the amendment by allowing substantial
impairment of trust resources. Therefore,
while constitutional amendments are certainly
powerful, and potentially provide a solid basis
for integrating public trust duties into
environmental decision making, the process
itself would likely involve a long, hard battle
and the resources needed to undertake such
an effort must be considered.
Barriers:
Besides the political barriers to getting a
constitutional amendment passed, there are
legal barriers to using such an amendment to
implement the Public Trust Doctrine and alter
environmental decision making at the agency
level. The two biggest legal barriers in this
context are the agency deference doctrine, and
the void for vagueness doctrine.
The agency deference doctrine provides that
in reviewing the validity of agency actions, a
court will first ask whether the law clearly
addresses the issue. If the intent of the law is
clear, that is the end of the matter, for the
court as well as the agency must give effect to
the law. However, if the court determines
that the law does not directly address the
precise question at issue, the court will not
simply impose its own construction. Rather,
if the law is silent or ambiguous with respect
to the specific question, the issue for the court
5
is whether the agency’s answer is based on a
permissible construction of the law.23
Pursuant to this test, courts provide a high
level of deference to agency decision making,
based upon the agencies’ supposed expertise,
and the need for regulatory flexibility. This
doctrine tends to insulate agency decisions
from rigorous judicial examination of
inappropriate political motivations, and allows
agencies to routinely ignore statutory
mandates. The same might be expected of
constitutional mandates regarding the public
trust, and the implementation of any statutory
changes based on such an amendment
through agency rulemaking. Therefore, the
end result of efforts to pass a constitutional
amendment may be waylaid by courts giving
agencies deference on how to interpret their
mandate if there is a challenge to the agencies’
response. Very specific statutory amendments
might be required to fully implement the trust
duties enumerated in a constitutional
amendment to prevent this outcome.
The second barrier to using a constitutional
amendment to incorporate the Public Trust
Doctrine into environmental decision making
is that, as discussed above, translating such an
amendment into real change at the agency
level may require litigation, and depending on
how the amendment is written, courts may be
unwilling to enforce it. The “void for
vagueness” doctrine is predicated on the
theory that statutory or constitutional
provisions cannot be enforced if they do not
contain specific enough language to provide a
standard upon which a court can enforce the
terms.24 In many cases, constitutional
provisions that contain non-binding language
(i.e. “should” rather than “shall”) may be
deemed unenforceable. Likewise, a court may
consider an amendment to provide
aspirational language, with no solid grounding
as to how to actually implement the provision.
In that case, an agency may get deference as
discussed above, providing no real means of
using the provision to engender any real
change at the agency level.
These concerns can, however, be remedied
with language in a proposed amendment that
provides very specific standards and
requirements that are written to be
enforceable. Again, the Pennsylvania
amendment becomes instructive in this
context. It uses enforceable language (“the
Commonwealth shall conserve and maintain
them for the benefit of all the people) and
specifies the resources that are covered, and
the specific beneficiaries of the trust.
Including this type of specificity is key to
implementation. Our suggestion is that any
proposed amendment not only include similar
language, but further specify that the
government will be held to the specific
fiduciary duties of the Public Trust Doctrine,
including: preventing waste, using a
substantial impairment standard based on the
best available science, and preventing undue
influence from private interests. (See example
at Appendix A.)
In order to show how these legal barriers (and
others) can affect a constitutional amendment
proposal, it is instructive to look at two recent
voter initiatives in the state of Colorado. In
early 2014, Colorado citizens sought to
incorporate public trust principles into the
Colorado Constitution. Both of these efforts
– Initiative #103 and Initiative #89 – were
challenged due to alleged non-compliance
with Colorado’s “single subject” rule for
initiatives that propose to amend the
constitution.25 Opponents of the initiatives
argued that the amendments included five
unrelated, unconnected, and non-
interdependent subjects.26 Initiative #103
failed because the Colorado Supreme Court
ruled that the Title Board acted outside the
scope of its authority by ruling on a challenge
to the initiative in the absence of the
designated initiative petitioner.27 Initiative
#89 did not make it onto the 2014 ballot
because the petitioners withdrew the initiative
as part of a negotiated agreement with
Colorado Governor Hickenlooper.28
6
In response to these setbacks, a new initiative
was proposed for the 2016 ballot - Initiative
2015-2016 #4.29 This initiative is nearly
identical to prior Initiative #103. The
Colorado Ballot Title Setting Board concluded
that this initiative only addressed a single
subject, and opponents appealed to the
Colorado Supreme Court.30 On March 12,
2015, the Colorado Supreme Court affirmed
the Title Board’s decision on Proposed
Initiative 2015-2016 #4.31 This means that
the voters will have the opportunity to vote
on the initiative in the fall of 2016.
III. Executive Orders:
Executive orders (“EOs”) are legally binding
orders by the president, acting as the head of
the Executive Branch, to federal
administrative agencies. Executive orders are
generally used to direct federal agencies and
officials in their execution of congressionally
established laws or policies. As creatures of
the executive branch, federal agencies are
subject to executive orders that can prescribe
not only certain actions, but that agencies take
into consideration specific concerns and
factors when issuing permits or making
decisions regarding proposed future actions.
This could include incorporation of public
trust principles into the agency decision
making processes.
President Obama has issued a number of
executive orders that pertain to environmental
regulation, including one entitled “Preparing
the United States for the Impacts of Climate
Change,” on November 1, 2013.32 This EO
provides that agencies should “promote risk-
informed decision making and the tools to
facilitate it,” and further states that “all
agencies … shall reform policies and Federal
funding programs that may, perhaps
unintentionally, increase the vulnerability of
natural or built systems, economic sectors,
natural resources, or communities to climate
change related risks.” The EO specifically
requires agencies “to complete an inventory
and assessment of proposed and completed
changes to their land- and water-related
policies, programs, and regulations necessary
to make the Nation’s watersheds, natural
resources, and ecosystems, and the
communities and economies that depend on
them, more resilient in the face of a changing
climate.”
Similarly, President Clinton, on February 11,
1994, issued EO 12,898, entitled “Federal
Actions to Address Environmental Justice in
Minority Populations and Low-Income
Populations.”33 This EO directs agencies to
develop an internal agency process for
implementing an environmental justice
strategy. Moreover, it requires agencies to:
conduct its programs, policies, and
activities that substantially affect
human health or the environment, in a
manner that ensures that such
programs, policies, and activities do
not have the effect of excluding
persons (including populations) from
participation in, denying persons
(including populations) the benefits
of, or subjecting persons (including
populations) to discrimination under,
such programs, policies, and activities,
because of their race, color, or
national origin.34
These EOs evidence the authority that the
president holds to alter agency procedure and
policies, specifically within the context of
environmental decision making. The
president may therefore require agencies to
alter their regulations to ensure that certain
environmental concerns are addressed. This
authority could be used to immediately alter
the way that agencies manage natural
resources within their jurisdiction. The
president could require that agencies provide
a full accounting of natural resources, seek
natural resource damages for any impairment
of trust resources, and that those agencies
only issue permits for natural resource
use/extraction if such activities would have a
public benefit and cause no substantial
7
impairment of trust resources. Through an
EO, the president has the authority to
incorporate any or all of the trust duties, and
require that the executive agencies act
accordingly.
Executive orders may also be used at the state
level to alter state agency procedures.
Executive orders issued by the governors of
the states are not statutes like those passed by
state legislatures, but have the force of law in
a similar way to the federal system. Executive
orders are usually based on existing
constitutional or statutory powers of the
governor and do not require any action by the
state legislature to take effect.
Advantages:
Executive orders are authorized by the
president’s independent constitutional
authority35 and do not require congressional
approval, thus the president can use them to
set policy despite public debate and
opposition.36 Federal courts consider such
orders to be the equivalent of federal
statutes.37 In addition, regulations that are
enacted to carry out these EOs have the status
of law as long as they reasonably relate to the
statutory authority. An administrative action
that is carried out under a valid EO is similar
to an agency action that is carried out under a
federal statute. Therefore, EOs provide the
opportunity for immediate alteration of
agency decision making, with no need to
engage in a protracted political process.
Disadvantages:
Lawsuits that are brought to force federal
agencies to comply with EOs are usually
dismissed by the courts on the ground that
the orders do not provide a cause of action
(i.e. a right to judicial relief), or that to infer a
cause of action would allow for protracted
lawsuits that would paralyze the rulemaking
functions of federal administrative agencies.38
Furthermore, EOs are not permanent. While
Congress cannot directly vote to override an
EO in the way they can a veto, Congress can
pass a bill canceling or changing the order as
they see fit. The president will typically veto
that bill, and then Congress can try to
override the veto of that second bill. The
Supreme Court can also declare an EO to be
unconstitutional.
While Congressional cancellation of an EO is
extremely rare, the president—or a
subsequent president—can amend or retract
an EO at any time. The president may also
issue an EO superseding an existing one.
Incoming presidents may choose to retain the
EOs issued by their predecessors, replace
them with new ones of their own, or revoke
the old ones completely. EOs are, therefore,
impermanent, and potentially unenforceable
by the public.
Barriers:
While there are no legal barriers to the use of
an EO to incorporate the Public Trust
Doctrine into agency decision making, the
biggest impediment to such an EO is getting
the president (or governor) to focus on this
issue. President Obama’s recent EO
regarding climate change indicates that he is
concerned about environmental degradation,
and is willing to direct federal agencies to take
specific actions to prevent further harm;
however, incorporation of the Public Trust
Doctrine principles would require a more
broad alteration of the current regulatory
framework. Given that President Obama is
nearing the end of his second term, he may be
more willing to step out on a limb and focus
on real change at the agency level; however,
depending on who is elected next, any such
changes could easily be overturned. Even an
unsuccessful EO effort could put this issue in
the spotlight and serve as an important means
of educating regulators and lawmakers, as well
as the public, as to the role that the
government is supposed to play as a trustee of
our natural resources.
8
IV. Statutory Amendments
While agencies ultimately regulate the
exploitation of natural resources and issue
permits for activities that may affect natural
resources, the agencies’ authority to do so is
derived from the legislation that empowers
them to regulate. Statutes frame agency
regulation by prescribing the agencies’ policy
objectives, and providing the standards by
which environmental decision making takes
place. More often than not, these objectives
and standards do not encompass the duties of
the agencies as trustee of natural resources.
Amending existing laws or enacting new ones
to incorporate trust principles would be an
