1. Causes of Action
C. Tort Law: v Impairment of Public Trust Resources
1. OVERVIEW
The impairment of public trust resources is grounded in the public trust doctrine, the essence of which is that the government has a duty to manage and use natural resources in the public interest. Or in other words, the government holds certain resources in trust for the benefit of the public. Consequently, the government has a fiduciary obligation to protect natural resources, including from impairment by corporate activity. Where the government fails in its duty, the public has recourse to the courts to compel action.
The public trust doctrine has ancient origins and was understood in Roman law to mean that the air, running water and the sea were the common property of mankind (or res communes).[1] The doctrine had been introduced into English law as early as the 13th Century, as recorded by Henry de Bracton 'by natural law these are common to all: running water, air, the sea, and the shores of the sea ... No one therefore is forbidden access to the seashore ... All rivers and ports are public, so that the right to fish therein is common to all persons'.[2] The earliest recorded case law dates back to 1299.[3]
From England, the doctrine spread across the British Empire. Over the last 200 years, the doctrine has been particularly relied upon and developed in the United States and, more recently, India and the Philippines. Historically, the doctrine has been limited in scope to the protection of the public's rights to access and use navigable waters and adjacent lands for fishing, commerce and navigation. Of most relevance to the present research is the expansion of the scope of the public trust doctrine in a number of jurisdictions to an understanding that a purpose of the public trust doctrine is to protect the environment (see e.g. National Audubon Society v Superior Court (1983) 33 Cal.3d 419) and, in more recent litigation, to protect natural resources from the effects of climate change (see e.g. Juliana v United States (2016 and 2023)).[4] In addition to expansion through the courts, some jurisdictions have enshrined more expansive conceptions of the public trust doctrine in constitutional and statutory provisions (see e.g. Article XI, Section 1 of the Constitution of Hawai'i, which mandates that the State must protect all natural resources, including land, water, air, minerals and energy sources).
Many of the jurisdictions surveyed do not recognise the impairment of public trust resources as a cause of action (e.g. Germany, Japan, Netherlands, Nigeria), though it is noted that in such jurisdictions public regulation of resources like air and water may form the basis of claims that pursue similar objectives.[5] Moreover, some scholars argue that the doctrine is implicit in constitutional environmental protections in many countries that do not explicitly recognise the doctrine.[6] While further consideration is beyond the scope of the present research, it seems at least arguable that, in some States, analogous claims could be rought even if 'impairment of public trust resources' per se is not an explicitly recognised cause of action.
In other jurisdictions, such as Canada and the United Kingdom, the public trust doctrine has deep roots as a common law cause of action, but this has seldom been invoked in modern times and the prospects of using this cause of action in corporate climate litigation are uncertain.[7]
Over the last 200 years, the public trust doctrine has been much more commonly invoked and developed in United States' case law, but the scope of the doctrine varies among US states and thus far impairment of public trust resources has been of limited effect in climate litigation (note, however, that there has recently been one successful merits trial decision in which the public trust doctrine was applied to the atmosphere and climate: Held v Montana; also the federal district court in Oregon has refused to dismiss climate-based public trust claims in Juliana v United States). In more recent years, as already noted, India and the Philippines have also seen significant public trust jurisprudence.
This comparative legal research explores established legal avenues for utilising the impairment of trust resources as a cause of action in the case study countries, as well as the hurdles and challenges that might be encountered by litigants attempting to utilise this cause of action in corporate climate litigation. It also highlights potential legal avenues in future litigation.
1. Established Legal Avenues from Past Litigation
Effective use of the public trust doctrine in corporate climate litigation is limited. However, avenues that have been used to invoke the doctrine in other contexts might apply in corporate climate litigation. Three key bases have been relied upon (often in tandem) to effectively support the application of the public trust doctrine, including in climate-related litigation (see e.g. Juliana v United States): A. constitutional provisions that expressly or implicitly incorporate the doctrine; B. the ancient natural law roots of the doctrine; C. the doctrine's common law origins.
A. Constitutional Law
In a number of States, there are constitutional and legislative provisions that provide a basis for invoking the public trust doctrine (e.g. the constitutions of some US states, such as Hawai'i, expressly provide for the doctrine). It is widely recognised that codification and entrenchment of the public trust doctrine, particularly in constitutions, makes a jurisdiction a more 'hospitable' venue for public trust litigation and, depending on the wording adopted, can provide a useful hook on which courts can expand the scope of the doctrine to cover a wide range of natural resources and interests, even extending the doctrine to the protection of the atmosphere and climate system (see Held v Montana).[8]
The lack of a constitutional provision explicitly enshrining the public trust doctrine does not preclude the use of the doctrine, however. Even absent a constitutional provision expressly referring to public trust, it may be argued that the doctrine is implicit in constitutional provisions providing for the right to a healthy environment and the right to life (see e.g. MI Builders Private Ltd v Radhey Shayam Sahu in which the Supreme Court agreed that 'This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution [right to life].').
B. Natural Law
Even more fundamentally, courts and legal scholars have repeatedly recognised a natural law basis for the public trust doctrine that both pre-dates and inheres within constitutional frameworks (see e.g. Mehta v Kamal Nath 'The State is the trustee of all natural resources which are by nature meant for public use and enjoyment.' See also Metropolitan Manila Development Authority v Concerned Residents of Manila Bay concerning the failure of government agencies to prevent pollution, in which the Supreme Court explained that 'the right to healthy ecology need not even be written in the Constitution for it is assumed ... to exist from the inception of mankind ... Even assuming the absence of a categorical legal provision specifically prodding petitioners to clean up the bay, they ... cannot escape their obligation to future generations of Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of the trust reposed in them.'). Moreover, the doctrine has often been recognised as an 'inherent attribute of sovereignty' (see e.g. Juliana v United States) and a defining feature of democratic government.[9]
C. Common Law
Even absent constitutional provisions, the doctrine has developed through the common law in numerous jurisdictions, which has expanded its scope in response to the evolving needs of society.[10] For example, the constitution of California has no explicit public trust language, yet the courts of that state have elaborated 'one of the most robust public trust doctrines in the United States' (see e.g. National Audubon Society v Superior Court).[11] As the New Jersey Supreme Court stated, 'Archaic judicial responses are not an answer to a modern social problem. Rather, we perceive the public trust doctrine not to be "fixed or static", but one to be "molded and extended to meet changing conditions and needs of the public it was created to benefit' (Matthews v Bay Head Improvement Association . Thus, it is well-established that the doctrine can be applied to novel situations. A key example of this is Juliana v United States, where the federal district court in Oregon refused to dismiss a claim brought by youth claimants that the federal government's fossil fuel policies violated the public trust doctrine due to the deleterious effects of climate change on natural resources.
2. Hurdles and Challenges
In several jurisdictions, particularly civil law systems, there is simply no concept of resources being held 'in trust' and thus impairment of public trust resources is not recognised as a valid cause of action (see e.g. Germany). However, it is important to note that there is much support in public trust literature and case law for the proposition that the core principles of the public trust doctrine - namely that the State holds natural resources in a fiduciary capacity on behalf of the people - are 'fundamental to democracy' and 'germane to any nation governed by the people'. As stated above, the doctrine may be implicit in constitutional and statutory provisions in many jurisdictions. Thus, it may be that analogous claims can be made, even if the framing and nomenclature are different.[12]
In other jurisdictions (Canada and the UK), there have been few cases in recent decades where courts have considered the public trust doctrine, and its application in climate litigation - indeed in environmental litigation generally - seems uncertain.[13] However, this does not mean use of the public trust doctrine is impossible (see e.g. the Canfor case, in which the Supreme Court of Canada opened the door to potential application of the doctrine in future environmental and climate-related claims).
Even in jurisdictions, such as the United States, where the public trust doctrine is firmly established, a key challenge is expanding the scope of the doctrine - which has traditionally focused on water-related resources in connection with public interests in fishing, commerce and navigation - in order to encompass a wider range of natural resources and the interests of environmental protection and preventing climate change.[14]
A final potential drawback of this cause of action is that - as stated below in Section 3 Relevant Definitions and Essential Elements - it is the government trustee that is positioned to bring litigation directly against corporations, including claims for damages, in order to protect and to restore public trust resources. Where the government trustee fails in its obligations to protect trust resources from damage by corporations, the public (including NGOs etc) may bring public trust litigation against the trustee to compel action through the courts.
3. Potential Legal Avenues in Future Litigation
Future corporate climate litigation based on impairment of public trust resources will build on the established avenues.
A recent trend identified in corporate climate litigation in the United States is the reliance on state constitutional protections. Where constitutions include public trust provisions, it is anticipated that these will be increasingly invoked. This has already been seen in the ongoing corporate climate litigation in Rhode Island v Shell Oil Products.
Another development in recent years, based on research by Mary Christina Wood, is 'atmospheric trust litigation' that attempts to expand the public trust doctrine to include the atmosphere, and thus the climate system, as a protected resource.[15]
In Canada, the public trust doctrine has seldom been invoked in modern times and its application to environmental claims has largely been rejected (see e.g. Burns Bog Conservation Society v Canada). However, future litigation might be able to use the Supreme Court's findings in Canfor to support application of the doctrine in climate-related claims.
It is possible that the public trust litigation could be revived in the UK, particularly if ongoing public trust litigation supported by the Good Law Project is successful (R (on the application of Marine Conservation Society, Richard Haward's Oysters (Mersea) Limited, Hugo Tagholm) v Secretary of State for the Environment, Food and Rural Affairs) .
[1] See TC Sandars, The Institutes of Justinian (1876) Book II, Title I, p 158: 'By the law of nature these things are common to mankind — the air, running water, the sea, and consequently the shores of the sea'.
[2] Bracton on the Laws and Customs of England (1968) vol 2, pp 39-40.
