Literature Review

This article reflects on intersections between intergenerational equity, children's rights and the rights of future generations. Recent climate cases involving children and youth are considered, and the fact that few rely on the UN Convention on the Rights of the Child (CRC) is analysed. It is emphasised that intergenerational rights are children's rights – children are a crucial link between current and future generations. In particular the principle of the best interests of the child, which is widespread in national legal systems, should be relied upon more frequently in climate cases. Arguments can be made that failing to accord sufficient attention to children's rights and interests in climate policies violates the best interests principle. Relying on the CRC may increase the chance of successful outcomes in environmental and climate cases; progressing the right to a healthy environment for all. It will also ensure that adequate attention for children's rights is embedded in such cases.

Over the last seventy years, thousands of square miles on the Louisiana coast have been submerged beneath the waters of the Gulf of Mexico. Over the next fifty years, many more square miles of land will slip below the waters of the sea. Commentators have debated the legal significance of this transformation of the state’s coastal landscape for years, but uncertainty remains over a fundamental question: Who owns land that was once either dry land, marsh, swamp land, or the bed of non-navigable water body when that land becomes permanently submerged beneath the sea, an arm of the sea, or a navigable lake as a result of erosion, subsidence, or sea-level rise?

This analysis introduces a framework of three different strategies for protecting American waterways—the conventional regulatory approach, an alternative property-based approach, and a newer human rights-based approach—and reviews how the dynamic among them will be impacted by the Supreme Court’s recent decision in Sackett v. EPA, which curtailed the regulatory reach of the Clean Water Act (CWA). The rights of nature movement has emerged as a human rights-based approach to environmental protection, the public trust doctrine offers a public property-based approach, and the CWA epitomizes the more traditional regulatory approach. Last Term, however, the Court unwound nearly a half-century of accepted regulatory practice when it substantially limited the reach of the CWA as a tool for protecting waterways.

Groundwater is a precious—and all too often scarce—resource. As groundwater withdrawals continue apace, challenges have emerged around groundwater quality and quantity. In the past several years, courts and legislatures have increasingly been called to resolve disputes involving groundwater.

Through an examination of the diffusion of the public trust doctrine (the Doctrine) in South Asia, we offer six insights about the diffusion, nature, form and consequences of its evolution in the region. This Doctrine is invoked in the writ jurisdictions in India, Nepal, Bangladesh, Pakistan and Sri Lanka. In Bhutan and the Maldives, we have not found evidence of the Doctrine, but the language of trust is constitutionally explicit. The study of case law from these jurisdictions reminds us that writs were forcibly diffused in this region and intentionally continued post-independence. Though Nepal and Bhutan were not colonized the Doctrine has diffused to both and the writ remedy to Nepal. We engage in a mapping of the evolution of this Doctrine and offer the following insights. First, writs continue to be used today but with varying degrees of local adaptation. Second, the Doctrine is invoked within the writ jurisdiction but also incorporates rights language due to the adoption of written constitutions in the region in the post-colonial period. Third, the Doctrine is foundational for environmental constitutionalism in the region. Fourth, foreign law has been used to develop the Doctrine for the advancement of environmental protection. Most jurisdictions rely on Indian and American case law in invoking the Doctrine. Sixth and finally, we find that diffusion can result in something new, as in Sri Lanka, where this Doctrine has taken a unique form and is utilised as an independent ground to review arbitrary exercise of public power. The reasons for these trends, however, are difficult to identify and require further research. The insights we offer are limited in that we relied on case law accessible online and in English. The breadth of the chapter limits the depth of analysis. To the extent possible, we acknowledge the context in which these developments take place, mindful of varying degrees of judicial independence, respect for constitutionalism and the rule of law in South Asia.

Over the past few years, Canadian courts have heard the first climate change cases. These claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas reduction targets under the Paris Agreement. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine. In Canadian courts, the doctrine’s limited and arguably parochial interpretation has diverged from its understanding in other jurisdictions. Now, it appears to be at a crossroads. On the one hand, it can lay the foundation for robust climate litigation for years to come via common law, constitutional law, or even natural law interpretations. On the other hand, it could wither away into irrelevance as, even if it is recognized as part of Canadian law, it would be relegated to its historical origins as a property law doctrine that guarantees that natural resources can be accessed by the public—not a doctrine that obligates governments to protect natural resources for current and future generations.

This chapter provides broad insights into how different levels of government have attempted to advance water security in South Africa. It does this through a review of the historical and comparative developments of the reconstruction of the South African public trust doctrine in the water sector. It is premised on the increasing significance of the role of government in contributing to water security based on the doctrine of public trust. Reviewing the public trust doctrine is important for understanding the constitutional reasons behind the reconstruction of this doctrine in the South African water sector. The prominence of government’s role arose from the understanding that water services could not be fairly and efficaciously delivered through private ownership. This understanding was rooted in societal efforts intended to address complex historical issues related to inequitable access to water by the majority of South Africans. The chapter illustrates that the reconstruction of the public trust doctrine through transformative constitutionalism is somewhat strongly linked to perceived high levels of water insecurity in South Africa. The chapter calls for the expansion of the framing and application of property rights vis-à-vis the public trust doctrine in the water sector. It emphasizes the role of property rights in directing change and societal transformations. By exposing these insights, the constitutional development of the public trust doctrine is poised to take new direction in South Africa.

