Public trust origins and general application: A primer

Introduction

This article is the second in a series discussing the public trust in South African water law. The first article provided the history of and intentions for the public trust as embedded in the National Water Act. It was shown that an awareness of trust principles and use of trust language in South Africa substantially pre-dated the water law reform of the 1990s. of relevance here is that the installation of the public trust in the National Water Act (NWA) was not based on an examination of the principles that underpin the public trust doctrine. Rather, the perceived value was initially seen as the trust's ability to democratise water rights, ie converting them from private rights to public custodianship, or as a means of mitigating environmental protection obstacles.

Much has been written about the public trust doctrine (PTD) over the years, much of which has been expertly summarised in recent and detailed works. This article does not intend to repeat any of the two centuries of public trust history and application; rather, it suffices here to provide a broad overview.

The public trust exists in both common law and statutory formats, most notably in almost all the state constitutions of the United States of America. In general, the trust obliges a state or governmental trustee to assume a fiduciary duty to act as custodian of a specific resource. In South Africa the public trust is both statutorily and constitutionally embedded as an operational imperative in water law, and as a principle in other environmental statutes. Despite this foundational inclusion in the reformed South African water law and policy, the trust's origins remain ambiguous, and no attempts have been made to explain the nature of the trust as defined by its principles (I addressed these issues in the first article of this series). The South African public's trust in water law democratically transformed perceptions of property ownership in relation to water resources. As will be explained in this article, the public trust is regarded as a fundamental attribute, or 'background' principle, of property law.

In this context of property, the public trust may broadly be regarded as rendering all parts of the water resource 'domain' as “public” (res publicae), irrespective of whether they may transect “private” (res privatus) property. This connotation of public trust has been variously expressed as a “servitude”, or a “covenant”, that encompasses the trust resource, as well as all associated ecosystems that contribute to its ecological integrity. Furthermore, its ethical and moral underpinnings promote communitarian furtherance of public welfare beyond what is possible through police power. The public trust also represents a clear long-term, intergenerational perspective, ie dovetailing with considerations of sustainability, social and environmental justice.

Background

This second article begins with a synopsis of the public trust doctrine's history before delving deeper into the guiding ideas in the article that follows. As a result, although giving crucial context for the public trust's development, this analysis places more emphasis on the trust's current "environmental law era" application than on its historical application.

In the context of a 'doctrine,' the trust can be interpreted simply as a common law guiding principle. However, the term "doctrine" is not used in South African water law, where the "public trust" is ingrained as a statutory duty. Therefore, it is intended to be far more than just a principled approach, because it elevates doctrinal principles to the level of objective standards by which the efficacy of the trust can be evaluated. Such an evaluation is supported by the unique substantive and procedural characteristics of the public trust.

Summary of the roots, evolution and contemporary role

The legal instrumentality of the public trust for the protection of renewable natural resources is arguably immense, yet largely unproven. Rather than merely setting targets and goals, the doctrine effectively imposes on the state a fiduciary, non-discretionary obligation to proactively act in the best interests of an essential natural asset. By disallowing property-based water rights, this anti-monopoly role embodies the public trust's perceived ability to overcome obstacles to water resource protection.

Much has been written, debated, and speculated about the doctrine's potential, not only in countries where it has recently emerged, but also in the United States, where the PTD is based on case law and constitutional history dating back to 1774, with the first codification occurring a century earlier, in 1641. An examination of the common law roots of the American PTD reveals three stages of doctrinal evolution: (i) traditional or historical; (ii) Saxian, named after Joseph Sax, the progenitor of modern environmental doctrine; and (iii) the most recent inculcation, in which public trust obligations to the condition of the atmosphere were raised in what has become known as Atmospheric Trust Litigation (ATL).

Both the traditional and Saxian versions of the doctrine are recognised as essential instruments in property law. It works especially well for controlling resources that are unsuited for private ownership. Prior to 1983, application in the USA was primarily for access to tidelands and shorelines, navigation, commerce, and fishing. The inclusion of ecological concerns caused a significant shift in its scope.