[3] This is the case of 'Juliana the Washerwoman', in which the claimant obtained a writ from the King to compel her neighbour to allow her access to a brook, the judgment stating that 'water had always been common'. See B Freedman and E Shirley, 'England and the Public Trust Doctrine' (2014) 8 Journal of Planning and Environmental Law 839, 848 (Annex). It is also noteworthy that a number of regulations were attached to the judgment ordering that the water could not be polluted, which might be considered the earliest piece of environmental legislation related to the use of water in Europe.
[4] The Juliana litigation is ongoing. See also the wide range of climate cases brought by Our Children's Trust
[6] See M Buffoni, 'Obbligazione climatica e tutela dell'affidamento: una proposta (Tribunale Amministrativo di Parigi, 29 giugno 2023)', Trusts, 2024, 72.; DL Callies and KL Smith, 'The Public Trust Doctrine: A United States and Comparative Analysis' (2020) 7(1) Journal of International and Comparative Law 41, 63; MC Blumm and RD Guthrie, 'Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision' (2012) 44 UC Davis Law Review 741. For example, Section 20 of the Constitution of Nigeria provides that 'The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria' and Section 17(2)(d) states that 'exploitation of human or natural resources in any form whatsoever for reasons, other than for the good of the community, shall be prevented'. These provisions arguably incorporate the public trust doctrine.
[7] With respect to the UK, see B Freedman and E Shirley, 'England and the Public Trust Doctrine' (2014) 8 Journal of Planning and Environmental Law 839, 840: 'Despite what some may argue ... courts do not overstep their bounds when they apply the PTD. Indeed, quite the opposite is true. PTD is both a constitutional and judicial doctrine and exists to hold governments accountable to the people for actions or inactions that may violate their Public Trust responsibility.'; as against S Goldberg and R Lord, 'England' in J Brunnee, S Goldberg, R Lord and L Rajamani (eds), Climate Change Liability: Transnational Law and Practice (CUP 2011) 478 'Whilst the English law of trusts is well developed, and there are statements in early cases which might support a general principle of public trust in appropriate circumstances, it is difficult to see this doctrine being of any practical significance in English law, especially where the statutory provisions of the CCA [Climate Change Act] are in place'. With respect to Canada, see the overview of conflicting academic opinion provided in DL Callies and KL Smith, 'The Public Trust Doctrine: A United States and Comparative Analysis' (2020) 7(1) Journal of International and Comparative Law 41, 59.
[8] A Muir, 'Trust Issues: Using States' Public Trust Doctrines to Advance Environmental Justice Claims' (2022) 46 William & Mary Environmental Law and Policy Review 707, 729-731.
[9] See, in particular, G Torres and N Bellinger, 'The Public Trust: The Law's DNA' (2014) 4 Wake Forest Journal Of Law & Policy 281, 283: 'Governmental inaction, and inadequate action, on climate change directly contravenes one of the most fundamental purposes of our government-facilitating the re-creation of ourselves, our institutions, and our civilizations. Admittedly, inquiring about the purpose of government will generate all manner of responses; however, one central purpose of government is to protect the essential natural resources that enable our society to function, evolve, and reproduce for future generations. This purpose is clearly articulated in the public trust doctrine, which imposes duties on government and instils certain inalienable rights in the people. The public trust doctrine constitutes the sovereign legal obligation that facilitates the reproduction and survival of our society; it is akin to legal DNA.'
[10] See MC Wood, 'Atmospheric Trust Litigation Across the World' in C Sampford, K Coghill and T Smith (eds), Fiduciary Duty and the Atmospheric Trust (Routledge 2012), discussing how 'Courts have recognized an increasing variety of assets held in public trust on the rationale that such assets are necessary to meet society's changing needs' and that in many US states, the doctrine 'has pushed beyond the original societal interests of fishing, navigation and commerce to protect modern concerns such as biodiversity, wildlife habitat, aesthetics, and recreation.'
[11] A Muir, 'Trust Issues: Using States' Public Trust Doctrines to Advance Environmental Justice Claims' (2022) 46 William & Mary Environmental Law and Policy Review 707, 726. See also, in the context of the protection of endangered species - A Treves and others, 'Predators and the Public Trust' (2017) Biol Rev Camb Philos Soc 248-270.
[12] See MC Wood, 'Atmospheric Trust Litigation Across the World' in C Sampford, K Coghill and T Smith (eds), Fiduciary Duty and the Atmospheric Trust (Routledge 2012) 115-116.
[13] See K Bouwer, 'Climate Change and the Individual in the United Kingdom' in MM Mbengue and F Sindico (eds), Climate Change Litigation - A Comparative Approach (Springer 2021) Section 2.3 'The prospects of atmospheric trust litigation in the UK have been considered, and there are mixed views as to the prospects. It seems unlikely however that the UK courts would entertain freestanding civil rights cases of this nature.'; University of Victoria, 'The Public Trust Doctrine in Canada'
[15] MC Wood, 'Atmospheric Trust Litigation Across the World' in C Sampford, K Coghill and T Smith (eds), Fiduciary Duty and the Atmospheric Trust (Routledge 2012). Wood argues that the atmosphere should be recognised as a public trust resource: 'The same principles that have informed all of the historic public trust cases apply with even greater force to the atmosphere ... Though conditions change with time, the basic task and the principles that guide courts remain constant. While air has not yet been the subject of trust litigation, modern courts have a solid legal rationale from which to draw in designating the atmosphere as a public trust asset.' Wood has since been heavily involved in bringing a series of atmospheric trust actions with the non-profit law firm Our Children's Trust.
[16] The application (together with the claim by Wildfish Conservation) was dismissed by Holgate J in September 2023 - [2023] EWHC 2285 (Admin). The public trust doctrine is addressed, briefly, at [247]-[255].
2 GRAPHIC SUMMARY
3. RELEVANT DEFINITIONS AND ESSENTIAL ELEMENTS
The core of the modern conception of the public trust doctrine, as has principally developed in case law and academic literature from the United States, is that the State (understood as local, state or federal government and agencies) acts as a trustee of crucial natural resources for the benefit of the public, including future generations.
Consequently, the State has a legal obligation to protect and preserve public trust resources from impairment, including a duty to take legal action against third parties that damage the trust resources. In addition to injunctive relief, where a third party has already damaged trust resources, there is ample support for the proposition that the State has a duty to seek damages (so-called natural resource damages) to restore the trust resources (see e.g. arguments raised in the Canadian Supreme Court Canfor case, where the federal government sought monetary damages for a large forest fire). In the climate context, the public trust doctrine may impose a duty on the State to seek damages from the fossil fuel industry.[17]
Where the State fails to fulfil its trustee obligations, members of the public may bring claims against it to enforce their rights to access and use the resources and to ensure these resources are protected.[18]
Thus, two key mechanisms have been identified for invoking the public trust doctrine against corporations. First, the State may bring litigation against corporations on behalf of the public (see e.g. the landmark US Supreme Court judgment in Illinois Central Railroad Company v Illinois, in which the US Supreme Court held that the previous Illinois legislature had not been entitled to grant most of Chicago's harbour to a private railroad company; see also the ongoing cases of Rhode Island v Shell Oil Products and Platkins v Exxon Mobil Corp, arguing that the defendants' contribution to climate change is damaging to public trust resources). Second, private citizens (as well as NGOs, community groups etc.) may bring litigation against the State to make sure that corporations are not permitted to damage public trust resources. For example, individuals have brought claims against public authorities to invalidate the authorisation of corporate projects that would impair public trust resources (see e.g. the landmark judgment of the Philippines Supreme Court in Oposa v Factoran to prevent logging).
Elements of the Claim:[19]
1) The existence of a trust and of a fiduciary relationship
Claimants can establish that a trust exists by relying on past court decisions and on any constitutional and statutory provisions that enshrine the public trust doctrine. The claimants will need to show what resource/interest is held in trust, who the trustee is, and who the beneficiaries are.
2) Breach of the trust (breach of fiduciary duty)
The claimant will need to show that the State breached its duty. Wood draws upon private trust law and public trust doctrine case law to identify five substantive fiduciary duties: 1) the duty of protection; 2) the duty against waste (duty to ensure that the trust resources are still available for future generations); 3) the duty to maximise the societal value of natural resources (resources must be managed and used for the 'highest public purpose' and public uses have priority over private uses); 4) the duty to restore trust resources when damaged; and 5) the duty against privatising trust resources.[20] The overarching theme is that a breach occurs when the trustee fails to act in the best interest of the beneficiaries.
3) Causation
The claimant must show that that the breach caused the damage alleged and that the damage was a foreseeable result of the breach.
4) Harm
The claimant must specify what damage has been caused and what harm has been caused to the claimant.
To prevail on a claim of impairment of public trust resources, a plaintiff must establish that: (1) defendants owed a duty; (2) defendants breached that duty; (3) the defendant's acts are the cause in fact and proximate cause of plaintiff's injury; and (4) the plaintiff suffered personal injury or personal damage.
[17] MC Wood and D Galpern, 'Atmospheric Recovery Litigation: Making the Fossil Fuel Industry Pay to Restore a Viable Climate System' (2015) 45 Environmental Law 259.
[18] J Sax, 'The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention' (1970) 68 Michigan Law Review 471; MC Wood, 'Atmospheric Trust Litigation' in WH Rodgers Jr and M Robinson-Dorn (eds), Climate Change Reader (Carolina Academic Press 2011).
[19] A Muir, 'Trust Issues: Using States' Public Trust Doctrines to Advance Environmental Justice Claims' (2022) 46 William & Mary Environmental Law and Policy Review 707, 731ff.
[20] MC Wood, Nature's Trust: Environmental Law For A New Ecological Age Cambridge University Press 2013) 165-207. Wood also identifies five procedural duties, which 'keep the eyes of officials on their substantive trust obligations': 1. the duty of loyalty; 2. the duty to supervise agents; 3. the duty of good faith and reasonable skill; 4. the duty of (pre)caution; and 5. the duty of furnishing information to beneficiaries (accounting).
4. SOURCES OF LAW
I. International and Regional
International and regional sources are not cited in the national reports. However, it is clear that domestic concepts of the public trust doctrine have circulated to other jurisdictions. Particularly noteworthy is the attention paid to how the doctrine is applied in US courts (see for example the Supreme Court of Canada in Canfor, especially paras 77-80).