effective means of initiating change at the
agency level, and similarly alter state actions
taken pursuant to delegated statutory
authority (e.g., Clean Air Act and Clean Water
Act).
Statutory amendment possibilities include
seeking to have Congress pass a law that
recognizes public trust principles, requiring all
agencies to incorporate trust duties into their
decision making process. This could be a
stand-alone statute, specifically stating that
adhering to the duties set forth in the trust
framework supersedes competing statutory
mandates, thereby resolving any
inconsistencies with existing laws. Another
statute could specify methods for adhering to
the duty of loyalty by requiring agencies to
adopt regulations pertaining to disclosure and
recusal principles; measures to ensure robust,
unbiased scientific input into federal
policymaking; and measures protecting the
freedom of scientists to communicate with
the media and the public. More refined
whistleblower protections and public
participation in agency decision making
through a “citizen-beneficiary advisory group”
process could also be required.39
Incorporating trust principles into
environmental decision making could also be
accomplished via amendments to the
environmental review process under the
National Environmental Policy Act or via
specific statutory changes to the laws
governing natural resource protection and use.
There are numerous statutes that could be
amended in order to incorporate public trust
principles into environmental decision
making. Below is a discussion of a number of
major federal environmental statutes and how
they could be amended.
A. National Environmental Policy
Act
The National Environmental Policy Act
(“NEPA”) sets forth a process whereby a
project considered to be a “major federal
action significantly affecting the quality of the
human environment” requires that an agency
consider the environmental impacts of the
project, and provide an analysis of alternatives
(including a no-action alternative) to the
proposed action.40 NEPA thereby requires
that agencies, when undertaking or permitting
most large projects, take a “hard look” at the
environmental consequences of their
proposed actions, allowing for public
participation and the opportunity to ensure
that environmental concerns are given the
same consideration as economic or other
concerns.
Interestingly, NEPA already contains language
analogous to the public trust, with the primary
example of its explicit recognition of a federal
obligation to “fulfill the responsibilities of
each generation as trustee of the environment
for succeeding generations.”41 While NEPA
contains classic trust language regarding the
role of the federal government as a trustee of
our natural resources, unfortunately this
language has not resulted in the incorporation
of the doctrine into the agency decision
making. In a landmark decision following the
adoption of NEPA, the 11th Circuit Court of
Appeals rendered meaningless these
statements regarding the role of government,
resulting in NEPA becoming what some
commentators refer to as a “paper tiger”--
requiring analysis and disclosure of
9
environmental impacts, but allowing agency
selection and implementation of an alternative
without regard to these environmental
impacts (seemingly at odds with the statute’s
trust language quoted above).42
Because NEPA already contains trust
language, and requires that agencies
undertaking federal actions go through a
process of considering the environmental
impacts of those actions,43 it is possible to
amend NEPA to affirm its trust language, and
clarify that this language requires that
agencies, when conducting environmental
impact analyses fully incorporate the public
trust principles into their decision making, and
that only alternatives that are consistent with
trust principles are acceptable under NEPA.
B. Clean Air Act and Clean Water
Act
Both the Clean Air Act (“CAA”) and the
Clean Water Act (“CWA”) rely on permit
schemes to limit and control certain sources
of pollution. Currently, these permits are
granted to polluting entities pursuant to a
statutory regime that is intended to limit the
impacts of pollution on human health and the
environment, using either health-based
effluent limitations, or technology-based
physical plant requirements.44 These permit
programs, however, arguably do not
adequately meet the agencies’ duties pursuant
to the Public Trust Doctrine. There is a lack
of analysis regarding the potential for
substantial impairment of trust resources—
especially with regard to future beneficiaries—
and no required reliance on the best available
science and the precautionary principle to
ensure that the Environmental Protection
Agency (“EPA”) or implementing states have
met their duty of loyalty to the public.
Further, there is no public trust-like
requirement that permits may only be issued
where the proposed activity is shown to be
necessary for the public good. These failures
have resulted in unmitigated harm to the
nation’s air and waters—precisely what these
acts were intended to prevent.
This could be remedied by amending these
laws to incorporate trust principles, which
would require a reworking of permitting
schemes to require permit applicants to
demonstrate that proposed activities are
necessary for the public good, and will not
cause substantial impairment when considered
cumulatively with other activities.
Incorporation of trust principles would also
require that the standards upon which the
technology and health-based pollution
limitations are based on trustees’
responsibility to protect trust resources from
degradation on behalf of present and future
generations.
Furthermore, while these statutes provide for
enforcement by EPA and states their
enforcement provisions do not embrace the
fiduciary duty to restore the trust when
damaged by requiring trustees to seek natural
resource damages from perpetrators when
trust resources are damaged (and to actually
use funds recovered for restoration of
damaged resources). The CWA’s
enforcement provisions provide that EPA and
states can take enforcement actions against
illegal dischargers, and these enforcement
actions can seek civil penalties and injunctive
relief.45 Despite the scope of this
enforcement authority, district courts are
reluctant to grant cleanup as a form of
injunctive relief for NPDES permit
violations.46 The relief that is typically granted
by the courts in a Clean Water Act civil
enforcement action is civil penalties for the
days of violation. Government enforcement
actions under the CWA have focused on
compliance with statutory standards and
monetary penalties to deter noncompliance.47
These enforcement actions have often failed
to achieve remediation in areas harmed by
CWA violations, thereby allowing degradation
of trust resources without restoration.
10
Even when the Army Corps of Engineers
(which administers the “dredge and fill”
provisions of the CWA) and EPA have asked
courts to use their equitable authority under
the CWA to issue restoration orders for illegal
dredge and fill of wetlands, there is no
assurance that the recovery will be sufficient
to remediate the lost functions and values of
trust resources.48 Therefore, while the CWA
does allow these agencies to seek restoration
of trust resources when damaged, such
injunctive relief is not automatic,49 and thus
neither is a restoration order.50 In recent
cases, courts have issued restoration orders
for violations where the government proposes
a restoration plan that confers the maximum
environmental benefit; is feasible or
practicable; and is equitably related to the
damage inflicted.51
Although restoration orders are granted with
relative frequency, courts have used the above
factors to balance the equities in a way that
places more weight on private interests rather
than enforcing agency trust responsibilities.52
In fact, recent commentators have noted that
courts have broadened the meaning of
practicability to not only include economic
feasibility, but to focus on it.53 Often this
means the court’s focus shifts to the
defendant’s financial resources and the cost of
implementing the restoration plan.54 Thus,
the more a restoration plan costs, the less
likely a court will be to grant it.55 This does
not allow agencies to protect and fully restore
trust resources if degraded, which would be
required of agencies as trustees pursuant to
the Public Trust Doctrine.
Efforts could be undertaken to amend the
enforcement mechanisms under the CAA and
CWA to require that the EPA not only seek
natural resource damages when any third
party harms public trust resources, but that
they use funds recovered to restore the
functions and values of lost ecological services
and natural resource values. Based on existing
natural resource damage recovery mechanisms
under the Oil Pollution Act and the
Comprehensive Environmental Response,
Compensation, and Liability Act, the Clean
Air Act and Clean Water Act could
incorporate the trusteeship and natural
resource damage assessment process, and
thereby provide a mechanism for trustees to
fulfill their duty to restore trust resources
when damaged.
Furthermore, efforts could be made to seek
statutory amendments to remove the permit
shield provided by the Clean Air Act and
Clean Water Act, whereby polluters are held
immune from suit for harm done in
compliance with the terms of a valid pollution
permit. The CWA provides that, with the
exception of toxic pollutants injurious to
human health, compliance with a discharge
permit shall be deemed compliance with the
CWA56 The purpose of this “permit shield” is
to provide the permittee some assurance that
it can avoid the strict liability of the CWA if
the permittee obtains and remains in
compliance with a discharge permit. This,
however, runs contrary to the basic duty of
the trustee to protect and restore damaged
trust resources. A statutory amendment could
be sought that removes this permit shield and
subjects any entity that causes damage to
natural resources to liability for restoration of
those resources.
C. National Forest Management Act
The National Forest Management Act
(“NFMA”) provides for the regulation of our
National Forests—an important component
of the public trust resources, not only for the
natural resources contained in the forests, but
for the ecosystem services they provide to
other components of the trust, such as water
filtration and carbon sequestration. Pursuant
to NFMA, the Forest Service designates in
land resource management plans where
certain activities, such logging, may take
place.57 NFMA requires that harvests must be
sustainable, and that plans provide for a
diversity of plant and animal communities.58
NFMA further requires protection of water
11
resources, as well as the prevention of
irreversible soil damage, and provides that
harvest methods should not be based solely
on the greatest dollar return, with clearcuts
allowed only if they are shown to be the
optimum harvest method.59 The regulations
promulgated pursuant to NFMA, however,
provide an extreme amount of discretion to
the Forest Service’s determination of what is
“sustainable,” and the service has not used
statutory mandates to prevent substantial
impairment of trust resources.
Therefore, while there are some aspects of
NFMA that pertain to the management of
national forests as public trust resources,
more specificity needs to be added to fully
incorporate the doctrine, and to remove some
of the ambiguity that allows for discretionary
actions contrary to trust principles. NFMA
could be amended to redefine what it means
to be “sustainable” using a substantial
impairment standard based on the best
available science, and a requirement that the
Forest Service seek natural resource damages
as a trustee of the forest resources where
substantial impairment has occurred.
The pertinent language to accomplish this is,
in fact, already included in NFMA, which
directs the Secretary of Agriculture to
promulgate regulations specifying procedures
that “ensure research on and (based on
continuous monitoring and assessment in the
field) evaluation of the effects of each
management system to the end that it will not
produce substantial and permanent impairment of
the productivity of the land.”60 However,
while the regulations implementing NFMA
have been hailed by some environmentalists
for their focus on sustainability,61 they
embrace not just ecological sustainability, but
economic sustainability as well, and provide
for the agency to undertake a balance of these
different and competing notions of
sustainability.62 Importantly, economic
sustainability is defined as “the capability of
society to produce and consume or otherwise
benefit from goods and services including
contributions to jobs and market and
nonmarket benefits.”63 This is fundamentally
inconsistent with the agency’s duties under
the Public Trust Doctrine, as gives the agency
license to rely on economic considerations,
and due to the influence of private, profit-
focused interests, ultimately allows for the use
of public natural resources in a manner that
does not ensure their protection for the
benefit of current and future generations. An
effort could be undertaken to amend the
