The public trust doctrine (“PTD”) could be a powerful tool for environmental lawyers. It protects the public’s right to use and access resources by placing them in trust with the state and guiding the sovereign’s discretion in their management. Although it lies inherent in sovereignty, the law scatters it across constitutional, statutory, and common law sources, hurting its effectiveness. Understanding the public’s beneficiary interest in this public trust as a due process protected property right would help resolve these failings by placing it under the umbrella of the U.S. Constitution’s guarantee against arbitrary deprivations of “life, liberty, or property.” The enduring history of the doctrine suggests that members of the public can reasonably expect the sovereign to respect its trustee obligations, giving them a protected interest. The similarity between the PTD and the police power lends further support. Understanding the PTD as protected by due process would accord with existing PTD precedent and clarify the doctrine’s application in the future, allowing it to become the bedrock of environmental law that it could be.
Michael O'Loughlin, Understanding the Public Trust Doctrine Through Due Process, 58 B.C. L. Rev. 1321 (2017), https://lawdigitalcommons.bc.edu/bclr/vol58/iss4/7