II. Domestic
Domestic legal sources are different in each case-study country.
A. Constitutional Provisions
The Philippines and the United States have constitutional provisions that expressly enshrine the public trust doctrine. Additionally, fundamental rights and environmental provisions in the constitutions of India and the Philippines provide a basis for the doctrine.
• INDIA
Part III Fundamental Rights
Article 21: 'No person shall be deprived of his life or personal liberty except according to procedure established by law.'
Part IV Directive Principles of State Policy
Article 48A: 'The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.'
Part IVA Fundamental Duties
Article 51A (g): 'It shall be the duty of every citizen of India ... to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.'
• PHILIPPINES
Constitution of the Republic of the Philippines
Article II, Section 16: 'The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.'
Article XII, Section 2: 'All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.'
• UNITED STATES
In the United States, the common law public trust doctrine has been enshrined in various state constitutions. In Rhode Island v Shell Oil Products the claimants asserted claims of impairment of public trust resources as protected in the state Rhode Island constitution. In Held v Montana, the claimants invoked the right to a healthy environment along with the public trust doctrine as enshrined in the Montana constitution and applied the public trust obligations to the atmosphere and climate system - this was the first such case to succeed at trial. Additionally, in re Hawai'i Electric Light Co, Justice Wilson relied on the constitutional public trust obligation in his concurring opinion. The relevant constitutional provisions are set out here:
Constitution of the State of Rhode Island
Article I, Section 17: 'Fishery rights — Shore privileges — Preservation of natural resources.
The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state, including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore; and they shall be secure in their rights to the use and enjoyment of the natural resources of the state with due regard for the preservation of their values; and it shall be the duty of the general assembly to provide for the conservation of the air, land, water, plant, animal, mineral and other natural resources of the state, and to adopt all means necessary and proper by law to protect the natural environment of the people of the state by providing adequate resource planning for the control and regulation of the use of the natural resources of the state and for the preservation, regeneration and restoration of the natural environment of the state.'
Constitution of the State of Montana
Article II, Section 3: 'Inalienable rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.'
Article IX, Section 1: 'Protection and improvement. (1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
(2) The legislature shall provide for the administration and enforcement of this duty.
(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.'
Article IX, Section 3: 'Water rights. (1) All existing rights to the use of any waters for any useful or beneficial purpose are hereby recognized and confirmed.
(2) The use of all water that is now or may hereafter be appropriated for sale, rent, distribution, or other beneficial use, the right of way over the lands of others for all ditches, drains, flumes, canals, and aqueducts necessarily used in connection therewith, and the sites for reservoirs necessary for collecting and storing water shall be held to be a public use.
(3) All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.
(4) The legislature shall provide for the administration, control, and regulation of water rights and shall establish a system of centralized records, in addition to the present system of local records.'
Constitution of the State of Hawai'i
Article XI, Section 1: 'For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.'
Article XI, Section 9: 'Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.'
B. Legislative Provisions and Common Law
The public trust doctrine has deep roots in the common law of jurisdictions including Canada, India, the United States, and the United Kingdom. Therefore, case law that is considered foundational to the doctrine has been cited.
● CANADA
R v Lord (1864) 1 PEI 245
The public trust doctrine arises from the Crown's fiduciary duty over natural resources that benefit the public.
'The right of property in the sea and the soil at the bottom, and also the land between high and low marks, is in the Sovereign, but, though the King has the property, the people have the necessary use. But these rights of use are only the rights of piscary and navigation ... With respect to these public rights, viz. navigation and fishery, the King is, in fact, nothing more than a trustee of the public and has no authority to obstruct, or grant to others, any right to obstruct, or abridge the public in the free enjoyment of them. But subject to these rights the King may grant the soil of the shore and all private rights of the Crown with it.'
● GERMANY
The concept of public trust resources does not exist under German law. However, natural resources like water and the air are qualified as 'public things' (öffentliche Sachen).[21] Under this concept, private property rights are restricted by public regulation to protect natural resources, e.g. under the German Federal Emmission Control Act (Bundes-Immissionsschutzgesetz, BImSchG), and the public has a right to use the resources. This regime may form a basis for claims analogous to public trust litigation.
Section 4: '(1) (1) The construction and operation of installations which, on account of their nature or operation, are particularly likely to cause harmful effects on the environment or otherwise endanger or cause significant disadvantages or significant nuisances to the general public or the neighbourhood, and the construction and operation of stationary waste disposal plants designed to store or treat wastes shall be subject to licensing.'
● INDIA
MC Mehta v Kamal Nath (1997) 1 SCC 388.
'Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.'
● ITALY
Italy does not recognise the impairment of public trust resources as a cause of action; however, it appears that analogous claims may be brought. In particular, the Minister of the Environment may bring damages claims against actors that damage the environment, pursuant to Article 311 of the Code of the Environment.
Article 311: 'Action for compensation in specific form and for pecuniary equivalent
- The Minister of the Environment and Land Protection shall take action, including civil action in criminal cases, for compensation for environmental damage in a specific form and, if necessary, for pecuniary equivalent, or shall proceed in accordance with the provisions of Part Six of this Decree.
- Whoever by carrying out an unlawful act, or omitting dutiful activities or conduct, in violation of the law, regulation, or administrative measure, with negligence, inexperience, recklessness, or violation of technical standards, causes damage to the environment, altering, deteriorating, or destroying it in whole or in part, is obliged to restore the previous situation and, failing that, to pay compensation for pecuniary equivalent to the State.
- In quantifying the damage, the Minister of the Environment and Territorial Protection shall apply the criteria set forth in Annexes 3 and 4 of Part Six of this Decree. For the ascertainment of compensatory liabilities and the collection of the sums due in property equivalent, the Minister of the Environment and Land Protection shall provide for the procedures set forth in Title III of Part Six of this Decree.'
Therefore, non-compliance with the climate obligation is generally framed as a hypothesis of liability descending from the violation of the principle of neminem laedere, by the failure of the State or the company to take the necessary measures to deal with a danger known based on scientific knowledge acquired at a given time. This principle is ruled by Article 2043 of the Italian Civil Code.
Article 2043: 'Any intentional or negligent act, which causes unjust harm to others, obliges the one who committed the act to pay for the damage.'
The Giudizio Universale case, brought in 2021 by the association A Sud (and others) against the Italian state for violation of fundamental rights determined by inaction in combating anthropogenic climate change, is focused in this sense. The same approach is also found in the case brought in May 2023 by Greenpeace (and others) against Eni, for violation of fundamental rights determined by the failure to adapt the company's strategy to reduce climate-changing emissions to the objectives of the Paris Agreement.
● NETHERLANDS
The impairment of public trust resources is not a cause of action recognised under Dutch law. However, the general provision on tortious/unlawful acts in Article 6:162 of the Dutch Civil Code could provide a legal basis for a similar claim.
Article 6:162 (Definition of a 'tortious act'): '- 1. A person who commits a tortious act (unlawful act) against another person that can be attributed to him, must repair the damage that this other person has suffered as a result thereof. - 2. As a tortious act is regarded a violation of someone else's right (entitlement) and an act or omission in violation of a duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behaviour. - 3. A tortious act can be attributed to the tortfeasor [the person committing the tortious act] if it results from his fault or from a cause for which he is accountable by virtue of law or generally accepted principles (common opinion).'
● PHILIPPINES
As evidenced by the below examples, public trust principles have been incorporated into the Philippines' legal system in a range of legislation in addition to the constitutional provisions outlined above. These provisions were relied upon by the courts in numerous cases that further incorporated impairment of public trust resources as a cause of action, ultimately crystallising in the express introduction of the 'public trust doctrine' and its conceptual framework and nomenclature by the Supreme Court in the case of Maynilad Water Services, Inc v The Secretary of the Department of Environment and Natural Resources in 2019.
Article 27: 'Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.'
Tubbataha Reefs Natural Park of 2009 ('TRNP Act')
Section 2: 'Declaration of Policy. - It shall be the declared policy of the State to ensure the protection and conservation of the globally significant economic, biological, sociocultural, educational, and scientific values of the Tubbataha Reefs into perpetuity for the enjoyment of present and future generations. These shall be pursued by managing the TRNP under a "no-take" policy and through a sustainable and participatory management, taking into consideration all applicable laws and international conventions to which the Philippines is a signatory.
It shall further be the policy of the State to promote the Tubbataha Reefs, with the end in view of fostering widespread awareness and concern for the same. Towards this end, the State shall undertake to carry out comprehensive and holistic promotions, training and information campaign programs for the benefit of the general public, in pursuance of the duty of the State to uphold the primacy of protecting, preserving and promoting these resources.
Finally, it shall be the policy of the State to encourage the participation of the private sector and the local government units in the protection, preservation and promotion of the Tubbataha Reefs.'
Section 13: 'The TPAMB [Tubbataha Protected Area Management Board] shall have the following powers and functions:
(f) Ensure the implementation and enforcement of laws, rules and regulations, policies, programs and projects within the TRNP.
(q) Determine, based on existing scientific evidence, laws, rules and regulations, international instruments, traditional resource utilization, management modalities in the area, carrying capacity, and observing precautionary principle, the modes of utilization of the TRNP and all the resources found therein. Permits shall only be issued for such modes of utilization and enjoyment as the TPAMB and this Act shall allow'.
Wildlife Resources Conservation and Protection Act
National Integrated Protected Areas System Act of 1992 ('NIPAS Act')
Section 2: 'Declaration of Policy - Cognizant of the profound impact of man's activities on all components of the natural environment particularly the effect of increasing population, resource exploitation and industrial advancement and recognizing the critical importance of protecting and maintaining the natural biological and physical diversities of the environment notably on areas with biologically unique features to sustain human life and development, as well as plant and animal life, it is hereby declared the policy of the State to secure for the Filipino people of present and future generations the perpetual existence of all native plants and animals through the establishment of a comprehensive system of integrated protected areas within the classification of national park as provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess common ecological values that may be incorporated into a holistic plan representative of our natural heritage; that effective administration of this area is possible only through cooperation among national government, local government and concerned private organizations; that the use and enjoyment of these protected areas must be consistent with the principles of biological diversity and sustainable development.
