John C. Dernbach, Widener University Commonwealth Law School, has made available for download his article,The Role of Trust Law Principles in Defining Public Trust Duties for Natural Resources, U. Michigan J. of Law Reform (Forthcoming). The Abstract is as follows:
The public trust doctrine for natural resources is based to a significant degree on longstanding trust law. Just as trust law is directed at protection of certain assets, so public trust law for natural resources is intended to protect those resources. But how far should that analogy be taken? This issue matters when a particular public trust for natural resources does not seem to address the exact question at issue. Trust law, including charitable and private trust law, has the potential to enhance the protectiveness of public trusts by imposing various fiduciary duties on trustees. It also has the potential to undermine public trusts, particularly through rules requiring that trust assets be financially productive. Using cases from around the country, this Article sets out a four-step methodology for answering that question in a way that furthers the text and purpose of public trusts for natural resources. This methodology can be applied in any case involving the use of trust principles to supplement any particular public trust. This Article then applies that methodology to a case that is now pending before the Pennsylvania Supreme Court.
In its landmark 2017 decision in Pennsylvania Environmental Defense Foundation v. Commonwealth (PEDF II), the state Supreme Court held for the first time that that judicial review of public trust claims under Article I, Section 27 of the state constitution is to be based on the text of Section 27. But it added that judicial review must also be based on “the underlying principles of Pennsylvania trust law in effect at the time of its enactment.” In 2019, the Commonwealth Court used private trust law to hold that one third of the moneys received from bonuses and leases from oil and gas leasing can be expended without any trust limitation. This is the case now before the state Supreme Court.
This Article’s four-step methodology begins with an inquiry into the terms and purpose of the public trust, which in this case is Section 27’s command to the Commonwealth to “conserve and maintain” public natural resources. It then asks whether the terms and purpose of the public trust answer the question being raised about its meaning. While PEDF II’s analysis seems to answer the question, the court expressly left the question open. The third step assumes the terms and purpose of the public trust do not answer the question, and asks what trust principles are available to help provide an answer. Under this step, it becomes clear that, while private trust law is one possible principle, another possible principle comes from the law of perpetual charitable trusts. Under the latter, all of the money from bonuses and rentals would be expended for trust purposes. The fourth and final step is to determine which principle would most fully effectuate the terms and purpose of the public trust. The Article argues that the charitable trust law principle is more likely to further Section 27 than private trust law because of its public purposes. As more public trust cases to protect natural resources are litigated and decided, this Article offers an approach to the incorporation of traditional trust law that can enhance the effectiveness of public trusts.
To see the full article, click: The Role of Trust Law Principles in Defining Public Trust Duties for Natural Resources by John C. Dernbach
Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal.