Can Traditional Trust Law Help Protect the Environment?

Imagine that the government had the same responsibility for protecting the environment that your banker has for protecting your money.  Could traditional trust law–the law that protects your bank account–strengthen environmental protection?  I explore that question in a new article.  

Public Trusts for Natural Resources

Public trusts for natural resources incorporate both limits and duties on governments in their stewardship of those natural resources. They exist in every state in the United States—in constitutional provisions, statutes, and in common law. Yet the law recognizing public trusts for natural resources may contain only the most basic provisions—often just a sentence or two. The purpose and terms of these public trusts certainly answer some questions about the limits and duties of trustees, but they do not answer all questions.

When questions arise that the body of law creating or recognizing a public trust for natural resources does not fully answer, trustees, lawyers, and courts often look to trust law for help. In fact, they have been doing so for more than a century, including in the U.S. Supreme Court’s landmark 1892 public trust decision in Illinois Central Railroad Co. v Illinois. In this sense, trust law provides a set of background or underlying principles for interpreting and applying public trusts.

Using Public Trust Law to interpret These Public Trusts

Using cases from around the country, this Article sets out a four-step methodology for determining when and how to use trust law principles to help interpret public trusts. This methodology can be applied in any case involving the use of trust principles to help interpret any particular public trust. This Article also explains that the relevant trust law includes general trust principles, private trust law principles, and charitable trust law principles, and should not be limited to private trust law.

Pennsylvania Court Decision as Case Study

This Article uses a 2019 Pennsylvania Commonwealth Court decision, Pennsylvania Environmental Defense Fund v. Commonwealth, as a case study. The case applies Article I, Section 27 of the Pennsylvania constitution, which requires that public natural resources be conserved and maintained for the benefit of present and future generations.

In that case, the court used an interpretation of private trust law to decide that the state could spend some bonus and rental payment money from oil and gas leasing on state forest and park land, which is constitutional public trust property, for nontrust purposes. This Article applies the four-part methodology to the case, explains general trust law and charitable trust law principles that the Commonwealth Court did not address, and argues that use of these principles better fits the constitutional public trust. It concludes that the money from bonus and rental payments should be spent entirely for the purposes of the trust.

Value and Danger of Traditional Trust Law

This Article is intended to draw attention to both the potential value of trust law principles and also to their potential danger in the interpretation and application of public trust laws for natural resources. Trust law has the potential to enhance the protectiveness of public trusts by imposing various fiduciary duties on trustees. It also has the potential to undermine public trusts, particularly through rules requiring that trust assets be financially productive. To vindicate public trusts for natural resources, environmental and natural resources lawyers need to become better trust lawyers.


The University of Michigan Journal of Law Reform published the article.  Back in 1977, as a student at Michigan Law School and a staff member with the Journal of Law Reform, I published my first article with the Journal.  It was a joy and a privilege to do so again.