ENGAGING THE LAW TO SUPPORT Sustainability ON EARTH

ENVIRONMENTAL AND NATURAL LAW AT THE UNIVERSITY OF OREGON SPRING 2014

The Revival of the Public This genetic code Trust in Environmental Law perpetuates both

By Rance Shaw authority to manage natural resources governmental authority to and a concomitant duty to protect those manage natural resources Environmental statutory law has arisen resources.4 only in the past few decades, but natural and a concomitant duty to Duties of Government as Trustee protection has been present Pursuant to the public trust doctrine, since the inception of the law. The protect those resources. the capacity of government is trustee of public trust is an ancient doctrine that natural resources rather than business has roots dating back to the Institutes of manager.5 Trustees must perform Justinian (529 CE). Though less active in fiduciary duties exclusively for the the past seventy-five years, the doctrine determined by the “quality, quantity, and benefit of the people.6 Public interests is reemerging as a powerful legal well-being of [the] natural resources.”10 in natural resources are distinct and framework for environmental protection The public trust grants absolute authority superior to competing private interests.7 at the macro level. The trust imposes to control common natural resources The public trust imposes affirmative an inalienable duty on government to only insofar as that power is exercised fiduciary duties that mandate protection protect vital natural resources to ensure for the benefit of the people.11 of natural resources to prevent the survival and welfare of the people.1 substantial impairment, as well as continued on page 2 The Public Trust Doctrine as an utilization of resources primarily for the Inherent Attribute of Sovereignty benefit of the public.8 Preservation of As an inherent attribute of sovereignty, ecosystem function—not only resource the public trust exists independent of consumption—constitutes “use” of legislative expression.2 Professor Gerald assets.9 Public benefit is not determined Torres describes the trust as “the law’s by monetary profits; rather, it is DNA.” Every cell within an organism contains identical DNA. So too is each division of government ingrained with the public trust.3 This genetic code perpetuates both governmental

MT. HOOD ENGAGING THE LAW TO SUPPORT SUSTAINABILITY ON EARTH SPRING 2014 ENVIRONMENTAL AND NATURAL RESOURCES LAW AT THE UNIVERSITY OF OREGON

The Revival of the Public Trust in Environmental Law continued from page 1 The Role of the Judiciary shows flexibility and adaptability in Enforcing the Trust in protecting both a broader scope The Public Trust Potential policy Congress delegated to the of assets and the public interest Doctrine in 2014 27 Environmental Protection Agency initiatives are aimed at they secure. Furthermore, current •In Robinson Township v. (EPA) the authority to enforce statutes legal action has sought to have the Commonwealth of Pennsylvania, that pertain to use incorporating the public atmosphere declared to be a public 83 A.3d 901, 959 (2013), the and protection, such as the Clean Air trust asset so that the people may Pennsylvania Supreme Court ruled trust in constitutional that the public trust doctrine provides Act (CAA). The judiciary considerably enforce fiduciary obligations against equal protection against severe defers to the EPA’s interpretation amendments, executive the government.28 imminent ramifications and actions of statutes that it is charged with The public trust doctrine is that result in minimal present harm, administering.19 Indeed, a court should orders, statutory not merely a basis for litigation. but that are likely to cause significant or irreparable harm. not substitute its own judgment for Its purpose is also to serve as a amendments, regulations, guiding principle in governmental •The nonprofit organization Our that of the legislature or agency in Children’s Trust is pursuing administering statutes.20 However, and local zoning policy. Litigation is the last resort atmospheric trust litigation in all fifty the government is subject to the same for citizen beneficiaries who have states and the District of Columbia. judicial accountability as a private ordinances. been disenfranchised by unfaithful Alec L. v. Perciasepe, 2013 U.S. trustee.21 Thus, governmental trustees government trustees. Therefore, Dist. LEXIS 72301, is currently on trustees should recognize the public appeal to the United States District have no discretion to allow substantial Court of Appeals for the District of impairment to the natural resources of trust as the predicate for all decisions Columbia Circuit. This litigation seeks the res.22 As with any private trust, the The Future of the Public Trust regarding public natural resources to establish the applicability of the judiciary determines whether fiduciary The purpose and scope of the public so that court enforcement is not

