Public Trust Doctrine Could Aid Management of U.S. Oceans
Since Congress lifted a moratorium on offshore drilling last year, federal lawmakers have grappled with the issue of how best to regulate U.S. ocean waters to allow oil, wave and wind energy development, while sustainably managing critical fisheries and marine animal habitats.
A new policy paper, published in Science last spring by a team of Duke University experts, argues that establishing a public trust doctrine for federal waters could be an effective and ethical solution to this and similar conflicts.
“The public trust doctrine could provide a practical legal framework for restructuring the way we regulate and manage our oceans. It would support ocean-based commerce while protecting marine species and habitats,” says lead author Mary Turnipseed, a PhD student at the Nicholas School.
The public trust doctrine is “a simple but powerful legal concept,” Turnipseed says, that obliges governments to manage certain natural resources in the best interests of their citizens, without sacrificing the needs of future generations.
The doctrine already is well established in the United States at the state level, where natural resource agencies are legally bound to seek legal action against private parties who are infringing on the public trust.
Extending the public trust doctrine to U.S. ocean waters would help federal agencies better manage conflicting demands such as conservation, offshore energy development, fisheries and shipping in the 3.6 million nautical square miles of water included in the nation’s territorial sea and Exclusive Economic Zone (EEZ), Turnipseed says. Currently, more than 20 different federal agencies, operating under dozens of laws, regulate species and activities in these waters, without any mandated, systematic effort to coordinate their actions for the public good.
“In the Gulf of Maine, as an example, a wide range of different activities—including shipping lanes, ferry routes, U.S. Navy operations, fisheries and proposed wind farms—overlap critical habitat of the endangered right whale,” she says. “Most of these are regulated by separate agencies, with only piecemeal coordination. A public trust doctrine would identify these agencies as trustees of the U.S. ocean public trust, unifying them for the first time under a common mandate to manage the gulf’s resources sustainably.”
Stephen Roady, senior lecturing fellow at Duke’s School of Law and an environmental lawyer at Earthjustice, Larry B. Crowder, Stephen Toth Professor of Marine Biology at the Nicholas School and director of Duke’s Center for Marine Conservation, and Raphael Sagarin, former associate director for coastal and ocean policy at Duke’s Nicholas Institute for Environmental Policy Solutions, also contributed to the paper.