Historically, as America grew westward through a variety of legal systems (English, French, and Spanish), the doctrine proved helpful in settling land disputes. According to one account, the doctrine was "an effective and multifaceted tool which state and federal courts and state legislatures repeatedly invoked to promote and direct economic growth". Ultimately, the doctrine came to be identified with the American Commerce Clause, particularly with regard to the requirement to preserve interstate waters, highways, and rivers as unobstructed corridors for commerce.

Five areas where the PTD is increasingly being called upon have been identified:

1)    Conveyance of essential natural resource assets to private ownership at the expense of the resource(s) and the trust;

2)    Government management of trust assets ¾ a contemporary example is the ATL litigation mentioned above;

3)    The actions, duties and responsibilities of landowners in terms of their duty of care of the trust asset on their property;

4)    Defence against claims of compensation for deemed expropriation;

5)    The rights of government to recover the costs of rehabilitation or restoration of damages caused to trust assets. The converse is where the trust affords the public the right to pursue claims against the State for failure to manage assets.

 A brief comment on the PTD in atmospheric trust litigation

There are compelling arguments to suggest that the idea of a unitary hydrocycle, which connects Earth's surface water with the atmosphere above it, could serve as the cornerstone for the development of public trust principles in ATL and, consequently, for the public trust to be seen as an instrument of international environmental law. It could be argued that because of the hydrocycle connection, a reduction in atmospheric quality could have negative effects on all linked water systems and interdependent resources. Many of the USA state-level ATL challenges have invoked the PTD and sought the formulation of Climate Recovery Plans from their governing states. One of these cases (Foster II), lodged in Washington State, met with surprising state-level recalcitrance ¾ which was countered in turn by a bold judge who, scathing in her condemnation of agency time-wasting, not only set timelines for agency response, but found that the PTD was present in the State Constitution and left no doubt as to the role it played in the case at hand:

“[T]he State has a constitutional obligation to protect the public's interest in natural resources held in trust for the common benefit of the people... If ever there was a time to recognize through action this right to preservation of a healthy and pleasant atmosphere, the time is now.”

Countering the challenge that the atmosphere did not fall within the scope of the doctrine, the court found that, as the atmosphere and water resources were inextricably linked, and as water resources already fell within the doctrinal reach, the atmosphere was similarly protected:

“The navigable waters and the atmosphere are intertwined and to argue that a separation of the two, or to argue that [greenhouse gas] emissions do not affect [navigable waters], is nonsensical”.

This ruling was of considerable import, given that in earlier cases in state courts it was held 'without deciding' that the atmosphere was part of the PTD. Foster II thus provided persuasive precedent across all US states, but progress has been minimal.

In the much-publicised Juliana matter, which relies on both the PTD and on federal constitutional protections of due process and equal protection, and despite an attempt by the state to foreclose use of the Trust Doctrine, the court allowed both the constitutional and trust claims to go forward. Importantly, while the PTD is commonly regarded as a state-held doctrine, the Juliana case located the PTD in the wording of the US Constitution's Fourteenth Amendment:

“The doctrine is deeply rooted in our Nation's history and indeed predates it”.

The global threats associated with climate change bring into sharp focus the risks associated with the exceedance of ecosystem 'tipping points' ¾ alterations to ecosystem dynamics beyond which inbuilt resilience is incapable of supporting a recovery to the former condition.  Increasing temperatures in aquatic environments, both marine and freshwater, are already evidencing worrying perturbations.

At time of writing the Biden administration has disappointingly issued a mandamus instructing the court to dismiss the Juliana matter.

A brief summary of the Roman law origins of the public trust

The majority of scholarly articles that have describes the doctrine, or characteristics of its application, anchored their arguments solely on the 21-word res communes omnium ('RCO') phrase attributed to Emperor Justinian's compilation of the Roman law Institutes in the sixth century AD viz:

“these things are common to all of mankind. The air, running water, the sea and consequently the shores of the sea”.

