The Role of the Courts in Guarding Against Privatization of Important Public Environmental Resources

Drinking water, beaches, a livable climate, clean air, forests, fisheries, and parks are all commons, shared by many users with diffuse and overlapping interests. These public natural resources are susceptible to depletion, overuse, erosion, and extinction; and they are under increasing pressures to become privatized. The Public Trust Doctrine provides a legal basis to guard against privatizing important public resources or commons. As such, it is a critical doctrine to counter the ever-increasing enclosure and privatization of the commons as well as ensure government trustees protect current and future generations. This Article considers separation of powers and statutory interpretation in cases involving attempted privatizations of public natural resources. Judges use a wide variety of interpretive tools when ruling on the meaning of a statute or legality of an administrative agency’s action. This Article explores the role of the judiciary in protecting the public interest in natural resources when a privatization appears to be underway. It analyzes cases from the United States, India, Uganda, Kenya, and the Philippines to demonstrate the multi-jurisdictional use of what should be recognized as a substantive canon of statutory interpretation for nature’s trust, seeking a clear statement from the legislature finding no substantial impact on the public interest before allowing privatization. Such an approach furthers democracy by ensuring elected representatives have publicly considered and expressed their intent to authorize a privatization of nature’s trust and that such action is in the public interest. This moves the locus of decision-making away from administrative agencies and back to the democratically elected law making body. And once squarely inside the political branch it requires clarity about the action undertaken and a finding consistent with the trustee’s duties to the public. Lastly, it explores the political question doctrine as it relates to controversies about privatizing nature’s trust and shows the power of framing the status quo