Public Trust Doctrine Can Fight Farm Pollution Runoff, VT Law School Study Finds
October 18, 2011
SOUTH ROYALTON, VT -- The public trust doctrine, an ancient legal principle used recently in a novel effort to protect the earth's atmosphere from greenhouse gas emissions, can help fight farm runoff, the biggest polluter of the nation's waters, a Vermont Law School study finds.
The article, titled "Wildlife, Water Quality and the Public Trust Doctrine: A Means of Enforcing Agricultural Nonpoint Source Pollution Management Plans," is available on the New York State Bar Association's web site and SSRN.
The study was authored by third-year JD student Veronique Jarrell-King, who won first place in the New York State Bar Association's Animal Law Writing Competition, the nation's most prominent animal law student writing contest.
"Even though the Clean Water Act has proven successful in many respects, it has failed to properly address agricultural nonpoint source water pollution," the study reports. "This lack of sufficient legislation has left our nation's waters polluted and has detrimentally affected much of the wildlife that depend on these waters for survival. In an effort to prevent further deterioration of our water systems, the public should consider using the public trust doctrine as a means of requiring state and local agencies to consider the public's interests in wildlife and water quality when developing, regulating, and reevaluating nonpoint source pollution control plans."
The public trust doctrine, a common law doctrine that dates to Roman times, requires the government to manage natural resources in the best interest of its citizens. The doctrine has often been used to challenge government actions that harm water, wildlife, land and most recently the earth's atmosphere, but it is not frequently used to combat nonpoint source pollution from farms, the study reports. Nonpoint source pollution, which is runoff from farms, construction sites and other broad areas, is the leading cause of water pollution today. By far, the heaviest nonpoint contributor to water pollution is agricultural runoff, which is a major source of fertilizers, herbicides, insecticides, sediment, salts, nutrients and pathogens.
California has a common law system that is best suited to apply the public trust doctrine to enforce nonpoint source pollution control plans, but citizens in other states may also be successful using the doctrine to clean up their surface and ground waters, the study says.
"Through the public trust doctrine, citizens have the potential to challenge a state legislature's or agency's failure to consider the public's interest in wildlife when developing and reviewing nonpoint source pollution control plans, even in the face of strong political pressure from agricultural lobbyists," the study reports.
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