Two Wrongs? Correcting Professor Lazarus's Misunderstanding of the Public Trust Doctrine
Document Type
Article
Publication Title
Environmental Law
Journal Abbreviation
Env't L.
Abstract
This paper responds to Professor Richard Lazarus's recent and longstanding criticisms of the public trust doctrine (PTD). I claim Richard misunderstands the non-absolutist nature of the doctrine, which seeks accommodation between public and private property. Although he acknowledges the value of the PTD as a defense to claims of private takings, he thinks that the "background principles" defense it affords government regulators is a static doctrine. And he fails to see that the PTD hardly equips courts with the authority to displace legislative and administrative decision makers. Instead, as epitomized in the well-known Mono Lake decision, the doctrine -- an inherent limit on all sovereigns -- requires those more representative branches to exercise their discretion in protecting trust resources from destruction or monopolization.
First Page
481
Last Page
489
Publication Date
2016
Recommended Citation
Michael Blumm,
Two Wrongs? Correcting Professor Lazarus's Misunderstanding of the Public Trust Doctrine,
46
Env't L.
481
(2016).
Available at:
https://lawcommons.lclark.edu/faculty_articles/63