MCKENZIE RIVER MCKENZIE public trust doctrine to both state duties have been violated.23 Rather trust have both evolved with the necessary. Potential policy initiatives and federal governments, to declare than rubber-stamping governmental changing needs and interests of the are aimed at incorporating the public the atmosphere as a trust asset, and people.25 Ecology and recreation are Present and Future Generations traditionally been protected as a trust to require trustees to perform an decisions, the courts must examine a trust in constitutional amendments, now recognized as two main purposes of Citizens as Beneficiaries asset. However, a plethora of adverse accounting and develop a plan for myriad of factors such as the impact executive orders, statutory Present and future generations of effects are inextricable to climate reduction of atmospheric carbon on individual natural resources and for protection of tidal —which amendments, regulations, and local citizens are cobeneficiaries.12 As change.18 One of the oldest purposes dioxide concentrations. the degree to which public interests were traditionally protected for zoning ordinances. 26 a perpetual trust, the public trust of the public trust—protection of •In her newest book, Nature’s Trust: are displaced in favor of private fishing, navigation, and commerce. Environmental Law for a New embodies the idea that “the earth tidal lands—will be frustrated if sea interests.24 The modern public trust doctrine continued on page 4 Ecological Age, Oregon law professor 13 level rise from planetary heating belongs in usufruct to the living.” Mary C. proposes a modern Present cobeneficiaries may receive the permanently submerges those lands. framework for the public trust yield (or “profits”) but not the capital The res must preserve and protect doctrine, which she calls “Nature’s of a perpetual financial trust. Present entire ecosystems rather than only Trust.” She challenges the paradigm cobeneficiaries may not violate the isolated assets. of the public trust as strictly a state doctrine that is confined to only rights of future cobeneficiaries to enjoy certain natural resources. the yield from undiminished capital. Professors Michael C. Blumm and Think of the trust as a fruit-bearing Think of the trust as Mary Christina Wood published the tree. Each generation possesses the textbook The Public Trust Doctrine in right to harvest the fruits from this a fruit-bearing tree. Each Environmental and Natural Resources tree, but none may sever branches or Law (Carolina Academic Press, 2013), the first legal textbook of its fell the tree.14 generation possesses the kind. Natural Assets Comprising right to harvest the fruits •The University of Oregon the Res Environmental and Natural Resources Law Center’s Conservation Trust Historically, the public trust has been from this tree, but none Project examined potential policy largely concerned with , may sever branches or initiatives for the incorporation and stream beds.15 However, the scope of the public trust doctrine into of the trust extends to all resources fell the tree. environmental decision-making at that are a “subject of public concern to various levels of government. The project is now drafting model the whole people.”16 The public trust language for local, state, and federal must be dynamic to extend protection efforts to incorporate the doctrine. in response to changing public needs.17 White paper forthcoming.

The atmosphere, for example, has not LAKECRATER 2 3 ENGAGING THE LAW TO SUPPORT SUSTAINABILITY ON EARTH SPRING 2014 ENVIRONMENTAL AND NATURAL RESOURCES LAW AT THE UNIVERSITY OF OREGON

