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The public trust is an ancient and enduring legal doctrine. With roots in Roman law, the public trust persists through English law, and into the United States. Scholars and jurists in the field of Roman and environmental law do not all agree on the history and continuity of the public trust doctrine (PTD). There are those who argue the Roman law introducing a public trust did not assert the same protections present in the doctrine today. Conversely, there are those who believe the Roman law did enshrine similar protections, and further, that it calls for an expansion of PTD in the United States. Regardless of where legal experts stand on this issue, many contemporary references to an ancient public trust fail to develop the historical, textual, or chronological context of the Roman law, or do so incompletely. Wherein, this research involves comprehensive exploration of these elements of language and legal analysis, in pursuit of the original intention of the ancient public trust. In this paper, the author utilizes literacy in Latin to translate, analyze, and comment on the original intention of the Roman precursors to the public trust in the U.S. In addition to an examination of the merits of multiple, opposing scholarly arguments surrounding climate change litigation, as it relates to PTD. These insights support that Roman law had protections for natural resources, or res communes omnium (RCO), things commons for all. They were given intrinsic value, regarded as benefitting the public without any economic association. Access to these resources was legally protected by placing them in the management of the state, known as in publico usu management. Additionally, Roman law limited the ability of the state or private individuals to alienate these resources from public use, the limited alienability principle. Together, these two elements, in publico usu management and limited alienability, traversed millennia and persist in the American interpretation of the public trust doctrine. This research reveals that contemporary society is straining access to these res communes omnium more than ever before, most often in pursuit of economic growth. The warming of the global climate has exacerbated this inaccessibility, directly linking the adverse impacts of climate change and PTD. Ultimately, the author interprets the Roman intent of the public trust, as it applies to modern day, such that the judiciary has an obligation to repudiate the affirmative actions of the executive and legislative branches in the global climate crisis. Thereby, mitigating the adverse effects of climate change, and returning intrinsic value to natural resources.
Liccardo, Phoebe, "The Public Trust Doctrine: Roman Law Roots and Future in Environmental Litigation" (2023). Honors Theses. 3732.
Honors Thesis-Open Access