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George Washington Journal of Energy & Environmental George Washington Journal of Energy & Environmental Law Articles Harry J. Wruck, T e Time Has Arrived for a Canadian Public Trust Doctrine Based Upon the Unwritten Constitution Nicholas A. Robinson, T e Public Trust Doctrine in the 21st Century Aja Espinosa, In the Eye of a Hurricane Tere Is Quiet: Puerto Rico’s Fight for Aid After Hurricane Maria Eashaa D. Parekh, Te Suniva Petition: Te Economic Efects of Section 201 Safeguards on Crystalline Silicon Photovoltaic Cells Winter 2020 Volume 10 No. 2 The George Washington Journal of Energy and Environmental Law BOARD OF EDITORS 2019–2020 NEAL M. ANDERSON Editor-in-Chief MATTHEW DEGIOIA Senior Managing Editor MAGDALENA FILIPIUK MARGARET G. CZEPIEL HANNAH C. COLE Senior Production Editor Senior Notes Editor Senior Articles Editor ZUBIN CHADHA MALIE ERBERGER EVAN D. HUNT E G. H JOSEPH P. DIBELLA EDWARD E.A. MAHABIR Managing Editors NOA ERVIN JARRYD C. PAGE Articles Editors ANNE F. GARVIN Notes Editors Senior Projects Editor ASSOCIATES LINDEN J. ABSTON ANDREA TERESA FERNANDEZ-BRAVO MIA POLO JAMES J. BARTHOLOMEW BLAKE E. GROW ALLAN H. SAKAUE DAVID Z. BEISS CARLEE HAINES MEG SCHUMM W. LYDELL BENSON, JR. HANNAH E. LEVINE MEILEN TEKLEMICHAEL STEVEN G. BOUGHTON KATHERINE M. LYNN EMMA TIMAN BIANCA C. BURNS AMANDA MCAREE WILLIAM A. WEITZEL OLIVIA S. CHAP L. PORTER MCHENRY III RONGWEI XIE AMARA M. CONTEH SEAN M. OSSI LIJUAN ZHANG REED A. EHRHARDT NICHOLAS PEARSON MEMBERS TESS ANDREW HAYLEY F. HEATH MATTHEW OBEID MOLLY E. BEHAN SARAH A. HUSK DEVIN PATRICK O’CONNELL ALEXANDER BEYRENT LAUREN E. JOHNSTONE SEAN P. O’NEILL MICHAEL F. BILLOTTI MOLLY C. JONES BENJAMIN D. PASSEY AUDREY CARROLL MARLEY R. KIMELMAN REBECCA A. RINGLER MATTHEW CLINTON HELEN MITSUKO MARSH WILMA P. RODRIGUEZ ANDREW F. COSTELLO LAURA MARIE MARTIN KATHERINE E. SARGENT EMILY N. DONAHOE AINSLEY K. MCNERNEY TIMOTHY P. SCANLAN, JR. VIOLET N.D. EDELMAN GEORGE A. MENOLD DANNI L. SHANEL JAMES C. FRANCO LESLEY MORTON AUSTIN RAY KABBAZ SZABO JEREMY A. FREIMAN SAXON F. NELSON DINA N. TRUNCALI JOSEPH A. GROSSMAN ALAN NEUHAUSER ANNEMARIE E. WAMSTED GUOYAO HAN ELLIS TRUEMAN NOTTINGHAM BERNARD ZAMANINIA DEAN LIN HARMON-WALKER, Faculty Advisor ACHINTHI VITHANAGE, Environmental Law Fellow George Washington Journal of Energy & Environmental Law WINTER 2020 CONTENTS VOL. 10 NO. 2 Article Harry J. Wruck, Te Time Has Arrived for a Canadian Public Trust Doctrine Based Upon the Unwritten Constitution ................................... 67 Perspective Piece Nicholas A. Robinson, Te Public Trust Doctrine in the 21st Century . 83 Notes Aja Espinosa, In the Eye of a Hurricane Tere Is Quiet: Puerto Rico’s Fight for Aid After Hurricane Maria ................................................. 91 Eashaa D. Parekh, Te Suniva Petition: Te Economic Efects of Section 201 Safeguards on Crystalline Silicon Photovoltaic Cells ......................... 105 Cover photo courtesy of Te George Washington University Law School. Copyright © 2020 Environmental Law Institute® and Te George Washington University Law School. All rights reserved. ELR®, Environmental Law Reporter®, and the Environmental Law Institute® are registered trademarks of the Environmental Law Institute. Te George Washington Journal of Energy & Environmental Law is published triannually. General inquiries may be sent to the George Washington Journal of Energy & Environmental Law; 2028 G Street, NW, Suite LLC-023; Washington, DC 20052. Tird-class postage paid at Washington, D.C. POSTMASTER: Send address changes to: George Washington Journal of Energy & Environmental Law, 1730 M Street, NW, Suite 700, Washington, DC 20036. ARTICLE The Time Has Arrived for a Canadian Public Trust Doctrine Based Upon the Unwritten Constitution Harry J. Wruck, QC* “Te welfare of the people is the supreme law of the land.”1 Tis Article sets out two approaches for developing a pub- lic trust argument in the context of a climate change case: (1) the public trust is grounded in the common law; and he specter of climate change and its catastrophic (2) the public trust is an underlying, unwritten constitu- impacts upon the environment is a cri de coeur tional principle. While recognition of a common-law public in Canada for recognition of a public trust doc- trust would be a signifcant step in climate change litigation, Ttrine and the securing of that doctrine by the unwritten recognition of a public trust as an underlying constitutional constitutional principles entrenching it. Accordingly, the principle would be much more signifcant. Tis is because unwritten constitution is critical in protecting the public a common-law public trust could be overridden by statute, trust doctrine, which, in Canada, arises from the social while a public trust that is recognized as part of the unwrit- contract between government and its people under the ten constitution would be extremely difcult, if not impos- inherent rights theory. sible, for the government to override. In Part I, below, the nature of the public trust, its his- Introduction1 torical origins and common-law development, and its current