Michigan Journal of Environmental & Administrative Law Volume 5 Issue 1 2015 Public Trust Doctrine Implications of Electricity Production Lance Noel University of Delaware, [email protected] Jeremy Firestone University of Delaware, [email protected] Follow this and additional works at: https://repository.law.umich.edu/mjeal Part of the Energy and Utilities Law Commons, Natural Resources Law Commons, Property Law and Real Estate Commons, and the Public Law and Legal Theory Commons Recommended Citation Lance Noel & Jeremy Firestone, Public Trust Doctrine Implications of Electricity Production, 5 MICH. J. ENVTL. & ADMIN. L. 169 (2015). Available at: https://repository.law.umich.edu/mjeal/vol5/iss1/4 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Environmental & Administrative Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. \\jciprod01\productn\M\MEA\5-1\MEA104.txt unknown Seq: 1 4-JAN-16 9:52 PUBLIC TRUST DOCTRINE IMPLICATIONS OF ELECTRICITY PRODUCTION Lance Noel* & Jeremy Firestone** ABSTRACT The public trust doctrine is a powerful legal tool in property law that re- quires the sovereign, as a trustee, to protect and manage natural resources. His- torically, the public trust doctrine has been used in relationship to navigable waterways and wildlife management. Despite electricity production’s impact on those two areas and the comparatively smaller impacts of renewable energy, elec- tricity production has garnered very little public trust doctrine attention. This Article examines how electricity production implicates the public trust doctrine, primarily through the lens of four states—California, Wisconsin, Ha- waii, and New Jersey—and how it would potentially apply to each state’s electric- ity planning and policies. As illustrated in the four case studies, the public trust doctrine can serve the following four purposes: (1) as a tool for citizens to force states to act on renewable electricity development; (2) as a legal defense for states to validate actions encouraging renewable electricity development; (3) as a means for courts to more closely scrutinize electricity decisions made by the state; and (4) as an opportunity for state agencies to supplement and guide imperfect statutes. Together, these four purposes of the public trust can ensure reasonable and timely development of renewable electricity as well as sufficient protection of trust resources. TABLE OF CONTENTS INTRODUCTION .................................................. 170 R I. APPLICATIONS OF THE PUBLIC TRUST DOCTRINE TO ELECTRICITY PRODUCTION ............................................. 171 R II. EVOLUTION OF THE PUBLIC TRUST DOCTRINE ................... 175 R A. Substance of the Public Trust Doctrine .................. 175 R B. History of the Public Trust Doctrine .................... 176 R III. THE SCOPE OF THE PUBLIC TRUST DOCTRINE AND ELECTRICITY PRODUCTION ............................................. 179 R A. State Waters ........................................ 180 R B. State Wildlife Resources............................... 183 R * PhD Candidate, Center for Carbon-Free Integration, University of Delaware. Email: [email protected]. The author would like to thank Professor Benjamin Sovacool and Professor Hope Babcock for their helpful comments and feedback. The author also gratefully acknowledges the support received from the Magers Family Fund. ** Professor of Marine Policy and Legal Studies, Director, Center for Carbon-Free Power Integration, University of Delaware. 169 \\jciprod01\productn\M\MEA\5-1\MEA104.txt unknown Seq: 2 4-JAN-16 9:52 170 Michigan Journal of Environmental & Administrative Law [Vol. 5:1 C. Federal Waters and Wildlife Resources .................. 188 R IV. ELECTRICITY PRODUCTION AND THE ENVIRONMENT .............. 191 R A. Water Ecosystem Impacts ............................. 192 R B. Wildlife Mortality ................................... 194 R C. Climate Change ..................................... 200 R D. Environmental Impacts Synthesis ....................... 202 R V. STATE CASE STUDIES ..................................... 202 R A. California .......................................... 203 R 1. Current Electricity System ...................... 203 R 2. Public Trust Doctrine in California .............. 203 R 3. Overview of Current California Electricity Laws . 207 R 4. Applications of the Public Trust Doctrine in California ..................................... 209 R a. Using the Public Trust Doctrine to Defend Environmental Initiatives Already Underway . 209 R b. Using the Public Trust Doctrine to Incentivize Future Renewable Energy ................... 210 R B. Wisconsin .......................................... 