Feasting on Fish: The Egalitarian Roots of the Public Trust Doctrine

<p>The public trust doctrine traditionally requires fish and navigable waterways to be preserved for public use and benefit. Citing to its ancient Roman and English origins, environmental litigants and scholars have pushed to expand the doctrine to protect the atmosphere and other environmental resources.</p> <p>This Article examines three centuries of natural resources law along the Atlantic coast to&nbsp;reveal that the public trust doctrine is not a dusty relic of Roman or English law. It emerged, first and foremost, as a survival tactic to feed starving colonists and to attract immigrants to America’s shores to settle a new political community.</p> <p>This uniquely American origin story for the public trust doctrine explains why private property on land was adopted at the same time as public property in water. Land needed to be privatized to stimulate farming labor. Fish and shellfish were kept widely accessible because they were ready-to-eat. Only life-sustaining aquatic resources like fish were protected under the doctrine. Hydropower, ice, and seaweed were not elevated to the status of a public trust right.</p> <p>By connecting the public trust doctrine to its egalitarian early American roots, this Article offers a novel normative framework for extending the doctrine to life-sustaining environmental resources like the atmosphere. It unearths a longstanding body of state and federal law affirming the state’s police power in protecting these types of resources from depletion, while grounding the power in a clear moral aim: to ensure that everyone has enough and as good to live on.</p>