To this end, there is hereby established a National Integrated Protected Areas System (NIPAS), which shall encompass outstandingly remarkable areas and biologically important public lands that are habitats of rare and endangered species of plants and animals, biogeographic zones and related ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as "protected areas".'
Section 4(2): '"Protected Area" refers to identified portions of land and water set aside by reason of their unique physical and biological significance, managed to enhance biological diversity and protected against destructive human exploitation'.
Section 9: 'Management Plans. - There shall be a general management planning strategy to serve as guide in formulating individual plans for each protected area. The management planning strategy shall, at the minimum, promote the adoption and implementation of innovative management techniques including if necessary, the concept of zoning, buffer zone management for multiple use and protection, habitat conservation and rehabilitation, diversity management, community organizing, socioeconomic and scientific researches, site-specific policy development, pest management, and fire control. The management planning strategy shall also provide guidelines for the protection of indigenous cultural communities, other tenured migrant communities and sites for close coordination between and among local agencies of the Government as well as the private sector.
Each component area of the System shall be planned and administered to further protect and enhance the permanent preservation of its natural conditions. A management manual shall be formulated and developed which must contain the following: an individual management plan prepared by three (3) experts, basic background information, field inventory of the resources within the area, an assessment of assets and limitations, regional interrelationships, particular objectives for managing the area, appropriate division of the area into management zones, a review of the boundaries of the area, and a design of the management programs.'
Section 12: 'Environmental Impact Assessment. - Proposals for activities which are outside the scope of the management plan for protected areas shall be subject to an environmental impact assessment as required by law before they are adopted, and the results thereof shall be taken into consideration in the decision-making process.
No actual implementation of such activities shall be allowed without the required Environmental Compliance Certificate (ECC) under the Philippine Environmental Impact Assessment (EIA) system. In instances where such activities are allowed to be undertaken, the proponent shall plan and carry them out in such manner as will minimize any adverse effects and take preventive and remedial action when appropriate. The proponent shall be liable for any damage due to lack of caution or indiscretion.'
Section 4: 'Presidential Proclamation of Environmentally Critical Areas and Projects. The President of the Philippines may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. For the proper management of said critical project or area, the President may by his proclamation reorganize such government offices, agencies, institutions, corporations or instrumentalities including the re-alignment of government personnel, and their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or water use pattern for said critical project(s) or area (s); (b) establish ambient environmental quality standards; (c) develop a program of environmental enhancement or protective measures against calamituous factors such as earthquake, floods, water erosion and others, and (d) perform such other functions as may be directed by the President from time to time.'
In this case, the Supreme strengthened the impairment of public resources as a cause of action when it explicitly imported into Philippine law the 'public trust doctrine':
'In this framework, a relationship is formed - "the [s]tate is the trustee, which manages specific natural resources - the trust principal - for the benefit of the current and future generations - the beneficiaries." "[T]he [S]tate has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible." But with the birth of privatization of many basic utilities, including the supply of water, this has proved to be quite challenging. The State is in a continuing battle against lurking evils that has afflicted even itself, such as the excessive pursuit of profit rather than purely the public's interest.
These exigencies forced the public trust doctrine to evolve from a mere principle to a resource management term and tool flexible enough to adapt to changing social priorities and address the correlative and consequent dangers thereof. The public is regarded as the beneficial owner of trust resources, and courts can enforce the public trust doctrine even against the government itself.'
● POLAND
The public trust concept is not explicitly part of the Polish legal system, but similar claims may be brought under the Civil Code and the Environmental Protection Law Act.
Article 417: 'State Treasury liability. § 1. The State Treasury or a local government unit or another person exercising public authority by force of law is liable for any damage caused by an unlawful action or omission while exercising public authority. § 2. If performance of public authority tasks is contracted under an agreement to a local government unit or another legal person, joint and several liability for any damage caused is borne by the contractor and the local government unit contracting the tasks or the State Treasury.'
Article 417-1: 'Damage arising from a legislative act. § 1. If damage is caused by a legislative act, remedy thereof may be demanded once it has been declared incompliant with the Constitution, a ratified international treaty or the law in the course of appropriate proceedings. § 2. If damage is caused by a final and non-revisable court decision or other final decision, remedy thereof may be demanded once such decision has been declared incompliant with the law in the course of appropriate proceedings, unless separate regulations provide otherwise. This also applies to cases where a final and nonrevisable court decision or other final decision has been issued based on a legislative act that is incompliant with the Constitution, a ratified international treaty or the law. § 3. If damage is caused through failure for a court decision or other decision to be issued and the obligation to issue the same is provided for by a legal regulation, remedy of damage may be demanded once the failure to issue the court decision or other decision is declared incompliant with the law in the course of appropriate proceedings unless separate regulations provide otherwise. § 4. If damage is caused by failure for a legislative act to be issued and the obligation to issue the same is provided for by a legal regulation, the failure to issue the act is declared incompliant with the law by the court hearing the case for remedy of damage.'
Article 417-2: 'Equitable principle. If personal injury is caused through the lawful exercise of public authority, the aggrieved party may demand full or partial remedy of and monetary recompense for the harm caused if the circumstances, and especially the aggrieved party's inability to work or his difficult financial situation, indicate that the remedy is required under the equitable principle. In exercising his right, a real estate owner should refrain from actions which could disrupt the use of neighbouring real estate beyond a normal scope, arising from the social and economic purpose of the real estate and local relations.'
Environmental Protection Law Act (EPLA)
Article 323: 'Anyone who is directly threatened or harmed by an unlawful impact on the environment, may demand that the entity responsible for the threat or violation restore the lawful state of affairs and take preventive measures, in particular by installing installations or devices to prevent the threat or violation; if this is impossible or excessively difficult, he may demand the cessation of the activity causing the threat or violation.
(2) If the threat or violation concerns the environment as a common good, the claim referred to in paragraph 1, may be filed by the State Treasury, a local government unit, as well as an environmental organization.'
● UNITED KINGDOM
The doctrine had been introduced into English law as early as the 13th Century, as recorded by Henry de Bracton:
'By natural law these are common to all: running water, air, the sea, and the shores of the sea ... No one therefore is forbidden access to the seashore ... All rivers and ports are public, so that the right to fish therein is common to all persons'.[22]
Indeed, it is from England that the public trust doctrine spread to the United States and to India (where it has been significantly more developed). However, the doctrine has rarely been invoked in the UK in modern times and may be less likely to develop in the foreseeable future without appellate guidance given the High Court's rejection of the ground based on the public trust doctrine (ground 3) in R (on the application of Wildfish Conservation) v Secretary of State for Environment, Food and Rural Affairs [2023] EWHC 2285 (Admin).
● UNITED STATES
Illinois Central Railroad Company v Illinois
'It is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the states'.
'The State can no more abdicate its trust over property in which the whole people are interested ... than it can abdicate its police powers in the administration of government. ... Every legislature must, at the time of its existence, exercise the power of the state in the execution of the trust devolved upon it.'
[21] See for an instructive overview of the evolution of the concept Kube, (1997) 37 Natural Resources Journal 857.
[22] Bracton on the Laws and Customs of England (1968) vol 2, pp 39-40.
5. CURRENT APPLICATIONS
This section provides an overview of the case law that has been identified by national rapporteurs from each case-study country as providing relevant illustrations of the current application of the public trust doctrine. The application of this cause of action in corporate climate litigation is still at a very nascent stage. Therefore, the cases analysed are not limited to litigation against corporations, nor to cases where climate change is the central issue. Rather, a broad approach is adopted whereby the focus is on identifying legal arguments and principles that could be applied in a corporate climate litigation case.
● CANADA
La Rose v Her Majesty the Queen
15 children and youths brought a claim against the State, asserting that Canada's greenhouse gas emissions were incompatible with a stable climate system and thus the government had breached its fiduciary obligation to protect natural resources. The claimants sought a declaration that the government had violated the public trust doctrine - which they argued had a basis in common law and as an unwritten principle of the constitution - as well as an injunction requiring the government to develop and implement a Climate Recovery Plan. The Federal Court found that the argument that the government's inaction on climate change and greenhouse gas emissions violated the public trust doctrine was justiciable.
'57. I do not find that the justiciability arguments relied upon by the Defendants apply in the same manner to the public trust doctrine. In relation to this particular claim, the Plaintiffs are seeking that this Court recognize the existence of a sui generis doctrine, in which the Defendants have obligations to protect and preserve various identified inherently public resources, within the jurisdiction of the federal government.
58. The existence of the public trust doctrine at common law or as an unwritten constitutional principle is clearly a legal question, which the Courts can resolve. This question does not engage the same considerations in relation to the constitutional demarcation of powers and there is no policy or political context or component to the claim. The novelty of the doctrine is not a bar to its justiciability. The real question in relation to this particular claim is whether such a doctrine discloses a reasonable cause of action or has a reasonable prospect of success.'
British Columbia v Canadian Forest Products Ltd (Canfor)
This case concerned a claim by the federal government against a corporation that had caused a large forest fire. Ultimately, the Supreme Court resolved the case without applying the public trust doctrine, but not before tracing the long history of the doctrine and the Crown's parens patriae standing to bring litigation on the public's behalf, thus potentially opening the door to impairment of public trust resources as a cause of action in future cases.
'72. In my view, Canfor takes too narrow a view of the entitlement of the Crown, represented by the Attorney General, to pursue compensation for environmental damage in a proper case.
73. Canadian courts have suggested that even municipalities have a role to play in defence of public rights. In Scarborough v. R.E.F. Homes Ltd. (1979), 9 M.P.L.R. 255 (Ont. C.A.), Lacourcière J.A., in an oral decision, said at p. 257 that:
In our judgment, the municipality is, in a broad general sense, a trustee of the environment for the benefit of the residents in the area of the road allowance and, indeed, for the citizens of the community at large. [Emphasis added.]
