49 Localizing the Public Trust Sean Lyness1 The public trust doctrine is the manifestation of a simple principle: certain natural resources are too important to entrust to private par- ties. Instead, those natural resources are held by the government in trust for the public. When we think of the contemporary public trust doctrine, we usually think of the doctrine as a state-level phenomenon. After all, the State is the sovereign entrusted with ownership of the public trust. But the doctrine also includes local governments, which play im- portant and substantive, if under-appreciated, roles. Missing from the conversation, however, is how local governments should be incorpo- rated into the doctrine. Should local governments be permitted auton- omy as co-trustees of the public trust? Do we trust local governments to safeguard public trust assets? This Article develops a framework for the normative relationship be- tween state and local governments in the public trust context. Doing so formally recognizes the role of local governments, thus localizing a doctrine that exists almost exclusively at the state level. This Article begins by reframing the doctrine as part of the lived experience of the public rather than merely a tool of the judiciary. Next, this Article cat- alogs the benefits of localizing the public trust doctrine, including the impacts local actors already have on the doctrine, localism’s tradition- al benefits, environmental justice, and environmental federalism. This Article then proposes localizing the public trust doctrine through three principles: (1) minimum state requirements; (2) in- 1. Assistant Professor of Law, New England Law | Boston. This piece owes a great deal of thanks to the participants of the 2022 Online Environmental Workshop, including Robin Kun- dis Craig, Joe Dellapenna, Anthony Moffa, Dave Owen, Katrina Fischer Kuh, and Erin Ryan, with special thanks to Michael Pappas for hosting. This Article was also immeasurably improved by the 2022 Columbia University Sabin Colloquium for Innovative Environmental Scholarship, with thoughtful comments from Chinonso Anozie, Lisa Benjamin, Jonathan Skinner-Thompson, Alyse Bertenthal, Lauren Godshall, Faye Matthews, Robin Rotman, and Sarah Morath, and par- ticular help from Shelley Welton, Rob Verchick, Melissa Powers, and Michael Gerrard. Thanks also to the participants of the 2022 Vermont Law School Colloquium on Environmental Schol- arship. Finally, thanks to the staff of the Columbia Journal of Environmental Law, including Kate Cox, Jack Jones, and Abigail Pelton, for their thoughtful and meticulous edits. 50 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 creased local autonomy; and (3) shared responsibilities between local and state governments. This framework mirrors cooperative federal- ism and shares its advantages. Finally, the Article looks at local cli- mate adaptation as a case study of how states and local governments can begin localizing the public trust doctrine. I. Introduction .................................................................................................... 51 II. Whose Public Trust? .................................................................................... 58 A. The Saxonian Trust: Judicially Centered .......................................... 58 B. A Public-Centered Trust.......................................................................... 64 III. The Benefits of Localizing .......................................................................... 66 A. Reflecting Reality ....................................................................................... 68 B. Localism’s Traditional Benefits ........................................................... 72 C. Environmental Justice ............................................................................. 77 D. Environmental Federalism .................................................................... 81 E. Potential Disadvantages of Localizing .............................................. 85 IV. Localizing the Public Trust ........................................................................ 87 A. Minimum State Requirements ............................................................. 88 1. Cataloging Public Trust Resources ................................................. 89 2. Minimum Access Requirements ...................................................... 89 3. Management Requirements .............................................................. 90 4. Planning and Zoning Requirements .............................................. 92 B. Local Autonomy.......................................................................................... 93 C. Shared Responsibilities ........................................................................... 94 V. Localizing the Public Trust In Action: Local Climate Adaptation96 VI. Conclusion ........................................................................................................ 99 “Failure of the [state] Commission to approve the Town’s imper- manent seasonal access decking would render a significant hardship to the Town’s long-term efforts to afford the physically disabled pub- lic with convenient and safe access to the dry and wet sand public beach.”2 Town of Carolina Beach, North Carolina, in a variance peti- tion to North Carolina Coastal Resources Commission 2. Letter from Christine A. Goebel to the Coastal Res. Comm’n, attach. C (Feb.5, 2021) (on file with N.C. Dep’t of Env’t Quality). 2024] Localizing the Public Trust 51 “The public has expressed a legitimate concern that homeowners have been illegally placing signs on public property with the goal of excluding the public from the public beaches . . . It’s disappointing that the people who were elected to serve the public have responded to this concern by adopting an ordinance which only makes it easier to exclude the public from areas in which they are constitutionally permitted to be.”3 Aaron Getty, Sarasota County Assistant Public Defender “Last year, city officials discovered that waterfront neighborhoods were full of fake ‘No Parking’ signs. Now, a new ordinance will allow the City Council to create designated parking spots near rights of way that provide public access to Narragansett Bay.”4 Antonia Noori Farzan, The Providence Journal I. INTRODUCTION In September 2022, California passed a law to prohibit hard min- eral extraction from tidelands and submerged lands.5 The law notes that existing law allowed the State Lands Commission to grant leases for hard minerals located in tidelands and submerged lands.6 Such seabed mineral mining was, according to the law, “not consistent with the public interest, public trust, or public rights to navigation and fishing that are three key principles of the common law public trust doctrine embodied in the California Constitution[.]”7 The law mirrors similar laws in Oregon and Washington that likewise prohib- it seabed mining.8 California’s law is significant, however, in its explicit recognition of the role of local governments. The law expressly targets the State 3. Isaac Eger, Sarasota Just Lost Some More of its Public Beaches, SARASOTA MAGAZINE (Oct. 26, 2021), https://www.sarasotamagazine.com/news-and-profiles/2021/10/sarasota-beach- privatization-laws [https://perma.cc/UR4U-MHEZ]. 4. Antonia Noori Farzan, Warwick Is Looking at Creating More Parking Near Shoreline Rights of Way, PROVIDENCE J. (July 19, 2022), https://www.providencejournal.com/story/news/local /2022/07/19/warwick-beach-parking-shoreline-rights-of-way-public-access/10085602002/ [https://perma.cc/G6AM-SBJW]. 5. California Seabed Mining Prevention Act, 2022 Cal. Stat. ch. 433. 6. Id. § 2(k). 7. Id. § 2(a). 8. See id. § 2(i) (“The legislatures of the States of Oregon and Washington have both passed analogous legislation to prohibit seabed mining in their state waters, in 1991 and 2021, re- spectively.”). 52 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 Land Commission and local governments as “local trustee[s] of granted public trust lands[.]”9 While the practice of seabed mineral mining is increasingly popu- lar,10 the attention given to local governments in the context of the public trust doctrine is not. Indeed, as a state-level doctrine, the public trust doctrine and its intersection with local governments is rarely discussed.11 I have written previously on the impacts of local governments on the doctrine and the need to include substate enti- ties in the conversation.12 I previously argued that local govern- ments have substantial, if unrecognized, impacts on the public trust doctrine through their roles as landowners, regulators, and enforc- ers.13 These local impacts on the doctrine are inherent (and perhaps inevitable) in how the doctrine has been formulated—with its chang- ing legal foundations, purposefully malleable scope, and situs at con- flict points we have chosen to delegate to local governments to re- solve.14 In short, there is a local public trust doctrine, but my earlier work did not attempt to formulate how local governments should be incorporated into the public trust doctrine. This Article seeks to do just that. First, let us define our terms. The public trust doctrine is the prin- ciple that certain natural resources are so important we entrust them to the sovereign for the benefit of the public.15 Although it is an ancient principle,16 the breadth of that premise—and the “radical po- 9. Id. § 5(a). 10. See Katherine A. Miller et al., An Overview of Seabed Mining Including the Current State of Development, Environmental Impacts, and Knowledge Gaps, 4 FRONTIERS IN MARINE SCI. 1, 2 (Jan. 10, 2018), https://www.frontiersin.org/articles/10.3389/fmars.2017.00418/full [https://perma.cc/LT73-53SY] (“Rising demand for minerals and metals, in tandem with the depletion of land-based resources, has led to a surge of interest in marine mineral resources.”). Given its potential for environmental harm and long-term ecosystem degradation, seabed min- eral mining is coming under increased scrutiny. Id. 11. See, e.g., MICHAEL C. BLUMM & MARY CHRISTINA WOOD, THE PUBLIC TRUST DOCTRINE IN ENVIRONMENTAL AND NATURAL RESOURCES LAW 5 (3d ed. Supp. 2021) (describing the analysis of the role of the public trust doctrine in local government law “overdue”). 12. See Sean Lyness, The Local Public Trust Doctrine, 34 GEO. ENV’T L. REV. 1 (2021). 13. See generally id. 14. See generally id. 15. See, e.g., Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 458 (1892); see also PPL Mont., LLC v. Montana, 565 U.S. 576, 603 (2012) (noting that Montana asserted its public trust doctrine as “concern[ing] public access to the waters above those [river]beds for purposes of navigation, fishing, and other recreational uses.”). The principle is sometimes referred to as “the public trust” while its legal-specific manifestation is referred to as “the public trust doctrine.” 16. Though just how ancient is up for debate. See, e.g., J.B. Ruhl & Thomas A.J. McGinn, The Roman Public Trust Doctrine: What Was It, and Does It Support an Atmospheric Trust?, 47 2024] Localizing the Public Trust 53 tential” it holds—has seen the doctrine flourish over the past fifty years.17 Roughly coinciding with the creation of the federal envi- ronmental statutory scheme in the 1970s, the public trust doctrine has ascended as a mechanism for environmental advocacy.18 In fits and starts, the doctrine has been extended to environmental prob- lems both old and new.19 As a result, the doctrine has captured the imagination of courts20 and commentators,21 all of whom have been seduced by its pedigree and potential.22 Despite its promise, however, the doctrine is showing its limits. To be fair, the cracks in the dam are the result of climate change, a prob- ECOLOGY L.Q. 117, 126 (2020) (“There was a Roman public trust doctrine. The Romans did not call it that, and it was by no means as fully developed as the American doctrine.”). 17. WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER § 2.20, at 155 (1986) (“It is a doctrine with both a radical potential and indifferent prospects.”); see also Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471, 474 (1970) (“Of all the concepts known to American law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of gen- eral application for citizens seeking to develop a comprehensive legal approach to resource management problems.”). 18. See, e.g., Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources Law: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631, 643 (1986) (“Since 1970 the public trust doctrine indisputably has had a major impact on litigation brought by parties on behalf of natural resource protection[.] . . . Numerous parties have relied on modern public trust theories to support their litigation objectives and in turn the courts have adopted those theories.”). 19. See, e.g., Juliana v. United States, 217 F. Supp. 3d 1224, 1233 (D. Or. 2016), overruled on other grounds by 947 F.3d 1159 (9th Cir. 2020) (children’s trust case urging application of pub- lic trust principles to the atmosphere to address climate change); see also White Bear Lake Res- toration Ass’n ex rel. State v. Minn. Dep’t of Nat. Res., 946 N.W.2d 373, 385–87 (Minn. 2020) (advocating unsuccessfully for application of public trust doctrine to groundwater). 20. See, e.g., City of Montpelier v. Barnett, 49 A.3d 120, 127 (Vt. 2012)(“State trusteeship over navigable waters has a lengthy and somewhat mythic pedigree dating back to Roman and English law.”); see also Champlin’s Realty Assocs., L.P. v. Tilson, 823 A.2d 1162, 1166 (R.I. 2003) (“Since ancient times, the law has recognized the unique status of tidal lands through the public trust doctrine. The Greek philosophers set the foundation for the public trust doctrine, which first was codified in the second century Institutes and Journal of Gaius.”). 21. See generally Charles F. Wilkinson, The Headwaters of the Public Trust: Some of the Tra- ditional Doctrine, 19 ENV’T L. 425 (1989); Michael C. Blumm & Courtney Engel, Proprietary and Sovereign Public Trust Obligations: From Justinian and Hale to Lamprey and Oswego Lake, 43 VT. L. REV. 1 (2018); Hope M. Babcock, The Public Trust Doctrine: What a Tall Tale They Tell, 61 S.C. L. REV. 393 (2006); Robin Kundis Craig, Adapting to Climate Change: The Potential Role of State Common Law Public Trust Doctrines, 34 VT. L. REV. 781 (2010); Mary Christina Wood, Advanc- ing the Sovereign Trust of Government to Safeguard the Environment for Present and Future Generations (Part I): Ecological Realism and the Need for a Paradigm Shift, 39 ENV’T L. 43 (2009); Peter Manus, To a Candidate in Search of an Environmental Theme: Promote the Public Trust, 19 STAN. ENV’T L.J. 315 (2000). 22. I count myself among the entranced. See Lyness, supra note 12. 54 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 lem so gargantuan and so entrenched that any legal doctrine would be stretched thin to address it.23 But that has not stopped advocates from seeking to use the public trust doctrine to tackle the problem, most notably in a series of cases brought by Our Children’s Trust on behalf of young people nationwide that attempt to use the doctrine to establish legally enforceable rights to “a healthy atmosphere and stable climate.”24 And while these climate cases are symbolically important and politically energizing,25 they have thus far largely failed to convince the state and federal judiciary of the doctrine’s ap- plicability.26 Whether because of prudential concerns, jurisdictional hurdles, or substantive defects, the climate cases have met an un- friendly judiciary.27 23. See, e.g., Maxine Burkett, Behind the Veil: Climate Migration, Regime Shift, and a New Theory of Justice, 53 HARV. C.R.-C.L. L. REV. 445, 450 (2018) (noting that in light of climate change’s massive impacts “perhaps the one certainty is that our current law and policy infra- structure is not up to the task”); see also Robin Kundis Craig, “Stationarity is Dead”—Long Live Transformation: Five Principles for Climate Change Adaptation Law, 34 HARV. ENVT’L L. REV. 9, 17 (2010) (“[E]xisting environmental and natural resources laws are preservationist, grounded in the old stationarity framework that no longer reflects ecological realities.”). 24. See generally OUR CHILDREN’S TRUST, https://www.ourchildrenstrust.org/ [https://perma.cc/BGD7-JPXL] (last visited Nov. 4, 2023). These so-called “atmospheric trust” cases are distinct from the climate cases brought by state and local governments, which center on products liability claims. See, e.g., Sean Lyness, Tangled Up in Procedure: The State and Local Climate Cases After Baltimore and Ford, HARV. ENV’T L. REV. ONLINE (Oct. 8, 2021), https://journals.law.harvard.edu/elr/2021/10/08/tangled-up-in-procedure-the-state-and- local-climate-cases-after-baltimore-and-ford/ [https://perma.cc/8X2V-5CVV]. 25. See, e.g., Umair Irfan, 21 Kids Sued the Government Over Climate Change. A Federal Court Dismissed the Case, VOX (Jan. 17, 2020) Error! Hyperlink reference not val- id.https://www.vox.com/2020/1/17/21070810/climate-change-lawsuit-juliana-vs-us-our- childrens-trust-9th-circuit [https://perma.cc/9GBF-WEYB] (noting that “[w]hile the 9th Cir- cuit ruling was a setback for climate activists, many are undeterred from using the courts to fight climate change and hold polluters accountable.”); see also Henry Carnell, What to Know About the Groundbreaking Climate Change Lawsuit in Montana, MOTHER JONES (June 26, 2023) Error! Hyperlink reference not val- id.https://www.motherjones.com/environment/2023/06/held-montana-climate-change- lawsuit-constitution/?ref=the-wave.net [https://perma.cc/73LG-NRRJ] (Interview with Mi- chael Gerrard, “[A] successful ruling for the plaintiffs could be very energizing to young people and climate activists and lawyers around the country and indeed, around the world.”). 26. See, e.g., Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020) (finding no stand- ing); see also Chernaik v. Brown, 475 P.3d 68, 84 (Or. 2020) (dismissing case); Piper ex rel. Aji P. v. State, 480 P.3d 438 (Wash. Ct. App. 2021) (upholding the lower court’s dismissal), review denied, 497 P.3d 350 (Wash. 2021) (declining petition for certiorari, thereby upholding court of appeals dismissal of case); but see Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont., Aug. 14, 2023). 27. See, e.g., Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020) (finding no stand- ing); see also Chernaik v. Brown, 475 P.3d 68, 84 (Or. 2020) (dismissing case); Piper ex rel. Aji P. v. State, 497 P.3d 350 (Wash. 2021) (declining petition for certiorari, thereby upholding court of appeals dismissal of case). 2024] Localizing the Public Trust 55 Enter local governments.28 Local environmental efforts have al- ways been something of a peripheral concern: why take small ac- tions, the conventional logic goes, when most environmental prob- lems are decidedly not small? Indeed, many of the justifications for the federal government’s role in environmental law have focused on the supposedly ineffective and inefficient role of state and local gov- ernments.29 But in the past decade or so, the pendulum has begun to swing to- wards local action. Perhaps local governments are frustrated by the lack of federal action (statutory or administrative) on environmental issues,30 disheartened by the solidifying of political lines on envi- ronmental issues,31 or resolved to face the existential threat of cli- mate change by any means necessary.32 Whatever the cause, the ef- fect is that local governments have been increasingly ambitious and proactive on environmental issues.33 28. This Article uses the terms “local government” and “locality” to mean sub-state govern- ing entities that have authority to enforce and regulate through ordinances, by-laws, and other measures. The terms include, but are not limited to, county governments, cities, towns, and townships – all 38,000+ of them. See Rick Su, Democracy in Rural America, 98 N.C. L. REV. 837, 840 (2020) (“There are nearly 39,000 local governments in the United States. But looking at the dearth of existing literature, one might come to believe that there are only a handful. Cit- ies, particularly the nation’s largest, dominate the conversation.”). In so doing, I recognize that any reference to “local governments” or “localities” is a gross generalization. Such is the peril of any academic work that attempts to understand and explore local governments. See Dave Owen, Cooperative Subfederalism, 9 U.C. IRVINE L. REV. 177, 197 (2018) (“[L]ocal governance in the United States is diverse, and none of the generalizations made here will apply equally across the entire local government realm.”). 29. See, e.g., Katherine A. Trisolini, All Hands on Deck: Local Governments and the Potential for Bidrectional Climate Change Regulation, 62 STAN. L. REV. 669, 674–75 (2010) (noting that “local governments are largely overlooked as relevant actors in academic discussions of envi- ronmental law.”). 30. See, e.g., Lisa Friedman, Biden ‘Over-Promised and Under-Delivered’ on Climate. Now, Trouble Looms in 2022, N.Y. TIMES (Jan. 4, 2022), https://www.nytimes.com/2022/01/04 /climate/biden-climate-change.html [on file with the journal]; see also Nadja Popovich, et al., The Trump Administration Rolled Back More Than 100 Environmental Rules. Here’s the Full List, N.Y. TIMES (Jan. 20, 2021), https://www.nytimes.com/interactive/2020/climate/trump- environment-rollbacks-list.html [on file with the journal]. 31. See, e.g., Sung Eun Kim & Johannes Urpelainen, The Polarization of American Environ- mental Policy: A Regression Discontinuity Analysis of Senate and House Votes, 1971–2013, 34 REV. OF POL’Y RSCH. 456 (2017). 32. See, e.g., Morning Report: San Diego’s Almost Impossible Climate Dream, VOICE OF SAN DIEGO (Feb. 24, 2022), Error! Hyperlink reference not val- id.https://voiceofsandiego.org/2022/02/24/morning-report-san-diegos-almost-impossible- climate-dream/ [https://perma.cc/NXL3-CWAQ] (“County leaders are pushing San Diego to eliminate planet-warming gasses in less than 15 years, a full decade faster than the state.”). 33. See, e.g., John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 HARV. ENV’T L. REV. 365 (2002); see also Katrina M. Wyman & Danielle Spiegel-Feld, The 56 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 This Article is precipitated by the convergence of these two trends: the public trust doctrine’s recent limitations and nascent local envi- ronmentalism. The goal is to create a framework for articulating the normative relationship between local and state governments in the public trust doctrine context. How should we accommodate local preferences in the public trust context? Do we trust local govern- ments as trustees of the doctrine? How can state and local govern- ments share their obligations and responsibilities under the doc- trine? In answering these questions, this Article’s title is precisely cho- sen. I mean “localizing” in three senses: first, “localizing” in the sense that the doctrine as presently understood makes little accommoda- tion for or consideration of the role of local governments, and thus this Article seeks to formally recognize local governments under the doctrine; second, “localizing” as opposed to “localist,” as this frame- work does not assert a default preference for local action over state;34 and third, “localizing” in the present participle tense, as a process, not simply an end goal. Localizing the public trust in this way provides a means for states and local governments to navigate their shared responsibilities under the public trust. Such a recontextualization of the doctrine is timely, particularly in light of the growing body of scholarship investigating and empower- ing local government action on environmental issues.35 This in- creased attention to local governments has included scholarship re- examining the role of local governments in a federalist system.36 Lo- calizing the public trust continues and furthers this trend. Urban Environmental Renaissance, 108 CAL. L. REV. 305, 337–47 (2020) (detailing the various ways that cities are “using their enhanced capabilities to advance the environmental agenda,” including building green infrastructure, reducing air pollution, and adapting to climate change). 34. In this clarification I am indebted to Sarah Fox who makes a similar argument with re- spect to environmental federalism in Localizing Environmental Federalism, 54 U.C. DAVIS L. REV. 133, 178–79 (2020) (“Importantly, localized environmental federalism does not necessarily mean localist environmental federalism. To localize environmental federalism means to explic- itly acknowledge and account for local actors, and for the vulnerabilities in authority that they may confront. It does not put a thumb on the scale in favor of local action over choices by other levels of government, or even describe when such local action may be desirable.”). 35. See, e.g., Wyman & Spiegel-Feld, supra note 33, at 349. See also Fox, supra note 34; Ow- en, supra note 28; John R. Nolon, Calming Troubled Waters: Local Solutions, 44 VT. L. REV. 1 (2019); Alice Kaswan, Climate Adaptation and Land Use Governance: The Vertical Axis, 39 COLUM. J. ENV’T. L. 390 (2014). 36. See Nestor M. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 VA. L. REV. 959 (2007). See also Fox, supra note 34; Owen, supra note 28; Shannon M. Roesler, Federalism and Local Environmental Regulation, 48 U.C. DAVIS L. REV. 1111 2024] Localizing the Public Trust 57 I do not labor under the illusion that localizing the public trust doctrine is a cure for all of its ills. The public trust doctrine has roughly as many forms as states (so, approximately fifty),37 and not all are identical.38 Localizing the public trust doctrine does nothing to change its established delineations or alter its current forms.39 I acknowledge that for some states with latent or anemic versions of the doctrine, localizing the doctrine will accomplish little.40 For other states, however, where the public trust doctrine shapes both governmental and private actors’ behaviors, there is a role in the public trust doctrine for local governments. The size and extent of that role will differ depending on the state and depending on the scope of that state’s public trust doctrine. But, despite the highly (2015); Nestor M. Davidson, Localist Administrative Law, 126 YALE L.J. 564 (2017); Nestor M. Davidson, The Dilemma of Localism in an Era of Polarization, 128 YALE L.J. 954 (2019); Sarah Fox, Why Localizing Climate Federalism Matters (Even) During a Biden Administration, 99 TEX. L. REV. ONLINE 122 (2021). 37. See, e.g., Hope M. Babcock, Using the Federal Public Trust Doctrine to Fill Gaps in the Le- gal Systems Protecting Migrating Wildlife from the Effects of Climate Change, 95 NEB. L. REV. 649, 688 (2017) (noting that another scholar suggests there are fifty-one public trust doctrines: “one in every state and a federal version”). The existence of a federal public trust, however, remains in dispute. See, e.g., Bennett J. Ostdiek, Public Rights and Sovereign Power: Rethinking the Federal Public Trust Doctrine, 51 TEX. ENV’T L.J. 215, 220 (2021) (contending that there is a federal public trust doctrine, but acknowledging that “some scholars might consider an inquiry into the nature of the federal public trust doctrine misguided.”). The doctrine may also apply to tribal governments. See, e.g., Erin Ryan et al., Environmental Rights for the 21st Century: A Comprehensive Analysis of the Public Trust Doctrine and Rights of Nature Movement, 42 CARDOZO L. REV. 2447, 2536 (2021) (“North American tribes and First Nations have recently acted for- mally to codify a number of diverse and far-reaching rights of nature laws. While these newly recognized rights may represent a significant shift in the legal landscape, for many tribes, they simply codify what they have always held to be true—that nature is sacred and that people and the environment are inextricable.”). 38. See, e.g., Robin Kundis Craig, A Comparative Guide to the Eastern Public Trust Doctrines: Classifications of States, Property Rights, and State Summaries, 16 PENN STATE ENV’T L. REV. 1, 4 (2007) (“[F]ar more often than occurs in the later-settled West, public trust use rights in the East intrude—and for practical purposes always have intruded—upon privately owned ripari- an and littoral property.”); see also Robin Kundis Craig, A Comparative Guide to the Western States’ Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecolog- ical Public Trust, 37 ECOLOGY L.Q. 53, 56 (2010) (“[W]estern states are more arid than eastern states, resulting in a consciousness of the importance of fresh water that pervades many of these states' public trust doctrines.”). 39. For example, this Article does not (and need not) answer the question whether certain additional natural resources—groundwater, the atmosphere, etc.—are or should be part of the doctrine. 40. See Craig, A Comparative Guide to the Eastern Public Trust Doctrines: Classification of States, Property Rights, and State Summaries, supra note 38, at 24 (“Alabama has a poorly de- veloped public trust doctrine that has never been expanded beyond the basic federal doctrine. Similarly, while recognizing log floatation, Missouri has not otherwise expanded its public trust doctrine beyond the federal test.”). 58 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 particularized nature of localization, there is still a benefit to tracing its general contours. Localizing the public trust doctrine offers an opportunity to formally recognize the role of local governments in the doctrine and empower them to act. As a policy choice, localizing the public trust doctrine can enable better environmental out- comes—including, as I detail here, local action on climate adapta- tion—as well as align the doctrine with existing local impacts, inure the benefits of localism to the doctrine, and further environmental justice. Whether localizing the public trust occurs by judicial adop- tion, state regulation, or legislative enactment, this Article does not prescribe a method. But it does detail its substance and its promise. This Article proceeds in four parts. Part II explores the framing of the modern public trust doctrine as the province of the judiciary. It argues for a public trust rooted in the lived experiences of the public. Part III articulates the benefits of a localized public trust, recognizing the roles local actors already play and identifying how localism’s benefits are uniquely suited the doctrine. It further argues that lo- calizing the public trust doctrine can be a tool to promote environ- mental justice and environmental federalism. Part IV proposes local- izing the public trust doctrine through three principles: (1) minimum state requirements; (2) increased local autonomy; and (3) shared responsibilities between local and state governments. These principles provide a framework for the normative relationship be- tween state and local governments in the public trust context, which intends to legitimize progressive local governmental actions and hinder regressive ones. The principles also mirror cooperative fed- eralism and share its advantages. Finally, Part V demonstrates how localizing the public trust can work through a case study on local climate adaptation. II. WHOSE PUBLIC TRUST? A. The Saxonian Trust: Judicially Centered Before envisioning a future for the public trust doctrine, it is im- portant to understand the doctrine as it exists today. Although the public trust doctrine has ancient roots,41 its modern reinvention is 41. The doctrine is, no doubt, old. Most scholars trace the doctrine back to English ante- cedents with Roman roots. For a discussion of the Roman view of the public trust doctrine see Ruhl & McGinn, supra note 16. 2024] Localizing the Public Trust 59 credited to Joseph Sax.42 In a persuasive and influential 1970 article, Sax pointed to the public trust doctrine as a potential mechanism for achieving positive environmental outcomes.43 While the doctrine was not new in American law, it had not been particularly active since the nineteenth century.44 As the so-called “environmental dec- ade”45 dawned, Sax turned to public trust as a promising path for- ward. As much a philosophy of the relationship between governments, the public, and natural resources as it is a litigation and advocacy tool, Sax’s vision of the public trust was a “legal approach to resource management problems.”46 Sax saw the doctrine as “a tool of general application for citizens” with sufficient “breadth and substantive content” to enforce environmental quality standards against the 42. There is a cottage industry of law review articles that address Joseph Sax’s vision of the public trust doctrine, all of them crediting him as the public trust doctrine’s modern creator. See, e.g., Richard Delgado, Our Better Natures: A Revisionist View of Joseph Sax’s Public Trust Theory of Environmental Protection, and Some Dark Thoughts on the Possibility of Law Reform, 44 VAND. L. REV. 1209 (1991); Carol M. Rose, Joseph Sax and the Idea of the Public Trust, 25 ECOLOGY L.Q. 351 (1998); Gerald Torres, Joe Sax and the Public Trust, 45 ENV’T L. 379, 380 (2015) (“Most legal observers would agree that credit for the resurrection of the modern pub- lic trust doctrine ought to be placed at the feet of one scholar: Professor Joseph Sax.”); Holly Doremus, In Honor of Joe Sax: A Grateful Appreciation, 39 VT. L. REV. 799, 801 (2015) (“Fre- quently those seeking to sum up Professor Sax’s career have described him as the architect of the modern public trust doctrine.”). After Sax’s passing in 2014, the Michigan Journal of Envi- ronmental & Administrative Law published a number of tributes. See, e.g., Zygmunt Plater, Jo- seph Sax, a Human Kaleidoscope, 4 MICH. J. ENV’T & ADMIN. L. 157 (2014). I, like all other schol- ars of the public trust, am deeply indebted to Sax. 43. Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Inter- vention, 68 MICH. L. REV. 471 (1970). As of 2020, Sax’s article had been cited by 47 cases and over 1,100 articles. Michael C. Blumm & Zachary A. Schwartz, The Public Trust Doctrine Fifty Years After Sax and Some Thoughts on Its Future, 44 PUB. LAND & RES. L. REV. 1, 2 n.1 (2021). 44. See, e.g., William D. Araiza, Democracy, Distrust, and the Public Trust: Process-Based Con- stitutional Theory, the Public Trust Doctrine, and the Search for a Substantive Environmental Value, 45 UCLA L. REV. 385, 386–87 (1997) (“The last twenty-five years have witnessed a re- markable renaissance of the public trust doctrine . . . The rebirth of the public trust doctrine is directly attributable to the publication of Joseph Sax’s seminal 1970 article calling attention to the doctrine[.]”). 45. See, e.g., Kenneth A. Manaster, Justice Stevens, Judicial Power, and the Varieties of Envi- ronmental Litigation, 74 FORDHAM L. REV. 1963, 1963 (2006) (“1970 was a big year for envi- ronmental law. The first of the major federal environmental statutes, the National Environ- mental Policy Act (“NEPA”), went into force. The first Earth Day was observed. The federal Clean Air Act underwent revolutionary changes, and the United States Environmental Protec- tion Agency (“EPA”) was created. Many states also passed ambitious environmental legislation and created new agencies. 1970, as is often said, began the ‘Environmental Decade,’ when the basic blueprint was drawn for the building of modern environmental law.”). 46. Sax, supra note 43, at 474. 