            This reliance implicitly accepts that the RCO is sufficient to ground the PTD in Roman law and, hence, in the common law of any legal regime arising from, or which incorporates, Roman law roots, such as South Africa. However, as explained by Roman law scholars, if a contemporary reliance is placed on the roots, a much deeper, contextually-interpretive, analysis is needed to derive an understanding of what the express intentions for the doctrine in Roman law were, and how it was intended to be applied, for example did Roman law ever have an environmental nuance, ie did the term 'air' imply the atmosphere, or perhaps (more likely) only smoke pollution?

More importantly, any Roman origins, while being entirely factual, are nowadays of minimal importance when compared with how the doctrine has since been developed and expanded, under either its common law use and juridical interpretation, or by its codification within a particular legal regime. It has less to do with what it might have been, rather than what it has legally become.

In Roman law, the term "public" meant "common use by all," rather than "ownership.” A well-established modern viewpoint holds that public and private property exist on a continuum defined by the extent of regulatory control, or police power, that is applicable. For example, in the context of a stream flowing from public through private property ¾the same protections for the water resource apply on both. The general public, regardless of ownership, has a legitimate interest in how all land is used, and no land use can occur in isolation. This is the most significant point from the perspective of social and environmental justice. It has been highlighted in this regard that property rights cannot be defined without considering natural factors, such as the hydroecological requirements of a stream or wetland that flows through private land. These cannot differ in any way from the requirements of the same stream on public lands, where the most important duty is to protect the water resource's integrity.

Land use planning law addresses the appropriate and coordinated use of land. Private ownership of property carries no rights that make it immune to state control. In the context of South African water resources, a right to own property does not, for example, entitle the owner to fill a wetland ie “the scope of private rights in water has always been sharply limited”. This viewpoint is particularly important in the context of water resources.

Early USA caselaw interpretations

The traditional format of the PTD in the United States is firmly rooted in case law, policy, and the constitutions and/or laws of 45 of the 50 states. Since 1970, the Saxian version has evolved as an environmental protection instrument. The doctrine has recently been used in a number of cases involving climate change controls and carbon dioxide emissions. The latter use the word 'air' in the RCO to refer to the atmosphere, but it is unlikely that Roman legislators intended this. In fact, under Roman law, the term "air" was probably most commonly associated with smoke pollution, and there is no evidence that Roman law ever included, or even considered, the need for environmental protections. Thus, the role of the PTD in ATL, or in South African water law for that matter, has yet to be developed stare decisis, alternatively with the executive's involvement in developing related policy and regulations. The ATL inculcation of the PTD, on the other hand, may prove to be the most powerful lever yet available for centralizing the doctrine in modern international environmental law.

            The consideration of the role of public trust principles in water resource management bears historical contemporaneity with key events in the maturation of environmental law. Two hundred years ago the duality of jus privatum vs jus publicum, the core of the public trust's background property principles, was set down in Arnold v Mundy:

“Common property includes the air, running water, the sea, fish and wild beasts. [These are things] in which a sort of transient usufructuary possession only can be had... [which] the wisdom of the law has placed in the hands of the sovereign power... to be           held, protected and regulated for the common use and benefit... of all the people”.

Thirty years after Arnold v Mundy, Commonwealth v Alger (Alger) held that any use of private property is held under the “implied liability that such use 'shall not be injurious to the equal enjoyment of others', nor... “to the rights of the community” ¾ the latter phrase alluding to the wider public interest and perhaps also to intergenerational obligations ¾ as the judgment highlights the trust obligations foreclosing the alienation, transfer, limitation or restrainment of the jus publicum.

