The Public Trust Doctrine and Intergenerational Equity

What the doctrine actually requires

Three duties follow from calling the State a trustee.

One, the resource is held for the beneficiaries, not for the trustee. A government may not deal with it as an owner would, for revenue or for favour.

Two, alienation is presumptively wrong where it defeats the public use. The English formulation is the useful one: the grant is bad if its effect is to interfere with the public interest in the uses for which the resource is held.

Three, the trustee must be able to justify what it did. A trustee accounts. This is why the doctrine matters procedurally as well as substantively: it puts the government to an explanation.

Which resources

The categories named in Kamal Nath are rivers, the sea shore, forests and the air. They share a feature worth noticing: each is used by everybody, and none of them can be divided up without destroying the use. That is the reason for the trust, and it is the right test to apply when asked whether a new resource belongs in the category.

Inter-generational equity

The idea

The people who will bear the consequences of what is done to the environment today are mostly not alive yet, and they cannot be heard. Inter-generational equity is the principle that they are nonetheless entitled, and that the present generation holds the earth's resources for them.

Where it comes from

Principle 1 of the Stockholm Declaration, 1972, states a solemn responsibility to protect and improve the environment for present and future generations. Principle 2 speaks of safeguarding the earth's natural resources for the benefit of present and future generations.

The Brundtland definition of sustainable development is inter-generational equity in its operative form: development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

Vellore Citizens Welfare Forum listed inter-generational equity first among the salient principles of sustainable development culled from the Brundtland Report and the international documents.

What it requires

It is not a rule that nothing may be used. It is a constraint on the rate and the manner of use.

• A renewable resource should be used at no more than the rate at which it renews.
• Where a resource is not renewable, its exhaustion should at least leave something of equivalent value behind.
• Irreversible loss carries more weight than reversible loss, because the future generation has no remedy for it.

The connection to the precautionary principle is direct: the reason irreversibility matters so much in that principle's second limb is that irreversible harm is harm the next generation cannot undo.

The two doctrines together

They are usually taught together and they belong together, because each answers a gap in the other.

The public trust doctrine says who holds the resource and on what terms. It has a clear beneficiary, the general public, and a clear duty. What it does not do by itself is say for how long.

Inter-generational equity supplies the time dimension. It extends the class of beneficiaries forward, and it turns the trustee's duty from one of present management into one of preservation.

A worked example

A State Government proposes to lease a stretch of tidal foreshore to a developer for a resort. The lease is for ninety-nine years. The area is used by a fishing community for landing boats and drying nets, and it is a nesting site.

Is there a statutory bar? Perhaps, under coastal regulation, and that is the first question a lawyer asks. Assume for the moment there is not.

Public trust. The sea shore is one of the categories named in Kamal Nath. The State holds it in trusteeship for the free and unimpeded use of the general public. A ninety-nine year exclusive lease is an alienation of the use, and the English limb is directly in point: the grant is objectionable if its effect is to interfere with the public interest in the uses for which the resource is held, and landing boats is such a use. The State is put to an explanation.

Inter-generational equity. Ninety-nine years is four generations. A resource that is dedicated to a single private use for that period is, for practical purposes, gone. If the nesting site is lost, it is irreversibly gone.

What follows. Not necessarily that the lease is void. What follows is that the State cannot deal with the foreshore as though it were an ordinary landlord with an ordinary asset, and that a decision taken without addressing the trust and the horizon is open to challenge.

Distinctions

What it does NOT mean

It does not mean no resource may ever be granted to a private person. The doctrine bites where the grant defeats the public use for which the resource is held. A regulated private use consistent with that public use is not within it.

It does not mean the public trust doctrine is a statute. It is judge-made and it is applied through the writ jurisdiction and by the Tribunal. There is no section to cite.

It does not mean future generations have standing. They do not, and cannot. The principle works through the duties of the present trustee and through the courts' willingness to hear a present petitioner who raises it.

Limits and criticism

The categories are not closed and nobody has said what closes them. Rivers, sea shore, forests and air are named. Groundwater, spectrum, minerals and urban open space have all been argued about, with varying success, and the doctrine gives no test for deciding.

Inter-generational equity has no unit of account. Any attempt to say how much of a resource is owed to the future runs into the fact that nobody knows what the future will need or what it will be able to substitute.

And both can be invoked to stop anything. A doctrine that binds the State's hands with respect to rivers, shores, forests and air is a large doctrine, and the honest criticism is that its application has been case by case rather than principled.

Quick revision

• Public trust: rivers, the sea shore, forests and the air are held by government in trusteeship for the free and unimpeded use of the general public. M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.
• Traced through Roman law (owned by nobody or by everyone) and English common law (the Crown may not grant them away so as to interfere with navigation or fishing).
• Inter-generational equity: Stockholm Principles 1 and 2, the Brundtland definition, and first in the list of salient principles in Vellore Citizens.
• Public trust says on what terms the resource is held; inter-generational equity says for how long.
• Neither is in a statute. Both are applied through the writ jurisdiction and through section 20 of the NGT Act by way of sustainable development.

Test yourself

1. What did M.C. Mehta v. Kamal Nath decide, and what were the facts? A private company had been granted a lease of forest land on the bank of the river Beas for a motel and had used earthmovers to alter the course of the river to protect it. The Court, acting on a newspaper report, adopted the public trust doctrine into Indian law: certain common properties such as rivers, the sea shore, forests and the air are held by government in trusteeship for the free and unimpeded use of the general public, so that the State is a trustee rather than an owner in the ordinary sense.

2. What is the common feature of the resources the doctrine covers? Each is used by everybody and none can be divided up without destroying the use. Air cannot be parcelled out; a river's flow is a single thing; a shore used for landing boats is useless in fragments. That is why the law treats them as held in common rather than as ordinary property, and it is the right test to apply when asked whether a new resource belongs in the category.

3. How does inter-generational equity connect to the precautionary principle? Through irreversibility. The precautionary principle is engaged where the threatened damage is serious and irreversible, and irreversibility matters because irreversible harm is harm the next generation has no remedy for. The two principles are answering the same worry from different directions, one about uncertainty and one about time.

4. Does the public trust doctrine make a lease of a river bank void? Not automatically. It means the State is dealing with the resource as a trustee, so a grant whose effect is to interfere with the public interest in the uses for which the resource is held is open to challenge and the State is put to an explanation. Whether a particular grant survives depends on whether it defeats the public use, and a regulated private use consistent with that use may stand.