Two Wrongs? Correcting Professor Lazarus's Misunderstanding of the Public Trust Doctrine

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Environmental Law

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Env't L.


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.

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