This expression was referred to, without elaboration, by L'Heureux-Dubé J. in 114957 Canada, supra, at para. 27.
74. The notion that there are public rights in the environment that reside in the Crown has deep roots in the common law: see, e.g., J. C. Maguire, "Fashioning an Equitable Vision for Public Resource Protection and Development in Canada: The Public Trust Doctrine Revisited and Reconceptualized" (1997), 7 J.E.L.P. 1. Indeed, the notion of "public rights" existed in Roman law:
By the law of nature these things are common to mankind — the air, running water, the sea . . . .
(T. C. Sandars, The Institutes of Justinian (1876), Book II, Title I, at p. 158)
75. A similar notion persisted in European legal systems. According to the French Civil Code, art. 538, there was common property in navigable rivers and streams, beaches, ports, and harbours. A similar set of ideas was put forward by H. de Bracton in his treatise on English law in the mid-13th century (Bracton on the Laws and Customs of England (1968), vol. 2, at pp. 39-40):
By natural law these are common to all: running water, air, the sea and the shores of the sea . . . . No one therefore is forbidden access to the seashore . . . .
All rivers and ports are public, so that the right to fish therein is common to all persons. The use of river banks, as of the river itself, is also public by the jus gentium . . . .
76. By legal convention, ownership of such public rights was vested in the Crown, as too did authority to enforce public rights of use. According to de Bracton, supra, at pp. 166-67:
(It is the lord king) himself who has ordinary jurisdiction and power over all who are within his realm. . . . He also has, in preference to all others in his realm, privileges by virtue of the jus gentium. (By the jus gentium) things are his . . . which by natural law ought to be common to all . . . . Those concerned with jurisdiction and the peace . . . belong to no one save the crown alone and the royal dignity, nor can they be separated from the crown, since they constitute the crown.
Since the time of de Bracton it has been the case that public rights and jurisdiction over these cannot be separated from the Crown. This notion of the Crown as holder of inalienable "public rights" in the environment and certain common resources was accompanied by the procedural right of the Attorney General to sue for their protection representing the Crown as parens patriae. This is an important jurisdiction that should not be attenuated by a narrow judicial construction.
77. As stated, in the United States the CERCLA statute provides legislative authority for government actions in relation to the "public interest", including environmental damage, but this is not the only basis upon which claims in relation to the environment can be advanced by governments at the state and federal levels.
78. Under the common law in that country, it has long been accepted that the state has a common law parens patriae jurisdiction to represent the collective interests of the public. This jurisdiction has historically been successfully exercised in relation to environmental claims involving injunctive relief against interstate public nuisances: see, e.g., North Dakota v. Minnesota, 263 U.S. 365 (1923), at p. 374; Missouri v. Illinois, 180 U.S. 208 (1901); Kansas v. Colorado, 206 U.S. 46 (1907); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); and New York v. New Jersey, 256 U.S. 296 (1921). In Tennessee Copper, Holmes J. held for the Supreme Court of the United States, at p. 237, that, "the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain" (emphasis added).
79. The American law has also developed the notion that the states hold a "public trust". Thus, in Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892), the Supreme Court of the United States upheld Illinois' claim to have a land grant declared invalid. The State had granted to the railroad in fee simple all land extending out one mile from Lake Michigan's shoreline, including one mile of shoreline through Chicago's central business district. It was held that this land was impressed with a public trust. The State's title to this land was different in character from that which the State holds in lands intended for sale. . . . It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties. [p. 452]
The deed to the railway was therefore set aside.
80. The parens patriae and "public trust" doctrines have led in the United States to successful claims for monetary compensation. Thus in New Jersey, Department of Environmental Protection v. Jersey Central Power and Light Co., 336 A.2d 750 (N.J. Super. Ct. App. Div. 1975), the State sued a power plant operator for a fish kill in tidal waters caused by negligent pumping that caused a temperature variation in the fish habitat. The State sought compensatory damages for the harm to public resources. The court concluded that the State had the "right and the fiduciary duty to seek damages for the destruction of wildlife which are part of the public trust" in "compensation for any diminution in that [public] trust corpus" (p. 759), noting that:
It seems to us that absent some special interest in some private citizen, it is questionable whether anyone but the State can be considered the proper party to sue for recovery of damages to the environment.
See also State of Washington, Department of Fisheries v. Gillette, 621 P.2d 764 (Wash. Ct. App. 1980), and State of California, Department of Fish and Game v. S.S. Bournemouth, 307 F.Supp. 922 (C.D. Cal. 1969). The potential availability of damages in parens patriae and "public trust" environmental actions has also been affirmed in State of Maine v. M/V Tamano, 357 F.Supp. 1097 (D. Me. 1973), and State of Maryland, Department of Natural Resources v. Amerada Hess Corp., 350 F.Supp. 1060 (D. Md. 1972). These were all cases decided under the common law, not CERCLA.
81. It seems to me there is no legal barrier to the Crown suing for compensation as well as injunctive relief in a proper case on account of public nuisance, or negligence causing environmental damage to public lands, and perhaps other torts such as trespass, but there are clearly important and novel policy questions raised by such actions. These include the Crown's potential liability for inactivity in the face of threats to the environment, the existence or non-existence of enforceable fiduciary duties owed to the public by the Crown in that regard, the limits to the role and function and remedies available to governments taking action on account of activity harmful to public enjoyment of public resources, and the spectre of imposing on private interests an indeterminate liability for an indeterminate amount of money for ecological or environmental damage.'
● INDIA
MC Mehta v Kamal Nath (1997) 1 SCC 388.
This case expressly recognised the public trust doctrine as part of India's legal system. A private company was granted a 99-year lease of forest land near the Beas river in order to build a motel, as well as permission to dredge and redirect the river. The climate lawyer, MC Mehta, argued the case before the Supreme Court, against Kamal Nath, the Minster of the Environment. The Court found that the lease violated the public trust doctrine. The doctrine was deemed to be part of Indian law as it was imported from English common law. The Court considered how the doctrine had been developed in American jurisprudence and legal scholarship as justification for expanding the doctrine to protect 'all natural resources' for purposes including the protection of environmental and ecological values. Further, the Court made implicit reference to the natural law basis for the doctrine.
'33. It is no doubt correct that the public trust doctrine under the English Common Law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have expanded the concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake case clearly show the judicial concern in protecting all ecologically important lands for example fresh water, wetlands or riparian forests. The observation of the Court in Mono Lake case to the effect that the protection of ecological values is among the purpose of public trust, may give rise to an argument that the ecology and the environment-protection is a relevant factor to determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust to encompass new types of lands and waters. In Phillips Petroleum co. vs. Mississippi 108 S.Ct. 791 (1988), the United States Supreme Court upheld Mississippi's extension of public trust doctrine to lands underlying non-navigable tidal areas. The majority judgment adopted ecological concepts to determine which lands can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the public trust doctrine to identify the tide lands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to include all eco-systems operating in our natural resources.
34. Our legal system - based on English Common Law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea- shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open land sin their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasing complex society, find it necessary to encroach to some extent open lands heretofore considered in-violate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the eco-systems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public goods and in public interest to encroach upon the said resources.
36. Coming to the facts of the present case, large area of the bank of river Beas which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. We have no hesitation in holding that the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. Both the lease - transactions are in patent breach of the trust held by the State Government. The second lease granted in the year 1994 was virtually of the land which is a part of river-bed. Even the board in its report has recommended de-leasing of the said area.'
The Court then recalled its previous findings in the pollution case Vellore Citizens Welfare Forum v Union of India & Ors with respect to the precautionary principle and the polluter pays principle. In particular, the Court explained that the precautionary principle imposed a duty on the government authorities to take measures to 'anticipate, prevent and attack the causes of environmental degradation', and the polluter pays principle imposed a liability on the company to pay the cost of 'the restitution of the environment and ecology of the area.'
MI Builders Private Ltd v Radhey Shayam Sahu
The Supreme Court relied on the public trust doctrine to invalidate permits that had been granted for the construction of a shopping mall within a public park and to prevent the project from going ahead. Furthermore, the Court ordered the public authority to demolish construction that had already begun and to restore the park to its natural state. Notably, in addition to echoing the findings in the Kamal Nath case, the Court also held that Article 21 of the Indian Constitution ('No person shall be deprived of his life or personal liberty except according to procedure established by law') provided a legal basis for the public trust doctrine.
'5. ... As a matter of fact Mahapalika was the trustee of the park and the doctrine of public trust, which was applicable in India as held by this Court in M.C. Mehta vs. Kamal Nath and others (known as Span case) (1997 (1) SCC 388), was applicable to the park in question. Mahapalika, therefore, could only manage the park and could not alienate it or convert it something different from the park. Park was held by the Mahapalika on trust for the citizens of Lucknow.'
'10. This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution.'
● PHILIPPINES
Public trust principles can be found in Philippines' legislation since at least the 1970s.[23] The right to a 'balanced and healthful ecology' was enshrined in Article II, Section 16 of the 1987 Constitution of the Philippines, along with the State's ownership and supervision of natural resources in Article XII, Section 2. However, the 2019 Maynilad case marked the explicit introduction of the 'public trust doctrine'. The case concerned action brought by the government against water companies that had failed to take necessary measures to stop water pollution.
'While the Regalian doctrine is state ownership over natural resources, police power is state regulation through legislation, and parens patriae is the default state responsibility to look after the defenseless, there remains a limbo on a flexible state policy bringing these doctrines into a cohesive whole, enshrining the objects of public interest, and backing the security of the people, rights, and resources from general neglect, private greed, and even from the own excesses of the State. We fill this void through the Public Trust Doctrine.
