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A treatise on
The Public Trust by Mark Dowie at Orion online @ http://www.oriononline.org/pages/om/03-4om/Dowie.html Excerpts: “This idea
of the public trust has a long and venerable history. It was codified back in
528 AD, when the Roman Emperor Justinian decided to gather and condense all the
unpublished rules and edicts handed down by his predecessors into a unified,
coherent code of imperial law. To the task he appointed a commission of ten
legal experts, who delivered the Codex Justinianus in 529 and a year later its
attendant textbook, known as the Institutes of Justinian, to which the emperor
added a few words of his own. Among them were the following: "By the law
of nature these things are common to all mankind, the air, running water, the
sea and consequently the shores of the sea." … In 1970 two things happened that
placed the Public Trust Doctrine in a whole new light. Legal scholar Joseph Sax
published a landmark article in the Michigan Law Review titled "The Public
Trust Doctrine in Natural Resource Law: Effective Judicial Intervention."
In the article Sax opined that the Public Trust Doctrine could be used for more
than protection of navigation and commerce. The doctrine should, he wrote, be
expanded far beyond navigable water to protect the soil, air, and other species
-- things "so particularly the gifts of nature's bounty that they ought to
be preserved for the whole of the populace." … There have been periods in every civilization when the
Public Trust Doctrine was close to sacred, followed by periods when it was
derided, ignored, or unknown. At this moment in America it appears to be
somewhere between derided and ignored. But thankfully, there is still sentiment
expressed in respectable law journals for enforcing a stricter doctrine and
expanding the public trust to cover ecological resources in general. And
attempts are being made to revive and reinvigorate it in the courtroom and law
school, where judges and teachers alike are rediscovering the standards that
have protected public interests for fifteen centuries. Over those centuries the boundary of public trust has gradually crept from the
shorelines of the Roman Empire onto the beaches of Europe, up the rivers and
riverbeds of America, onto the lakes, and into the tributaries of our water
supplies, touching riparian banks, aquifers, marshes, feeder creeks, and
springs. A district court on Long Island once declared that "the entire
ecological system supporting the waterways is an integral part of them and must
necessarily be included within the purview of the [public] trust." A few
courts have even accepted dry land, natural beauty, cultural artifacts,
wildlife, a historic battlefield, and a downtown area as public trusts.
Louisiana's constitution, like others, prohibits alienation of navigable river
beds, but the state's interpretation of public trust also includes, alongside
air, sea, and river water, solar heat.” Orion homepage @ http://www.oriononline.org/index2.html. |
