Sustainably managing marine ecosystems has proved nearly impossible, with few success stories. These management failures largely stem from the traditional sector-by-sector, issue-by-issue approach to managing ocean-borne activities; for instance, in the United States today over twenty federal agencies guided by dozens of statutory authorities regulate activities in coastal and ocean waters. This governance regime is fundamentally unable to keep up with the dynamics of coupled human, ecological and oceanographic systems. We suggest that the public trust doctrine—an ancient legal concept that is already incorporated in U.S. state coastal law—could uniquely provide a unifying mandate for U.S. federal ocean governance.
In its most basic form, the public trust doctrine obliges governments to manage common natural resources in the best interest of their citizens. In many U.S. states, the doctrine has proved to be an important legal mechanism in the protection of coastal ecosystems and beach access and has even made its way into state constitutions. It would be logical to assume that the same fiduciary responsibility of states to protect public trust uses of their coastal waters extends to all marine resources within the United States’ 200-nautical mile Exclusive Economic Zone (EEZ). However an artificial line has been drawn around state ocean waters (which reach out to 3 or 9 nautical miles), and the legal authority and responsibility of the U.S. government to sustainably manage public trust resources in the vast space of its EEZ (the largest of any country) have not been fully and expressly established.
Results/Conclusions
Given the immense pressure to exploit living resources in the EEZ, the failure of the current regulatory approach, and growing demand for sustainable management of ocean resources, securing the place of the public trust doctrine in U.S. federal oceans governance would be valuable. A federal public trust doctrine could be codified in one of three ways: executive order, judicial interpretation, or congressional mandate.
If extended to the edges of the EEZ, the doctrine would provide a policy backstop for actions by ocean agencies to protect the public trust, as well as a means for citizens to enforce stewardship of the ocean resources. Rather than a just a legal tactic to halt activities that compromise public trust resources, the public trust doctrine could also be applied proactively to anticipate and resolve contentious debates over how to manage our marine resources for the long-term benefit of U.S. citizens.
