Erin Ryan

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Environmental Law

Publication Title (Abbreviation)

Envtl. L.



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This essay reviews the theoretical underpinnings of the public trust doctrine, received at common law and constitutionalized in many states, and explores its contentious reception by green legal theorists. Since Professor Joseph Sax's revival of the ancient common law doctrine as a vehicle for environmental advocacy in the early 1970s, it has been hailed by many environmentalists as the most powerful tool available for protecting natural resource commons. At the same time, however, it has been attacked by others who argue that use of the property rights-based doctrine reifies an ownership approach to natural resources and obstructs the development of more desirable stewardship-oriented legal theories of natural resource management. The essay contrasts the work of Professor Sax, representing the public trust advocates, with that of Professor Richard Lazarus, representing the green dissent, observing that their primary bone of contention may reduce to which branch of government—the judiciary or the legislature—is viewed as the most faithful shepherd of environmental values. The piece concludes that, despite its formidable theoretical critique, the green dissent may elide the theoretical growth of the modern constitutionalized version of the public trust doctrine beyond its common law roots.

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