Adapting to Climate Change: The Potential Role of State Common-Law Public Trust Doctrines

This article from the Vermont Law Review demonstrates that water law can provide a legal mechanism for climate change adaptation. Specifically, the article agues that within water law, state public trust doctrines can provide legal support for climate change adaptation regimes.

Part I of this article reviews the potential effects of climate change on water resources, the need for climate change adaptation, and the role of adaptive management in effectuating such adaptation. Specifically, the impacts on navigation and boat travel; precipitation; water supply; and aquatic, marine and riparian ecosystems are addressed.

Part II reviews the federal law contours of state public trust doctrines - the legal principles that this article refers to as the “classic public trust doctrine.” These principles still ground and inform state common-law public trust doctrines; in a few states, they remain the limits of the state’s willingness to protect public rights and values in waters.

Building on this background, Part III begins by detailing the historical evolutions of the public trust doctrine in the U.S. from both its commonly understood English common law origins and from the classic statement of the doctrine by the U.S. Supreme Court. It shows that several states have more explicitly embraced this common-law adaptability, consciously describing their public trust doctrines as evolutionary and responsive to changing public need. In these states, public trust doctrines are already adaptive and therefore of potentially great value in climate change adaptation and its supporting adaptive management regimes.

The report concludes that states with ecological and/or evolutionary public trust doctrines are better situated to enable climate change adaptation in the following four ways:

First, and most clearly, in states with ecological and/or evolutionary public trust doctrines, the courts can explicitly acknowledge climate change as a threat - or at least potential threat - to public trust resources. Such acknowledgement would in essence place climate change impacts on a par with overdevelopment of tidelands in California or water pollution and overuse of fresh water in Hawaii.

Second, as has been the case in Mississippi, California, and Hawaii, implementation of state common-law public trust doctrines affords state courts the opportunity to cumulatively assess state public trust resources and the values they can or cannot support.

Third, adaptive and evolutionary public trust doctrines could lend support to state agency experimentation with adaptive management.

Fourth, and most radically, courts in states with ecological and/or evolutionary public trust doctrines could engage in a form of judicial adaptive management by adjusting private and other rights in water resources in response to climate change impacts.

 

 

 

Publication Date: September 17, 2011

Author or Affiliated User:

  • Robert Kundis Craig

Related Organizations:

  • Vermont Law Review
  • Florida State University College of Law

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Resource Types:

  • Legal Analysis

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