statute to prioritize ecological sustainability
over economic considerations, to ensure that
the trust resources are protected for future
generations.
Similarly, the “2012 Planning Rule” provides
that the agency must use “the best available
scientific information to inform the planning
process,”64 however, what will be considered
“the most accurate, reliable, and relevant”
information is left to the agency to decide.65
A statutory amendment that requires reliance
on best available science could be used to
ensure that public trust duties are met, along
with the creation of third party oversight to
ensure that the science is not be affected by
political and economic interests.
D. General Mining Act of 1872 and
Surface Resources Act of 1955
The General Mining Act of 1872 states that
mineral deposits “in lands belonging to the
United States . . . shall be free and open to
exploration and purchase.”66 Pursuant to this
law, any person (including corporations) may
locate and patent a mining claim on federal
public lands that have not been withdrawn
from such claims67—including most Bureau
of Land Management (“BLM”) and National
Forest System lands. This process allows any
U.S. citizen to gain an ownership interest in
not only the valuable mineral deposits they
find, but control over the land itself,
essentially removing large areas of public land
from public use. While these areas remain
subject to environmental regulations, the
12
process does not provide for any analysis of
the potential substantial impairment of trust
resources.
The Surface Resources Act of 1955 imposed a
duty on BLM to prevent “unnecessary or
undue degradation of public lands,”68
including mining sites, however this language
has not been used to prevent substantial
impairment of trust resources, and BLM
merely requires a plan of operations so it can
keep track of mining activities, and is left to
decide what is “unnecessary or undue.” This
language could serve as the basis for
incorporating the public trust into BLM’s
management of public lands. Efforts could
focus on advocating for an amendment to this
statute that would clarify and/or alter the duty
to require BLM to prevent substantial
impairment, and limit claims and activities to
those that are proven to be beneficial to the
public. Moreover, the system as it exists now
allows for mining claims to be obtained at
little or no cost.69 This is arguably an
abdication of the public trust, whereby the
federal government is giving away public
resources for private use at well-below market
value. A system that imposes market rates,
internalizes the environmental harm of mining
activities into the costs of resource
exploitation, and prevents substantial
impairment of public lands is possible with
statutory amendments reflecting the public
trust duties that apply to these public lands
and resources.
E. The Federal Insecticide,
Fungicide, and Rodenticide Act
The Federal Insecticide, Fungicide, and
Rodenticide Act (“FIFRA”) governs EPA’s
regulation of pesticides. FIFRA requires that
all pesticides intended for use in the United
States be registered (licensed) by EPA to
ensure that they do not cause “unreasonable
adverse effects on man or the environment.”70
FIFRA defines unreasonable adverse effects
as “any unreasonable risk to man or the
environment, taking into account the
economic, social, and environmental costs
and benefits of the use of any pesticide.”71
Pesticides may pose some risk because they
are meant to kill or control insects, weeds,
rodents, and other organisms deemed to be
pests. Hence, FIFRA, unlike other
environmental statutes administered by the
EPA, requires the agency to balance risks and
benefits in the pesticide decision making
process.
This balance, however, results in approved
use of poisonous substances that negatively
impact public natural resources in order to
provide economic benefits to private interests.
In order to be able to balance risks and
benefits, EPA’s initial FIFRA registration
process includes complex risk assessments
that are supposed to employ the best scientific
and economic analyses currently available.
Following registration, EPA may conduct
special reviews of approved pesticides that
pose imminent hazards. These special reviews
are initiated on the basis of adverse human or
ecological effects data that come to the EPA’s
attention subsequent to the initial registration
and use of the pesticide; therefore, the review
may come after significant harm has occurred.
Moreover, FIFRA’s focus on imminent
hazards does not adequately account for the
trustee’s duty to protect natural resources
from substantial impairment from long-term
and cumulative use of these substances. A
more holistic approach is required, and efforts
could concentrate on amending FIFRA to
require that there be a showing of public need
and a precautionary approach to prevent
substantial impairment before any pesticides
are approved for use.
Advantages:
As discussed above, agencies’ authority to
regulate is derived from the statutory
mandates that empower them, and these
statutes frame agency regulation by
prescribing the agencies’ policy objectives, and
by providing the standards by which
environmental decision making takes place.
13
Ultimately, in order to effectively protect trust
resources agencies need to incorporate the
public trust principles into their
environmental decision making through
rulemaking. The statutory amendments
discussed above would provide the legal basis
for regulatory change that would ultimately
allow for incorporation of the Public Trust
Doctrine at the agency level, and resolve many
of the issues that have led to substantial
impairment of trust resources. In order to
overcome regulatory complacency and the
influence of private interests on agency
actions, the impetus may have to come from
Congress, through these statutory
amendments.
Disadvantages:
The main disadvantage to seeking statutory
amendments to incorporate public trust
principles is the amendment process itself.
This political process potentially requires
intensive lobbying, as well as congressional
sponsors willing to stand behind the trust
principles and what the doctrine requires of
government. Economic interests would likely
challenge proposed statutory amendments to
incorporate public trust principles, and instead
seek to preserve the status quo. A
contentious process could prove costly in
terms of both money and time. The key to
countering these efforts would be an
education campaign aimed at legislators, with
a focus on the economic benefits of adopting
public trust principles. This requires a long-
term view of economic and ecological
sustainability, and an understanding of the
nature of the trust. Efforts to seek statutory
change as outlined above should consider a
progressive approach that targets key
legislators, and seeks to build support with an
education campaign prior to proposing
extensive statutory change.
Barriers:
Congress’ capacity to make laws is limited by
the specific grant of authority provided by the
Constitution, which limits the federal
government to certain enumerated powers.
In order to amend or enact statutes, proposed
legislation must be consistent with Congress’
constitutional authority.
Traditionally, Congress’ most important
power for purposes of environmental
protection has been the power to regulate
interstate commerce, granted exclusively to
Congress by the Commerce Clause of the
Constitution. This broad power—which
includes Congress’ authority to regulate
activities that substantially affect commerce
(even purely intrastate activities)—has a rich
history that underlies most federal legislation
and regulation. Most, if not all,
environmental statutes were passed pursuant
to Congress’ authority to regulate interstate
commerce. Other relevant Constitutional
provisions include Congress’ power to
manage all federal property (articulated in the
Property Clause)72 and Congress’ spending
power (contained in the Spending Clause).73
Statutory provisions that incorporate public
trust principles are well within Congress’
constitutional authority.74 Just as Congress
has the authority to regulate pollution, it can
require that such regulation incorporate public
trust principles. Furthermore, Congress has
plenary authority to pass laws regarding the
regulation of federal property, such as
national forests, pursuant to the Property
Clause. Congress not only has the authority
to ensure that management of public trust
resources, including those on federal lands, is
consistent with the public trust principles, it
has a duty to ensure that the government, as a
trustee of those resources, recognizes and
adheres to those duties.
V. Regulatory Changes
As discussed above, agencies derive their
authority to issue rules and regulations from
statutes enacted by Congress. In some cases,
the president may delegate existing
presidential authority to an agency. Typically,
when Congress passes a law to create an
14
agency, it grants that agency general authority
to regulate certain activities. Congress may
also pass a law that more specifically directs
an agency to solve a particular problem or
accomplish a certain goal. Agencies govern
regulated entities through regulations75, which
take the general purposes of the statutes that
empower the agency, and flesh them out with
more particularity. Rules can also be used by
agencies to set forth the process and
considerations that will be used for the
issuance of permits.
Agencies are given the power to write
regulations that explain in great detail the
legal, operational, and technical details
necessary to implement laws passed by
Congress. As discussed above, agencies may
be forced to promulgate rules that incorporate
Public Trust Doctrine principles by executive
order or constitutional or statutory
amendments; however, agencies also have the
power to amend their own regulations in
order to incorporate the doctrine, and could
be called upon to do so by citizens or interest
groups.
This would require a fundamental shift in how
the agencies view their responsibility to the
public, and overcoming regulatory
complacency. For example, while the Clean
Water Act and Clean Air Act contain
standards intended to protect public health
and the environment, the EPA’s regulations
do not reflect the need to protect trust
resources pursuant to the public trust duties
inherent in the agencies’ role as trustees. The
Public Trust Doctrine is an attribute of
sovereignty, and not a common law principle
that can be displaced by statute. Rather, it is
an independent duty that superimposes a set
of responsibilities on the government, which
cannot be abdicated. Agencies must be
educated as to the purpose of government
and the role that it is intended to perform
regarding the protection of natural resources.
The agencies that regulate natural resources
are empowered to reinvigorate their trust
responsibilities, and to do more to ensure they
adhere to their duties under the Public Trust
Doctrine. Determinations regarding
standards necessary to protect the
environment are based on the intended result
of the regulation. If allowing a facility to emit
a specified concentration of a pollutant to air
or water is the standard, then a certain level of
toxicity may be permitted; however, if your
goal is to protect a trust resource as a trustee,
then you need to think more holistically, and
with a broader understanding of the harms
that must be prevented.
Rules could be proposed by citizens that
would adopt the various aspects of the Public
Trust Doctrine. Regulations could range
from a general statement of public trust
responsibilities that the agency will adhere to,
to more specific regulations that would alter
the decision making process with regard to
certain permits or reviews, seeking the
promulgation of regulations that not only
recognize the role that the agency must play as
trustee of natural resources, but specific
processes that would allow incorporation of
the doctrine. For example, rules may be
proposed to EPA that would require that
Clean Water Act and Clean Air Act permit
decisions incorporate: 1) the duty of the
agency to prevent waste; 2) analysis of the
cumulative effects of the use of the resource;
and 3) analysis of whether the proposed use
will contribute to substantial impairment, as
established by the best available science
standard. Rules could also be proposed that
would infuse public trust principles into the
EPA’s review of environmental impact
assessments performed by other agencies.76
Regulations could also be proposed that are
specific to certain facets of the Public Trust
Doctrine, such as the creation of a “citizen-
beneficiary advisory group”77 that would
represent the public’s interests or rules that
would recognize the duty of loyalty and
reduce corporate influence at the EPA by
limiting engagement with corporate lobbyists,
or requiring that any lobbying must be done
15
through a stakeholder process that includes
representatives of the public. The duty of
loyalty could be premised on private trust
law,78 as well as corporate law, such as the
Sarbanes-Oxley Act, under which corporate
directors owe their company a duty of
loyalty.79 We should expect no less of those
