Environmental Rights for the 21st Century: Comparing the Public Trust Doctrine and the Rights of Nature Movement

This article contrasts two theoretically distinct approaches to pursuing related objectives of environmental protection: the public trust doctrine and the rights of nature. It reviews the development of public trust and rights of nature principles in both domestic and international legal contexts, and explores points of theoretical commonality and contrast between the two, giving special attention to the opposing systems of environmental ethics from which the anthropocentric public trust and ecocentric rights of nature principles arise. The marked jurisdictional variation associated with both approaches suggests their evolving and inchoate nature as a guarantor of environmental rights. Moreover, both are especially oriented toward the protection of waterways, suggesting the limitations of conventional environmental law to provide adequate protection, and the resulting resort to alternative means. After reviewing the historical origins of the public trust doctrine in Roman and British common law, the article recounts its reception and development in U.S. law, leading to extraordinary jurisdictional diversity along the axes of the resources to which the trust applies, what values the trust protects, what mechanisms of law vindicate trust principles, and different legal theories in different states about the nature of the doctrine itself. It offers a snapshot of the diversity of the doctrine in sample states of California, Idaho, Pennsylvania, Colorado, Hawaii, and Florida, and then reviews the state of public trust principles in nations beyond the US. It then provides an overview of the Rights of Nature Movement, both internationally and domestically. It provides the first scholarly survey of major Rights of Nature laws enacted throughout the world, and then reviews a series of local Rights of Nature bills introduced and enacted in American municipalities and native American tribes, as well as judicial and legislative efforts to block them. It especially focuses on unfolding disputes in Florida, where multiple local governments are experimenting with Rights of Nature ordinances, and Orange County passed a Bill of Rights ordinance to protect the local river system from extraction in the same year that the state legislature statutorily preempted local Rights of Nature ordinances from effect. Finally, it compares and contrasts the two approaches, considering how these different anthropocentric and biocentric frames of reference provide different answers to basic questions of environmental management. It asks whether the doctrines can provide mutual support or are destined to undermine one another. It also considers the ways each model is used as a tool of political advocacy in legislative and administrative contexts beyond litigation. Both partner failures in litigation with more promising impacts in the political arena, where the motivating ideas can become a galvanizing force for policy change. Indeed, the enormous jurisdictional variation among both approaches—each a mosaic, rather than a monolith—signals the extent to which they are still evolving, and may long remain inchoate vessels of advocacy into which the champions of vulnerable environmental values pour both their frustrations and their hopes.