By John C. Dernbach and Scott E. Schang.
In his enormously influential writings on the public trust doctrine, Professor Joe Sax argued that its core idea could, and should, be expanded beyond the natural resources to which it had been historically subject. He made that point forcefully in an essay entitled Liberating the Public Trust Doctrine from Its Historical Shackles. “At its heart,” he wrote, “the public trust doctrine is not just a set of rules about tidelands, a restraint on alienation by the government or an historical inquiry into the circumstances of long forgotten grants.” Rather, he said, courts should resolve competing claims of public use and private ownership by examining expectations concerning the use of particular resources. “The central idea of the public trust is preventing the destabilizing disappointment of expectations held in common but without formal recognition such as title.” “Our task,” he continued, is to insulate “those expectations that support social, economic and ecological systems from avoidable destabilization and disruption.” Understanding the public trust in this broader way, of course, would significantly broaden its reach and societally beneficial effect.
In this essay, we argue that sustainable development is historically a much broader and more societally beneficial concept than it is often understood to be, and that it is often limited, particularly in the United States, by the supposition that it is just about the environment, or about environmental and energy law. Sustainable development, however, is a broad-spectrum conceptual framework for fostering human wellbeing by integrating environmental protection and social wellbeing with economic development and peace and security. It does so in a way that seeks to optimize all of them concurrently, instead of treating them as inherently opposing or unrelated concepts.