Environmental Law Flashcards
Public Trust
Navigable waters and related lands are held in trust by federal
and state governments for the benefit of the public (for
navigation, commerce, fisheries, etc.)
Just v Marinette County (property owners rights)
Facts:
- Conservancy district, permit requirement for fill material
* The Just violated the ordinance and argued the ordinance was a
taking of their land
Rationale
- Wisconsin (public) trust doctrine – duty on the state to eradicate pollution and to prevent further pollution in its navigable water.
- The ordinance prevents a harm from the change in the natural
character of the land
Green Theory of Property
1- Any change in the character of land that impairs its natural value would require a permit.
2- No permit would be granted unless the development served a compelling human need.
3- If the development appears to cause some specific harm to the environment not directly forbidden but positive regulations, it can be permitted only if
a. It will be accomplished with the minimum environmental damage
b. The developer will pay in dollars the costs of environmental damage AND
c. The human gains from development substantially exceed the environmental harm from the project.
Audubon Society v Superior Court (Mono Lake in California)
Ruling: The State must reconsider the allocation of the waters and take into
account the impact of water diversion on the Mono Lake environment
Public Trust Doctrine
- Purposes of the public trust
* Scope of the public trust
* Duties and powers of the state as trustee
Juliana v US (climate change)
- When a government infringes on a fundamental right we use strict scrutiny.
- Defendants have violated their duties as trustees. They adequately alleged harms to public trust’s assets because they connected them to ocean acidification and rising ocean temperatures.