managing vital natural resources, and agency
personnel should likewise be bound to act in
good faith and in the best interests of the
public, and must not place themselves in a
position in which their duties to the public
and their personal interests conflict.
A regulation recognizing the duty to prevent
waste and protect the trust assets could
provide for natural resource damage recovery
consistent with the trustee process set forth in
OPA and CERCLA.
Rules could also be proposed to limit the sale
of public natural resources to private entities
for below-market rates, which violates the
trustee’s duty of loyalty.80 Such rules would
require that agencies receive full market value
for all resources, such as timber, minerals and
the use of grazing land, and that proceeds
generated are used to ensure the resources are
being managed in a sustainable manner. This
might entail nothing more than enforcing
existing statutory language, such as the
NFMA provision stating that “the Secretary
of Agriculture, under such rules and
regulations as he may prescribe, may sell, at
not less than appraised value, trees, portions
of trees, or forest products located on
National Forest System lands.”81 Similar
language could be included in other statutes,
such as the General Mining Act, but more
importantly, what is needed is an enforcement
mechanism to ensure that agencies comply
with such language. The citizen-beneficiary
advisory group process82 could by employed
to limit private exploitation of natural
resources and to instead ensure that the
beneficiaries’ interests are paramount.
Another possibility is agency rules describing
agency public trust duties and requiring the
agency to develop and implement a plan that
would meet its obligations as a trustee under
the Public Trust Doctrine. This option would
allow for more flexibility in the
implementation of the doctrine, which may
open a dialogue with the agency and provide
the opportunity to educate the agency and the
public regarding the role of agencies as
trustees of natural resources. However,
because there is limited case law applying the
Public Trust Doctrine to the federal
government, this may provide the opportunity
for agencies to dismiss the rules as outside of
their authority. The more prudent option
would be to propose specific changes, relying
on the best available science to demonstrate
that such changes are necessary to fulfill
agency duties not only under the Public Trust
Doctrine, but pursuant to statutory mandates.
Potential statutory amendments discussed
above serve as examples for potential
regulatory changes.
Advantages:
The rulemaking process is somewhat more
accessible to the public than constitutional
amendments and executive orders. Private
interest groups may lobby for certain
regulations or changes to existing ones, and
even submit proposed rules themselves. A
petition for rulemaking is the mechanism by
which individuals, public interest groups, and
private enterprise can propose regulatory
changes or new rules for agency decision
making and enforcement. Pursuant to the
Administrative Procedure Act (APA),
agencies must follow an open public process
when they consider proposed regulations.
Proposing rules and lobbying agencies for
changes that incorporate the public trust
duties, also serves as a possible means of
educating agencies and the public regarding
these duties. In many instances, agency
officials may not be aware of their trust
responsibilities, and it must be remembered
that agencies are made up of individuals who
often want to do the right thing and believe
16
that they are doing what is necessary and
warranted pursuant to their statutory
mandate; however, they must understand that
the public trust imposes duties beyond the
statutory confines in which the agency is
accustomed to operating. Through proposed
rules, it may be possible to get agencies
thinking about their role as trustees, and
provide the tools necessary for them to make
real change to their decision-making
paradigm.
Disadvantages:
While there are few disadvantages to an
agency incorporating public trust principles
into its decision making via promulgation of
regulations, there are some potential
disadvantages with regard to the process of
getting such principles incorporated into
agency regulations. The first and foremost of
these is that rulemaking is a cumbersome
process, including various iterations of
proposed rules, and public comment periods.
A final decision on a rulemaking petition can
take months or sometimes years.
Furthermore, public comments allow
powerful lobby groups that support industry
to weigh in, and invite the agency to provide a
detailed response as to why, in their narrow
view, trust principles are either inapplicable
absent specific statutory directives, or will not
work within the existing regulatory
framework. In other words, absent statutory
changes or executive orders requiring agencies
to enact regulations that pertain to these
principles, submitting proposed rules could do
nothing more than provide warning to
industry regarding these efforts, allowing for a
concerted effort to challenge the adoption of
trust principles.
A more nuanced approach to seeking change
at the federal level is warranted, and efforts
should be undertaken to avoid adverse
decisions from agencies that may thwart the
overall effort to seek changes to the
environmental decision-making process.
While the open process for rulemaking would
allow for an opportunity to educate the
agency, the legislature, and the public, care
must be taken in petitions for rulemaking
because the agency will get extreme deference
on appeal if the agency rejects the petition and
that decision is challenged in court.
Barriers:
Agencies are unable to create regulations that
are inconsistent with the laws created by
Congress that define the scope of their
authority. Therefore, it is necessary to look at
the statutes that guide natural resource
management to see whether agencies have the
authority to implement regulations that would
allow for the incorporation of the Public
Trust Doctrine in their decision making
(though we note that if these laws do not
allow for such agency action, the laws
themselves violate the Public Trust Doctrine
and could be challenged on those grounds, or
efforts could be made to amend those statutes
as discussed herein).
Most of the pertinent environmental statutes
provide that the purpose of the statute, and
therefore the mandate of the agency, is to
protect natural resources. For example, the
CAA states that the purpose of the Act is to
“protect and enhance the quality of the
Nation’s air resources so as to promote the
public health and welfare and the productive
capacity of its population.”83 Similarly, the
goal of the CWA is to “restore and maintain
the chemical, physical, and biological integrity
of the Nation’s waters.”84 Incorporating
Public Trust Doctrine principles into the
regulations that define the agency decision-
making processes pursuant to these statutes is
therefore consistent with the statutes, and
there would appear to be no statutory barrier
to implementation.
Even more consistent with the tenets of the
Public Trust Doctrine, NEPA provides that
“it is the continuing responsibility of the
Federal Government to use all practicable
means . . . [to] fulfill the responsibilities of
each generation as trustee of the environment
17
for succeeding generations . . . [and] attain
the widest range of beneficial uses of the
environment without degradation, risk to
health or safety, or other undesirable and
unintended consequences.”85 This language,
while held unenforceable by courts,86 provides
a solid basis for agencies to develop
regulations that incorporate the public trust
duties into their review of the impacts of
projects on the environment. It would
therefore be consistent with the NEPA
statutory mandate for agencies to amend their
NEPA regulations so that they are consistent
with trust principles. While it is unfortunate
that NEPA does not require that agencies
choose the least environmentally harmful
alternative for proposed actions, NEPA does
provide the opportunity for the inclusion of
trust responsibilities in the analysis of
alternatives and cumulative impacts, providing
more information to the public regarding the
trustees’ duties and the potential for
substantial impairment of trust resources.
Not every statutory scheme provides purpose
statements specific enough regarding
environmental protection to allow for the
promulgation of rules that incorporate public
trust principles, however. Statutes, such as
NFMA, call for a balancing of environmental
and economic considerations, with a focus on
“sustained yield.” This is predicated on a
multiple use theory that not only allows for
private economic considerations to play a
role, but has led to a funding mechanism that
encourages the Forest Service to “get the cut
out,” because agency funding is tied to
income received from private industry for
resource exploitation. It must be noted that
this income is often below market value,
potentially posing a violation of the duty of
loyalty to the public, because private parties
are gaining at the expense of the trust
beneficiaries. The General Mining Act of
1872 goes a step further, opening up federal
lands to exploitation of mineral resources by
private parties, with limited regard for
environmental impacts.87
Several of the public trust duties are
inconsistent with the statutory mandates of
these acts. While the duty to prevent
substantial impairment of trust resources is
consistent with the basic notion of sustainable
yield, the duty to permit use of natural
resources only when it is for a public purpose
would require a restriction on the exploitation
and subsidization of resource extraction that
these statutes currently provide for. While the
Public Trust Doctrine imposes duties on the
government as a trustee that are broader than,
and cannot be displaced by specific statutes,
agencies are nonetheless almost certainly
going to operate within the confines of
statutory mandates, as opposed to fulfilling
uncodified trust responsibilities. In order to
fully meet the duty of loyalty that agencies
owe to the public, these statutes would need
to be revised to allow for regulatory changes
consistent with the agencies’ role as a trustee
of public resources.
VI. Local Initiatives
Local governments are empowered by the
states, through enabling legislation, to protect
the health, safety, and welfare of citizens
through zoning and local control over many
natural resources. Therefore, many of the
most important decisions affecting natural
resources occur at the local level, where
towns, cities and counties decide what
development may occur and where. Because
these local entities acquire their authority
from the state government—and are granted
authority to control local development
because of the local expertise and knowledge
that they can provide—local governments are
imbued with the same public trust
responsibilities as the state, and must
therefore preserve and protect natural
resources for future generations.88
Efforts to incorporate the Public Trust
Doctrine into decision making at the local
level could include ballot initiatives designed
to incorporate the trust into specific existing
regulatory frameworks;89 city passage of
18
ordinances that modify municipal codes
and/or charters to address the trust;90 or more
general efforts to have policy statements
incorporated into local guidance and
regulatory documents for permit decisions.
While many local governments have an
inventory of the natural resources in their
area, they often do not make permit decisions
based on the need to prevent substantial
impairment of these resources, and instead
focus on such things as the character of an
area, or the potential for nuisance from
development. Incorporation of the Public
Trust Doctrine into local decision making
would require local government to engage in a
more sustainable land use decision-making
process and could encourage other units of
government to also incorporate the Public
Trust Doctrine.
We have provided model language in
Appendix B for potential local initiatives.
Our model language is a synthesis of the
language produced by the Cascadian Public
Trust Initiative and by Our Children’s Trust,
and is also informed by the insights gained in
producing this white paper.
Advantages:
The advantages of implementing the Public
Trust Doctrine through local initiatives are the
potential to not only generate real change at
the local level, but also the potential for
education of the public and regulators. Many
decisions that impact natural resources occur
at the local level and are being made by lay
people, who may not understand the Public
Trust Doctrine or their role as trustees of
public natural resources. Local initiatives that
would provide for incorporation of trust
principles into environmental decision making
would contribute to public understanding of
those duties, as well as a basis for the public
to ensure that their interests as beneficiaries of
the trust are being considered. Simply put,
beneficiaries are better able to monitor their
interest in trust assets at the local level than at
the state or federal level.