60 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 government.47 Notably, Sax intended the doctrine to apply to both “traditional” public trust assets like navigable waters and their shores as well as other natural resources that were not traditionally covered by the doctrine.48 Sax’s version of the public trust was, however, limited to its judi- cial application. This was partly due to his analytical methods; his seminal article traced the ways in which judicial intervention had (and had not) safeguarded public trust assets.49 This judicial focus was intentional: Sax stated at the outset that he was looking for “some broad legal approach which would make the opportunity to obtain effective judicial intervention more likely.”50 Indeed, Sax viewed the doctrine as “not so much a substantive set of standards for dealing with the public domain as it is a technique by which courts may mend perceived imperfections in the legislative and ad- ministrative process.”51 Sax’s prediction for the future of his idea was accordingly centered on the courts: “the judiciary can be ex- pected to play an increasingly important and fruitful role in safe- guarding the public trust.”52 This framing of the judiciary as both the vanguard and safeguard of the public trust makes sense in the context of Sax’s 1970 article. After all, the democratic process was slow to respond to growing en- vironmental crises at the time.53 Certainly, from the vantage point of 47. Id. 48. See Blumm & Schwartz supra note 43, at 16 (“The article was groundbreaking, not only for its revival of an historic, largely forgotten doctrine, but also, according to Professor Carol Rose, for ‘unhook[ing] it from its traditional moorings on and around water bodies.’”) (quoting Carol M. Rose, supra note 42, at 352); see also “The Public Trust: A New Charter of Environ- mental Rights,” in JOSEPH L. SAX, DEFENDING THE ENVIRONMENT: A STRATEGY FOR CITIZEN ACTION 158, 172 (1971) (advocating for the public trust doctrine to apply to a host of environmental problems such as congestion, noise, pesticides, and radioactivity). 49. Sax supra note 43, at 474. 50. Id. 51. Id. at 509. 52. Id. at 566. 53. See, e.g., Richard J. Lazarus, The Greening of America and the Graying of United States En- vironmental Law: Reflections on Environmental Law’s First Three Decades in the United States, 20 VA. ENV’T L.J. 75, 76 (2001) (“[P]rior to 1970, environmental protection law in the United States was essentially nonexistent.”). And, even after Congress passed a raft of environmental statutes in the 1970s, there remains today an open debate whether the myriad environmental laws ever achieved their lofty goals. Compare Beth Gardiner, This Landmark Law Saved Mil- lions of Lives and Trillions of Dollars, NAT’L GEOGRAPHIC (Dec. 29, 2020), https://www.nationalgeographic.com/environment/article/clean-air-act-saved-millions-of- lives-trillions-of-dollars [https://perma.cc/RPP8-GLXZ] (discussing the Clean Air Act’s impact) with Karrigan Bork, Governing Nature: Bambi Law in a Wall-E World, 62 B.C. L. REV. 155, 159 (2021) (“Existing environmental law literature underestimates the impacts of the Anthropo- 2024] Localizing the Public Trust 61 2024, relying on the legislative process to protect natural resources in every instance sounds hopelessly naïve and inadequate.54 After all, few think the Congress of today is capable of passing any major federal legislation, let alone environmental legislation.55 Sax’s concentration on the judiciary has also had real success. In a number of states, the post-1970 public trust doctrine is revitalized and potent.56 Further, there are many examples of pioneering judges that have expanded their state’s public trust doctrine, opening up public access or protecting natural resources.57 This Saxonian vision of the public trust doctrine—one that relies on the judiciary to define and enforce the doctrine—is still the domi- nant version of the doctrine today. Perhaps the best illustration of Sax’s influence is the Our Children’s Trust climate cases, a series of cases brought by children across the United States seeking to hold the federal and state governments accountable for their failure to address climate change.58 These cases are premised, in part, on the notion that the atmosphere is a public trust asset, one that our gov- ernmental trustees have failed to safeguard.59 First articulated by cene and the extent of guidance that environmental law will have to provide. Successful eco- system management will require concrete and highly specific goals, but environmental law does not yet have a mechanism for setting these goals.”). 54. See, e.g., Richard Lazarus, Environmental Law Without Congress, 30 J. LAND USE & ENV’T L. 15, 15 (2014) (“[T]he political intransigence underlying Congress’s abdication of its environ- mental lawmaking responsibilities appears to have hardened and deepened its roots.”); but see Lisa Friedman, Democrats Designed the Climate Law to Be a Game Changer. Here’s How, N.Y. TIMES (Aug. 22, 2022), Error! Hyperlink reference not val- id.https://www.nytimes.com/2022/08/22/climate/epa-supreme-court-pollution.html [https://perma.cc/G764-CH92 ] (discussing the Inflation Reduction Act of 2022). 55. See, e.g., Faye Shen Li Thijssen, How Partisanship Hinders Action on Environmental Poli- cy, THE FULCRUM (March 22, 2022), https://thefulcrum.us/big-picture/Leveraging-big- ideas/environmental-gridlock/ [https://perma.cc/JAS4-ZWF3] (“But the federal government has not advanced major environmental protection legislation in decades, as partisanship has brought Congress to a state of near total gridlock.”). 56. See, e.g., Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 369–70 (N.J. 1984) (affirming the public’s use of privately-owned dry sand areas as part of the state’s public trust doctrine). 57. See, e.g., Nat’l Audubon Soc’y v. Superior Ct., 658 P.2d 709, 728 (Cal. 1983) (“The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.”); see also Robinson Twp. v. Commonwealth, 83 A.3d 901, 985 (Pa. 2013) (finding state statute that set forth framework for oil and gas operations unconstitutional because it was “incompatible with the Common- wealth’s duty as trustee of Pennsylvania's public natural resources”). 58. See generally OUR CHILDREN’S TRUST, supra note 24. 59. See, e.g., First Amended Complaint for Declaratory and Injunctive Relief at ¶ 308, Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020) (No. 6:15-cv-01517-TC) (“Plaintiffs are benefi- 62 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 law professor Mary Christina Wood,60 the atmospheric trust concept has grown from a robust academic debate61 to a countrywide litiga- tion strategy.62 And, although these cases have a rather mixed rec- ord of success, even their detractors must admit that the cases have helped to elevate climate change as an issue in the public arena.63 At the center of the idea of an atmospheric public trust is Sax’s vi- sion of the public trust doctrine—at least, insofar as the atmospheric public trust requires a willing judiciary to recognize and enforce it. Indeed, the notion of the atmospheric public trust was predicated on a receptive judiciary.64 The success of the Our Children’s Trust cli- mate cases has accordingly depended on the views of judges in state and federal courthouses across the country.65 The atmospheric trust is a particularly vivid example of the ways in which the public trust doctrine is dependent upon the judiciary for its realization, but it is not an outlier. In the 1970s, when Californi- ans sought to use the public trust doctrine to protect Mono Lake, ciaries of rights under the public trust doctrine[.] . . . These vital natural resources include at least the air (atmosphere), water, seas, the shores of the sea, and wildlife.”). 60. See generally Mary Christina Wood, Atmospheric Trust Litigation, in ADJUDICATING CLIMATE CHANGE: STATE, NATIONAL, AND INTERNATIONAL APPROACHES 99, 99 (William C. G. Burns & Hari M. Osofsky eds., 2009); Mary Christina Wood, Atmospheric Trust Litigation Across the World, in FIDUCIARY DUTY AND THE ATMOSPHERIC TRUST 99, 102 (Ken Coghill et al. eds., 2012). 61. Compare Mary Christina Wood & Dan Galpern, Atmospheric Recovery Litigation: Making the Fossil Fuel Industry Pay to Restore a Viable Climate System, 45 ENV’T L. 259 (2015), with Caroline Cress, Comment, It’s Time to Let Go: Why the Atmospheric Trust Won’t Help the World Breathe Easier, 92 N.C. L. REV. 236 (2013). 62. See, e.g., Anna Christiansen, Up in the Air: A Fifty-State Survey of Atmospheric Trust Liti- gation Brought By Our Children’s Trust, 2020 UTAH L. REV. 867, 868 (2020) (“Frustrated with government inaction, individuals and organizations have begun turning to the courts in an ef- fort to compel governments to regulate. These environmental lawsuits, known as atmospheric trust litigation (ATL), have popped up in both state and federal courtrooms across the coun- try.”). 63. See, e.g., Nick Ehli, Kids want to put Montana on trial for unhealthy climate policies, CBS NEWS (July 11, 2022), https://www.cbsnews.com/news/climate-change-lawsuit-kids- montana/ [https://perma.cc/SM6E-JL7W]; see also Robinson Meyer, A Climate-Lawsuit Dissent That Changed My Mind, ATLANTIC, (Jan. 22, 2020), https://www.theatlantic.com/science /archive/2020/01/read-fiery-dissent-childrens-climate-case/605296/ [https://perma.cc/GJ63-8Y52]. 64. See generally Michael C. Blumm & Mary Christina Wood, “No Ordinary Lawsuit”: Climate Change, Due Process, and the Public Trust Doctrine, 67 AM. U. L. REV. 1 (2017). 65. Cf. Piper ex rel. Aji P. v. State, 480 P.3d 438, 458 (Wash. Ct. App. 2021) (holding that Washington state children’s climate case failed on the merits as the atmosphere is not a public trust asset) with Held v. Montana, No. CDV-2020-307 at 102 (1st Dist. Ct. Mont., Aug. 14, 2023) (finding that “Plaintiffs have a fundamental constitutional right to a clean and healthful envi- ronment, which includes climate as part of the environmental life-support system.”). 2024] Localizing the Public Trust 63 they turned to the judiciary.66 So did Oregonians looking to do the same for Lake Oswego nearly fifty years later.67 When some states sought to hold oil companies responsible for methyl-tertiary-butyl- ether contamination in their groundwater, they likewise asked judg- es to prevent the alleged impairment of their public trust assets.68 The legal academy has followed, with most of the public trust liter- ature focusing on how courts have used the doctrine.69 In this I am likewise complicit, having previously looked almost exclusively at judicial reception and treatment of public trust claims.70 In short, the Saxonian vision of the public trust is alive and well. To some extent, this may well be expected in a society that places significant power in the judiciary. Indeed, rights are dependent, at least in part, on judicial enforcement.71 This focus on judicial inter- vention in the public trust mirrors the tactics taken by other individ- ual rights movements, most notably the civil rights movement.72 However, more than fifty years after Joseph Sax anticipated that “the judiciary can be expected to play an increasingly important and fruit- ful role in safeguarding the public trust[,]”73 it is apparent that the 66. See Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709, 728 (Cal. 1983). 67. See Kramer v. City of Lake Oswego, 446 P.3d 1 (Or. 2019). 68. See, e.g., Rhode Island v. Atl. Richfield Co., 357 F. Supp. 3d 129, 144–45 (D.R.I. 2018) (“The State's claim is that it can sue as trustee to protect the corpus of a public trust that in- cludes groundwater. This claim fails: the State's portfolio of trust assets it administers for pub- lic benefit does not, as yet, include groundwater.”); see also State v. Hess Corp., 20 A.3d 212, 217 (N.H. 2011) (“As trustee, the State must preserve the State's waters for the trust's benefi- ciaries, and the State can bring suit to protect the waters over which it is trustee from contam- ination.”). 69. See, e.g., Ryan Shannon, Developments in the Public Trust, 45 ENV’T L. 257 (2015) (noting a symposium on the public trust doctrine and how many participants focused on caselaw de- velopments). 70. See Lyness, supra note 12 (assessing local government impacts on the public trust doc- trine). 71. See, e.g, Erwin Chemerinsky, The Vanishing Constitution, 103 HARV. L. REV. 43, 97 (1989) (“Without judicial enforcement, the Constitution is little more than the parchment that sits un- der glass in the National Archives.”). 