We often succumb to the belief that our modern ideas are superior to the ideas of the past. Particularly in regards to environmental law, it seems plain that our emphasis on conservation is a rather recent phenomenon. However, contemporary environmental law has its foundations in past law. Though historical examples of environmental laws do seem rather rare and, when found, frequently seem not nearly so effective as some of our contemporary environmental regulations, an examination of past methods of environmental protection can enable us to better understand the foundations of modern environmental law, allowing us to see the potential weakness in our own conservation efforts. Specifically, this post will focus on how the Public Trust Doctrine was employed in Medieval England, and how we have appropriated and modified the doctrine to suit our contemporary values.
Conservation in Medieval England was accomplished (whether with the specific intent to conserve or not) by two methods: hunting franchises and royal forests.[i] The system of royal forests was rather simple: the king designated certain portions of land as royal forests. On those portions of land, all people were forbidden from hunting and from destroying the habitat (i.e., cutting down trees).[ii]
In addition to royal forests, hunting franchises allowed the king and his officials to restrict hunting to certain individuals. The king could grant various levels of hunting franchises- a “warren,” a “park,” or a “chase.”[iii] Warrens permitted individuals to hunt only certain small game on very restricted portions of land.[iv] Parks permitted individuals to hunt any animal but only on his own land.[v] And finally, chases granted individuals exclusive hunting rights of any animal on large portions of land, even land belonging to someone else.[vi] In contrast to the rather equal restrictions of the royal forests, hunting franchises tended to benefit the upper classes, as those closer to the king would be more likely to be granted better hunting franchises.[vii]
In these methods of conservation we see the Public Trust Doctrine develop from its inception in the Roman era.[viii] The Public Trust Doctrine is the idea that the government holds the wildlife and other natural resources in “trust” for the public use.[ix] In this case, the king held land (by designating it a royal forest) and wildlife (by limiting hunting through both royal forests and hunting franchises) so that, at least ideally, the public would be able to eventually have access to it. The paternalistic notion of the king holding natural resources for the public is easy to imagine in a feudal system in which all land belonged to the king.
The Public Trust Doctrine is one of the legal foundations of modern environmental legislation. We have appropriated government ownership of both land and wildlife through various methods: similarly to royal forests, the government declares certain areas to be national parks and restricts hunting, fishing, and destruction of habitat in those areas. Similarly to the various levels of hunting franchises, the government is able to grant hunting and fishing licenses, and to restrict how much game or fish one can capture. Also, in the context of marine wildlife conservation, the government holds various rights to study and harness the sea’s resources, and the government is free to allow the public to use these areas of water in whatever ways it approves.[x]
Just as our systems of government and landownership have drastically changed however, the Public Trust Doctrine that is still present in environmental legislation today is very different from that which led Medieval English kings to grant hunting franchises and have royal forests. Our democratic sentiments are much stronger than those of the Medieval English era. The obvious example of this change is that hunting franchises seem repulsively elitist to us. We certainly do not employ the granting of hunting licenses as the Medieval English kings granted hunting franchises. Our strong democratic beliefs are also evidenced by the fact that we have employed many restrictions on consumption that do not except the upper classes (i.e., setting aside marine protected areas and restricting hunting and fishing of certain species), while systems that do except the upper classes are met with some degree of derision.
There is a subtler but more widespread way in which our democratic sentiments have changed the Public Trust Doctrine. The Medieval English implementation of the Public Trust Doctrine was rather literal and paternalistic- the king held the natural resources in trust for all his subjects. Our notion of a government “by and for the people” complicates the implementation of the Public Trust Doctrine. Instead of a king holding natural resources for others, the public elects representatives who presumably share the publics’ beliefs about conservation, and those representatives make specific decisions about environmental regulations. It is almost as if the public decides how it will balance conservation and consumption and uses representation in the government merely as a tool to enact its decisions. This version of the Public Trust Doctrine is much less literal and more democratic.
We might judge that our methods of conservation are generally more effective and better aligned with our values. We might believe that the public should be allowed a degree of autonomy. However, the loss of paternalistic authority places a large burden of responsibility on society as a whole. Because conservation depends on the entire citizenry making decisions to preserve natural resources, it is imperative we collectively come to achieve a certain level of understanding about the importance of conservation.
To achieve the most substantial benefits of environmental conservation, we communally must not only decide that the responsible choice is to conserve some resources rather than to relentlessly consume, but also that we must achieve a mature understanding of what our underlying goals of conservation are. Whether we conserve only to preserve recreation and scenery, to ensure our children will have adequate resources, or to ensure the safety of environments for their own sake will affect how we go about conservation. To individually answer the questions of whether we will conserve, how much we will conserve, and what our conservation goals are may help bring us closer to “the reasonable person” standard, but because our approach to conservation is democratic the reasonable person standard is not enough. Instead, we must become a reasonable community that seeks to best answer the questions involved in environmental preservation.
– Alicia Wodarski is a General Member on MJEAL. She can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Michael C. Blumm & Lucus Ritchie, The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, 35 Envtl. L. 673, 680 (2005).
[viii] Anna R. C. Caspersen. The Public Trust Doctrine and the Impossibility of “Takings” by Wildlife, Envtl. Aff. L. Rev. 357, 358 (1996).
[x] An Ocean Blueprint for the 21st Century. Primer on Ocean Jurisdictions: Drawing Lines in the Water. 70, 72. http://govinfo.library.unt.edu/oceancommission/documents/full_color_rpt/03a_primer.pdf