ABSTRACT
The public trust doctrine in America derives from common law, and each new state became the trustee following independence. The public trust doctrine gives the state the right to sue for natural resource damage, among other things. To prevail, the state need show only (1) a protectable public trust interest, (2) unreasonable interference, and (3) a nexus between that interference and a loss to that protected interest. The case law, however, reflects confusion or imprecision about a number of matters. First, courts and advocates often talk about the trustee proving, say, a public nuisance cause of action. My argument is that proof of public nuisance, or other common law causes, goes to demonstrating – among other proofs – the unreasonableness of the interference. Tortious interference with the public trust is neither derivative to nor dependent on other causes of action. Second, courts and advocates often comingle the public trust doctrine and the distinct parens patriae doctrine, which are different. Under parens patriae, the state proves a separate tort claim, such as public nuisance or trespass. Public trust is a standalone claim. Third, although courts understand that the public trust doctrine evolves in light of the changing public interest, they sometimes focus on what has been done in prior cases instead of what needs to be done now to maintain the dynamic nature of the public trust.
Allan Kanner, Tortious Interference with Public Trust (2021) 36 Journal of Environment Law and Litigation 39.
First posted 2021-05-22 11:00:28
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