Friday, January 30, 2015

Blumm & Schaffer on The Federal Public Trust Doctrine

Michael Blumm (Lewis & Clark) and Lynn Schaffer (Lewis & Clark) have posted The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and Illinois Central Railroad on SSRN.  Here's the abstract:

In Alec L. v. McCarthy, an atmospheric trust case, the D.C. Circuit, in an unreflective opinion, rejected the plaintiffs’ claim that the public trust doctrine demanded action on the part of the federal government to curb atmospheric greenhouse gas emissions. The court relied on dicta in Supreme Court opinions to declare that the public trust doctrine does not apply to the federal government, but exists instead entirely as a creature of state law. In this article, we take issue with the D.C. Circuit’s conclusory opinion, maintaining that it rests on a misreading of the Supreme Court’s articulation of the public trust doctrine in Illinois Central Railroad v. Illinois, a century-old opinion in which the Court struck down a state conveyance of Chicago Harbor to the railroad as a violation of the public trust doctrine without any reliance on state law. Consequently, the D.C. Circuit’s interpretation of the Illinois Central opinion as a reflection of state law is erroneous. Similarly, recent statements by Justice Kennedy concerning the distinction between the equal footing and public trust doctrines were misinterpreted by the D.C. Circuit — as well as some other courts.

We maintain that the public trust doctrine is an inherent limit on all sovereign authority, not just states. Illinois Central is best interpreted as an application of the Tenth Amendment’s reserved powers doctrine, which reserved certain rights “to the people.” Just as the Supreme Court limited state sovereignty to enjoin Illinois from privatizing Chicago Harbor, the reserved powers doctrine should apply to the federal government, a government of limited powers. Application of the public trust doctrine to the federal government calls for close judicial oversight of federal conveyance of public resources or attempts to create monopolies, not judicial deference. We think that such judicial skepticism is warranted if the federal government is to fulfill its duties to protect and preserve public resources for future generations.

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