Gone But Not Forgotten: Application of the Public Trust Doctrine to Preserve North Carolina’s Resources

By: Jason Arter

In a quest for more energy sources, the land and the resources are quickly being abused. The public must know that there alternative means to protect the basic resources needed for life in general. The Public Trust Doctrine (herein “Doctrine”) in its most current application dictates the protection of resources for citizens of the state; it can be a useful tool for the states as adopted in the federal judicial system. Although this Doctrine has never been codified, judges have engineered a basic set of principles that allow states natural resources to be protected. The Doctrine was developed through the federal government as a means to protect critical natural resources such as forests, land, and most importantly water. It is now incumbent upon the states to use this Doctrine to protect the environment inside each state’s respective borders.

The rights of one should not jeopardize the rights of many, in my opinion. Allowing individuals, energy companies, and states to use methods, such as off shore drilling, to extract oil reserves is a violation of the Doctrine when the extraction damages resources that have been dedicated to the public for their welfare. If allowed to use this method, the damaging effects can be quickly realized, and those effects such as damaging water reserves can be catastrophic. Thus, the natural resources, such as clean drinking water, which would otherwise provide for many, will be jeopardized. Effective application of the Doctrine, through state and local action, will not only guarantee the protection of natural resources, but ensure the protection of rights as established in many state constitutions. The natural resources in North Carolina have been set aside for the citizens of the state. The state constitution reads in Article 14 Section 5:

It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, open-lands, and places of beauty.[1]

A narrow and naive perspective would allow a person to think that this will not happen to our state, but just ask the citizens of the gulf after the BP Deepwater Horizon disaster.

Deepwater Horizon aerial view of the explosion. Photo courtesy of nbcnews.com.

Aerial view of the BP Deepwater Horizon explosion. Photo courtesy of nbcnews.com.

The state and its political components have a duty, and it is the responsibility of the citizens to remind those in office of this forgotten doctrine. Although it may appear a daunting task, a simple letter, a call to a person’s representative, or a grass roots signature campaign may raise the awareness levels of the elected officials duties. Those duties are clearly documented in the constitution of this state and countless other states.

Development of the Public Trust

As initially applied, the Doctrine protected commerce on the public waterways.[2] This Doctrine, however, has evolved, morphing into a tool for concerned citizens to protect wildlife and the natural resources of the state. It is under this developing model that the Doctrine has begun to gain traction in the preservation of natural resources.[3] As early as 1896, this concept of “public trust” was applied in American courtrooms. Initially, the concept within the United States courts was only used for navigable waterways and the adjacent land when the tides were low.[4] Although the concept has never been codified into federal law, it has been recognized as a “backbone” principle in deciding cases affecting states and their rights regarding land issues.

States have begun to effectively use this Doctrine in preserving not just water, but drinking water. The California Supreme Court has stated:

The state as sovereign retains continuing supervisory control over its navigable waters and the lands beneath those waters. The principle, fundamental to the public trust. . . prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust.[5]

This, however, is not a new American concept. The initial Doctrine can be traced back to the early Roman Empire. It was believed, in its most basic form, that, “[b]y the law of nature,” every citizen was entitled to the common resources of the Empire. Among those being clean air, running water, seas, and the shores of the seas.[6] It is under this model that the Doctrine can be applied to the current issue of offshore oil drilling, which has become an issue for the citizens of North Carolina and the resources of this state.

Although its roots have evolved from the times of the ancient Romans through the English court system, the principles associated with the Doctrine have been successful in the modern courtroom.

North Carolina should recognize the harms associated with offshore drilling and the conflict that is created by not ensuring clean water resources for the citizens of this state. Although fracking is considered more damaging to ground water, the issue of fracking has been settled among the counties in this state. With the issue of fracking addressed, the potential of damage now stems from the potential of offshore drilling.

Why Does It Matter?

Since his inaugural speech, Governor McCrory has pushed for offshore drilling and has renewed the pressure directly at the Obama administration to relax federal legislation, which would allow drilling to begin sooner rather than later. The offshore drilling concern in North Carolina was heightened when Governor McCrory formed a coalition (which he also heads) with South Carolina Governor Nikki Haley.[7]

In recent events, the Obama administration has also begun to weaken in its attempts to limit offshore drilling. President Obama has agreed to allow federal licensing to begin for several tracks of ground located fifty miles off the coast of North Carolina.[8] This opens the door for the drilling to begin, promoting the ideas of energy independence and national security. Both ideas are worthwhile, but the risk versus the reward is the primary concern.

National security–although listed independently–seems to be a byproduct of the goal of energy independence. Governor McCrory has also stated that thousands of jobs would be created, and millions of dollars would be generated into the state’s economy.

All of these goals on the surface would be beneficial, but it only takes one BP Deepwater Horizon Disaster to erase all of it. It only takes one spill to contaminate coastal waters, and the water supplies of countless communities. The question has been raised regarding increased safeguards. These safeguards would come at the expense of the citizens as taxpayers, for whom the resources should naturally be protected. It seems counterintuitive that when a constitution sets the resources to be protected for the citizens, the citizens should pay for something that is natural.

The Doctrine then becomes a critical tool for the prevention of these dangers. As an established right in the constitution of North Carolina, citizens should not be denied clean water for the pursuit of a bottom line profit margin. The resources of this state are for the citizens to use and enjoy, not for a company to ruin with a profit as its only goal. Although at first glance, the drilling offshore may not be a civil rights issue, a quick reminder of the lives, jobs, industries, and resources that were all lost with just one incident should be remembered. The question of speculation surrounding the potential for disaster seems to ease the concerns for some, but why wait and be reactive to a disaster, when proactive prevention can be the answer?

[1] N.C. Const. art. XIV § 5.

[2] Illinois v. Illinois Central R.R. Co., 184 U.S. 77, 22 S. Ct. 300, 46 L.Ed. 440 (1902).

[3] Michael C. Blumm & Rachel D. Guthrie, Internationalizing The Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision, 45 U.C. Davis L. Rev. 741, 745 (2011).

[4] Parks v. Cooper, 676 N.W.2d 823, 837 (S.D. 2004).

[5] National Audubon Society v. Superior Court, 33 Cal. 3d 419, 445 (Cal. 1983).

[6] Allan Kanner, The Public Trust Doctrine, Parens Patriae, and The Attorney General as the Guardian of The State’s Natural Resources, 16 Duke Envtl. L. & Policy F. 52, 67 (2005).

[7] Amara Omeokwe, Gov. McCrory Applauds Offshore Drilling Proposal for Carolinas, 2015, Time Warner Cable News, available at http://www.ny1.com/nc/coastal/news/2015/01/28/gov–mccrory-applauds-offshore-drilling-proposal-for-carolinas.html.

[8] Ben Geman, Obama Proposes Opening Atlantic Ocean to New Oil Drilling, 2015, National Journal Online, available at http://www.nationaljournal.com/energy/obama-proposes-opening-atlantic-ocean-to-new-oil-drilling-20150127.

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