72. See, e.g., Roger A. Fairfax, Jr., Wielding the Double-Edged Sword: Charles Hamilton Hou- ston and Judicial Activism in the Age of Legal Realism, 14 HARV. BLACKLETTER L.J. 17, 33 (1998) (describing the NAACP and Charles Hamilton Houston’s legal strategy to dismantle segregation as “a call for judicial activism”); cf. Samuel Moyn, Counting on the Supreme Court to uphold key rights was always a mistake, WASHINGTON POST, (June 17, 2022), https://www.washingtonpost.com/outlook/2022/06/17/supreme-court-rights-congress- democracy/ [https://perma.cc/2AKY-V6NH] (“For a comparatively brief time, before Presi- dent Richard Nixon began the right-wing transformation of the court, liberals controlled the institution and came to believe that judges were indispensable to the progress of rights.”). 73. Sax, supra note 43, at 566. 64 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 judiciary is often the sole focus of those seeking to safeguard the public trust. B. A Public-Centered Trust The public trust doctrine’s nearly exclusive focus on the judiciary is not without its limitations. Not all courts have been receptive to public trust claims.74 Even within the same state, different courts have interpreted the doctrine in diverse ways, muddying the juris- prudential waters.75 And not every court has responded amiably to legislative tinkering with the doctrine.76 Also, the focus on the judiciary erroneously assumes equal access to justice. The ability to defend or push the public trust doctrine in court assumes that a litigant has the resources and ability to do so.77 Perhaps then it is no surprise that many of the most high-profile public trust disputes have occurred in wealthy communities.78 A ju- dicially-focused public trust thus fails to address environmental jus- tice concerns. Further, the current doctrine ignores the role of non- 74. See, e.g., White Bear Lake Restoration Ass’n ex rel. State v. Minn. Dep’t of Nat. Res., 946 N.W.2d 373, 386–87 (Minn. 2020) (declining to extend the public trust doctrine to groundwa- ter); see also supra notes 26, 27 and accompanying text. 75. See, e.g., Sean Lyness, A Doctrine Untethered: “Passage Along the Shore” Under the Rhode Island Public Trust Doctrine, 26 ROGER WILLIAMS U. L. REV. 671, 689, 693 (2021) (explaining that “[o]f th[e] six [Rhode Island Supreme Court] cases that explicitly discuss the public trust doc- trine, only three even cite to the relevant constitutional provision. Not one of those three cases makes any note of the added language nor purports to interpret that language” but that a Rhode Island Superior Court “not only recognized that the 1986 amendment materially changed the scope of the public trust doctrine—something no other Rhode Island court has acknowledged—but it also took the next step of attempting to grapple with and interpret the added constitutional language.”). 76. For example, Minnesota has an environmental rights statute that ostensibly codifies the state’s public trust doctrine. MINN. STAT. § 116B.01–13; see also Alexandra B. Klass, The Public Trust Doctrine in the Shadow of State Environmental Rights Laws: A Case Study, 45 ENV’T L. 431, 435 (2015) (describing a rejected state contention that “MERA had replaced the common law public trust doctrine in Minnesota.”). But the Minnesota Supreme Court has insisted that the doctrine also exists, independently, in common law form. See White Bear Lake Restoration, 946 N.W. 2d at 385–387. 77. See, e.g., Marcus Alexander Gadson, Theseus in the Labyrinth: How State Constitutions Can Slay the Procedural Minotaur, 98 WASH. L. REV. 1, 6 (2023) (describing the current crisis in access to justice: “at the same time that legal problems are widespread, access to legal services is available to only a narrow few.”). 78. See, e.g., Chris Burrell, Barriers at the Beach: People tussle over scarce access as sea levels and property values rise, GBH NEWS (July 25, 2022), https://www.wgbh.org/news/local/2022- 07-25/barriers-at-the-beach-people-tussle-over-scarce-access-as-sea-levels-and-property- values-rise [https://perma.cc/725E-4C2N] (noting that shoreline access conflicts have intensi- fied in wealthy coastal communities). 2024] Localizing the Public Trust 65 judicial interventions like law enforcement and societal norms. For every case that makes it to litigation, there are surely countless more that are stopped before they begin—either through compliance with authorities or through chilling effect.79 Indeed, judicial precedent does not govern every interaction between the government, the pub- lic, and the public trust. Consider a beachgoer in New Jersey. When they wish to walk along the shoreline—an area long understood to be part of the state’s public trust—do they first consult the Atlantic Reporter? Or do they look at street signage, posted instructions, and the actions of other beachgoers? If this beachgoer faces a dispute over access to their public trust lands, is their first recourse a lawsuit? Or do they discuss the matter with their fellow private citizens, local law en- forcement, and perhaps even local or state representatives? The singular focus on the judiciary’s role in enforcing the public trust misses these other, equally important facets of the doctrine. The lived experience of the public is not limited to the courtroom. It is, instead, a much broader and less formal enterprise. That vision of the public trust doctrine—one that incorporates the non-litigious elements that make up the doctrine—is the one I wish to use in this Article. To localize the public trust is to understand that the public trust doctrine exists beyond the judiciary. Of course, the judiciary has (and always will have) a role in the doctrine. But this articulation of the doctrine includes much more than judicial opinions. It includes the lived experiences of the public. In that way, it is a public-centered version of the public trust: one that focuses on how members of the public experience the doctrine. With that framing, localizing the public trust becomes more than just achieving judicial recognition of local governments in the sche- ma. It becomes a means of changing the public’s interaction with their public trust rights. And it requires governmental actors to think beyond just the terms of the next piece of litigation. 79. In criminology, the concept of the funnel is used to describe a winnowing of those actu- ally prosecuted. See, e.g., Susan P. Shapiro, The Road Not Taken: The Elusive Path to Criminal Prosecution for White-Collar Offenders, 19 LAW & SOC’Y REV. 179, 179 (1985) (“The metaphors of the funnel and leaky sieve are popular in criminological discourse. They capture the percep- tion that few suspected criminals are ultimately incarcerated, while the majority are diverted from the criminal justice system by discretionary decisions of victims, police offic- ers, prosecutors, juries, and judges.”). The concept applies equally well to the civil context. 66 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 III. THE BENEFITS OF LOCALIZING This Part asserts the need for localizing the public trust. Before diving into the potential benefits of localization, I will address two common underlying premises in public trust scholarship: (1) that the current structure of the public trust is sufficiently capable of achieving the doctrine’s goal of safeguarding environmental assets;80 and (2) that the public trust doctrine is an unnecessary or undesira- ble tool in light of available democratic processes.81 Each is a predi- cate for one’s view of the doctrine, and it is necessary to consider them in turn. First, some might argue that the public trust doctrine does not need localizing as it can already be used to accomplish goals in its present form.82 Localizing the public trust, then, would needlessly complicate an already-working system. This view might be reduced to the adage: if it ain’t broke, don’t fix it. Although the current formulation of the doctrine has indeed admi- rably achieved numerous environmental goals,83 it is not without flaws. As explained supra,84 the doctrine’s reliance on judicial inter- 80. This is a notion that pervades much of the literature promoting the public trust doc- trine. For a sampling, see Erin Ryan, From Mono Lake to the Atmospheric Trust: Navigating the Public and Private Interests in Public Trust Resource Commons, 10 GEO. WASH. J. ENERGY & ENV’T L. 39 (2019); see also Alexandra B. Klass, Modern Public Trust Principles: Recognizing Rights and Integrating Standards, 82 NOTRE DAME L. REV. 699 (2006); Robin Kundis Craig, Adapting to Climate Change: The Potential Role of State Common-Law Public Trust Doctrines, 34 VT. L. REV. 781 (2010). 81. For some of the proponents of this idea, see James L. Huffman, Speaking of Inconvenient Truths—A History of the Public Trust Doctrine, 18 DUKE ENV’T L. & POL’Y F. 1, 12–27 (2007); see also Lazarus, supra note 18 at 633 (arguing that the public trust doctrine “renders more diffi- cult the important process of reworking natural resources law.”); Richard J. Lazarus, Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: Can Two Wrongs Make It Right?, 45 ENV’T L. 1139, 1152 (2015) (“I continue to worry that it is a serious mistake to take the pub- lic trust doctrine far beyond its historic moorings.”); but see Michael C. Blumm, Two Wrongs? Correcting Professor Lazarus’s Misunderstanding of the Public Trust Doctrine, 46 ENV’T L. 481 (2016). 82. See, e.g., David D. Caron, Time and the Public Trust Doctrine: Law’s Knowledge of Climate Change, 35 U. HAW. L. REV. 441, 452 (2013) (“The public trust doctrine is closely attuned to change over time. A thesis of this article is that the doctrine self adapts to change and even more looks forward to change to come.”). 83. See, e.g., Blumm and Schwartz, supra note 43 at 3–4 (“[T]he doctrine gave the public the right to protect the ecological and recreational value of tidelands in California; recognized pub- lic rights to recreate on ocean beaches in New Jersey; required evaluation of ecological consid- erations in the administration of water rights in California; gave trust protection to groundwa- ter in Hawaii; was construed to be implicit in the federal due process clause in an atmospheric trust case; and gave implementation force to an international treaty on climate.”). 84. See supra Part II(B). 2024] Localizing the Public Trust 67 vention has left the doctrine muddled and often inaccessible to the public. For many members of the public, the doctrine is just another obscure, out of reach lawyer’s tool, not a vital right. This is not to discount the importance of the judiciary in securing the public trust, but instead to insist that there is room for improvement. And indeed localizing the public trust is not inconsistent with the current form of the doctrine. The idea is to add local governments to the conversation, not subtract the current players. Second, there is an ongoing debate over the doctrine’s utility in our legal system. Some have argued that the focus placed on the doc- trine is to the exclusion of the democratic process.85 Others have ar- gued that we are pushing the doctrine far beyond its traditional moorings in tidal lands and navigable waters in a way that stretches the doctrine too thin.86 Still others have claimed that the doctrine’s reliance on courageous judicial intervention is a recipe for disap- pointment in light of a changing judiciary.87 I do not disagree that the public trust doctrine has its limits. I fur- ther acknowledge that the traditional means of using the doctrine have placed too much reliance on the judiciary. But there is still a role for the public trust doctrine to safeguard natural resources. There is, of course, the doctrine’s sometimes suc- cessful track record in protecting public rights, albeit largely through judicial enforcement.88 Rather than flatly contradicting the doc- trine’s critics, localizing the public trust is a means of responding to 85. See Lazarus, Judicial Missteps, supra note 81 at 1152 (“Purporting to glean from the doc- trine legal obligations enforceable by the judiciary could shortcut the democratic processes for lawmaking that are central to our nation's values and system of government.”). 86. See Huffman, supra note 81 at 6 (“But the drumbeat continues in the academy and among environmental groups, and a few courts have taken up the invitation to ‘liberate’ the doctrine by applying it to non-navigable waters for an expanded array of uses and to resources having little or nothing to do with navigable waters.”). 