The global rise in climate litigation, particularly rights-based climate litigation, in recent years has been well-documented. Meanwhile, intergenerational equity, a longstanding concept in international environmental law as well as national constitutional law, has been increasingly implicated in such cases and in broader narratives surrounding climate change. The concept plays into the rights-based discourse that has become characteristic of many lawsuits concerning the climate crisis, with references to the rights of and duties to present and future generations increasingly common. Universal agreement on the legal implications of intergenerational equity does not appear to have emerged as of yet, however. This thesis explores the potential legal implications of intergenerational equity through an analysis of global climate litigation explicitly or implicitly invoking the concept. This analysis reveals the difficulties in applying existing rules on causation, locus standi, justiciability, and redressability to climate litigation, particularly where claimants litigate on behalf of future generations. The study conducted additionally confirms the renewed rights-based focus of intergenerational equity, notably through invocation of the right to a healthy environment and reflects on the challenges presented by the application of traditional human rights and children’s rights to future generations. The use of the public trust doctrine in intergenerational climate litigation is also analysed. The growing mosaic of global intergenerational climate litigation thus far has demonstrated diverging interpretations of the legal implications of intergenerational equity, while indicating the rhetorical potential of the concept in framing climate-related claims and colouring the interpretation of other legal norms.

This chapter discusses the Roman concept of "Public Trust," and it also aims to investigate the various provisions of the Constitution of India concerning "environmental protection." By doing so, I hope to demonstrate that the Indian Constitution is a supreme document of "trust,"and that the state, in its capacity as the "trustee" of all natural resources, is required by law tosafeguard those resources. The fundamental rights, which are established in Part III of the Constitution, encapsulate the rights of the beneficiaries, and the directive principles of state policy, which are encapsulated in Part IV of the Constitution, encapsulate the responsibilitiesof the trustee, which is the state.

Many of the world's iconic, endangered and endemic species rely on large, contiguous landscapes for their survival. In the US West, working ranches are integral to large landscape conservation goals and there are numerous influences on ranchers' conservation actions, including their relational values, perceived self-efficacy and property rights concerns. Using survey data from 681 ranchers in eastern Idaho and western Montana, we sought to answer the question: How do relational values, property rights orientations, perceived efficacy and public lands dependence affect reported conservation actions on private ranch lands? Conservation adoption varied widely by action, with invasive plant removal having the highest (92%) and conifer removal the lowest (21%) rates of adoption. Conservation adoption was higher among ranchers who believe they are responsible for conserving nature, believe their land should be used to provide environmental benefits to the region, have higher perceived self-efficacy, lower property rights concerns and higher incomes. Programmes encouraging the adoption of conservation on private lands could benefit from message framing that resonates with the worldviews of landowners and land managers. Read the free Plain Language Summary for this article on the Journal blog.

This article situates the modern public trust doctrine (PTD) in contemporary trust law. Grounding the PTD in trust law leads to two important corollaries. First, the PTD planted in trust law imposes upon government actors and agencies trust law’s fiduciary duty of loyalty. In the context of the PTD, that duty of loyalty runs to the public as the beneficiary of the PTD. Second, faced with plausible claims that this fiduciary duty of loyalty to the public has been violated, courts should apply trust law’s de novo standard of review to those administrative and legislative decisions alleged to impair public trust resources. Such searching review stems from recognition that public trustees of the environment invariably confront conflict between their fiduciary obligation of loyalty to the public and the private interests which seek to capture such trustees and the natural resources they control.

Climate change can be litigated through tort, common law, statute/policy, public trust doctrine or human rights among others. While climate change litigation appears to have developed in states of the Global North, its use is still relatively recent in states of the Global South. Nor has it been seriously considered from the perspective of international tribunals from the Global South. Therefore, this study examines a human rights approach to climate change litigation in the Economic Community of West African States Court of Justice (ECOWAS Court). This study finds that there are some developments in certain jurisdictions which make a human rights approach promising in terms of locus standi, justiciability, causation and separation of powers and that they can be related to the jurisprudence of the ECOWAS Court. It also finds that the doctrine of exhaustion of local remedies does not apply to the ECOWAS Court. Based on these findings, it is argued that a human rights approach can be successfully deployed to litigate climate change before the ECOWAS Court and that it can wake up West African States from their lethargy in terms of policy on, and treatment of, climate issues. The study concludes that individuals and NGOs may adopt a human rights approach before the ECOWAS Court to influence policy change and/or state behaviour in West African States.