Critique On The Public Trust Doctrine

The public trust doctrine rooted in the Roman law and introduced into the UnitedStates along with the English common law had been established gradually bycontinual efforts and vigorous promotions of federal and state courts in the UnitedStates. The main reason that the public trust doctrine could have been flourished andwidely employed in the United States is because this doctrine has a very closerelations with the unique political system，economic system，legal system，culturalvalues，philosophy ideas，and environmental crisis of the USA. In1970s，it is a newera of the public trust doctrine because Professor Sax had revived the doctrine andappealed to adopt it to resolve environmental problems and natural resources crisis.The public trust doctrine has been regarded as the only efficient tool and panacea toresolve and deal with environmental problems by some American scholars.The “revival” and widely application of the public trust doctrine in the field ofenvironment and natural resources in the United States have made a strong influenceon the theoretical study of environmental law in China. Some scholars have regardedthis doctrine as “the Charter of environment right on common law”，“the theoreticalfoundation of citizens’ environmental rights”，“the theoretical basis for environmentallitigation”，“the theoretical basis for government’s environmental responsibility”，andso on. If the public trust doctrine is a scientific theory，it would be positive andmeaningful for us to adopt it guide our practice and action in resolving environmentalproblems；otherwise，the more influences it makes，the more negative consequencesit has.In order to understand the public trust doctrine clearly and accurately，we shouldknow not only about its historical origin and external impacts，but also on itsconception and nature. The essence of the public trust doctrine is to establish a socialcontract between the government and the public on how to manage and protect the environment and natural resources by legal fiction. The purpose to establish thiscontract is the public，as the trust beneficiary，has a public right on natural resourcesand environment. The government，as trustee of a trust，has the obligation to manageand protect environment and natural resources for the public’s benefits. When thegovernment does not fulfill this obligation，the public can sue and require thegovernment to perform its fiduciary obligations. That is to say，the public can realizesits goal in protecting environment by the model of “right setting—right claim—rightrelief”.The public trust doctrine had been controversial since it was put forward. Somescholars thought the public trust doctrine depends too much on proenvironmentaljudicial bias；the public trust doctrine is undemocratic because courts could interferethe legislature and executive branch’s decision-making and natural resourcesmanagement by adopting this doctrine；the public trust doctrine can be use as a tool to“taking” private properties without any compensation；the public trust litigation is lesseffective mechanism in resolving natural resources disputes；Continued use of thedoctrine ultimately threatens to impede environmental protection and resourceconversation goals and possibly renders Pyrrhic earlier advances.The public trust doctrine also has some intrinsic defects. First，it is too subjectiveto view environmental resources as “property”；Second，there never does exist a realcontract between the government and the public on environmental and resourceprotection，Third，it is very hard to clarify who is the settler，because the settler iscooked up by public trust doctrine；At last，it might be improper to regard thegovernment as trustee.As far as the functions of the public trust doctrine are concerned，the single andsole method which the public trust doctrine employs is inconsistent with the wholemethod which environmental integrity needs. Moreover，the public trust doctrinerelied on the “right thinking”(“right setting—right claim—right relief) has itsinherent defects. Environmental problems can not be resolved by using public trust doctrine. In short，the public trust doctrine can not compose the cornerstone ofenvironmental legal system. It is impossible to alleviate and overcome theenvironmental crisis by adopting and applying the public trust doctrine.The plight that we have had in dealing with environmental crisis by public trustdoctrine suggests that we can not expect and depend on a right-based law indetermining theoretical choice of environmental law. In face of the worseningenvironmental problems，we should respect，conform to and obey the objective law ofnature and ecology when we will design and formulate our environmental law.With the appearance of environmental crisis and emergence of ecologicalcivilization idea，it is an opportunity for us to know and understand the basic legalprinciple of the Marxism on the “law should be made based on social economicconditions”. As a problem-resolved-oriented law，theoretical choice of environmentallaw lies on neither legislators’ subjective will， nor scholars’ wishful thinkingaccording to their own preferences，and should be subject to its specific socialeconomic conditions which mean environmental problems and its law of development.Now that the environmental problems have been made by human activitives，the mostfundamental way to solve environmental problems is to impose restrictions on humanactivities. Since the nature of environmental problems is human activities overbearing capacity of the Earth’s environment，then the solution of environmentalproblems requires that every body act within the limits of the Earth’s bearing capacity.As environmental problems lies in the prevention of environmental damage，thecharacteristics of environmental damage require that the method we adopt to solveenvironmental problems be based on the obligation which each person is theresponsible subject of environmental protection and must fulfill actively theirenvironmental responsibilities.In the face of environmental problems，only when everyone conforms to andobeys the law of nature and ecological requirements， limits his irrationalenvironmental behavior，and performs environmental obligations and responsibilities positively， can environmental problems be solved drastically. Therefore， thetheoretical foundation of environmental law does not lie on “right”，but rather“obligation”，an inescapable obligation which everybody lives on the earth to protectour only Earth’s homeland. This is the only way to solve environmental problems andthe inevitable theoretical choice of environmental law.