The Revival of the Public Trust in Environmental Law ENR Fellows Reach Beyond the Classroom continued from page 3 It is a “fundamental mistake” to 1999); Nat’l Audubon Soc’y v. Super. Ct., 658 During the 2013–14 academic Third-year law students Rebecca The Law and Policy Project consider the sovereign right to control P.2d 709, 728 n.27 (Cal. 1983); Kootenai Envtl. year, ENR fellows jumped at the Rushton and Adam Walters and hosted the Oregon Energy Storage As an immutable attribute Alliance v. Panhandle Yacht Club, 671 P.2d 1085, natural resources independent of the 1092 (Idaho 1983). opportunity to participate in a first-year law studentJill Randolph Conference at the University of sovereign responsibilities of protection of sovereignty, the doctrine 3. See U.S. v. 1.58 Acres of , 523 F. Supp. number of presentations, projects, provided legal research and writing Oregon’s White Stag Block in Portland. and preservation.29 As an immutable 120, 123-24 (D. Mass. 1981). and conferences with important expertise to an international team of The workshop included roughly attribute of sovereignty, the doctrine remains a source of 4. Robinson v. Ariyoshi, 658 P.2d 287, 310 (Haw. external entities. engineers, oceanographers, ecologists, 100 energy experts from businesses, 1982). remains a source of empowerment for lawyers, financial consultants, agencies, and organizations such as empowerment for the 5. Kadish v. Arizona State Land Dep’t, 747 P.2d the people to invalidate the status quo 1183, 1186 (Ariz. 1987), aff’d, 490 U.S. 605 ENR Oceans Coasts and Watersheds and recycling experts based in the Portland General Electric, the U.S. that favors private economic interests people to invalidate the (1989). Project (OCWP) fellows working on Netherlands who are working on Department of Energy, PacifiCorp, the over public interests in natural 6. Geer v. Conn., 161 U.S. 519, 529 (1896). the Willamette Water 2100 (WW2100) a project known as “The Ocean California Public Utilities Commission, resources. The future of the public trust status quo that favors 7. In re Water Use Permit Applications, 9 P.3d project led by Associate Professor Cleanup.” The Ocean Cleanup seeks AES Energy Storage, the Federal 409, 450 (Haw. 2000). will inevitably be characterized by a Adell Amos were chosen to present to clean up the “Great Pacific Garbage Energy Regulatory Commission, the private economic interests 8. Id. at 451. catalytic restoration of the status of the 9. Id. at 452. their findings to the University Patch” by creating an economically Bonneville Power Administration, 30 people as “citizens rather than serfs.” over public interests in 10. Robinson Twp. v. Cmw., 83 A.3d 901, of Oregon Board of Trustees. The feasible and scalable device, similar and the Clean Energy States Alliance. 978–79 (Pa. 2013). to a floating barrier or platform, that The purpose of the conference was to Rance Shaw is a rising second-year presentation was such a success that student at the University of Oregon natural resources. 