The findings of Arnold v Mundy and Alger are but two early examples from a rich two-hundred-year history of public trust litigation in the USA ¾ a trove of jurisprudence expressed largely with respect to the traditional doctrine but, in the last half-century, illustrating its' evolution beyond the close confines of its presumed Roman roots, to include wildlife, wetlands, heritage, public parks and, most recently, the live discourse surrounding its role in ATL.

The evolutionary nature of public trust is especially relevant in relation to water. Water is a finite resource that is precariously balanced between an expanding global population and rising levels of pollution, resulting in an increasingly degraded resource base. The true face of the water crisis lies not in there being no water at the tap, but that the water that may be there is unfit for human consumption. The ravages of climate change, and the likely profound negative impacts on aquatic ecosystems, continue unabated, particularly in arid regions such as southern Africa and the western United States. Increasing land use pressures will require the public trust to enable regulatory encroachment onto terrestrial lands hitherto believed inviolate and to be beyond the reach of the state.

The environmental law era

The advent of modern environmental law is a very recent event on the timeline of law in general. Almost concomitantly with the appearance of environmental law, circa 1970, Joseph Sax published his seminal article on the role of the public trust, echoed just two years later in the trust-embodying principles of the Stockholm declaration, inter aliathat:

“Man... bears a solemn responsibility to protect and improve the environment for present and future generations”, and that:

“The natural resources of the earth... must be safeguarded for the benefit of present and future generations”.

These pertinent admonitions reflect an age-old jurisprudence, which echo the dicta of Alger, in that “no possessor of property has an absolute title to it”, but rather that the owner of property is bound into a trust relationship “for the benefit of mankind”.

In 1998, South African lawmakers deliberately enfolded public trust into the principles contained in the White Paper that underpinned the democratic transformation of the country's water law, and Section 3 of the NWA provided the foundation for the implementation of these intentions. This legislative expression of trust not only dispelled any notions of water ownership rights, but it also established a strong system of water resource protections.

It is important to note that public trust is not the only player in the fight against threats to trust resources. Over the last quarter-century, there has also been a progressive shift toward viewing reliance on securing water rights through the lenses of various moral and ethical guiding paradigms. These covenants complement, and even strengthen, the imperatives defined by the public trust. This progression, which incorporates water into an interconnected and pluralistic ethical framework, suggests not only a growing awareness of the ecological intimacy between water and the catchment through which it flows, but also an extension of the custodial role to each and every individual on the planet in terms of water resource conservation. This understanding also reflects a jurisprudential need to “strengthen the capacity of judges, lawyers, and all persons” who have a role to play in water resource protection, implying that everyone has a “co-trusteeship” role to play in achieving the goals of public trusts. It appears that the recently proposed amendment to the Rome Statute, adding the international crime of “ecocide”, embodies a public trust foundation.

In sum, these progressions position the public trust towards the right of the anthropocentric-ecocentric continuum. In South Africa there has been a recent example of public trust-aligned language defining “sustainable use” ¾ this term arguably equivalent to “beneficial use” ¾ being integrated into wildlife environmental law absent specific mention of the public trust ¾ but which establishes sustainable, ecosystem-level protections of a resource in the public interest. This suggests a wider organic awareness and realisation of the value of operative application of public trust principles, albeit arrived at absent any deliberate infusion thereof.

For water resource protection to be effective, it must be directed towards ensuring the physical, chemical and biological integrity thereof, and at both the landscape-based and ecosystem-directed levels. To demonstrate this, consider the advantages of a water resource management approach based on the principle of a unitary hydrological cycle. This requires that any or all decision-making considers the translocation of impacts either in-stream or transversely between the water course and its riparian and/or upland ecotonal zones.

Furthermore, this echoes widely held concerns that environmental law has failed to meet expectations over the past five decades. The world is experiencing a rapid and significant loss of ecosystem services and biodiversity. Relying too heavily on statutory police power has failed to ensure compliance with well-intended regulatory instruments. By contrast, public trust principles inhere deeper than the police-powers of land use regulation can reach.

Next: Part 3:The public trust principles…