Commons Sense

An ancient legal principle can help us protect the environment

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Right-wing Republicans are eviscerating environmental protections everywhere with such apparent ease that even landmark legislation such as the Clean Air Act seems powerless as a defense. Investigative reporter Mark Dowie writes in Orion (July/Aug. 2003) that the public may be better served by invoking the ancient Public Trust Doctrine rather than specific laws in their fight to save the environment.

The doctrine, which dates to Roman times, establishes the right of public benefits over private property, Dowie explains, and has been used effectively throughout the past century to protect public water and land rights in several high-profile cases, including the controversial 1983 Mono Lake decision. In that case, the California Supreme Court cited the Public Trust Doctrine in its ruling against the Los Angeles Department of Water and Power, which had been drawing water from streams feeding Mono Lake, threatening the surrounding ecosystem.

Since then, threats to the publicly held commons have only grown more intense, expanding from environmental issues to include everything from broadcasting waves and intellectual property to genetic cloning. “Given all these invasions, and potential invasions, there are reasons to believe that the Public Trust Doctrine may have an increasingly important role to play in defending those aspects of our environment that rightfully belong to all of us,” Dowie writes.

But in order for supporters of the commons to prevail in these struggles, they must take the Public Trust Doctrine outside the courtroom as well. It's unlikely that it will be effective without a higher level of citizen activism and public education, Dowie explains. “And why shouldn't a broad spectrum of people come out to protest the rampant enclosure of the commons that is unfolding today?” he asks. “It seems to me that this doctrine, and the whole notion of an expanded commons, should be able to transcend the traditional right-left, public-private divisions that have long plagued debate over property and the commons.”
Craig Cox