11. Id. at 978. the students were asked to present would passively collect plastic debris bring the industry’s highest officials School of Law. During his first year, 12. Ariz. Ctr. for Law in the Pub. Interest v. again a month later to the School floating just beneath the surface together to brainstorm solutions to Hassell, 837 P.2d 158, 169 (Ariz. Ct. App. 1991) Rance served as a dean’s distinguished of Law Dean’s Advisory Council at and store it for later collection and energy storage problems in Oregon 13. Ltr. from Thomas Jefferson to John Taylor (May environmental law fellow on the 28, 1816), in Social and Political Philosophy: the White Stag Block in Portland, recycling. For their part, Rebecca, and the nation. ENR law students Environmental and Natural Resources Notes Readings from Plato to Gandhi 251, 252 (John Oregon. Funded by the National Adam, and Jill researched and drafted played a critical role in the conference Law Center’s Conservation Trust Somerville & Ronald E. Santoni eds., 1963) 1. Cf. Ill. Cent. R.R. Co. v. Ill., 146 U.S. 387, 453 Science Foundation, WW2100 is an a legal analysis of likely by-catch by working with Oregon Department 14. Mary Christina Wood, Nature’s Trust: Project. He will continue his work with (1892) (declaring that the State has an inalienable issues the project would face under of Energy and Oregon Public Utility Environmental Law for a New Ecological Age interdisciplinary collaboration among the project next year as a Bowerman duty to protect “property in which the whole 170 (2014). the University of Oregon, Oregon international maritime laws. You Commission representatives and fellow. Rance was also recently selected people are interested”). 15. See generally Nat’l Audubon Soc’y, 658 P.2d State University, and Portland State can learn more about the Ocean select industry leaders to research to serve as the 2014–15 treasurer for 2. See San Carlos Apache Tribe v. Super. Ct. at 719. University examining hydrological, Cleanup at www.theoceancleanup. and summarize six of the most the student group Land Air Water. ex rel. Maricopa Cnty., 972 P.2d 179, 199 (Ariz. 16. See Ill. Cent. R.R. Co., 146 U.S. at 455. ecological, and human impacts to com and watch the project’s 2012 pressing issues surrounding energy 17. Raleigh Ave. Beach Ass’n v. Atlantis Beach TEDX Talk at tedxtalks.ted.com/video/ Club, Inc., 879 A.2d 112, 121 (N.J. 2005) water availability in the Willamette (quoting Matthews v. Bay Head Improvement River Basin. How-the-oceans-can-clean-them-2. continued on page 4 Ass’n, 471 A.2d 355, 365 (N.J. 1984)). 18. See Intergovernmental Panel on Climate Change, Climate Change 2014: Impacts, Adaptation, and Vulnerability: Summary for Policymakers 2 (2014). 19. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). 20. Kootenai Envtl. Alliance, 671 P.2d at 1092. 21. Kadish v. Ariz. State Land Dep’t, 747 P.2d 1183, 1186 (1987), aff’d, 490 U.S. 605 (1989). 22. U.S. v. White Mountain Apache Tribe, 537 U.S. 465, 475 (2003). 23. In re Water Use Permit Applications, 9 P.3d at 455. 24. Kootenai Envtl. Alliance, 671 P.2d at 1092. 25. See Nat’l Audubon Soc’y, 658 P.2d at 719. 26. Id. 27. See e.g.: In re Complaint of Steuart Transp. Co., 495 F. Supp. 38, 40 (E.D. Va. 1980) (state and federal duty to protect and preserve wildlife); In re Water Use Permit Applications, 9 P.3d at 447 ( protected by the trust not limited to ). 28. Alec L. v. Jackson, 863 F. Supp. 2d 11, 13-14 (D.D.C. 2012). 29. In re Water Use Permit Applications, 9 P.3d at 488. 30. Joseph L. Sax, The Public Trust Doctrine The WW2100 presentation to the Dean’s Advisory Council at the White Stag Block in Portland. From left to right: Emily Johnson, ENR in Natural Resource Law: Effective Judicial program manager; Heather Brinton, ENR managing director; Adell Amos, OCWP faculty lead professor; Adam Walters, third-year law