status in Canada are examined. In addition, American and international public trust jurisprudence is reviewed. Based Te public trust is a well-developed doctrine in various juris- upon this analysis, it is concluded that the public trust would dictions, including the United States, India, the Philippines, be a viable cause of action in climate change litigation. As and Pakistan. In Canada, however, its development has been a consequence, there is a reasonable chance of success in slow and unwieldy, and even today it is unclear whether and establishing the existence of a common-law public trust over to what extent the public trust exists. Having said that, there essential natural resources, including the atmosphere, and is no doubt that Canadian jurisprudence has been moving in the breach of the public trust by the actions and inactions of the direction of recognizing the existence of the public trust. the Canadian federal government. It may well be that litigation based upon climate change will In Part II, the jurisprudence establishing the existence in be the impetus for the courts to raise this unruly child into Canada of underlying, unwritten constitutional principles is a mature adult and allow an action based on the public trust examined. Tis analysis, in conjunction with social contract doctrine as an unwritten principle of the Constitution. and inherent rights theories, leads to the conclusion that the public trust is an underlying constitutional principle embed- * Harry J. Wruck, QC, is Counsel with Ecojustice and formerly Senior ded in the written constitution. General Counsel with the Canadian Federal Department of Justice. Te author would like to acknowledge the able research and editorial A Note on Jurisdiction Over Greenhouse Gas Emissions assistance provided by Alex Semple and Kate Gotziaman in the in Canada preparation of this article, without which he could not have completed this work. In Canada, jurisdiction over the environment is divided between the federal and provincial governments under the 1. Marcus Tullius Cicero, De Legibus bk. III, pt. III, subsec. VIII (1852). Canadian Constitution. As the Supreme Court of Canada Winter 2020 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW 67 68 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 2 held in Friends of Oldman River Society v. Canada (Minis- I. The Common-Law Public Trust ter of Transport),2 jurisdiction over the environment is not the exclusive preserve of one level of government over the other.3 Having said that, it remains clear that the federal A. The Nature of the Public Trust government has primary jurisdiction over greenhouse gas (“GHG”) emissions.4 Te public trust doctrine is, in essence, a legal mechanism Te federal government has taken a number of actions that that can be used to require governments to hold and protect have facilitated GHG emissions. Tis includes creating fos- vital natural resources for the beneft of present and future sil fuel subsidies, fossil fuel extraction in the provinces with generations. It is a procedural safeguard for public rights federal approvals, GHG emissions from electricity genera- to natural resources: it requires that government take these tion, fossil fuel exports, extractions of fossil fuels on federal, public rights into account in decisionmaking and prohibits ofshore, or territorial lands, regulation of GHGs from fossil government from substantially impairing them. Te doctrine fuels in the transportation sector, import and export of elec- asserts that governments have an inherent fduciary obliga- tricity, the federal government’s consumption of fossil fuels, tion to ensure the continuous availability of resources that and the transportation of fossil fuels. As a consequence, the are essential to the well-being and survival of current and basis of any action against the federal government in Canada future citizens. would need to be framed in a manner similar to the Juliana Prof. Mary Wood of the University of Oregon School v. United States5 litigation where the plaintifs targeted the of Law defnes the doctrine as requiring “government[s] United States federal government for a broad suite of actions to hold vital natural resources in trust for public benef- causing and exacerbating climate change. ciaries, both present and future generations . .”10 In this Given that climate change is the most serious challenge way, as Wood notes, the “doctrine gives force to the plain facing the planet, it is time for climate change action to be expectation, central to the purpose of organized govern- brought in Canada. Tis is underscored by the fact that ment, that natural resources essential for survival and wel- Canada is responsible for a disproportionate share of global fare remain abundant, justly distributed, and bequeathed GHG emissions. Te Canadian government has accepted to future generations . .”11 the global scientifc consensus that the earth is warming It is worth noting that the concept of the public trust is because of anthropomorphic GHG emissions, and the need diferent from the conventional trust.
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