ABSTRACT
Ancient Roman Law codified the concept that there are certain resources that are so great and so important to human survival, that intuitively, no person should own them. Further, the government must protect these resources for the people. Today, this concept is known at the public trust doctrine. According to the contemporary doctrine, the seas, oceans, shores, and submerged lands cannot be privately owned, but shall be held in trust by the government for public use. Relying on the public trust doctrine, climate change litigants have brought a tirade of lawsuits – which have largely been unsuccessful – alleging that the government has a fiduciary duty to protect trust resources, and thus must take steps to mitigate the effects of climate change. Despite the backdrop of the current climate crisis, courts have declined to impose such an affirmative duty on the government.
This Note analyzes the viability of the public trust doctrine as a litigation tool to combat global climate change. It examines the doctrine’s history and purpose dating back to ancient Roman Law. Further, this Note advocates for an expansion of the doctrine and for the establishment of an affirmative fiduciary duty on the government to protect the resources held in trust. Ultimately, it offers a solution to give the doctrine the necessary teeth to enact meaningful environmental change.
Sadie Mapstone, The Fiduciary Duty of Combatting Global Climate Change, 82 Washington and Lee Law Review Online 41 (2024).