Disadvantages:
Perhaps the main disadvantage for efforts to
use local initiatives to establish trust principles
in environmental decision making is that local
initiatives could be seen as violating the
mandates of federal or state programs. This
could lead to claims of preemption, which is
the most apparent legal barrier to
implementing local initiatives. Local laws may
be preempted by federal law, typically as a
result of the Supremacy Clause of the U.S.
Constitution, which makes federal law the
supreme law of the land when there is a
conflict of law.91 Through preemption, the
federal government exercises a great deal of
control over environmental decision making.92
Preemption may also occur between state and
local governments. Preemption doctrine will
differ from state to state, and preemption in
Oregon is presented as a relevant example
given the recent pioneering efforts to integrate
the Public Trust Doctrine there. The Oregon
Supreme Court has held that Oregon state
laws addressing “substantive social, economic,
or other regulatory objectives of the state”
override contrary policies of local
governments if the state law expressly intends
to preempt any local regulation in that area.93
The exception to this is if the state law is
“irreconcilable with the local community's
freedom to choose its own political form.”94
Oregon courts have been reluctant to hear
claims that state law impliedly preempts local
law. Courts have said that the judiciary is ill-
suited to deal with implied preemption claims
because they involve making political
decisions about whether a disputed area of
regulation should be local or statewide;
therefore, express preemption by state law is
almost always necessary to show that local
laws are invalid.95 Local laws can regulate
substantive concerns so long as they are not
incompatible with existing state regulations
such that both regulations cannot operate
concurrently.96 Thus, substantive local
regulation can be implemented in the same
area as existing state regulation, regulate more
19
extensively in that area, and address different
aspects of the same regulatory area so long as
it is not expressly preempted or incompatible
with state law.97
Therefore, outside of expressly preempted
actions, local governments in Oregon (and
elsewhere depending on state-specific law)
appear to have broad authority to integrate
the Public Trust Doctrine into environmental
decision making. However, that integration
into local law must be in accord with state
constitutions, be minimally compatible with
state law, and be reasonable.98
Barriers:
As mentioned above, local government
efforts to incorporate the Public Trust
Doctrine could be preempted by state or
federal law, which may lead local decision-
making bodies hesitate to adopt meaningful
new laws and policies. Additionally, local
governments may hesitate to incorporate the
Public Trust Doctrine if there is a risk that
litigation or other strains on limited local
resources could result from a failure to meet
fiduciary standards. Finally, local governments
and local business interests may argue that
incorporating the Public Trust Doctrine will
require additional regulations that decrease
localities’ ability to compete economically with
other localities.
VII. Conclusion
The various approaches discussed herein
provide a menu of potential avenues for
incorporating the Public Trust Doctrine into
environmental decision making, however the
various obstacles discussed limit the prospects
of several of these options. For example,
while executive orders provide a somewhat
hassle-free means of altering agency
procedure and requiring new regulations to
conform to the executive’s will, these orders
can easily be overturned by subsequent
presidents, rendering them somewhat
ephemeral. What is needed is an approach
that will allow environmental decision makers
to adopt the Public Trust Doctrine without
engendering open hostility from the agencies
and from the private and powerful entities
that benefit from the current system, while at
the same time limiting natural resource
damage at the local level where many
development decisions occur.
After carefully considering the various duties
that the Public Trust Doctrine places on our
government and the potential avenues for
change, a two-fold approach to implementing
the Public Trust Doctrine in environmental
decision making may prove most successful,
with different approaches at the federal and
state/local levels.
At the state and local level, it is feasible to
pursue efforts to have state and local
governments recognize all facets of the Public
Trust Doctrine. The state’s role as trustee of
our natural resources as an attribute of
sovereignty has been well established, and
state and local governments have the ability to
implement the public trust duties outlined in
this paper into local zoning and resource
management regulations.
This can be accomplished in several ways;
however, the Robinson Township99 case in
Pennsylvania suggests that constitutional
amendments would be the most effective
means of incorporating the doctrine at the
state level. We provide model language for a
constitutional amendment in Appendix A.
This broad approach, however, may not
always be effective in establishing the specific
duties required of government under the
Public Trust Doctrine, and would most likely
require time and resource-intensive litigation
to enforce trust principles. A more holistic
approach at the local level is suggested to
supplement efforts to pass state constitutional
amendments with local ordinances that
establish the specific duties placed on local
governments pursuant to the trust. Appendix
B contains model language for local
ordinances designed to incorporate the trust
into environmental decision making.
20
Local ordinances should incorporate as many
public trust principles and duties as possible.
Ordinances should expressly indicate what
resources are to be held in trust,100 keeping in
mind that courts have found that the public
trust doctrine is sufficiently flexible to
encompass changing public needs.101
Furthermore, local ordinances need to
establish that all decisions impacting natural
resources—from zoning and permitting, to
waste and water management—must contain
an analysis of not only whether the proposed
action is in the public’s interest, but whether it
will result in substantial impairment of trust
resources based on the best available science.
At the federal level, a more nuanced approach
may be necessary to incorporate the Public
Trust Doctrine in to legislative and agency
decision making. Federal agencies may be
hesitant to incorporate certain aspects of the
doctrine, particularly those that would require
that fewer permits be issued for natural
resource exploitation, or that would
significantly alter decision-making processes;
however, by systematically introducing
elements of the doctrine, we can work with
agencies to establish the regulatory shift
necessary to fully incorporate the doctrine.
As Professor Mary Christina Wood points
out, reform efforts need to institutionalize
predictable, punitive consequences for agency
violations of fiduciary duties owed to the
public. Ultimately, however, punitive systems
will only go so far. Professor Wood notes the
nature of this challenge stating that:
A very personal challenge must
ultimately find its way into the hearts
of those public servants who have the
sense that agencies have not behaved
as they should have, that agencies
have been serving some powers other
than the public, that their own
personal actions, if not illegal do not
fulfill the spirit of the public oath they
took—and that their time in history
proves so pivotal that they must
 become the change agents within their
institutions, daunting and personally
risky as that prospect may be. Agency
reforms will fail if agents of change
remain unprotected in their
courageous action. They must be
nurtured in their sense of public
mission and championed by the
broader community they serve.102
In order to nurture this reform and move
towards a decision-making paradigm that
recognizes the trust responsibilities of
government, it would be advantageous to rely
on existing legal standards that provide for
trust oversight regarding natural resources.
We, therefore suggest looking to aspects of
the trust that are already included in statutory
schemes, and which would provide tangible
improvements to natural resource
management while engendering the least
amount of opposition to the adoption of a
trust framework.
There are certain duties under the Public
Trust Doctrine that must not be ignored.
Perhaps the most evident is the duty to
prevent substantial impairment of trust
resources. In order to prevent impairment, a
basic tenet of trust law is that trustees have an
affirmative obligation to recoup damages
against third parties that harm or destroy trust
assets. This duty helps ensure that the
beneficiaries will be made whole for loss or
damage to their property. In the public trust
context, the duty demands recovery of natural
resource damages whenever there is undue
harm to trust resources (i.e. unpermitted harm
or any action that causes substantial
impairment).
There is an existing trust paradigm in
environmental law that would provide a
foundation for incorporating the duty to seek
natural resource damages into all aspects of
natural resource management. Pursuant to
the Oil Pollution Act and the Comprehensive
Environmental Response, Cleanup, Liability
Act, the federal government acts as a trustee
21
of natural resources, including “land, fish,
wildlife, biota, air, water, ground water,
drinking water supplies, and other such
resources,”103 and may seek natural resource
damages for restoration or replacement of the
injured natural resource, or for acquisition of
an equivalent resource.
This process provides a means for the
government to comply with the duty to
prevent waste, and ultimately could be a
central component in preventing substantial
impairment of trust resources. Whereas it is
an existing framework, already employed by
the government to protect certain resources,
expanding the doctrine into other, similar,
contexts such as where the activities of private
entities causes damage to the air, water, land
or wildlife, would be a straightforward
process. Therefore, we suggest that efforts be
undertaken to utilize the existing trust
framework for natural resource damage
recovery in OPA and CERCLA into all other
areas of natural resource regulation, and
require that the government not only seek
NRDs, but use those funds to restore the
functions and values of lost ecological services
and natural resource values when those are
harmed by a third party.
While the trusteeship process for recovering
NRDs has been established pursuant to OPA
and CERCLA, it remains a discretionary
process that provides the authority to seek
NRDs, but does not compel governmental
action. This is, perhaps, the most essential
component of the puzzle for ongoing efforts
to revitalize the Public Trust Doctrine in
environmental regulation. It is the affirmative
duty of a trustee to prevent harm to the trust
resources. When private parties have caused
damage to natural resources, it is imperative
that such damage be remediated, so that the
resource is not substantially impaired for the
beneficiaries. The nature of a trust
relationship requires the trustee to react to
damage by undertaking actions that will
restore the trust resources, which suggests
that the recovery of NRDs should not be
discretionary. A campaign to require that the
government seek natural damages whenever
there is substantial impairment to public trust
resources should be the focus of efforts at the
federal level.
This is not something that should be
politically problematic – or it should at least
be less problematic than establishing other
aspects of the Public Trust Doctrine at the
federal level. Not only is the role of the
government as a trustee of natural resources
already established under OPA and
CERCLA—which include a process for
recovering natural resource damages—but
industry would be hard pressed to challenge
statutory and regulatory changes that merely
provide for the government to assess and
recover damages when private entities harm
natural resources. Because this is a well-
established role of government, this could be
the most effective way to initially incorporate
the Public Trust Doctrine into agency action.
Moreover, if agencies are not only
empowered, but required to seek natural
resource damages as a trustee of the public,
then it will instill in the agencies the
understanding and recognition that this is an
inherent part of their role as an agent of the
sovereign. When agencies start thinking of
themselves as trustees, rather than as
purveyors of natural resources, it will provide
a foundation for incorporating the remaining
facets of the doctrine at the federal level. This
should then be followed with targeted efforts
to alter agency behavior to incorporate the
duty of loyalty, and ultimately to require a
showing of public benefit and a use of the
best available science to ensure that agencies
are preventing substantial impairment of trust
resources.

