The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and Illinois Central Railroad
Lynn S. Schaffer, L.L.M. candidate 2015, Lewis & Clark Law School
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 the public trust doctrine inapplicable to the federal government, but instead exists solely as a creature of state law. In this contribution to the journal Environmental Law's 2015 public trust doctrine symposium, we take issue with the D.C. Circuit’s conclusory opinion, maintaining that it relied 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 discernible reliance on state law. Consequently, we think the D.C. Circuit erred in interpreting the Illinois Central opinion as a reflection of state law. Recent statements by Justice Kennedy concerning the distinction between the equal footing and public trust doctrines were also misinterpreted by the D.C. Circuit. We contend that the public trust doctrine is an inherent limit on all sovereign authority, not just states. The Illinois Central opinion was an application of the Tenth Amendment’s reserved powers doctrine, which reserves rights “to the people.” Just as the Supreme Court limited state sovereignty to enjoin Illinois from privatizing Chicago Harbor, the reserved powers doctrine expressed in the Tenth Amendment applies equally to the federal government, a government of limited powers. Implementing the federal public trust doctrine calls for close judicial oversight of federal conveyances of public resources or attempts to grant monopolies in public resources, not judicial deference. We think that this judicial skepticism is necessary if the federal government is to fulfill its sovereign duty to protect and preserve public resources for future generations.
Michael Blumm & Lynn Schafer,
The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and Illinois Central Railroad,
Available at: https://lawcommons.lclark.edu/faculty_articles/56