The Public Trust Doctrine, while derived from English common law and American jurisprudence, has firm Constitutional and statutory moorings in our jurisdiction. The doctrine speaks of an imposed duty upon the State and its representative of continuing supervision over the taking and use of appropriated water. Thus, "[p]arties who acquired rights in trust property [only hold] these rights subject to the trust and, therefore, could assert no vested right to use those rights in a manner harmful to the trust." In National Audubon Society v. Superior Court of Alpine County, a California Supreme Court decision, it worded the doctrine as that which -
[T]he state had the power to reconsider past allocation decisions even though an agency had made those decisions after due consideration of their effect on the public trust. This conclusion reflected the view that water users could not acquire a vested property right in the water itself; they merely obtained a usufructuary right to the water.
Academic literature further imparts that "[p]art of this consciousness involves restoring the view of public and state ownership of certain natural resources that benefit all. [...]" The "doctrine further holds that certain natural resources belong to all and cannot be privately owned or controlled because of their inherent importance to each individual and society as a whole. A clear declaration of public ownership, the doctrine reaffirms the superiority of public rights over private rights for critical resources. It impresses upon states the affirmative duties of a trustee to manage these natural resources for the benefit of present and future generations and embodies key principles of environmental protection: stewardship, communal responsibility, and sustainability."
In this framework, a relationship is formed - "the [s]tate is the trustee, which manages specific natural resources the trust principal - for the trust principal for the benefit of the current and future generations - the beneficiaries." "[T]he [S]tate has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible." But with the birth of privatization of many basic utilities, including the supply of water, this has proved to be quite challenging. The State is in a continuing battle against lurking evils that has afflicted even itself, such as the excessive pursuit of profit rather than purely the public's interest.
These exigencies forced the public trust doctrine to evolve from a mere principle to a resource management term and tool flexible enough to adapt to changing social priorities and address the correlative and consequent dangers thereof. The public is regarded as the beneficial owner of trust resources, and courts can enforce the public trust doctrine even against the government itself.'
● UNITED KINGDOM
As indicated in the Overview section, the public trust doctrine is not often invoked in the UK and there are mixed views as to the prospects of using it in corporate climate litigation. Noteworthy, however, is that litigation has recently been initiated that attempts to hold the government responsible for breaching its public trust obligations with respect to water pollution:
The Good Law Project, an NGO, is supporting claimants to bring a judicial review challenge to compel the government to rewrite its Storm Overflows Discharge Reduction Plan and bring forward deadlines for water companies to act, in order to stop water companies from discharging sewage into rivers and along coastlines. The High Court granted permission for the case to proceed, but the application (together with the application by Wildfish Conservation) was dismissed in September 2023.[24]
The claimants argue that the public trust doctrine is long established in English law going back to the 13th Century and has been further illustrated in United States case law. They argue that it imposes a duty on the government 'to maintain coastal waters in a fit ecological state'.
'92. In recognising that the PTD carries with it an obligation to protect and conserve the public goods which are held in trust by the state, the United States authorities are emphasising an element of the doctrine that has been part of English law for centuries - at least since the case of Juliana the Washerwoman in 1299, in which it was held that public watercourses should not be polluted, including with human sewage.'
The judge, dismissing the application, held:
'249. .... In addition, the public right of navigation and fishing carries with it ancillary rights (R (Newhaven Port and Properties Limited) v East Sussex County Council [2015] AC 1547 at [28]).
250. Mr. Willers asserts that such ancillary rights must include a right for waters not to be polluted to the extent that oysters and other shellfish are unfit for human consumption, otherwise there would be no effective right to gather shellfish at all. There is no authority to support this proposition.
251. Moreover, I cannot agree that the alleged right is a necessary implication of the public right to fish.
252. Given that Parliament has intervened to provide dedicated controls to address the pollution of tidal waters, including the environmental permitting regime, there is no justification for extending the common law in the way Mr. Willers suggests.
253. There is also a public interest in the proper operation of sewerage systems and storm overflows in compliance with all relevant legislative requirements....'
● UNITED STATES
The public trust doctrine is well-established in the United States. Two ongoing corporate climate cases have asserted impairment of public trust resources.
Rhode Island v Shell Oil Products
The State of Rhode Island filed a lawsuit in state court asserting that 21 fossil fuel companies should be held liable for climate change impacts that Rhode Island has experienced and will continue to experience in the future. The complaint asserts a range of tort claims, a claim of impairment of public trust resources, and violations of the Rhode Island Environmental Rights Act. After the fossil fuel defendants removed the case to federal court, the First Circuit followed the approach of five other Circuit courts and held that these state law claims belonged in state court and were not pre-empted by federal law. The case has yet to be heard at trial in state court.
New Jersey officials filed a lawsuit in state court against fossil fuel defendants seeking damages and other relief relating to the defendants' alleged substantial role in causing climate change and resulting harms to New Jersey. The complaint claimed that climate change impacts allegedly as a result of the defendants' actions would 'disproportionately afflict' overburdened communities by exacerbating environmental and public health stressors associated with socioeconomic and racial disparities. The complaint asserted several tort claims, a claim of impairment of the public trust, and violations of the New Jersey Consumer Fraud Act. A substantive decision has not yet been made. The text of the claimant's public trust arguments is as follows:
'261. Under New Jersey's centuries-old public trust doctrine, the State has the authority and the duty to protect natural resources held by the State in the public trust for its people.
262. As the common law has long recognized and the Legislature has repeatedly reaffirmed, the State's public-trust duties broadly extend to all air, land, waterways, bays, beaches, wetlands, flora, fauna, and other natural resources in New Jersey that are owned, managed, administered, or otherwise controlled by the State.
263. This includes, inter alia, all riparian lands and submerged lands within the State of New Jersey, as well as many dry sand beaches, which must be administered by the State in the public interest pursuant to the public trust doctrine.
264. Through their acts and omissions, Defendants have—individually and in concert with each other—directly and proximately caused severe damage to the State's natural resources by, inter alia, intentionally, knowingly, recklessly, and negligently failing to warn of the climate impacts of fossil fuel products; discrediting climate science and climate scientists; inundating markets with false and misleading information about the existence, causes, and consequences of climate change; and aggressively promoting the unrestrained expansion of fossil fuel consumption. As alleged above, that tortious and deceptive commercial conduct has driven fossil fuel consumption—and thus greenhouse gas pollution, and thus climate change, and thus sea-level rise, flooding, storm surges, deadly weather events, and other climate change impacts in New Jersey, which disproportionately threaten Overburdened Communities. Further, Defendants' deceptive acts and omissions delayed the emergence of viable clean energy alternatives by preventing consumers, including in New Jersey, from having access to full and accurate information material to their energy purchasing decisions. This delayed transition to a lower-carbon economy caused the emission of huge amounts of avoidable greenhouse gases into the atmosphere, ensuring that the damage caused by climate change will be substantially more severe than if Defendants had acted forthrightly, commensurate with their internal assessments of climate risk.
265. Defendants' tortious and deceptive conduct—which continues to this day—has already significantly impaired, and will continue to significantly impair, public trust resources throughout New Jersey, including but not limited to: a. Loss of dry coastline, riparian lands, submerged lands, beaches, and coastal wetlands, along with their associated unique ecological and recreational values, due to sea-level rise and storm surges; b. Impairment of coastal groundwater aquifers, surface water supplies, and estuaries due to saltwater intrusion; c. Reduced availability of drinking water due to increased temperatures and changing precipitation patterns; d. Worsened air quality, including through increased ground-level concentrations of ozone and particulate matter, and the resulting suite of serious health consequences for New Jerseyans—particularly populations already facing increased vulnerability to respiratory illnesses, including certain Overburdened Communities, children, the elderly, and those located near sources of pollution; e. Destabilization of marine ecosystems and fisheries due to, among other things, ocean acidification and warming waters, with rippling impacts on recreational, tourism, and maritime industries; and f. Loss of flora, fauna, and endangered species due to increased temperatures, more frequent forest fires, shrinking wetlands, more severe storms, and the spread of pests and invasive plant species.
266. Defendants' resource-impairing acts and omissions, as alleged herein, are indivisible causes of the alleged injuries and damages to the State's public trust resources because, inter alia, it is not possible to determine the source of any particular individual molecule of greenhouse gas pollution in the atmosphere attributable to anthropogenic sources because such greenhouse gas molecules do not bear markers that permit tracing them to their source, and because greenhouse gases quickly diffuse and comingle in the atmosphere.
267. Plaintiffs seek compensatory and natural resource damages in an amount to be determined at trial. Plaintiffs pursue these remedies in the State's sovereign, proprietary, and parens patriae capacity for the benefit of the general public. Plaintiffs also request an award of punitive damages, in an amount to be determined by the trier of fact, because Defendants' wrongful conduct, as set forth in this Complaint, exhibited a wanton or willful disregard for the rights of the State and its residents, and was committed with actual malice. The State's lawsuit is exempt from the Comparative Negligence Act because the public trust doctrine is an "environmental law[]" within the meaning of N.J.S.A. 2A:15-5.4.'
The Hawai'i Supreme Court upheld the denial of a permit to a company to supply energy using a biomass power plant, in light of the project's GHG emissions, and its impacts on the right to a clean and healthful environment under Article XI, Section 9 of the Hawaiʻi Constitution. In his concurring opinion, Justice Wilson tied the Hawai'i Public Utility Commission's obligations regarding permit issuance to its constitutional public trust obligations.
'I agree with the Majority that the PUC's consideration and denial of the amended Power Purchase Agreement ("PPA") met its duty under Article XI, section 9 to protect the right of Hawai'i's people to a clean and healthy environment, which subsumes the right to a life-sustaining climate system. I write separately to emphasize that the right to a life-sustaining climate system is also included in the due process right to "life, liberty, [and] property" enumerated in Article I, section 5 and the public trust doctrine embodied in Article XI, section 1's mandate that the State of Hawaiʻi "conserve and protect Hawaiʻi's...natural resources" "[f]or the benefit of present and future generations[.]"'