22
Appendix A: Model Constitutional Amendment - Colorado
RIGHTS OF THE PEOPLE TO PROTECT, ENJOY, AND PRESERVE THEIR
ENVIRONMENT AND NATURAL RESOURCES

The people of Colorado have an inalienable right to clean air, clean water (including ground and
surface water), and the preservation of the environment and natural resources on which we all
depend and which provide for the health, safety, and happiness of all natural persons, including
future generations (“Public Trust Resources”). Public Trust Resources are the common property of
all the people, including generations yet to come. As trustee of these resources, the state shall
conserve and maintain them for the benefit of all the people.

The state government and its agents, as trustees, shall be obligated to protect these Public Trust
Resources against substantial impairment, including pollution from external sources. The fiduciary
duty of the state as trustee shall require it to use the best science available in any process or
proceeding in which Public Trust Resources may be affected.

In satisfying the state’s trust responsibilities, the precautionary principle must always be applied; if an
action or policy has a suspected risk of substantially impairing Public Trust Resources, the burden of
proof that it is not harmful falls on those proposing to take the action. The state shall have the
obligation to seek natural resource damages from those entities that cause substantial impairment of
Public Trust Resources, and use such funds to remediate the harm.

Any Colorado citizen, as a beneficiary of these Public Trust Resources, may petition a court of
competent jurisdiction to defend and preserve such resources against substantial impairment, and to
ensure that the state is meeting its obligations to prudently manage such resources as a
trustee. Remedies may be granted in both law and equity. Citizens shall be entitled to recover all
costs of litigation, including, without limitation, expert and attorney’s fees, should a court find that
the state has not fulfilled its duties as trustee.

23
Appendix B: Model Local Initiative1
Proposed Ordinance No. _ - Recognition of Public Trust Over Natural Resources

An Ordinance to Protect the Health, Safety, and Welfare of Residents, the Natural Communities,
and Ecosystems of _________ By Establishing a [City/County-Wide] Public Trust Over Natural
Resources to Ensure the Proper Management and Protection of Essential Resources for Present and
Future Generations.

The [City/County] Finds as Follows:

WHEREAS, the Public Trust Doctrine is an ancient and enduring legal principle dating
back to Roman law, which rests on a civil and judicial understanding that some natural
resources remain so vital to public welfare and human survival that they should not fall
exclusively to private property ownership and control; and

WHEREAS, all governments, including municipal, have a duty under the Public Trust
Doctrine to present and future generations to protect vital natural resources; and

WHEREAS, local governments must do all they can to implement science-based efforts to
protect natural resources for the sake of our children and future generations; and

WHEREAS, trust beneficiaries have the right to receive a full accounting of the value and
health of their assets; and

WHEREAS, this Title prohibits any unnecessary action that violates the people’s right and
our posterity’s right to a sustainable future; and

WHEREAS, this Title protects and prevents degradation of natural resources in our
community;

NOW, THEREFORE, BE IT RECOGNIZED and RESOLVED, that the [City/County of

____] holds all natural resources within its jurisdiction in public trust, as common resources to be
sustainably used and protected for the benefit of the residents of the [City/County of ______].

A new Title shall be added to the [City Charter],

1 Please note that this is model language, and should be modified to meet various legal, environmental, and
political conditions in each city/county in which it is proposed.
2 Advocates for local Public Trust Doctrine initiatives should investigate their state constitutions in order to

understand the relationship between state and local governments. For example, in Oregon, “Home Rule”
provisions are found in Article XI §2 of the Oregon Constitution, which states: “The legal voters of every city
and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution
and criminal laws of the State of Oregon . . .” Once this investigation has taken place, advocates should

24
Section 1 – Name and Purpose

This Title establishes the Public Trust duties of local government. It shall be known as the “Public
Trust Ordinance.”

The Chief purpose of this Title is to recognize the Public Trust Doctrine as a governing principle of
the [City/County of______]. It protects all natural resources within the [City/County of______],
and sets forth the trust relationship between the government and the people of [City/County
of______].

This Title establishes significant duties for the [City/County of______], including, but not limited
to:

• Independent accounting of natural resources;

• The duty to use the best available science and the precautionary principle in policymaking;
• Strict regulation of conflicts of interest;
• The prohibition of the privatization of natural resources for private benefit;
• Open and transparent process at all times;
• Public access to all documents and communications surrounding natural resource regulation;
• The duty to take action against parties that harm or have harmed natural resources.

The [City/County of______] and its residents are jointly responsible for enforcing the provisions of
this Title. The [City/County of______] shall update administrative rules and enact whistleblower
protections consistent with this Title. In addition, residents may bring public interest actions to
enforce the trust when necessary.

The codification of specific relationships, rights, and duties under this Title does not otherwise
restrict or invalidate any other relationships, rights, and duties that would be recognized or
established by the Public Trust Doctrine. Though it informs and inspires this Title, it is understood
that the Public Trust Doctrine stands separate from, and pre-dates, this ordinance.

Section 2 – Authority

This ordinance is enacted by the [city council, county commission, residents] of [city, county] under
their authority granted in [constitutional provision, statute].2

Section 3 - Definitions

2Advocates for local Public Trust Doctrine initiatives should investigate their state constitutions in order to
understand the relationship between state and local governments. For example, in Oregon, “Home Rule”
provisions are found in Article XI §2 of the Oregon Constitution, which states: “The legal voters of every city
and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution
and criminal laws of the State of Oregon . . .” Once this investigation has taken place, advocates should
examine the charters of the relevant county or municipality to assess implementation possibilities for the
Public Trust Doctrine.

25
 a) The “best available science” standard requires that government actions be based upon the
best available and publicly accessible scientific data, analysis, and/or information.

b) “Natural resources” are those natural resources that are essential to the residents of [city,
county], which include, but are not limited to: [atmosphere, wildlife, forests, etc.].

c) “Irreparable harm” is harm that cannot be reversed or repaired by human action in a

reasonable time frame.

d) “Local” means the geophysical area within the [city, county] jurisdiction and
includes any resources over which it can exercise control or regulation.

e) “[City, county]” means the jurisdictional reach and control of the [city, county], as well as
its officials, bureaus, commissions, districts, policymakers, employees, contractors,
subcontractors and any other agents acting on its behalf or otherwise exercising public
authority or executing public functions.

f) “Substantial impairment” of a natural resource is when the functionality of that resource has
been compromised permanently or long-term, to the detriment of current and/or future
beneficiaries. Whether Substantial Impairment has or will occur must be established with
the Best Available Science.

g) “Residents” includes human beings who reside in [city, county], but does not include public
or private corporations, non-profit organizations, unincorporated associations, partnerships,
unions, or other legal entities claiming the privileges of personhood.

h) “Unreasonable cost” regarding information and record requests includes charging for any of
the following: (i) labor time or materials to query or provide existing data in electronic form;
(ii) labor time or materials to create new data reports wholly derived from existing data; (iii)
the conversion to standard open formats from proprietary data formats; (iv) any costs
related to the acceptable redaction or separation of private information.

i) “Unreasonable delay” regarding information and record requests is any delay longer than: (i)
ten working days for existing data in non-electronic form; (ii) five working days for existing
data in electronic form; (iii) the delays allowed for existing data plus the time it takes for one
full time worker to generate the report up to a total maximum allowed time of one month,
for newly generated data.

j) “Conflict(s) of interest” means any relationship that would create an appearance of

impropriety to a reasonable person or a set of circumstances that creates a risk that
professional judgment or actions regarding a primary interest (abiding by the trust duties)
will be unduly influenced by a secondary interest.

Section 4 – Trust Framework

a) Trustee: The [city, county] and its agents shall serve as trustee of the Trust.

26
 b) Trust beneficiaries: The present and future residents of [city, county] are the beneficiaries of
the Trust. In all matters involving the Trust, the residents of the [city, county] shall
represent the interests of the natural communities and ecosystems of [city, county], in
addition to their own interests and the interests of future residents.

c) Trust res: The subject matter or res of the Trust shall include, but is not limited to:
[atmosphere, wildlife, forests, water, etc.].

Section 5 - Rights of Trust Beneficiaries

a) The present and future residents of [city, county] as beneficiaries of the Trust, shall possess
the following fundamental and inalienable rights:

a. Right to [sustainable community/future, water, healthy atmosphere, etc.]: All

residents of [city, county] possess the right to access and use [water, healthy
atmosphere, etc.]. [Water, healthy atmosphere, etc.] are essential common resources
that shall be sustainably managed in public trust and stewarded for present
generations and posterity. Government decisions that may have an impact on crucial
natural resources must be made in accordance with the city’s obligations under the
Public Trust Doctrine.

Section 6 - Trustee Duties

a) Substantive Duties: Trustees of the Public Trust Doctrine have the affirmative duty, with
vigilance and due care to:

• Protect all crucial natural resources;

• Restore resources if substantially impaired;
• Where practicable, enhance the trust;
• Prevent waste;
• Gain maximum beneficial value from use of trust assets (not simply economic value);
• Strictly regulate conflicts of interest;
• Seek damages from entities that substantially impair/have substantially impaired trust
resources or threaten the rights of [city, county] residents to a sustainable
[community and/or future]; and
• Employ a precautionary approach to any relevant action.

b) Procedural Duties: Trustees of the Public Trust Doctrine have the affirmative duty to
provide an accounting of trust resources to citizens on a biennial basis. The accounting shall
fully define the value and health of trust assets.

c) Reporting: Trustees shall show that they are administering the Trust according to the duties
enumerated in this [ordinance] by describing in a detailed, understandable, written statement
how policies, projects, developments, permits sought and granted, or any other significant
activity fulfill trust duties.

27
d) Cooperation: Trustees shall cooperate with adjacent jurisdictions and engage in informal
partnerships that would enhance and restore trust resources.

e) Permits: Trustees shall seek and issue permits only in accordance with the provisions of this
[ordinance]. No permit, license, privilege, eminent domain authority, or charter issued by
any State or Federal agency, Commission, Board, Bureau or Department to any person or
any corporation operating under a State charter, or any director, officer, owner, or manager
of a corporation operating under a State charter, which would violate the prohibitions of this
[ordinance] or deprive the residents of the [city, county] of any rights, privileges, or
immunities secured by this [ordinance], the [state] Constitution, the United States
Constitution, or other laws, shall be valid within the [city, county].

