Commentary: The Gulf oil disaster and the Public Trust Doctrine

McClatchy NewspapersJune 11, 2010 

A year ago, we proposed that a simple, powerful, yet largely forgotten principle of American law known as the Public Trust Doctrine should be reinvigorated to protect coastal and marine resources. Now that the largest oil spill in U.S. history is consuming the Gulf of Mexico, our scientific and legal arguments have become more urgent.

More than a human tragedy, an environmental disaster or an exemplar of the perils of too relaxed a relationship between government regulators and private industry, the Deepwater Horizon spill is a catastrophic failure to protect the public trust. Millions of animals; a $2.5 billion fishing industry and a $3 billion tourism sector imperiled; the toxic legacy of dispersants; and up to 17,000 barrels of oil spilling into the Gulf every day, all are a shocking blow to the value of the coastal and marine resources that are a vital part of our nation's public trust.

What's been completely overlooked is that a legal framework known as the Public Trust Doctrine (PTD), established in the earliest days of this country and since expanded through courts and state and federal legislative bodies, provides the power — and the legal responsibility — to manage public trust assets in a comprehensive fashion that balances competing short and long-term needs of all American citizens. It's a mandate that if it had been implemented properly would likely have prevented the current catastrophe, and if applied to the full extent of its powers could prevent similar disasters in the future.

The PTD recognizes the government as a trustee that's responsible for the management of public trust resources, whether they be fish swimming in healthy marine ecosystems or flopping in the nets of a robust and sustainable fishing industry. The trustee holds several solemn responsibilities — to grow the assets in the trust, to repair them should they be damaged, and to protect them for future generations.

The PTD, however, has never been at the forefront of campaigns to support increased environmental protection. In part, this is due to a misconception that strong environmental statutes, which began to be passed in the early 1970s, essentially obviated the need to rely on basic principles such as the PTD.

Recent developments call this logic, and the general neglect of the PTD, into question.

First, despite some well-documented successes, environmental statutes have either failed to curb the depletion of public trust resources such as fish stocks or are inadequate to deal with emerging threats such as climate change and ocean acidification. In other cases, such as the Interior Department's Minerals Management Service's (MMS) approval of even the flimsiest deepwater drilling environmental impact statements, sufficient regulation exists but can be legally side-stepped by agencies that aren't sufficiently considering the public interest.

Second, the emerging science and economics of "ecosystem services" recognizes that all natural resources are tightly interlinked and provide essential ecological and economic benefits to all of society, so that no individual resource can be managed in isolation, nor can it be treated as worthless, to be given away to the first in line.

Here again, the Deepwater Horizon catastrophe has exposed the limits of the current regulatory system, wherein the MMS essentially acted as a co-owner, with multi-national corporations, of resources that belong to all Americans. Oil resources that have real value to Americans were given away for free to corporations thanks to royalty relief; and the ensuing gold rush brought rapid advances in drilling technology that swiftly outpaced environmental and technological safeguards.

Moreover, the real connections between deepwater oil resources and other natural resources were virtually ignored as agencies with conservation or safety mandates, including NOAA and the Coast Guard, had little input into MMS' operations. Indeed, the dangerous fragmentation of U.S. ocean management into nearly two-dozen agency-led fiefdoms was documented long before the spill.

Under a governance framework driven by the Public Trust Doctrine, all agencies would have equal standing to ensure that the trust was protected. Rather than following a narrow mandate, which for MMS deteriorated into favoritism, outright corruption and simply ignoring concerns about the ensuing exemptions to environmental law, agencies would be bound by a culture of trusteeship and share a responsibility to curb the egregious abuse of public trust assets.

This is analogous to a well-managed financial trust or mutual fund, in which a range of high- and low-risk investments are balanced by a team of managers to ensure a reasonable degree of security while growing the trust as a whole.

Placing this mandate at the fundamental level of U.S. ocean resource management doesn't require new regulations or regulatory authority. Public trust language is already explicit in several statutes, including the Oil Pollution Act of 1990, and strongly implied in others; and some courts have intoned a federal public trust responsibility.

It may require an Executive Order reiterating the universal public trust responsibilities of all federal agencies. Or it could be quickly mobilized within the mission statement of the nascent National Ocean Council, an interagency body that's waiting to be formalized after President Barack Obama called last year for its creation.

A month before the Deepwater Horizon blowout, the president announced that the nation would expand drilling in federal waters. If expanding domestic oil production is to be accomplished without further endangering U.S. ocean ecosystems and the jobs that depend on them, we need to know that the government we've entrusted with the authority to manage our ocean resources will consistently act in the best interest of those ecosystems and us, the rightful beneficiaries.

A strong Public Trust Doctrine provides the most immediate, comprehensive and defensible way to ensure that in the post-Deepwater Horizon era, the core trust between U.S. citizens and our government is restituted.

ABOUT THE WRITERS Dr. Rafe Sagarin is a marine ecologist and policy researcher at the University of Arizona's Institute of the Environment. Mary Turnipseed is a graduate student in Duke University's Nicholas School of the Environment.

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