87. See, e.g., Lazarus, Judicial Missteps, supra note 81 at 1145 (“Yet it did not take long for now-Justice Scalia’s skepticism, if not outright disdain, for much of the legal architecture of modern environmental law to become clear and to influence the Court's rulings in ways wholly opposed to what I had perceived as positive legal trends rendering the public trust doctrine less useful.”). 88. See, e.g., Craig supra note 21 at 797 (“While state public trust doctrines cannot remove all of these barriers [to climate change adaptation], in many states they have already success- fully negotiated some of them, such as private property rights.”); but see Joseph Regalia, The Public Trust Doctrine and the Climate Crisis: Panacea or Platitude? 11 MICH. J. ENV’T. & ADMIN. L. 1, 6 (2021) (“The results are not encouraging. In most cases we reviewed, the public trust doc- trine was ineffective at protecting natural water resources. Courts often mention the doctrine, complete with lofty language and promising ideals, but then fail to meaningfully apply it to tip the scales in favor of the public's interest.”). 68 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 them. As envisioned infra,89 localizing the public trust is a means of improving the doctrine’s democratic accountability. Fully incorpo- rating local governments into the doctrine will increase the number of voices the doctrine is responsive to. A doctrine accountable to lo- cal voices will require less resort to litigation, thus lessening the doc- trine’s dependence on the judiciary. Thus, localizing the public trust doctrine does not seek to reinvent the doctrine nor supplant its current forms. Instead, my proposal seeks to improve the doctrine and make it more accountable, more responsive, and more useful. Below are explanations of what is to be gained from these improvements: (1) a doctrine that reflects the re- ality that local governments already impact the doctrine, even with- out intending to; (2) a doctrine that incorporates the benefits of lo- calism; (3) a doctrine more responsive to environmental justice; and (4) a doctrine that comports with the existing environmental feder- alism structure. I conclude by addressing potential disadvantages to localizing the public trust. A. Reflecting Reality The current doctrine often neglects the roles local governments are already playing. Most courts and commentators place the doc- trine’s sole locus of control in the state sovereign.90 But this is too narrow a view. Local governments already significantly impact the public trust doctrine. Our conception of the public trust doctrine should accord with this reality. To be sure, some courts have recognized the roles of local gov- ernments in the doctrine. This recognition has mostly come from courts addressing local governments as co-trustees of the public trust and therefore just as responsible as the state trustee.91 And, as 89. See infra Part IV(B). 90. See City of Montpelier v. Barnett, 49 A.3d 120, 128 (Vt. 2012) (denying city’s attempt to regulate access to a pond and implicitly failing to extend “trustee” status to municipalities). Also, in Colorado a proposed (but ultimately withdrawn) state constitutional amendment would have ensured that both state and local governments were equal trustees of the public trust. See Kemper v. Leahy (In re Title, Ballot Title), 328 P.3d 172, 175 (Colo. 2014). That such a constitutional amendment was thought needed underscores the current status of Colorado local governments with respect to the public trust doctrine. 91. See, e.g., State v. Village of Lake Delton, 286 N.W.2d 622, 629 (Wis. Ct. App. 1979) (“[M]any cases recognize that [the power to administer the public trust] may be delegated to other units of government, including municipalities, for purposes in furtherance of the trust.”); see also Fafard v. Conservation Comm’n of Barnstable, 733 N.E.2d 66, 71 (Mass. 2000) (“[O]nly the Commonwealth, or an entity to which the Legislature properly has delegated au- 2024] Localizing the Public Trust 69 noted supra, there is the occasional legislative admission of local governments in the scheme.92 These, however, are exceptions, not the rule. The usual understanding of the doctrine is that it is exclu- sively state-based.93 Many local governments accordingly do not consider themselves actors under the doctrine.94 But there is significant evidence that local governments do impact the doctrine, often in consequential ways. In most states, local gov- ernments are empowered to act on so-called “local” matters through state delegations of home rule authority.95 These delegations in- clude the power to regulate—particularly through zoning and land use planning—as well as the power to enforce, both administratively and through local law enforcement.96 In these spheres, local gov- ernment authority is considerable. Local governments can limit or encourage development, restrict activities, exclude the public from thority, may administer public trust rights.”); Kelly v. 1250 Oceanside Partners, 140 P.3d 985, 1004 (Haw. 2006) (“[T]he County has a duty, as a political subdivision of the State, to protect the waters located adjacent to the Property.”); Robinson Twp. v. Commonwealth, 83 A.3d 901, 977 (Pa. 2013) (“With respect to the public trust, Article I, Section 27 of the Pennsylvania Con- stitution names not the General Assembly but “the Commonwealth” as trustee . . . [A]s a re- sult, all existing branches and levels of government derive constitutional duties and obligations with respect to the people.”); Environmental L. Found. v. State Water Res. Control Bd., 237 Cal. Rptr. 3d 393, 410 (Cal. Ct. App. 3rd App. Dist. 2018) (holding that “the county, as a subdivision of the state, shares responsibility for administering the public trust[.]”); Kramer v. City of Lake Oswego, 446 P.3d 1, 19 (Or. 2019) (“Because the state’s authority to enact restrictions on the public’s access to publicly-owned waters is limited [by the public trust doctrine], the same lim- itations apply to the authority of a city, to which the constitution has assigned a portion of the authority of the state.”). 92. See supra notes 5–9 and accompanying text. 93. See, e.g., Iowa Citizens for Cmty. Improvement v. State, 962 N.W.2d 780, 785 (Iowa 2021) (noting that “the State is the ‘trustee’ of the State’s navigable waters”); see also State v. Deetz, 224 N.W.2d 407, 411 (Wisc. 1974) (same); State v. Exxon Mobil Corp., 126 A.3d 266, 288 (N.H. 2015) (same). 94. See, e.g., Reynolds v. City of Calistoga, A134190, A135501, 2014 WL 2986515, at *2 (Napa Cnty. Super. Ct. July 3, 2014) (“The City initially suggested it was a trustee vested with the discretion to determine the amount of bypass consistent with the public trust. However, the City now agrees, in accord with an amicus brief filed in this court by the Water Board and DFG, that it is not a trustee of the public trust resources at issue here.”). 95. See Wyman & Spiegel-Feld, supra note 33, at 349 (2020) (“States’ magnanimity towards municipalities has ebbed and flowed over the years as they have granted more or less gener- ous home rule authority[.]”); see also DALE KRANE ET AL., HOME RULE IN AMERICA: A FIFTY-STATE HANDBOOK (2001); but see Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057, 1062 (1980) (“Under current law, cities have no ‘natural’ or ‘inherent’ power to do anything simply because they decide to do it. Cities have only those powers delegated to them by state government, and traditionally those delegated powers have been rigorously limited by judicial interpretation.”). 96. See generally National League of Cities, Principles of Home Rule for the 21st Century, 100 N.C. L. REV. 1329 (2022). 70 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 particular areas, and choose when and how to enforce these rules at their discretion.97 In other words, local governments wield a sub- stantial amount of power over citizens.98 It is little surprise then that this power can have effects on the public trust doctrine. I have written previously about the impacts of local governments on the public trust doctrine, cataloging their im- pacts into three main (but overlapping) categories: (1) local gov- ernment as landowner; (2) local government as regulator; and (3) local government as enforcer.99 Perhaps without intending to, local governments can exercise considerable influence on the public trust doctrine. They can limit access to public trust resources, prevent certain kinds of recreation on public trust assets, and even be the ar- biter of where the public trust extends.100 Although my previous work in this area was published recently,101 the evidence of local government’s impact on the public trust doc- trine has only continued to grow. In Oklahoma, for example, the City of Tulsa was recently rebuffed when it attempted to sell nearly nine acres of park land to a private developer.102 The State Supreme Court invalidated the park land sale, noting that “the City cannot sell Tract A of the Park to the private developer because the land is held in a public trust for the use and benefit of its citizens as a public park.”103 The fact that the City had sold the park and that it took four years of litigation to undo it only further underscores the impact lo- cal governments have on the public trust. This theme is also present in Oregon, where a county circuit court judge recently ruled that a nearly privatized lake is a public trust as- set.104 There, the local government had passed an ordinance re- 97. See id. 98. See, e.g., Richard Briffault, Our Localism: Part I – The Structure of Local Government Law, 90 COLUM. L. REV. 1, 15 (1990) (“[W]hatever the technically limited status of local units and their formal subservience to the state, local governments have wielded substantial lawmaking power and undertaken important public initiatives.”). 99. See generally Lyness, supra note 12. 100. See id. 101. See id. 102. See Immel v. Tulsa Pub. Facilities, 490 P.3d 135 (Okla. 2021). 103. Id. at 142. 104. See Conrad Wilson, Judge paves way for greater public access to Oswego Lake, OR. PUB. BROAD. (Apr. 20, 2022), https://www.opb.org/article/2022/04/20/ruling-paves-way-for- greater-public-access-to-oswego-lake/ [https://perma.cc/8EU2-6Z4H]; see also Associated Press, Judge to Lake Oswego: Lake Within City is a Public Resource, U.S. NEWS & WORLD REP. (April 21, 2022), https://www.usnews.com/news/best-states/oregon/articles/2022-04-21 /judge-to-lake-oswego-lake-within-city-is-a-public-resource [https://perma.cc/3HZM-TEBT]. 2024] Localizing the Public Trust 71 stricting public access to the lake, installing signs and physical barri- ers to prevent the public from using the lake.105 Members of the public challenged the ordinance, arguing that the ordinance was con- trary to the public trust doctrine.106 In April 2022, a state court judge agreed, holding that the entire body of water was a public trust resource.107 Although the state court ruling is likely to be ap- pealed—and it did not answer the question of whether the local gov- ernment’s actions violated the public trust—this case further demonstrates the power local governments have over the public trust.108 So too in New Jersey. A shoreline community recently proposed an ordinance that would limit parking near the beach to residents on- ly.109 This effort would have clearly limited the public’s right to ac- cess the shoreline, a traditional public trust asset. The local govern- ment eventually tabled the proposal after pushback from the public and concerns that enacting the ordinance would violate the public trust doctrine.110 These are but a few of the recent examples where local govern- ments have influenced the public trust.111 In short, local govern- ments already significantly impact the public trust doctrine. Localiz- ing the public trust, then, is a means of matching the law with reality, an opportunity to align the doctrine on the books with the doctrine on the streets (or, perhaps, shorelines). Indeed, to hold otherwise would be to ignore a considerable swath of public trust authority and impact. 