The [city, county] and its agents shall oppose, in good faith, the granting of any permit,
license, privilege, eminent domain authority, or charter, that would deprive any resident(s) of
any rights, privileges, immunities, or beneficiary protections secured by this [ordinance], or
impair trustee duties as described in this [ordinance].

Existing permits issued or obtained by any governmental entity within the [city, county]
shall be reevaluated under the provisions of this [ordinance]. Any previously issued
permit that violates the prohibitions of this [ordinance] or deprives any Resident(s) of any
rights, privileges, or immunities secured by this [ordinance], the [state] Constitution, the
United States Constitution, or other laws, shall be deemed invalid within the [city,
county].

f) Development: A development or project is not considered necessary if:

a. Existing waste in the system can be eliminated to maximize the value of the trust
resource; or
b. Less expensive and/or less harmful methods exist for achieving the desired goal; or
c. The development or project substantially impairs the trust res, either as a whole or as
the portion identified as the location for the project or development. Information
useful for evaluating whether or not a project substantially impairs the trust res
includes, but is not limited to:
i. An inventory of the affected portions of the res;
ii. A quantification of their present and historical availability, existing uses, and
impairment;
iii. Projections of future demands on the res; and
iv. A comprehensive plan for balancing competing demands.

g) Conflicts of Interest: Trustees shall avoid, with specific regard to individual officials,
bureaus, policymakers, employees, contractors, subcontractors, and any other agents of the
[city, county], any and all conflicts of interest that would interfere with the duty of loyalty to
residents of the [city, county].

h) Transparency: Trustees shall ensure open and transparent public process at all levels of
activity including, but not limited to:
• Publishing public notices and agenda summaries with specific enough terms for the
public to easily identify individual projects under consideration;

28
 • Publishing any documents or communications that residents may request without
unreasonable delay or unreasonable cost;
• Holding public meetings at every major decision point in a project or development
process;
• Providing all information regarding the financing of proposed projects;
• Providing the right to appeal any denial of information in response to a request as a
non-exclusive remedy to [County Circuit] Court or other court of competent
jurisdiction and reviewed by a special master appointed by a judge;
• Requiring that any denial of information be accompanied by a clear explanation and
reason for such a denial;
• Requiring that all contracts with private entities, subcontractors, or other parties
provide for a level of access to documents, records, and processes equal to that of a
public entity bound by the trust duties; and
• The beneficiary public shall have access to all documents and communications
relating to the trustee’s management of trust resources.

i) Modifications: At such time that relevant state and/or federal laws implicating trust
resources are developed and/or modified, the local trustee shall review and modify this
[ordinance] to the extent necessary to remedy inconsistent policies. A minimum of [insert
number] public hearings shall be held to discuss modifications before this [ordinance] is
amended.

j) Defense of Res: Trustees shall use all of the [city, county] authority and available resources to
defend the trust res from any federal, state, or private actions outside of its jurisdiction that
would damage the trust res. This shall include taking legal action to prevent damage to a
trust resource.

k) Citizen Beneficiary Group: A group of [insert number] citizens, half of which shall be elected,
and half of which shall be appointed by [city, county], shall review and monitor the action of
the trustee by providing independent analysis of relevant actions. This group will be held to
a strict duty of loyalty to the trust beneficiaries, and the beneficiaries shall have access to the
proceedings, documents, and communication of the group.

Section 7 – Enforcement

a) Fiduciary Duty: The fiduciary duty of the Trustee shall be tied to the health of trust assets, as
determined by the best available science. Any person, corporation, or other entity found to
be manipulating scientific results or reports shall be referred for prosecution for any criminal
offenses that may apply.

b) Responsibility: The [city, county] is responsible for enforcing the provisions of the Trust.
Residents may bring actions to enforce the Trustees’ duties when necessary.

c) Court Access: Should the trustees violate their duties, [city, county] residents shall have
access to a court of competent jurisdiction.

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 d) Remedies and Costs: Any action brought under this [ordinance] shall be regarded as a
property interest, not as a political question. Remedies may be granted in both law and
equity. Citizens shall be entitled to recover all reasonable costs of litigation, including,
without limitation, expert’s and attorney’s fees should a court find that the [city, county] has
violated this ordinance.

e) Petitions: The citizen beneficiary group may be petitioned to review action by the trustee,
and this beneficiary group shall publicly disclose the results of any investigation into action
by the trustee.

f) Administrative Rules: All [city, county] bureaus shall review and amend their administrative
rules to ensure compliance with trust duties within a reasonable time, no longer than six (6)
months, after passage of this [ordinance].

g) Whistleblower Protections: All [city, county] bureaus shall include whistleblower protections
in their administrative rules to ensure that employees who expose violations of trust duties
by trustees are protected against retaliation.

Section 8 – Severability

The provisions of this [ordinance] are severable. If any court of competent jurisdiction decides that
any section, clause, sentence, part, or provision of this [ordinance] is illegal, invalid, or
unconstitutional, such decision shall not affect, impair, or invalidate any of the remaining sections,
clauses, sentences, parts, or provisions of the [ordinance]. The [city, county] hereby declares that in
the event of such a decision, and the determination that the court’s ruling is legitimate, it would have
enacted this [ordinance] even without the section, clause, sentence, part, or provision that the court
decides is illegal, invalid, or unconstitutional.

Section 9 - Repealer

All inconsistent provisions of prior [ordinances], adopted by the [city, country] are hereby repealed
to the extent necessary to remedy the inconsistency.

30
Endnotes

1 U.S. CONST. amend. X.

2 While the public trust as an inherent attribute of sovereignty already requires government protection of natural
resources, constitutional amendments can aid in their protection by explicitly spelling out this duty.
3 PA. CONST. art. I, § 27.
4 Compare Appendix A’s four paragraph environmental rights amendment with Appendix B’s seven page public trust

amendment.
5 Robinson Twp. v. Commonwealth, 83 A.3d 916 (Pa. 2013).
6 MONT CONST. art. II, § 3
7 R.I. CONST. art. I, § 17
8 HAW CONST. art. XI, § 1
9 HAW CONST. art. XI, § 9
10 ILL. CONST. Art. 11, § 1
11 ILL. CONST. Art. 11, § 2
12 In Massachusetts, the state legislature is called the Massachusetts General Court.
13 MASS. CONST. amend. 49 (1972)
14 Robinson Twp. v. Commonwealth, 83 A.3d 916, 962-63 (Pa. 2013).
15 Robinson Twp. v. Commonwealth, 83 A.3d 916 (Pa. 2013).
16 Id. at 948, n. 35 (Pa. 2013).
17 For more information on direct democracy in the United States, see Forms of direct democracy in the American States,

Ballotpedia, last visited April 1, 2015, http://ballotpedia.org/Forms_of_direct_democracy_in_the_American_states.

18 See Measures Proposed to Amend the Constitution, United States Senate,

http://www.senate.gov/pagelayout/reference/three_column_table/measures_proposed_to_amend_constitution.htm.
19 Id.
20 States differ with regard to whether passage by a simple majority is sufficient for voter referral, as well as with regard

to whether legislative passage by a single legislative session is sufficient (versus passage by successive legislative sessions).
See http://ballotpedia.org/Amending_state_constitutions for particular details about each state.
21 In a number of the eighteen states that allow for voter-initiated constitutional amendments, it is nearly impossible to

actually get a proposed amendment on the ballot. Oregon’s constitutional amendment creating this system was ratified
by the voters in 1902. The initiative and referendum became known nationally as the “Oregon System,” and adoption of
these popular legislative tools put Oregon in the vanguard of progressive and enlightened politics, allowing the people to
propose new laws or change the Oregon Constitution through a general election ballot measure.
22 For more information on initiatives and referendums, see Initiative, Referendum and Recall, National Conference of

State Legislatures, http://www.ncsl.org/research/elections-and-campaigns/initiative-referendum-and-recall-

overview.aspx.
23 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
24 See, e.g., United States v. Evans, 333 U.S. 483 (1948).
25 See In Re Title and Ballot Title and Submission Clause for Initiative 2013-2014 #103, Motion for Rehearing, pg. 2.
26 1) establishment of a common property right to all public trust resources, 2) imposition of a public trusteeship upon

the state to protect public trust resources against substantial impairment, 3) creation of standing for any Colorado citizen
seeking judicial enforcement of the state’s public trust obligations, 4) criminalization of efforts to manipulate scientific
findings for use of public trust resources, and 5) creation of a novel preemption scheme that would supersede prior laws
Id.
27 See Cordero v. Doe et. al.,

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2014/14SA137.pdf.
28 See Maeve Reston, Deal will keep fracking battle off Colorado ballot, L.A. TIMES, Aug. 4, 2014,

http://www.latimes.com/nation/politics/politicsnow/la-pn-colorado-deal-fracking-ballot-20140804-
story.html#page=1.
29 The full text of the initiative is available at

http://www.leg.state.co.us/LCS/Initiative%20Referendum/1516initrefr.nsf/acd7e51d3fc2b60b87257a3700571f9f/5540
f7d69995e4d687257d4900536bd1/$FILE/2015-2016%20%234.pdf.

31
30 See Results for Proposed Initiative #4, Colorado Secretary of State,
https://www.sos.state.co.us/pubs/elections/Initiatives/titleBoard/results/2015-2016/4Results.html.
31 See Colorado Supreme Court, Case No: 2015SA15, March 12, 2015.
32 78 Fed. Reg. 66,817 (Nov. 1, 2013).
33 59 Fed. Reg. 7,629 (Feb. 16, 1994).
34 Id. at sec 2-2.
35 Cunningham v. Neagle, 135 U.S. 1 (1890).
36 Various clauses of the U.S. Constitution have been cited to support the issuance of executive orders, among them are:

the Vestiture Clause, which states, “The executive Power shall be vested in a President of the United States of America”
(art. II, § 1, cl. 1); the Take Care Clause, which states that the president “shall take Care that the Laws be faithfully
executed” (art. II, § 3); and the Commander in Chief Clause, which states that the president “shall be Commander in
Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual
Service of the United States” (art. II, § 2, cl. 1).
37 See Gnotta v. United States, 415 F.2d 1271, 1275 (8th Cir. 1969).
38 See Acevedo v. Nassau County, 500 F.2d 1078 (2d Cir. 1974); Independent Meat Packers Ass’n v. Butz, 526 F.2d 228

(8th Cir. 1975).

