scholarly journals Natural Resources and Natural Law Part II: The Public Trust Doctrine

2020 ◽  
Author(s):  
Robert W. Adler
Keyword(s):  
Natural Resources ◽  
Natural Law ◽  
Public Trust ◽  
The Public ◽  
Public Trust Doctrine

scholarly journals Natural Resources and Natural Law Part II: The Public Trust Doctrine

2021 ◽  
pp. 225
Author(s):  
Robert Adler
Keyword(s):  
Natural Resources ◽  
Natural Law ◽  
Public Lands ◽  
Public Trust ◽  
Single Issue ◽  
The Public ◽  
Positive Law ◽  
Public Trust Doctrine ◽  
Religious Doctrine ◽  
Natural Law Theory

Natural Resources and Natural Law Part I: Prior Appropriation analyzed claims by some western ranchers, grounded in natural law, that they have property rights in grazing resources on federal public lands through prior appropriation. Those individuals advocated their position in part through civil disobedience and armed standoffs with federal officials. They also asserted that their duty to obey theistic natural law overrode any duty to obey the Nation’s positive law. Similar claims that individual religious beliefs override positive law have been made recently regarding a range of other controversial issues, such as same-sex marriage, public insurance for birth control, and the right to bear arms. Prior appropriation doctrine is consistent with secular natural law theory. Existing positive law, however, accepts prior appropriation for western water rights but rejects its application to grazing rights on federal public lands, for reasons consistent with secular natural law. Natural law doctrine allows citizens to advocate for change but requires them to respect the positive law of the societies in which they live. Separation of church and state also bars natural law claims based on religious doctrine unless those principles are also adopted in secular positive law. This sequel addresses claims from the opposite side of the political-environmental spectrum, that natural law provides one justification for the public trust doctrine, and that courts should enforce an atmospheric public trust to redress catastrophic global climate change. Although some religious groups have embraced environmental agendas supported by religious doctrine, public trust claims are secular in origin. Just as natural law provides support for prior appropriation, it supports the idea that some resources, such as water, wildlife, and air, should be held in common rather than made available for private ownership. From this perspective, the two doctrines merge into a single issue of resource allocation. Which resources are best made available for appropriation as private property, and which are best left in common? Natural law theory helps to explain the liberty and welfare goals that inform those choices. Positive law embraces the public trust doctrine with respect to some natural resources, and does not preclude its applicability to the atmosphere or other common resources.

scholarly journals LANDASAN DOKTRINER HAK GUGAT PEMERINTAH TERHADAP KERUGIAN LINGKUNGAN HIDUP DI INDONESIA

2020 ◽  
Vol 5 (1) ◽  
pp. 156-175
Author(s):  
Dona Pratama Jonaidi ◽  
Andri G Wibisana
Keyword(s):  
Natural Resources ◽  
Theoretical Basis ◽  
Common Law ◽  
Public Trust ◽  
Environmental Damage ◽  
Legal Basis ◽  
The Public ◽  
Public Trust Doctrine ◽  
Parens Patriae ◽  
The Government

