The Costs of the Public Trust Doctrine in Environmental Protection and Natural Resource Conservation

Abstract

We examine the costs of the public trust doctrine in environmental and natural resource protection and conservation. We provide a model of litigation and settlement among disputing parties where the doctrine is applied. The model suggests that use of the public trust doctrine is likely to introduce more costs and be more time consuming than would alternative approaches, such as the purchase of private rights through market transactions or application of eminent domain powers. Because the doctrine allows for uncompensated redistribution it is resisted by current resource owners. Further, by providing open standing to members of the “public” to challenge existing uses, public trust disputes encourage excessive demands and are more likely to go to trial than to be settled. This outcome is exacerbated if the plaintiffs are “zealots” and provide litigation services at below market cost, leading to greater investment in litigation. We present a case study of Mono Lake, part of the well-known 1983 litigation, National Audubon v. Superior Court to illustrate our arguments. We suggest that the costs of the public trust doctrine have limited its application.