39 See MARY CHRISTINA WOOD, NATURE’S TRUST: ENVIRONMENTAL LAW FOR A NEW ECOLOGICAL AGE (Cambridge

University Press 2013) [hereinafter NATURE’S TRUST] at 204.

40 42 U.S.C. §§4321-4370h; Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).
41 42 U.S.C. §4331.
42 See Calvert Cliffs’ Coordinating Comm., Inc. v. United States Atomic Energy Comm’n, 449 F.2d 1109 (D.C. Cir.

1971). This decision was premised on the language contained in Section 101 of NEPA that the government was to “use
all practicable means, consistent with other essential considerations of national policy” to achieve the environmental
policies set forth in the act. The Court found that this language indicated that while the environmental must be
considered, NEPA did not require that those considerations be given more importance than other concerns, including
economics. The Court therefore found that despite the trust language in Section 101, the only actual requirements to be
found in NEPA were the procedures provided in Section 102.
43 Though it must be noted that the EPA is exempt from NEPA analysis for most actions taken pursuant to the Clean

Air and Clean Water acts, since those acts provide the functional equivalent regarding environmental consideration.
44 See 33 U.S.C. §§ 1311 (Clean Water Act effluent limitations); 42 U.S.C. § 7409 (Clean Air Act National Ambient Air

Quality Standards).
45 33 U.S.C. § 1319(a)(1). The Administrator of EPA can issue compliance orders if he or she finds that a party has

discharged a pollutant without permit coverage in violation of Section 301, or has violated a condition of their NPDES
permit.
46 See Natural Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985 (2000) (The District Court rejected

the Plaintiff’s argument that the Defendant’s should be required to remediate the sediment contamination near its site,
demonstrating district courts’ historical reluctance to grant sediment cleanup as a form of injunctive relief for NPDES
permit violations.).
47 Jeff Ganguly, Comment, Environmental Remediation Through Supplemental Environmental Projects and Creative Negotiation:

Renewed Community Involvement in Federal Enforcement, 26 B.C. ENVTL. AFF. L. REV. 189, 189 (1998).
48 Id. at 189.
49 Tennessee Valley Auth. v. Hill, 437 U.S. 153, 192 (1978).
50 United States v. Lambert, 589 F. Supp. 366, 371 (M.D. Fla. 1984).
51 Id.
52 Mark C. Rouvalis, Restoration of Wetlands Under Section 404 of the Clean Water Act: An Analytical Synthesis of Statutory and

Case Law Principles, 15 B.C. ENVTL. AFF. L. REV. 295, 298-99 (1988).
53 Id. at 319.
54 Id.
55 Id.
56 A parallel permit shield is provided under the Clean Air Act. See 40 C.F.R. 70.6(f).
57 16 U.S.C. § 1604.
58 16 U.S.C. § 1604(g)(3)(B); National Forest System Land and Resource Management Planning; Final Rule, 65 Fed. Reg. 67,514,

67,517 (Nov. 9, 2000); see also 36 C.F.R. § 219.19 (July 1, 2001).

59 16 U.S.C. § 1604(g)(3)(C); 16 U.S.C. §§ 1604(g)(3)(E)(i) - (E)(iv); 16 U.S.C. §§ 1604(g)(3)(F)(i) - (v).
60 16 U.S.C. § 1604(g)(3)(C).

32
61 Defined as “the capability to meet the needs of the present generation without compromising the ability of future
generations to meet their needs. For purposes of this part, ‘ecological sustainability’ refers to the capability of
ecosystems to maintain ecological integrity.” 36 C.F.R. 219.19.
62 See 36 C.F.R. § 219.8 (“The plan must provide for social, economic, and ecological sustainability within Forest Service

authority and consistent with the inherent capability of the plan area . . . .”). It is of course worth noting that depletion
of trust resources is economically unsustainable over the long term.
63 36 C.F.R. 219.19.
64 This is, at least, better than the 2005 Rule, which only required the Forest Service to “take into account” the best

available science, allowing the Service discretion to then reject that information when planning for the use of National
Forest lands. See Federal Register Vol. 70, No. 3 (Jan. 5, 2005).
65 36 C.F.R. 219.3.
66 33 U.S.C. § 22.
67 Withdrawn areas include National Refuges, Monuments and National Parks. Preexisting claims are grandfathered in

these areas, however. 43 U.S.C. § 1714.

68 43 C.F.R. 3809.1(a).
69 Unpatented claims are more or less free, and patented claims cost a mere $5/acre at most, though there is a current

moratorium on patented claims. See Beckett G. Cantley, Environmental Protection or Mineral Theft: Potential Application of the
Fifth Amendment Takings Clause to U.S. Termination of Unpatented Mining Claims, 4 WASH. & LEE J. ENERGY, CLIMATE, &
ENV’T 203 (2013).
70 7 U.S.C. § 136 et seq.
71 7 U.S.C. § 136(bb).
72 U.S. CONST. Art. I, § 3.
73 U.S. CONST. Art. I, § 8.
74 Given the public trust doctrine’s status as an inherent attribute of sovereignty, Congress of course can theoretically

rely on the public trust doctrine itself as authority for environmental protection legislation.
75 The terms “rules” and “regulations” are used interchangeably in administrative law
76 EPA has a unique responsibility in the NEPA review process. EPA reviews and publicly comments on the

environmental impacts of all major federal actions. EPA’s comments are part of the public record and are posted on its
website (http://www.epa.gov/compliance/nepa/eisdata.html). This allows EPA to work with federal agencies to seek
opportunities to avoid and minimize environmental impacts, to coordinate with federal agencies to maximize
environmental protection during proposed project planning, and fosters inter-agency partnerships to promote
environmental stewardship when implementing federal actions.
77 NATURE’S TRUST, supra note 39, at 204.
78 See Uniform Trust Code § 802 (Duty of Loyalty).
79 15 U.S.C. §§ 7201 et seq.; see also Malone v. Brincat, 722 A.2d 5, 11 (Del. 1998); Cinerama, Inc. v. Technicolor, Inc., 663

A.2d 1156 (Del. 1995).

80 See Phares, Below-Cost Timber Sales: Perspective Based on Thirty Years of Environmental Legislation, 12 PUB. LAND

L. REV. 59 (1991).
81 16 U.S.C. § 427a.
82 NATURE’S TRUST, supra note 39, at 204.
83 42 U.S.C. § 7401.
84 33 U.S.C. §§ 1251.
85 42 U.S.C. § 4331.
86 See Calvert Cliffs’ Coordinating Comm., Inc. v. United States Atomic Energy Comm’n, 449 F.2d 1109 (D.C. Cir.

1971).
87 The Surface Resources Act of 1955 and resulting regulations did impose a duty on BLM to prevent “unnecessary or

undue degradation of public lands,” including mining sites, 43 C.F.R. 3809, however, this has not been used to prevent
substantial impairment of trust resources—rather BLM merely requires a plan of operations so it can keep track of
mining activities, and it leaves to BLM to decide what is unnecessary or undue.
88 See Robinson Twp. v. Commonwealth, 83 A.3d 916, 956-57 (Pa. 2013) (“This environmental public trust was created

by the people of Pennsylvania, as the common owners of the Commonwealth's public natural resources; this concept is
consistent with the ratification process of the constitutional amendment delineating the terms of the trust. The
Commonwealth is named trustee and, notably, duties and powers attendant to the trust are not vested exclusively in any
single branch of Pennsylvania's government. The plain intent of the provision is to permit the checks and balances of

33
government to operate in their usual fashion for the benefit of the people in order to accomplish the purposes of the
trust. This includes local government.”).
89 For example, see the Proposed Ballot to amend the Portland, OR City Charter filed by Cascadian Public Trust

Initiative. Available at http://cascadianpublictrustinitiative.org.

90 For example, see Our Children’s Trust’s proposed Climate Recovery Ordinance to amend the Eugene, OR Code.

Available at http://ourchildrenstrust.org/sites/default/files/EugeneClimateRecoveryOrdinance.pdf.
91 U.S. CONST. art. VI, cl. 2. (“This Constitution, and the Laws of the United States which shall be made in Pursuance

thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.”).
92 See, e.g., Paul S. Weiland, Preemption of Local Efforts to Protect the Environment: Implications for Local Government Officials, 18

VA. ENVTL. L.J. 467, 471 (1999) (“[F]ederal preemption has been applied to strike down state and/or local regulations
addressing air pollution, hazardous waste management (including the transport and disposal of waste and the cleanup of
sites contaminated by hazardous waste), nuclear power, pesticide use, solid waste management, surface mining, toxic
substance control, and water pollution control.”).
93 See City of La Grande v. Pub. Employees Ret. Bd., 281 Or. 137, 156 (1978).
94 See id. A remaining question is whether an Oregon court would interpret some aspects of the Public Trust Doctrine as

constituting a new political form, particularly if trust obligations were supervised by new political bodies such as a
Citizen Beneficiary Group.
95 See id. at 153-156.
96 See Thunderbird Mobile Club, LLC v. City of Wilsonville, 234 Or. App. 457, 470-71 (2010).
97 Id. at 474.
98 Municipal ordinances in Oregon are generally presumed to be reasonable, “unless the unreasonable features are so

apparent as to be beyond question,” in which case a court may hold a municipal ordinance void for unreasonableness.
Spencer v. City of Medford, 129 Or. 333, 341 (1929).
99 Robinson Twp. v. Commonwealth, 83 A.3d 916 (Pa. 2013).
100 This could refer back to legislation designating certain resources that are held in trust, such as the Oil Pollution Act,

which includes land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources as
trust resources. 33 U.S.C. § 2701(20).
101 See Marks v. Whitney, 6 Cal.3d 251, 259-60 (1971) (The administrator of the public trust “is not burdened with an

outmoded classification favoring one mode of utilization over another.”).

102 NATURE’S TRUST, supra note 39, at 206.
103 33 U.S.C. § 2701(20).

34