105. See Wilson, supra note 104; see also Associated Press, supra note 104. 106. See Wilson, supra note 104; see also Associated Press, supra note 104. 107. See Wilson, supra note 104; see also Associated Press, supra note 104. 108. See Wilson, supra note 104; see also Associated Press, supra note 104. 109. See Wayne Parry, Jersey shore town postpones residents-only parking near beach, THE ASSOCIATED PRESS (May 31, 2021), Error! Hyperlink reference not val- id.https://apnews.com/article/nyc-state-wire-9f96211d33454e1b7c54a16a92b7e83b [https://perma.cc/4Y8B-9GG3]. 110. See id. 111. See e.g., 61 Crown Street, LLC v. City of Kingston Common Council, 171 N.Y.S.3d 203, 207 (N.Y. Sup. Ct., App. Div., 3rd Dep’t 2022) (finding no public trust claim where city alienated potential park land for private use because there was no evidence that the public had accepted the land as a park); see also In re: Petition of the Twp. of Jackson to Sell Lot 107, Wheatland Manor, 280 A.3d 1074, 1087–88 (Pa. Commw. Ct. 2022) (upholding trial court’s denial of mu- nicipality’s petition to sell public park, noting that “[t]he public trust doctrine, which is incor- porated into the Donated Property Act, requires the political subdivision to hold the property in favor of the community and not divert it from a public use or convey it to a private party.”). 72 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 One final point on the realities of the public trust. Some may con- tend that we could simply reorient the doctrine to avoid local gov- ernment impacts. That mistakes the reasons why local governments impact the doctrine. As I argued in a previous Article, local govern- ments have a significant impact on the doctrine because of the ways in which we have designed both the doctrine and local govern- ments.112 The public trust’s amorphous legal underpinnings and in- tentional flexibility render the doctrine ripe for exercises of local au- thority.113 Within that vacuum of certainty, and without state authorities telling them otherwise, local governments have often— intentionally or not—taken steps that influence the public trust.114 This should be little surprise, as we have delegated decisions around land use, planning, and even enforcement of laws—all potential con- flict points for public trust issues—to local governments. In other words, the local public trust is the result of the legal regime we have designed. Localizing the public trust, then, is a concession to the re- ality that local governments are inevitably a part of the doctrine. B. Localism’s Traditional Benefits Localizing the public trust also instills in the doctrine the tradi- tional benefits of localism. Localism is a well-established body of ac- ademic thought that posits that local governments occupy unique and important roles in our constitutional structure and society.115 Although it has its critics, localism generally contends that local gov- ernments should be given more, not less, authority to achieve a vari- ety of goals.116 The reasons why are the attendant benefits of deci- sion-making at the local level.117 Many of the oft-cited benefits of localism are particularly applicable in the public trust context, though not all. Of importance here are three: (1) increased demo- 112. See Sean Lyness, supra note 12. 113. See id. 114. See id. 115. See, e.g., Briffault Our Localism – Part I supra note 98; see also Richard Briffault, Our Localism: Part II—Localism and Legal Theory, 90 COLUM. L. REV. 346, 395-97 (1990); Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057, 1068 (1980); Brittan J. Bush, A New Regionalist Perspective on Land Use and the Environment, 56 HOW. L.J. 207, 218 (2012). 116. See generally Briffault, Our Localism: Part II—Localism and Legal Theory, supra note 115; Frug, supra note 115; Bush, supra note 115. 117. See generally Briffault, Our Localism: Part II—Localism and Legal Theory, supra note 115; Frug, supra note 115; Bush, supra note 115. 2024] Localizing the Public Trust 73 cratic participation; (2) community building; and (3) local knowledge. First, localism brings the benefit of increased democratic partici- pation through decentralized public decision-making.118 The idea is that local governments are more responsive to members of the pub- lic than more centralized governments.119 After all, “[d]emocratic participation is presumably more possible at the local level, where government bodies and public officials are more accessible and clos- er to home than they are at the state or national level.”120 Further, participation at the local level may more readily produce tangible re- sults.121 Indeed, local participation can lead to increased individual ability to influence public decision-making.122 The scope of the in- creased participation is important; as Professor Barry Friedman notes, “participation can and should stretch beyond electoral partic- ipation.”123 In this way, unlike a letter to a congressperson or a phone call to the president, local participation may yield more re- sponsive outcomes, which in turn can make local participation more meaningful.124 If localities are given sufficient authority to act, they will do so in ways that are responsive to local concerns.125 In a positive feedback loop, that increased authority will increase democratic participation in government.126 As Professor Gerald Frug argues, “[p]ower and 118. See generally Briffault, Our Localism: Part II—Localism and Legal Theory, supra note 115; Frug, supra note 115; Bush, supra note 115. 119. See Briffault, Our Localism: Part II—Localism and Legal Theory , supra note 115 at 396 (“Local governments are crucial arenas for participation because they are small in area and population—at least when compared to the state or nation.”). 120. Richard Briffault, Localism and Regionalism, 48 BUFF. L. REV. 1, 16 (2000) (discussing importance of local autonomy). 121. See id. at 16 (“Where the unit is small, each individual can be heard by and potentially influence a significant portion of the polity.”). 122. See Frug supra note 114 at 1069 (“Individual involvement in decisionmaking is impos- sible except on a small scale.”). 123. Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 391 (1997). 124. See Briffault, supra note 120 at 16 (“Participation may also be more satisfying at the local level.”). 125. See Frug, supra note 115 at 1069–70 (“More than a reduction in the size of deci- sionmaking units is necessary, however, before popular participation in societal decisionmak- ing can be realized. There must also be a genuine transfer of power to the decentralized units.”). Though this idea is not without its critics – see Briffault, Our Localism: Part II— Localism and Legal Theory , supra note 115 at 397 (“Although the link between local govern- ment and greater participation is strong in theory, it is uncertain in fact.”). 126. See Frug, supra note 115 at 1070 (“Power and participation are inextricably linked: a sense of powerlessness tends to produce apathy rather than participation, while the existence of power encourages those able to participate in its exercise to do so.”); see also Friedman, su- 74 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 participation are inextricably linked: a sense of powerlessness tends to produce apathy rather than participation, while the existence of power encourages those able to participate in its exercise to do so.”127 Empowering local governments, then, is a means of empow- ering local participation in government. To be sure, this view of localism as the harbinger of participatory democracy may be, as Professor Georgette Poindexter calls it, “a ro- mantic view of participatory democracy.”128 But there is surely some value in increasing the power of individual citizens in reaching and influencing their government. Decentralizing decision-making to the locality may not instantly create a democratic utopia, but it can cer- tainly counter prevailing notions that voting does not matter,129 that government is obtuse and unreachable,130 and that public policy is rigged in favor of entrenched interests.131 Even if localism does not meet the lofty democratic aims ascribed to it, it at least is likely to help participatory democracy trend in the right direction. Second, localism is a means of fostering a shared sense of commu- nity and reflecting that community’s values.132 More than simply a boundary line drawn on a map, communities are composed of indi- viduals—some already there, some drawn to those places—who share similar sets of values and interests.133 This place-based asso- ciation derives from both the locality’s history and the history of the people who live within it.134 After all, “[p]eople live in localities, raise their children there, and share many interests related to their pra note 123, at 392 (“The simple fact is—and this has been a subject of far more study abroad than here at home—there is a ‘democracy deficit’ in our society, one that is bound to get larg- er.”). 127. Frug supra note 115, at 1070; see also Georgette C. Poindexter, Collective Individual- ism: Deconstructing the Legal City, 145 U. PA. L. REV. 607, 617 (1997) (“The smaller the political community, the more likely a resident will see an impact of her political voice. Furthermore, the greater impact a resident feels her voice has, the more likely she will be to use it.”). 128. See Poindexter, supra note 127, at 617. 129. See, e.g., Giovanni Russonello, Voters Fear Their Ballot Won’t Count, Poll Shows, N.Y. TIMES (Oct. 25, 2016), https://www.nytimes.com/2016/10/26/us/politics/voter-fraud- poll.html [https://perma.cc/YT7Q-SBCU]. 130. See, e.g., Jake Thomas, Most Americans, Across Party Lines, Say Government ‘Corrupt, Rigged’: Poll, Newsweek (July 1, 2022), Error! Hyperlink reference not val- id.https://www.newsweek.com/most-americans-across-party-lines-say-government-corrupt- rigged-poll-1721208 [https://perma.cc/76S7-Y88J]. 131. See id. 132. See Bush, supra note 115, at 218. 133. See Richard Thompson Ford, Beyond Borders: A Partial Response to Richard Briffault, 48 Stan. L. Rev. 1173, 1175–76 (1996). 134. See Briffault, supra note 120, at 17. https://www.newsweek.com/most-americans-across-party-lines-say-government-corrupt-rigged-poll-1721208 https://www.newsweek.com/most-americans-across-party-lines-say-government-corrupt-rigged-poll-1721208 2024] Localizing the Public Trust 75 homes, families, and immediate neighborhoods.”135 It is perhaps in- evitable that common bonds will be forged and a sense of communi- ty will be created. Localism also provides an opportunity for people to “create a place of affiliation that they can shape and control,”136 as local autonomy can translate those local values and interests into local policy.137 Again, this process cultivates a positive feedback loop: local autono- my allows for local values to be reflected in policy, which in turn in- creases a sense of community, which can then be reflected in policy. Localism can therefore help foster and nourish the collective sense of community. Of course, this notion of community-building is not foolproof. It assumes a mobility of the populace and a sense of monoculture that can belie reality.138 Further, we cannot ignore the ways in which cer- tain community preferences have historically permitted racism, prejudice, and discrimination to fester unchecked.139 Unchecked lo- cal autonomy can devolve into a race to the bottom.140 But an in- creased sense of community can be a noble aim. And within the en- vironmental sphere, a community centered on shared environmental values can lead to progressive outcomes. Indeed, much of the recent legislative progress on environmental issues has come from local governments that speak for communities that value environmental- ism—be it through plastic bag bans,141 reductions in carbon foot- 135. Id. 136. See Ford, supra note 133, at 1175. 137. See Bush, supra note 115, at 218. 