The Roman Public Trust Doctrine: What Was It, and Does It Support an Atmospheric Trust?

Abstract

Through building waves of legal scholarship and litigation, a group of legal academics and practitioners is advancing a theory of the public trust doctrine styled as the “atmospheric trust.” The atmospheric trust would require the federal and state governments to regulate public and private actors to reduce greenhouse gas emissions so as to abate climate change. The traditional common law version of the American public trust doctrine requires the states to hold title to lands submerged under navigable waters in trust for the public to use for navigation, fishing, and commerce, and that the states not alienate such resources to the detriment of this public interest. Some states have incrementally expanded the public trust doctrine to other resources and other uses, but thus far no federal or state court of last resort has adopted anything like the atmospheric trust.

Advocates of the atmospheric trust argue that it, like the traditional doctrine, enjoys a pedigree that traces back in an “unbroken line” to Roman law and that Roman law is therefore persuasive, if not binding, regarding the scope and substance of the doctrine in modern times. This claim has given rise to critics who argue that Roman law evidences no glimmer of either version, traditional or atmospheric. The debate has spilled into the pages of law reviews and judicial opinions and, given how high the political and economic stakes are if courts adopt the atmospheric trust, it is not a trivial matter.

This Article is the first contribution to legal scholarship on this debate that teams a Roman law scholar and a natural resources law scholar to interrogate what we call the Roman roots narrative. Our concern is that the debate has focused on the meaning of a mere snippet of Roman law — a brief passage from the Institutes of Justinian published in A.D. 533 — and ignored the rich and important context that dates back long before publication of the Institutes. To a Roman law scholar, using the highly-abbreviated version of Roman law captured in the passage from the Institutes is problematic, to say the least. Although a few legal academics have grabbed on to additional sources of Roman law in an attempt to inform the debate, no one weighing in has fully employed the historical sources and methods of interpretation used by modern Roman law scholars and then, leveraging expertise in natural resources law, assessed the atmospheric trust’s claim to Roman pedigree. We do so in this Article.

The Article proceeds in four parts. Part I sets the stage by revealing the incompleteness of the accounts of Roman law used by both the atmospheric trust advocates and their critics. Part II traces the origins and evolution of the Roman roots narrative from its earliest presence in American law and legal commentary to the current scholarship and litigation positions behind the atmospheric trust, showing the gradual devolution of the narrative from a serious intellectual effort to one of rubber-stamping a citation to the Institutes. To fill the gap, Part III presents our interpretation of the relevant Roman law sources bearing on their version of the public trust. Part IV compares our constructed Roman public trust doctrine to the atmospheric trust theory being advanced today in litigation and legal scholarship, assessing how close or far apart they are in different respects.

While it would be preposterous to claim that the Romans operated under anything like an atmospheric trust, our conclusion is that the American public trust doctrine has much stronger connections to Roman law than recent critics of the Roman roots narrative suggest. The Roman public trust doctrine actually dates back centuries before Justinian’s Institutes, and draws from two streams of Roman property law, one of which has been left out of the modern debate by both sides. Advocates of the atmospheric trust may wish to update their thinking on the Roman roots narrative — there is far more to work with than a snippet from Justinian’s Institutes.

Keywords: Public Trust Doctrine, Atmospheric Trust, Roman Law