April 6, 2001
 Michael Warburton on the Public Trust Doctrine

Much of public policy in the US is done with shortsightedness, especially in the area of land and water use. This shortsightedness in part stems from an impoverished concept of private property. The dominant conception of private property is the root of ecological degradation. A solution to this problem comes from revitalizing the concept of "trust," which implies stewardship and conservation of resources for specific things, and in doing so, reconstructing the concept of private property.

The idea of the public trust, originated in reference to holding navigable waters and the lands around them in common, for all to use responsibly. It comes from a belief that sometimes the broader public interest must be placed over and above private interests. The Magna Carte is an example of an earlier version of the public trust. It limited the kings ability to act in was that harmed the common interest. But these concepts are deeply rooted in religious tradition (Christianity in this case) and in ancient Greek and Roman law.

Religious Roots of the Public Trust
Throughout the history of Christianity, ethical progress is tied to the expansion of the moral community, an expansion that includes ever more "others." There is a movement (looking at both Hebrew and Christian Scriptures through a Christian lens) outward of concern from family, to tribe, to community, and a projection of this expansion to all the earth. This is a different notion of progress than personal gain, or technological advancement at any cost. It stretches the moral community with each "progression," making ever more "others" members of the moral community.

The philosophy, writings, and vision of Frederick Law Olmstead, "the father of landscape architecture," have roots in New England Puritanisms idea of "responsibility to the whole moral community." Perhaps most well known for the national parks he designed (like Central Park in New York City), Olmstead was also a conservationist and advocate for social justice. For Olmstead, nature is inherently valuable and not just valuable in the utilitarian sense. He believed that when you contemplate on and relate to the natural world, you benefit from it. He also believed that everyone should have access to parks and to the natural world, not just those who could afford it. Olmstead did not believe that nature or plans for a national park could be sold to the highest bidder; rather, he believed that nature ought to be preserved for all and all future generations. Olmstead knew the value of the public trust.

Governmental, Civil, and Philosophical Roots of the Public Trust
The roots of the Public Trust date back to ancient Greek ideas about the Polis. Likewise, in Ancient Rome, emperors often made decrees that were based on some notion of public trust. Justinian, for example decreed that the air, water, sea, and shores of the sea are common property. This was in reference to oceanic waterways, but nonetheless is an example of a governmental policy that supports the idea of a public trust.

The point here is that the public trust tradition is one that has existed alongside that of the private property tradition and people in the fields of resource management, law, and economics need to realize this. Indeed, the supreme court of the United States has ruled in favor of the public trust. In 1842 (in the case of Martin v. Wydell) the Supreme Court ruled that shorelines and shore waters are public and that wealthy landowners cannot control access to these areas. Here, the Supreme Court ruled that the broader public interest superseded that of private interests. There was another case in Hawaii (forgive me, I have forgotten the dates and name of the case, it was something like Hawaii v. Sugar Plantation, giving the name of a specific sugar plantation of course) where the courts ruled that sugar plantations could not sell ground water and make money. Not only are (above ground) flowing waters for everyones use, groundwater (that actually flows too) is for everyones use and cannot be bought by private corporations.

The idea behind these court cases is an outgrowth of the nature of water, viz. it flows, evaporates, accumulates, etc. Water just happens to be a good example of something that cant be contained; thus making it hard to turn into private property. Of course, air, land, animals, trees, etc. are not sealed entities. All life moves, changes, grows, decomposes, feeds off of other life, etc. The task is to provide enough evidence of this in court, so that courts will rule in favor of a public trust.

Concluding Remarks
We also talked about how The Tragedy of the Commons is actually a misnomer and should be called "The Tragedy of the Institutionally Unsupported Commons." Often, this concept is used to trump any touting of an economy and judicial system based upon "the commons" or "the public trust." However, if the public trust or commons were properly supported by our institutions, there would be no reason to believe the outcome would be tragic.

Michael also spoke briefly about how he thought the public trust should be extended to genetics and cyberspace. We discussed gene-patenting a bit and how this shows blatant disregard for the public trust/commons. That some should own the information behind certain sequences of genetic matter that make (a part of) life possible is ludicrous; yet, that is exactly what is happening.

Well, I am quite sure I left out some important things, but at least you get the gist!
It was a wonderful forum and reminded me how important law is for theological education. What do religious communities, actively pursuing some sort of "earth ministry," need to know about public trust law, or environmental law in general? I submit that it would be a valuable piece to any theological education.


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