ABSTRAKMeskipun hak gugat pemerintah atas kerusakan dan/atau pencemaran lingkungan hidup telah menjadi hal yang lazim dewasa ini, namun di Indonesia landasan doktriner gugatan pemerintah tersebut masih jarang diperbincangkan. Dengan menggunakan metode penelitian hukum doktrinal, penelitian ini dimaksudkan untuk menganalisis landasan teoretis hak gugat pemerintah. Berdasarkan kajian analisis atas peraturan dan putusan pengadilan yang berlaku, serta melakukan perbandingan dengan doktrin-doktrin yang berlaku dalam tradisi common law, tulisan ini menemukan bahwa gugatan pemerintah telah diajukan dalam beberapa dasar teoretis yang berbeda, antara lain: i) pemerintah sebagai wali lingkungan hidup; ii) kerugian negara; dan iii) konsekuensi tanggung jawab negara terkait lingkungan hidup. Selain itu, hak gugat pemerintah di Indonesia memiliki karakteristik yang serupa dengan yang ditemukan dalam doktrin public trust dan doktrin parens patriae. Kemiripan ini membawa pada konsekuensi hukum bahwa gugatan pemerintah atas pencemaran harus ditujukan semata-mata untuk memulihkan lingkungan hidup yang mengalami kerusakan/pencemaran.Kata kunci: doktrin; hak gugat pemerintah; kerugian lingkungan hidup. ABSTRACTDespite the government’s right to sue for environmental damage is a common practice in various countries nowadays, in Indonesia the theoretical basis of it is rare to be discussed. Using a doctrinal-research, this article analyzes the government’s right to sue with prevailing laws and court rulings and compares it to several common law doctrines. This article finds the government’s right to sue in Indonesia is based to three different theories, including: i) the government as a trustee of public natural resources; ii) state’s damage; and iii) the tail of state’s responsibility. In addition, the government’s right to sue also shares similar characteristics found in the public trust doctrine and parens patriae doctrine. The similarities bring about the legal basis that the government’s suit against pollution should primarily aim at restoration.Keywords: doctrine; environmental damage; government’s right to sue.

Current Legal Developments Climate Change and the Constitutional Obligation to Protect Natural Resources: The Pennsylvania Atmospheric Trust Litigation

Climate Law ◽  
2017 ◽  
Vol 7 (2-3) ◽  
pp. 209-226
Author(s):  
Samvel Varvaštian
Keyword(s):  
Climate Change ◽  
United States ◽  
Human Rights ◽  
Natural Resources ◽  
State Government ◽  
Constitutional Law ◽  
Public Trust ◽  
The United States ◽  
The Public ◽  
Public Trust Doctrine

When it comes to climate litigation, environmental plaintiffs in the United States have demonstrated a remarkable ingenuity in terms of utilizing various legal avenues to compensate for the persisting regulatory gaps. In the last few years, the public trust doctrine and constitutional law have been present among these, in an attempt to put the risks associated with climate change on the map of human rights in relation to the environment and natural resources. However, despite a nationwide occurrence of such lawsuits, courts have been cautious in their approach to them. Similar lawsuits have emerged outside the United States, in Europe and Asia, demonstrating some viability. This analysis addresses the recent litigation in Pennsylvania, where petitioners asked the court to order the state government to take action on climate change and to declare such action a constitutional obligation under the state’s Constitution. 1

scholarly journals Unpacking the Public Trust Doctrine: A Journey into Foreign Territory

2017 ◽  
Vol 13 (5) ◽  
pp. 121
Author(s):  
Elmarie Van der Schyff
Keyword(s):  
South Africa ◽  
Natural Resources ◽  
South African ◽  
Public Trust ◽  
The South ◽  
Legal Concept ◽  
The Public ◽  
The Past ◽  
Public Trust Doctrine

The past decade has borne witness to the transformation of South Africa's natural resources law with the introduction of a new legal concept, that of "public trusteeship", to South African jurisprudence.  The concept of "public trusteeship" as it is embodied in South African legislation encapsulates the sovereign's duty to act as guardian of certain interests to the benefit of the nation as a whole.  In the quest to demystify the incorporation of the concept of "public trusteeship" in South Africa, this article, as a first tentative step, focuses solely on the public trust doctrine as it functions in American jurisprudence.  It is the aim of this article to give a thorough theoretical exposition of the development and application of the public trust doctrine in American jurisprudence in order to provide the South African scholar with a perspective on a legal construct founded on the philosophical notion that governments exercise a "fiduciary trust" on behalf of their people.

scholarly journals New Zealand’s Public Trust Doctrine

2021 ◽  
Author(s):  
◽  
Nicola Jane Hulley
Keyword(s):  
New Zealand ◽  
Natural Resources ◽  
Judicial Review ◽  
Coastal Area ◽  
Common Law ◽  
Public Trust ◽  
Decision Makers ◽  
The Public ◽  
Public Trust Doctrine ◽  
The Common