16 children and young people brought litigation against the State of Montana on the grounds that the state's fossil fuel-based energy system contributed to climate change in violation of their constitutional rights (including the right to a clean and healthful environment under Article II, Section 3 of the Montana Constitution) and of the public trust doctrine, which is grounded in Articles II and IX of the Constitution, as well as in Montana's common law. The claimants also argued that a Climate Change Exception provision in the Montana Environmental Policy Act which forbids agencies from considering the greenhouse gas emissions and climate impacts of projects when carrying out environmental reviews or deciding whether to issue permits violated the same rights. The Montana District Court found in the claimants' favour, awarding declaratory and injunctive relief.
[23] MC Blumm and RD Guthrie, 'Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision' (2012) 44 UC Davis Law Review 741, Section III(A)(3).
[24] [2023] EWHC 2285 (Admin)
6. HURDLES AND CHALLENGES
In a number of jurisdictions, particularly civil law systems, there is simply no concept of resources being held 'in trust' and thus impairment of public trust resources is not recognised as a valid cause of action (see e.g. Germany). However, it is important to note that there is much support in public trust literature and case law for the proposition that the core principles of the public trust doctrine - namely that the State holds natural resources in a fiduciary capacity on behalf of the people - are 'fundamental to democracy' and 'germane to any nation governed by the people'. As stated above, the doctrine may be implicit in constitutional and statutory provisions in many jurisdictions. Thus, it may be that analogous claims can be made, even if the framing and nomenclature are different.[25]
In other jurisdictions (Canada and the UK), there have been few cases in recent decades where courts have considered the public trust doctrine, and its application in climate litigation - indeed in environmental litigation generally - seems uncertain, as illustrated in the following Canadian judgments:[26]
• Burns Bog Conservation Society v Canada (Attorney General) 2012 FC 1024: The federal government and British Columbia agreed to build a road next to the bog. A conservation society brought litigation against the State arguing that the project would violate the public trust. The Court held as follows at para 39:
'No court in Canada has recognized a public trust which requires the Crown to protect the environment.'
• Nestlé Canada Inc v Ministry of the Environment [2013] OERTD No. 22, 75 CELR (3d) 242: Two public interest groups sought to challenge the Ministry of the Environment's decision to allow Nestlé to bottle groundwater. The Ontario Environmental Review Tribunal refused to apply the public trust doctrine on the basis that it is not recognised as law in Canada and a decision could be based on other statutory grounds.
• Bancroft v Nova Scotia (Lands and Forestry) 2021 NSSC 234: members of the public argued that based on the public trust doctrine the government could not sell public land to a private developer without public consultation. The Nova Scotia Supreme Court rejected this argument on the basis that a duty of procedural fairness cannot be owed to the entire public. Furthermore, the Court expressed concern that if such a broad public trust principle were accepted it would be hard to limit its scope to particular resources and uses:
'[4] I conclude that recognition of the public trust doctrine proposed by the applicants would not represent the kind of incremental change to the common law that this court is permitted to make. Nor can the court allow the application on substantive grounds.
[5] Elected officials on occasion make decisions, and use procedures, that leave some constituents feeling betrayed and even incensed. Where those officials exceed their power, judicial review may provide a remedy. But where the decisions are within their lawful authority, as in this case, the court cannot intervene. In such circumstances, if a remedy is sought by the public, the proper recourse in our constitutional democracy is not through the courts, but at the ballot box.
...
[153] Regardless of whether judicial recognition of the public trust doctrine proposed by the applicants is desirable, I find that it would not amount to the kind of "small extension of existing rules to meet the exigencies of a new case" with "readily assessable" consequences contemplated in Watkins. It would require a substantial recasting of the current law, the ramifications of which this court is not in a position to accurately predict.
[154] Currently, a common law duty of procedural fairness is owed when "a public body .... makes an administrative decision affecting individual rights, privileges or interests": Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, at para. 3. The duty of procedural fairness is flexible and variable, and its content depends on the specific circumstances of each case: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 21-22. "There is no recognized duty of fairness owed to the public at large": League for Human Rights of B'nai Brith Canada v. Canada, 2009 FC 647 at para. 42, aff'd 2010 FCA 307.
[155] To adopt the public trust doctrine would be to accept that the rights, privileges, or interests of all Nova Scotians, as beneficiaries of the trust, are affected by the removal of Owls Head from the PAPA. But decisions that affect the rights, privileges, and interests of the public at large are typically considered "legislative" and do not attract a duty of procedural fairness, for reasons explained in Halsbury's Laws of Canada (online), Administrative Law (2018 Reissue) at HAD-73:
There are two reasons why "legislative" decisions have been held exempt from the duty to provide procedural protection. First, where the decision is taken by a Minister or other elected official, they are accountable to Parliament and the electorate rather than the courts. The second reason is practical: bodies may be exempt from the duty of fairness where many diverse interests are potentially affected. Legislative decisions are often based on technical evidence and require several contending interests to be balanced. While individuals affected by specific policy-based decisions benefit from the application of the rules of procedural fairness, diffuse populations affected by general decisions will not. If broad-based policy decision-making were subject to the rules of procedural fairness, the legislative process might grind to a halt.
...
[157] The decision to remove specific Crown lands from the PAPA ["Our Parks and Protected Areas" plan], unlike a decision to close a specific school, does not affect any particular person and is not targeted at any one group. The applicants have not identified any person or group that will be more affected by the decision than the rest of the general public. As such, the decision falls much closer to the legislative and general end of the spectrum than a decision to close a specific school.
[158] In addition to that significant hurdle, I am not satisfied that, were this court to adopt the public trust doctrine, the limited scope proposed by the applicants could be easily maintained in future cases.
...
[160] The applicants say the only lands that would be captured by the public trust doctrine would be those identified in government reports, policy statements, or legislation as having public values that distinguish them from Crown lands generally. However, this narrowing of the doctrine's scope, likely intended to make its adoption more palatable to the court, has no apparent legal foundation. As such, if the court introduces the applicants' proposed public trust doctrine into the common law, there is no principled basis upon which to reject future attempts to broaden its scope and content to include the kinds of resources and uses protected in some U.S. states. In other words, the court would be "setting the law on an unknown course whose ramifications cannot be accurately gauged": Bow Valley, at para. 93.'
Even in jurisdictions, such as the United States, where the public trust doctrine is firmly established, a key challenge is expanding the scope of the doctrine - which has traditionally focused on water-related resources in connection with public interests in fishing, commerce and navigation - in order to encompass a wider range of natural resources and the interests of environmental protection and preventing climate change.[27] The non-profit law firm Our Children's Trust has brought atmospheric trust claims in states across the US, as well as against the federal government, seeking to hold governments accountable for polluting the atmosphere and damaging the climate system in breach of their fiduciary duties.[28] Thus far, most of these claims have been dismissed. However, there has recently been one successful merits trial decision in Held v Montana ; also the federal district court in Oregon has refused to dismiss climate-based public trust claims in Juliana v United States.
A final potential drawback of this cause of action is that it is the government trustee that is ordinarily positioned to bring litigation directly against corporations, including claims for damages, in order to protect and to restore public trust resources. Whereas, private claimants (citizens, NGOs etc) in their capacity as beneficiaries can generally only invoke the public trust doctrine against the State in its capacity as the trustee. Therefore, in the corporate climate context, the role of the beneficiaries will usually be limited to bringing breach of trust claims against the State, for example to prevent the authorisation of a climate-damaging project (which, of course, this is still a very valuable tool).[29]
[25] See MC Wood, 'Atmospheric Trust Litigation Across the World' in C Sampford, K Coghill and T Smith (eds), Fiduciary Duty and the Atmospheric Trust (Routledge 2012) 115-116.
[26] See K Bouwer, 'Climate Change and the Individual in the United Kingdom' in MM Mbengue and F Sindico (eds), Climate Change Litigation - A Comparative Approach (Springer 2021) Section 2.3 'The prospects of atmospheric trust litigation in the UK have been considered, and there are mixed views as to the prospects. It seems unlikely however that the UK courts would entertain freestanding civil rights cases of this nature.'; University of Victoria, 'The Public Trust Doctrine in Canada'
[28] See the wide range of climate cases brought by Our Children's Trust
7. POTENTIAL FUTURE APPLICATIONS
Future corporate climate litigation based on impairment of public trust resources will build on the established avenues.
A recent trend identified in corporate climate litigation in the United States is the reliance on state constitutional protections. Where constitutions include public trust provisions, it is anticipated that these will be increasingly invoked. This has already been seen in the ongoing public trust litigation in Rhode Island v Shell Oil Products.
Another development in recent years, based on research by Mary Christina Wood, is 'atmospheric trust litigation' that attempts to expand the public trust doctrine to include the atmosphere and the climate system as a protected resource.[30] While there is already precedent for court's finding that pollution of the atmosphere causes climate change which then damages traditional trust resources like navigable waters (see e.g. Juliana v United States), if courts accept the atmospheric trust argument this will offer a more direct and less complicated legal construct and any damages awarded would be allocated directly towards restoring the atmosphere, e.g. through reforestation and soil sequestration.[31] There has recently been a merits decision in Held v Montana, which raised atmospheric trust claims. This may open the door to further litigation.
In Canada, the public trust doctrine has seldom been invoked in modern times and its application to environmental claims has largely been rejected (see e.g. Burns Bog Conservation Society v Canada). However, future litigation might be able to use the Supreme Court's findings in Canfor, which traced the doctrine's 'deep roots in the common law', to support application of the doctrine in climate-related claims. Furthermore, despite finding that the doctrine disclosed no reasonable cause of action in the specific instance, the Federal Court in La Rose found that the argument that the government's inaction on climate change and greenhouse gas emissions violated the public trust doctrine was at least justiciable.
It is possible that public trust litigation could be revived in the UK, notwithstanding the recent dismissal of the claims supported by the Good Law Project. As stated by the NGO,
'Our challenge relies in part on the Public Trust Doctrine, which we say requires the Government to take positive steps to safeguard our coastal waters.
We believe that the Public Trust Doctrine is part of the UK Constitution, although it has not been relied on much in our courts and its scope is unclear. Winning this case could set a landmark precedent which would enable campaigners to use the Public Trust Doctrine as a foundation for legal challenges to compel the Government to protect our shared natural environment.
