Many of our vital environmental laws and protections are being put at risk by the long and dark shadow of Brexit. It beggars belief that this comes at a time when the Government should be urgently strengthening and expediting our response to the ongoing climate emergency.
B ut there is an old English common law legal doctrine which we believe could now be revived to hold the Government to account when it comes to environmental protection.
The Public Trust Doctrine (PTD) has been recognised by the English Courts since at least 1299. It says that the state has a fiduciary duty to safeguard vital natural resources and hold them in trust for the benefit of both current and future generations. It enshrines the right for people to fish, gather food and navigate our shared tidal waters.
In England, at least, we know the Government is failing to meet this safeguarding duty. Pollution is making our shores, rivers and waterways inhospitable for marine life and unsafe for swimming and recreation.
The Government’s Storm Overflows Discharge Reduction Plan, which gives water firms until 2050 to tackle the current sewage pollution crisis, is a devastating example of its neglect.
Sewage dumping is already doing unmitigated damage. We think that the Government allowing this environmental vandalism to continue for another 27 years is not only unconscionable but also unlawful.
This is why we have brought legal action alongside Marine Conservation Society, Richard Haward’s Oysters and surfer and activist, Hugo Tagholm. We want the Government to rewrite its plan, with much tighter deadlines for water companies to take decisive action.
Our challenge relies in part on the Public Trust Doctrine, which we say requires the Government to take positive steps to safeguard our coastal waters.
We believe that the Public Trust Doctrine is part of the UK Constitution, although it has not been relied on much in our courts, and its scope is unclear. Winning this case could set a landmark precedent which would enable campaigners to use the Public Trust Doctrine as a foundation for legal challenges to compel the Government to protect our shared natural environment.
There is an opportunity for us to follow the example set in the United States, where the Public Trust Doctrine – adopted from our English law – has long been accepted by the US Courts as imposing a duty of environmental stewardship in several states.
In the 1980s, the Public Trust Doctrine was used successfully in a landmark case to stop the biggest water company in California from diverting water away from Mono Lake. At the time, there was no specific legal precedent to support the case, but the use of the Public Trust Doctrine helped to protect the lake and its biodiverse habitats for generations to come.
Now the Public Trust Doctrine is being used across multiple states not just to protect bodies of water, but also to challenge developments that exacerbate exposure to air pollution.
We are very excited about the potential of the Public Trust Doctrine on our side of the Atlantic.
If you would like to support our case against the Government over sewage dumping in our coastal waters, you can do so here.
▪ Text: This piece was originally published in Good Law Project and re-published in PMP Magazine on 17 February 2023, with the authors’ consent. | The authors write in a personal capacity.
▪ Cover: Adobe Stock/Vastram.