Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: Can two wrongs make it right?

Professor Joseph Sax’s environmental law scholarship has inspired generations of lawyers and legal scholars, including my very first law review publication in 1987, which questioned the way that some public interest advocates were enlisting Sax’s seminal work on the public trust doctrine to champion environmentalist causes.

In our last conversation not long before his passing, Joe asked me whether I still believed now what I wrote in 1987 with the benefit of almost three decades of hindsight. This essay expands on the answer I gave Joe that evening. The essay first acknowledges the significant ways in which I clearly fell short in anticipating trends in environmental law, and for that reason, I agree that my original thesis warrants revision—especially with regard to the role of the public trust doctrine as a viable basis for defeating regulatory takings challenges.

Next, the Essay discusses how, by contrast, I would not change my thesis in other respects and why, for that reason, I question the efficacy of relying on atmospheric trust doctrine theories in litigation to address the pressing issue of global climate change.

The Essay is especially critical of atmospheric trust doctrine advocacy that relies on unduly harsh and demeaning criticism of existing environmental law and the career public servants who strive for its effective implementation.