Public Trust Doctrine Implications of Electricity Production

The public trust doctrine is a powerful legal tool in property law that requires the sovereign, as a trustee, to protect and manage natural resources. Historically, the public trust doctrine has been used in relationship to navigable waterways and wildlife management. Despite electricity production’s impact on those two areas and the comparatively smaller impacts of renewable energy, electricity production has garnered very little public trust doctrine attention. This Article examines how electricity production implicates the public trust doctrine, primarily through the lens of four states—California, Wisconsin, Hawaii, and New Jersey—and how it would potentially apply to each state’s electricity planning and policies.

As illustrated in the four case studies, the public trust doctrine can serve the following four purposes: (1) as a tool for citizens to force states to act on renewable electricity development; (2) as a legal defense for states to validate actions encouraging renewable electricity development; (3) as a means for courts to more closely scrutinize electricity decisions made by the state; and (4) as an opportunity for state agencies to supplement and guide imperfect statutes. Together, these four purposes of the public trust can ensure reasonable and timely development of renewable electricity as well as sufficient protection of trust resources.