In celebration of the journal’s recent transition to a new editorial board, JEEL is previewing an article for an upcoming issue written by Erin Ryan.
Please click link below for full article:
ERIN RYAN*
“This Article partners a summary of the Mono Lake story—one of the all-time great tales of environmental, property, and water law—with additional historical context, expanded legal analysis, and new reporting on contemporary public trust developments, especially Juliana v. United States and the unfolding atmospheric trust climate litigation. The Mono Lake case and its progeny—in which the public trust doctrine has been applied in contexts ranging from takings litigation to groundwater management to fracking regulation and now to climate change—prompt reflection about the way the public trust doctrine navigates complex conflicts between public and private rights in natural resource commons.
This treatment explores the origins of the public trust doctrine in Roman and British common law through its development in American law, including the U.S. Supreme Court’s 1892 affirmation of the doctrine as a background principle of state law in Illinois Central Railroad v. Illinois. It then introduces the law of private water allocation in the eastern and western United States—riparian rights and prior appropriations, respectively. It considers how the public commons theory that underlies the public trust doctrine collides unapologetically with the privatization theory that undergirds the western doctrine of prior appropriations, enabling academic analysis of how this conflict so famously played out at Mono Lake.
The Article summarizes the historical and judicial elements of the Mono Lake story, including the implications of the court’s decision for understanding the public trust doctrine as a limit on sovereign authority. It summarizes the criticisms that followed from advocates for property rights, the constitutional separation of powers, and environmental concerns, and reviews the doctrinal progeny of the case, including the Scott River extension of Audubon Society to groundwater resources, the Pennsylvania Supreme Court’s application of public trust principles to fracking regulation, and now the atmospheric trust climate litigation emerging worldwide.”
*Erin Ryan, Elizabeth C. & Clyde W. Atkinson Professor, Florida State University College of Law; J.D., Harvard Law School; M.A., Wesleyan University; B.A. Harvard University. I am thankful to the organizers and participants of the George Washington Journal of Energy and Environmental Law Public Trust Symposium for their invitation and helpful comments, and to Mallory Neumann, Jill Bowen, Taylor Schock, and Jennifer Mosquera for their research assistance in support of this project. This essay distills work previously published in Erin Ryan, Th e Public Trust Doctrine, Private Water Allocation, and Mono Lake: The Historic Saga of National Audubon Society v. Superior Court, 45 Envtl. L. 561 (2015), together with new historical context and reporting on subsequent developments.