THOR’S WELL, OREGON COAST Intervention, 68 Mich. L. Rev. 471, 484 (1970). student; Michael Moffitt, dean; Margaret Townsend, third-year law student; Kristina Schmunk Kraaz, third-year law student. 4 5 ENGAGING THE LAW TO SUPPORT SUSTAINABILITY ON EARTH SPRING 2014 ENVIRONMENTAL AND NATURAL RESOURCES LAW AT THE UNIVERSITY OF OREGON

ENR Fellows Reach Beyond the Classroom

continued from page 3 Because of his strong interests in Tori Wilder grew up and attended storage: 1) prioritizing energy storage water and law, Eric was a college in Fredericksburg, Virginia, applications; 2) creating energy natural fit for the OCWP team. Since where she studied philosophy storage values; 3) developing support moving to Oregon and starting at the and developed a strong interest in tools for energy storage; 4) building School of Law, Eric has been involved environmental ethics. Her passion for demonstration projects; 5) creating in projects and issues concerning the sustainability brought her to Oregon, seamless integration into utility native trout and salmon populations where she plans to use her law degree systems; and 6) navigating financial of the Pacific Northwest. Being a as a tool for environmental protection. mechanisms and tax policy. Following fellow has not only allowed Eric to the conference, law students published Jill Randolph focus on his passion for water and summaries of their respective , but also to make many roundtable discussions focusing on connections with Pacific Northwest on natural resources law in her solutions for the future specific to professionals he postgraduate career. The Willamette Oregon’s geographic, political, legal, would not have made otherwise. Water 2100 project intrigued her, and economic environments. These Through work with PIELC and by and meeting water law professor summaries are now available at www. helping to organize the film showing From left to right: Lee Ewing, third-year law student, Rebecca Rushton, third-year law and associate dean, Adell Amos, at oregon.gov/energy/pages/energy- student, Will Carlon, second-year law student, Kaylie Klein, third-year law student, and for Wild Reverence—a film by Pacific an admitted student day ignited her storage-workshop.aspx. Jordan Bailey, second-year law student, assist Oregon Energy Storage Conference attendees. Northwest fisherman and filmmaker passion for water law. Being able to Shane Anderson that focuses on work with second- and third-year Tori Wilder the plight of the steelhead on the law students as they worked on more 2013–14 First-Year Fellows Spotlight West Coast—Eric was able to make substantial research was another connections with biologists, ecologists, As an OCWP fellow, Tori reason Jill was drawn to the fellows Each year, first-year law students are given the opportunity to serve as As a member of the Conservation and members of the Oregon Department participated in project meetings and program, as she knew she could ENR fellows under the Dean’s Distinguished Environmental Law Fellowship Trust Project, Rance has worked of Fish and Wildlife on his specific area attended the Heceta Head Coastal progress academically by meeting and the Chapin Clark Fellowship. This year ENR welcomed four first-year closely with Professor Mary Wood in of interest, native fish conservation. Conference, a partnership with fellows: Rance Shaw, Jill Randolph, Eric Trotta, and Tori Wilder. Rance efforts related to her book Nature’s these students, interacting with them, Oregon Sea Grant. In addition, she Shaw joined the Conservation Trust Project, which focuses on public Trust: Environmental Law for a New and building off of their work. As a helped with ENR Center events and trust theory and private property tools to achieve conservation. Ecological Age. He has also worked member of the Oceans, Coasts, and volunteered at the 2014 Public Interest Jill Randolph, Eric Trotta, and Tori Wilder joined the Oceans Coasts and with other fellows and research Watersheds Project (OCWP), Jill has Environmental Law Conference. Watersheds Project, exploring urgent issues in both marine and freshwater associate Jared Margolis to find cases participated in a number of ENR PIELC was the highlight of her year environments. and statutes for use in a forthcoming special events and provided legal because she had the opportunity white paper on the public trust research and writing expertise for an to saturate herself in diverse ideas, Rance Shaw earned his bachelor of doctrine. international ocean cleanup project. perspectives, and causes from across science in chemistry with an American This summer, Rance will be She also served as a volunteer for this the environmental movement. A Chemical Society–certified emphasis working at Cascadia Wildlands on year’s Public Interest Environmental few of the issues she learned about in biochemistry from Boise State their Big Wildlife campaign. Law Conference (PIELC). at the conference include rights to University. This summer, Jill hopes to work as access justice, the global climate Rance was excited to become Jill Randolph was born and raised in an in-house intern at an organization convergence, criminal enforcement of an ENR fellow because he desired Boise, Idaho. She graduated from the focusing on environmental and natural environmental law, and environmental firsthand experience in environmental University of Idaho, earning a degree resources law. civil disobedience and resistance. law, and because of the wonderful in international relations with a focus Looking back on the year, Tori is culture and community that the ENR on Western Europe. While she was Eric Trotta was born and raised in grateful for how her fellowship kept Center provides. Being a fellow has growing up, her father worked for Fort Lauderdale, Florida, and recently her connected with her fundamental allowed Rance to immediately learn Idaho Power as head of environmental graduated from the University of motivation for coming to law school— Eric Trotta about the topics that brought him to affairs, so Jill often heard about water Florida with a degree in English. Eric learning more about environmental law school. issues and how local, state, federal, developed an intense love for water protection issues. and tribal leadership interacted with by fishing in lakes near his home and This summer, Eric will work with This summer, Tori will be working “Being an ENR fellow has each other on the subject. This was diving the coral reefs of south Florida. the Fisheries Law Centre based in as a legal intern at Environmental provided me a great source of a key component in fostering Jill’s He was drawn to water law after an Vancouver, Canada. He will focus on Law Alliance Worldwide in Eugene, motivation during the times when current interest in natural resources intense drought caused the world- a joint project with Legal Atlas that where she will support attorneys and I’m swamped with criminal law, law. class bass fishing lakes surrounding will involve compiling and analyzing activists across the world working for constitutional law, appellate briefs, Jill became an ENR fellow because Gainesville to nearly disappear during relevant fisheries laws in the United community rights and environmental and oral argument.” Rance Shaw she knew she wanted to focus his time as an undergraduate. States. justice. 66 7 ENGAGING THE LAW TO SUPPORT Sustainability ON EARTH

UNIVERSITY OF OREGON ENVIRONMENTAL AND NATURAL RESOURCES LAW CENTER

Spring 2014 Vol. 14 No. 1

Mary Wood, Faculty Director [email protected] Heather Brinton, Managing Director [email protected] Emily Johnson, Program Manager [email protected] enr.uoregon.edu Highlights [email protected] 541-346-1395 1 The Revival of the Public Trust in Environmental Law Follow us on Facebook and Twitter 5 ENR Fellows Reach Beyond the Classroom 6 First-Year Fellows Spotlight facebook.com/UO.ENR.Program

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