<p>This paper presents an argument that there is a public trust doctrine which is part of New Zealand’s common law. The public doctrine imposes an obligation on administrative decision-makers, with respect to decisions that impact commonly held natural resources, to act in the interests of the public. I argue the doctrine was inherited by New Zealand in 1840, as part of the English common law, and that it has been subsequently recognised in the New Zealand common law. I also argue that the doctrine has not been extinguished by the Resource Management Act 1991 or the Marine Coastal Area (Takutai Moana) Act 2011: the common law doctrine supplements these regulatory regimes. My argument concludes that the doctrine is best conceived of as a ground of judicial review, perhaps under the heading of illegality, and that there are strong normative arguments for its augmentation by common law development or legislative codification.</p>

scholarly journals New Zealand’s Public Trust Doctrine

2021 ◽  
Author(s):  
◽  
Nicola Jane Hulley
Keyword(s):  
New Zealand ◽  
Natural Resources ◽  
Judicial Review ◽  
Coastal Area ◽  
Common Law ◽  
Public Trust ◽  
Decision Makers ◽  
The Public ◽  
Public Trust Doctrine ◽  
The Common

<p>This paper presents an argument that there is a public trust doctrine which is part of New Zealand’s common law. The public doctrine imposes an obligation on administrative decision-makers, with respect to decisions that impact commonly held natural resources, to act in the interests of the public. I argue the doctrine was inherited by New Zealand in 1840, as part of the English common law, and that it has been subsequently recognised in the New Zealand common law. I also argue that the doctrine has not been extinguished by the Resource Management Act 1991 or the Marine Coastal Area (Takutai Moana) Act 2011: the common law doctrine supplements these regulatory regimes. My argument concludes that the doctrine is best conceived of as a ground of judicial review, perhaps under the heading of illegality, and that there are strong normative arguments for its augmentation by common law development or legislative codification.</p>

scholarly journals Locality, environment and law: the case of town and village greens

2007 ◽  
Vol 3 (1) ◽  
pp. 1-17 ◽  
Author(s):  
Donald McGillivray ◽  
Jane Holder
Keyword(s):  
Natural Resources ◽  
Public Trust ◽  
Community Identity ◽  
Environmental Discourse ◽  
The Public ◽  
The Past ◽  
Public Trust Doctrine ◽  
Self Selection ◽  
The Law ◽  
Subjective Belief

In this paper we explore one type of commons – town and village greens – which are an important feature of the rural and, increasingly, the urban, English landscape. Greens are an ancient form of commons, but they are increasingly recognised as having contemporary significance, particularly because of their potential to act as a reservoir for natural resources and their enjoyment. They are, in other words, emerging out of a ‘feudal box’. We focus on the fact that town and village greens are recognised in law by their association with a group of people defined by their physical proximity to the land which is to be registered. Although this does not in itself constitute a community, the law requires for the registration of land as a town or village green a certain degree of organisation and self-selection and this has in the past fostered both a sense of subjective belief in ‘belonging’, as well as exclusion (the rights of local people being potentially ‘diluted’ by the use of the land by those from outside the locality). As well as helping to produce and recognise community and community identity, then, commons may simultaneously produce the conditions for disassociation and exclusion. In this context, we consider how law defines and upholds notions of locality, and also the ways in which an increasingly powerful environmental discourse might be seen to challenge the primacy given to locality as a way of defining and creating greens and, more generally, the practical effects of this on how decisions are made about preserving these spaces as ‘common’. We consider the scope of the public trust doctrine as providing an example of how law is capable of accommodating ideas of shared nature and natural resources, in this case providing a form of public ownership over natural resources. Whilst our analysis is rooted firmly in the law relating to town and village greens in England and Wales, this body of law displays certain important features more broadly applicable to a range of other types of common land, and raises more general issues about how law supports certain interests in land, often to the exclusion of others.

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