There is an opportunity for us to follow the example set in the United States, where the Public Trust Doctrine - adopted from our English law - has long been accepted by the US Courts as imposing a duty of environmental stewardship in several states.
...
Now the Public Trust Doctrine is being used across multiple states not just to protect bodies of water, but also to challenge developments that exacerbate exposure to air pollution.
We are very excited about the potential of the Public Trust Doctrine on our side of the Atlantic.'[32]
[30] MC Wood, 'Atmospheric Trust Litigation Across the World' in C Sampford, K Coghill and T Smith (eds), Fiduciary Duty and the Atmospheric Trust (Routledge 2012). Wood argues that the atmosphere should be recognised as a public trust resource: 'The same principles that have informed all of the historic public trust cases apply with even greater force to the atmosphere ... Though conditions change with time, the basic task and the principles that guide courts remain constant. While air has not yet been the subject of trust litigation, modern courts have a solid legal rationale from which to draw in designating the atmosphere as a public trust asset.'
[31]MC Wood and D Galpern, 'Atmospheric Recovery Litigation: Making the Fossil Fuel Industry Pay to Restore a Viable Climate System' (2015) 45 Environmental Law 259, 292-293.
[32] 'The Public Trust Doctrine: An ancient legal principle which could protect our environment now and for future generations' (Good Law Project, 13 February 2023)
8. COUNTRY SUMMARIES
- AUSTRALIA
To date, negligence is the only tort that has been raised in corporate climate litigation in Australia. The tort of trespass to land exists in Australian law and might be invoked in future litigation, particularly given that tort law has gained prominence as a potential cause of action for climate litigation following multiple high-profile climate cases in negligence. However, the difficulty of establishing causation and attributing liability for climate change impacts to individual companies or projects remains a significant hurdle for litigants.
- CANADA
Trespass can apply when toxic substances are released. Trespass requires direct, intentional, and physical interference with a plaintiff's land. Related to climate impacts, trespass can involve discharges of ash, smoke or other by-products, as well as runoff or aerial pesticides. In theory, a new action arises each day interference occurs. With trespass, mistake is not a defence. And unlike nuisance, there must be physical trespass onto the land. With that said, trespass does not require proof of harm. In corporate climate litigation, the difficulty with utilizing trespass is that the act must be intentional and there must be direct interference. Therefore, nuisance or negligence claims may be more appropriate.
In Kerr v Revelstoke, damages were awarded for the interference caused from machinery operations by a lumber company that was situated across the highway from the plaintiffs' motel. The machinery emitted smoke, dust, flying ash and noise onto the plaintiffs' property. The defendant was found not to be negligent as he had attempted to mitigate the effect on the plaintiff's business. While tangential to corporate climate litigation, Kerr v Revelstoke provides insight into how Canadian courts deal with toxic torts with respect to industrial operations. A corporate climate litigation claim in trespass might claim that noxious substances or waste dumping that enters a plaintiff's land is harmful to the environment.
- NETHERLANDS
Under Dutch law, civil conspiracy is not a specific cause of action. However, there are provisions of the Dutch Civil Code that could be used to impose liability for a conspiracy. Under Article 6:162, when two or more parties cooperate to commit an unlawful act that causes damage to another person, they may be held jointly and severally liable. Related is Article 6:166 which provides that when more than one person of a group commits a tort, the members of the group, under some circumstances, can be held jointly and severally liable for the entire damage unless they prove that the damage is not attributable to them. To date, there is no litigation on civil conspiracy in the climate change context.
- GERMANY
Cases of trespass could be addressed under general provisions on tort liability, particularly Section 823(1) of the German Civil Code:
'(1) A person who, intentionally or negligently, unlawfully injures the life, limb, health, freedom, property or some other right of another person is liable to provide compensation to the other party for the damage arising therefrom.'
Section 1004 of the Civil Code may allow a claimant to seek injunctive relief against trespass:
'(1) If the ownership is interfered with by means other than removal or retention of possession, the owner may demand that the disturber remove the interference. If there is the concern that further interferences will ensue, the owner may seek a prohibitory injunction. (2) The claim is excluded if the owner is obliged to tolerate the interference.'
- INDIA
In India, substantial fines have been imposed by the National Green Tribunal on companies that carry out construction work without the requisite environmental clearances. These fines are designed to provide compensation for environmental and ecological damage, as well as to support the cost of measures to control degradation caused by these projects. See, in particular, Forward Foundation v State of Karnataka, and SP Muthuraman v Union of India (OA No. 37/2015); along with Manoj Mishra v Union of India.
- ITALY
Generally speaking, in the Italian legal system, trespass can be assimilated to the general duty to compensate damage caused by wrongful acts under Article 2043 of the Italian Civil Code. In Italy, the only climate litigation grounded on Article 2043 is Greenpeace, Re:Common et al v ENI).
- JAPAN
Japan has no concept of trespass, but uses the umbrella torts concept following the European continental legal concept. (Japanese Civil Code Article 709ff).
- KENYA
While it may be possible to bring a claim based on torts, such as trespass, such litigation is rare in Kenya due to the availability of specific environmental provisions upon which environmental suits can be anchored.
- NETHERLANDS
Under Dutch law, there is no specific action of trespass under civil law. However, the general provision on tortious/unlawful acts in Article 6:162 of the Dutch Civil Code could provide a legal basis for a similar claim.
- NIGERIA
Trespass to land is committed where a defendant without lawful justification enters, or remains upon land in possession of the plaintiff, or directly places or projects any material or substance on or above or beneath such land. Only persons who are in actual or constructive possession of the land can bring an action in trespass. As trespass is actionable per se, the party bringing the action will not - unlike nuisance, for example - have to prove that the trespass has caused actual damage. In deserving cases, this characteristic would make it a relatively easier route to justice for climate litigants. While it has not been the basis for a corporate climate claim in Nigeria, the utility of trespass to land in climate cases in the country will largely depend on the readiness of the Nigerian court to extend trespass to intangible incursion, in order to cover activities like GHG emissions.
- PHILIPPINES
It is possible that a claim for trespass to land could be made based on provisions of the Civil Code of the Philippines that address civil liability for (1) causing loss or injury contrary to public policy (Articles 19 and 21); (2) for violating the privacy of another's residence (Article 26); (3) for, among other property rights, violating the right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures (Article 32).
However, trespass to land is explicitly covered in Article 281 of the Revised Penal Code which is how trespass is often litigated:
'ARTICLE 281. Other Forms of Trespass. — The penalty of arresto menor or a fine not exceeding 200 pesos, or both, shall be imposed upon any person who shall enter the closed premises or the fenced estate of another, while either of them are uninhabited, if the prohibition to enter be manifest and the trespasser has not secured the permission of the owner or the caretaker thereof.'
Although a criminal action, a civil action for the recovery of civil liability arising from the offence charged is also impliedly instituted.[17]
- POLAND
The Polish Civil Code does not include a tort of trespass. In relation to greenhouse gas emissions, a claim alleging an intentional invasion of another's exclusive right to possession of property would have to be based either on Articles 144 and 222 § 2 of the Polish Civil Code, in case of interference with the enjoyment of one's property; or on Article 415 which is the general provision on civil liability for a tortious act that causes damage. A claim under Article 415 could also be based on harms such as stress, inconvenience or anxiety caused by the trespass. Additionally, Article 222 allows for an abatement claim to stop violations of ownership rights.
In case of environmental pollution, a claimant in Poland could also act based on Article 323 of the Environmental Protection Law Act which provides a polluter may be required to cease an activity that threatens to cause environmental damage.
- UNITED KINGDOM
In English law, trespass to land involves the unjustifiable interference with land in immediate and exclusive possession of another.[18] It is not necessary to prove that harm was suffered to bring a claim, and is instead actionable per se.[19] There have been actions in trespass brought in the context of climate change, but most of these are prosecutions of climate change activists, and as such fall beyond the scope of the project.
- UNITED STATES
Trespass to land is an invasion into another's exclusive right to possession of property. It is a direct unlawful interference with another's property. Generally, the main elements of trespass are: (1) an unlawful intrusion or invasion upon a property; (2) intent of intrusion; (3) force; and (4) consequent injury to an owner.[20] As an intentional tort, the intent is required. Instead of intent to trespass, intent to enter or remain on the land is required, regardless of whether the trespasser knows the land is owned by others.[21] The owner need not prove that they suffered actual damages of value decreasing or property repairing.[22] A nominal damage claim is permissible.[23]
One of the first cases to claim trespass was the Murphy Oil case in the First Wave, but it was dismissed. A series of Second Wave cases claiming trespass have been brought by states, cities, counties and municipalities. For instance, in City & County of Honolulu v. Sunoco LP, Honolulu asserts that the defendants 'caused flood waters, extreme precipitation, saltwater, and other materials, to enter the City's real property, by distributing, analyzing, recommending, merchandising, advertising, promoting, marketing, and/or selling fossil fuel products' with the knowledge that 'those products in their normal or foreseeable operation and use would cause global and local sea levels to rise [...] among other adverse environmental changes, and the associated consequences of those physical and environmental changes.' As with many other Second Wave cases, the litigation has been delayed by arguments over whether the case belongs in state or federal courts. The case has now been remanded to the state courts and the Hawai'i Supreme Court will likely be the first state court to decide whether climate change tort claims are pre-empted by federal common law and the Clean Air Act. Furter discussion of these issues can be found in the Section on Standing, Justiciability and Jurisdiction (hyperlink to be added).
[17] RULES OF COURT, Rule 111, § 1.
[18] J Steele, Tort Law: Text, Cases, and Materials (5th edn, Oxford University Press 2022) Chapter 18.
[19] ibid.
[20] 75 Am. Jur. 2d Trespass § 26.
[21] Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100 (R.I. 2016).
[22] See e.g., Smith v. Carbide and Chemicals Corp., 507 F.3d 372, 172 O.G.R. 85 (6th Cir. 2007).
[23] Id.