212 R 1. Current Electricity System ...................... 212 R 2. Public Trust Doctrine in Wisconsin .............. 213 R 3. Overview of Current Wisconsin Electricity Laws . 219 R 4. Applications of the Public Trust Doctrine in Wisconsin ..................................... 221 R C. Hawaii ............................................ 228 R 1. Current Electricity System ...................... 228 R 2. Public Trust Doctrine in Hawaii ................. 229 R 3. Overview of Current Hawaii Electricity Laws ..... 234 R 4. Applications of the Public Trust Doctrine in Hawaii ........................................ 236 R D. New Jersey ......................................... 240 R 1. Current Electricity System ...................... 240 R 2. Public Trust Doctrine in New Jersey ............. 240 R 3. Overview of Current New Jersey Electricity Laws . 244 R 4. Applications of the Public Trust Doctrine in New Jersey ......................................... 246 R DISCUSSION AND CONCLUSION ..................................... 250 R INTRODUCTION The public trust doctrine is a key aspect of property law that places natural resources in the hands of the sovereign, which holds such resources in trust on behalf of the public. As trustees, states have a fiduciary duty to conserve and maintain natural resources for future generations. The doc- trine is a unique mechanism for environmental protection that both burdens \\jciprod01\productn\M\MEA\5-1\MEA104.txt unknown Seq: 3 4-JAN-16 9:52 Fall 2015] Public Trust Doctrine Implications of Electricity Production 171 and empowers states to regulate these resources. Originally, the public trust doctrine was used to guarantee public title to submerged lands, but has since evolved to require states to properly manage and allocate natural re- sources, such as water and wildlife, in accordance with the public interest. While electricity production does not implicate title to submerged lands, it clearly affects water and wildlife resources. Electricity production has a large impact on the environment and on public trust resources. While all types of electricity production damage the environment, conventional electricity, including coal, nuclear, and natural gas generation, has had a particularly large impact compared to renewable electricity, particularly solar and wind. Despite the environmental benefits of renewable energy, the shift from conventional electricity to the more environmentally benign renewable electricity has been slow and uneven. This Article explores the application of the public trust doctrine to elec- tricity production and considers how utilizing this theory might further in- centivize state action promoting renewable energy implementation. We propose that applying the public trust doctrine on a state-by-state basis to protect water and wildlife resources impacted by electricity production presents a stronger legal argument than previous attempts to apply the pub- lic trust doctrine directly to climate change and electricity production. The Article focuses on how the public trust doctrine could be opera- tionalized in the context of electricity production in four states: California, Wisconsin, Hawaii, and New Jersey. First, we provide an overview of the Article’s central argument. Then, we offer a general history of the public trust doctrine and a brief overview of the environmental impacts of electric- ity production. Finally, after presenting the four state case studies, the Arti- cle concludes by examining the broader role the public trust doctrine can play for citizens, courts, and state agencies in safeguarding natural resources from the harmful effects of electricity production. I. APPLICATIONS OF THE PUBLIC TRUST DOCTRINE TO ELECTRICITY PRODUCTION As discussed below, electricity production has clear impacts on public trust resources, such as water and wildlife.1 Furthermore, it is evident that trustees, including states and potentially the federal government, have du- ties under the public trust doctrine that directly apply to the generation of electricity. Electricity production impacts do not concern questions of ti- tle—they only concern usufructuary rights subject to the public trust doc- 1. See infra Part IV. \\jciprod01\productn\M\MEA\5-1\MEA104.txt unknown Seq: 4 4-JAN-16 9:52 172 Michigan Journal of Environmental & Administrative Law [Vol. 5:1 trine.2 Thus, in applying the doctrine, the question is whether the “use” of water and wildlife is acceptable within the parameters of the public trust doctrine according to the public interest, not whether the sovereign owner- ship of these resources is being infringed upon.3 In