138. See, e.g., Ilya Somin, Foot Voting, Decentralization, and Development, 102 MINN. L. REV. 1649, 1651–52 (2018) (“Today, growing barriers to interjurisdictional mobility are a signifi- cant obstacle to economic growth in the United States, artificially depressing incomes for the poor and disadvantaged.”). 139. See Priya S. Gupta, Governing the Single-Family House: A (Brief) Legal History, 37 U. HAW. L. REV. 187, 194–95 (2015) (“The particular aspects of more recent exclusion highlighted (reverse red-lining, zoning, discriminatory lending, and others) can be seen as just some of the individual hardy weeds that were able to take hold in the lush environment provided by feder- al, state, and local government action through the decades.”). 140. See Bush, supra note 115, at 210 (“Because localism directly places localities within a metropolitan region in competition with one another, it incentivizes localities to implement policies that increase their economic attractiveness in a municipal race to the bottom.”). 141. See, e.g., Trevor Nace, Here’s a List of Every City in the US to Ban Plastic Bags, Will Your City Be Next? FORBES (Sept. 20, 2018), https://www.forbes.com/sites/trevornace/2018/09/20 /heres-a-list-of-every-city-in-the-us-to-ban-plastic-bags-will-your-city-be-next/?sh=5bc9a5d9 3243 [https://perma.cc/J5EA-22MN]. 76 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 prints,142 or investments in renewable energy sources.143 Allowing local communities to voice these environmental values through poli- cy is a tangible benefit of localism. Third, localism creates benefits from the knowledge of local offi- cials. Local officials are, quite literally, “on the ground” in the com- munities they serve and work in.144 As such, they bring “the nuanced knowledge and local sensibilities necessary” to make land use deci- sions.145 Indeed, local knowledge is often pointed to as a reason why states have delegated land use decisions to local governments.146 But local knowledge goes beyond land use. Scholars have pointed to local knowledge to justify localized enforcement147 and localized solutions to environmental problems.148 As Professor Lea VanderVelde puts it, “[t]he reward of local knowledge is invaluable insight into how the law constructs and impedes certain preferences about justice and how law is continually reconstructed as it is ap- plied to actual situations.”149 In this way, local knowledge can make broad environmental policy goals concrete and serve as a mecha- nism for implementation. Importantly, all three of these benefits of localism—increased par- ticipatory democracy, a sense of community, and local knowledge— 142. See, e.g., Lizzie Wade, Giving cities a road map to reducing their carbon footprint, SCIENCE (Dec. 8, 2014), https://www.science.org/content/article/giving-cities-road-map- reducing-their-carbon-footprint [https://perma.cc/QG2Q-7QL4]. 143. See, e.g., Alexander Dane & Katie Pastor, 3 Ways US Cities are Investing in Clean Energy for Resilience, WORLD RES. INST. (June 16, 2020), https://www.wri.org/insights/3-ways-us- cities-are-investing-clean-energy-resilience [https://perma.cc/DVX4-ZGTJ]. 144. Ashira Pelman Ostrow, Land Law Federalism, 61 EMORY L.J. 1397, 1442 (2012). 145. Id. 146. See, e.g., William W. Buzbee, Urban Sprawl, Federalism, and the Problem of Institutional Complexity, 68 FORDHAM L. REV. 57, 93–94 (1999) (“[T]he federal government cannot bear the burden of taking over local planning activity, but is dependent on state and local cooperation and planning due to the huge administrative responsibilities and local knowledge needed for local and state land use planning.”); see also Alejandro Esteban Camacho, Mustering the Missing Voices: A Collaborative Model for Fostering Equality, Community Involvement and Adaptive Planning in Land Use Decisions II, 24 STAN. ENV’T. L.J. 269, 326 (2005) (“In this sense, project- specific land use decisions are essentially and fundamentally land use mediations, the resolu- tions of which ultimately depend on knowledge of local conditions and interests, not technical expertise.”). 147. See Peter H. Lehner, Act Locally: Municipal Enforcement of Environmental Law, 12 STAN. ENV’T L.J. 50, 58 (1993) (“Because of the municipal law department’s greater knowledge of local conditions, beliefs, constraints, incentives, and personal dynamics, a local enforcement program may be more likely to achieve these goals.”). 148. See generally Frank Fischer, CITIZENS, EXPERTS, AND THE ENVIRONMENT: THE POLITICS OF LOCAL KNOWLEDGE (2000). 149. Lea S. VanderVelde, Local Knowledge, Legal Knowledge, and Zoning Law, 75 IOWA L. REV. 1057, 1057 (1990). 2024] Localizing the Public Trust 77 are particularly applicable to the public trust doctrine. As explained supra,150 the doctrine is a creature of the judiciary, consequently suf- fering from a lack of participation and a sense of opacity. The doc- trine does not appear to belong to the public, nor does it appear re- sponsive to the democratic process. The precise contours of the doctrine are murky—where, exactly, is the line between the public trust and private property on the shoreline? And how can we im- plement broad policy goals around the doctrine? Localism’s traditional benefits are uniquely poised to address these precise concerns. By encouraging participatory democracy, lo- calism invigorates public ownership and control over the doctrine. By fostering a sense of community, localism allows community-wide preferences to be reflected in decisions about the care and mainte- nance of public trust assets. And by using local knowledge, localism can make concrete where, exactly, the doctrine exists, better incor- porate local sensibilities around how it should be maintained and improved, and facilitate implementation of state goals for the doc- trine. Thus, localism is poised to add the very ingredients the doc- trine currently lacks. Imagine a public trust that empowers local preferences: there is now an incentive to act, to vote, and to engage with the public trust doctrine; participation in the stewardship of public trust resources is now possible and it can be done in a way that reflects that communi- ty’s values and knowledge of local conditions. This, in turn, culti- vates a sense of shared ownership over the public trust. In this way, localism can trigger these same positive feedback loops in the doc- trine. C. Environmental Justice Localizing the public trust can also be a meaningful step towards orienting the public trust doctrine towards environmental justice. As the environmental movement matured from its 1970s beginnings, attention began to focus on the ways in which environmental harms were not evenly distributed throughout society.151 In particular, en- vironmental harms were (and are) concentrated in communities with low-income or minority populations.152 After first achieving na- 150. See supra Part II(A) (describing the public trust doctrine as judicially-focused). 151. See Clifford J. Villa, Remaking Environmental Justice, 66 LOY. L. REV. 469, 482–83 (2020). 152. See id. at 488. 78 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 tional attention in 1982 during a grassroots protest against a toxic waste landfill in a predominantly black community in North Caroli- na,153 environmental justice became a way to analyze and reconsider policy choices around environmental issues.154 The issue reached new prominence in 1994 when President Clinton signed an execu- tive order on environmental justice.155 But the federal government backed off of strong commitments to environmental justice at the beginning of the twenty-first century.156 It was not until after four years of the Trump administration and the national reckoning on race that occurred during the summer of 2020 that environmental justice regained national prominence.157 On his first day in office, President Biden signed a new executive order on environmental justice that took aggressive steps on the issue.158 The order requires “all federal agencies [to] develop programs, policies, and activities to address the disproportionately high and adverse health, environmental, economic, climate, and other cumulative im- pacts on communities that are marginalized, underserved, and over- burdened by pollution.”159 This includes the Justice40 Initiative, a program that ensures that forty percent of the benefits from climate and clean energy investments are targeted to underserved commu- 153. See id. at 477 (“Defining events in the origin story of environmental justice include the 1982 protest against a toxic waste landfill in a largely African-American community in Warren County, North Carolina.”). 154. Though there remains much disagreement as to what, exactly, “environmental justice” means. See id. at 489 (“To say that we want ‘environmental justice,’ of course, is not to say we agree what it means.”). 155. See Exec. Order No. 12,898, 32 C.F.R. § 651.17 (1994); see also Robert D. Bullard, In- troduction: Environmental Justice—Once a Footnote, Now a Headline, 45 HARV. ENV’T L. REV. 243, 245 (2021). 156. See Villa, supra note 151, at 496 (“In 2001, consistent with its ‘all people’ definition of environmental justice, the EPA, under the Bush/Cheney administration and EPA Administrator Christine Todd Whitman, began an explicit program of de-emphasizing minority and low- income populations and emphasizing the concept of environmental justice for everyone.”) (quotation omitted). 157. See Bullard, supra note 155, at 248 (“The Environmental Justice Movement is much stronger in 2021 because of new and invigorated rallying calls for racial justice with the rise of Black Lives Matter, after the police killings of George Floyd, Breonna Taylor, and countless oth- er Black people, and the intergenerational protests during the Summer of 2020. The protests were about justice: criminal justice, environmental justice, health justice, economic justice, en- ergy justice, food and water justice, transportation justice—all viewed through an overarching racial justice lens. These justice issues were on the ballot in November 2020 and can be seen in the new Biden-Harris administration's policies, priorities, and appointments.”). 158. See Exec. Order No. 14,008, 86 Fed. Reg. 7619 (Jan. 27, 2021). 159. Fact Sheet: A Year Advancing Environmental Justice, WHITE HOUSE (Jan. 26, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/01/26/fact-sheet-a- year-advancing-environmental-justice/ [https://perma.cc/43VW-GJYY]. 2024] Localizing the Public Trust 79 nities; a climate and economic justice screening tool; and increased environmental enforcement in overburdened communities.160 Alt- hough the Biden administration’s environmental justice legacy is still being written, there is little doubt that the Biden Administration has made environmental justice a major policy goal. In this context of steadily accumulating focus on environmental justice, the legal academy has fully embraced the issue and sought to reorient its scholarship around it.161 Part of this effort has involved reassessing longstanding environmental doctrines and structures, including the public trust doctrine,162 to determine whether those legal structures contribute to or hinder environmental justice. Par- ticularly in the Our Children’s Trust climate change cases,163 scholars have worked to reconcile climate change litigation based on public trust principles with environmental justice.164 Localizing the public trust is another step in that same direction. The public trust doctrine suffers from its own shortcomings related to environmental injustices, namely around issues of access and im- pairment; indeed, access to public trust resources is concentrated in certain communities that tend to be whiter and wealthier.165 Many of the seminal public trust cases have stemmed from wealthy com- munities seeking to exclude non-residents.166 Impairment of public trust resources also tends to occur in under- served communities. For example, when former President Obama announced he was building his presidential library in Jackson Park, Chicago—an area of the city that is low income and predominantly 160. See id. 161. See, e.g., A Foreword From the Harvard Environmental Law Review Staff, Volume 45, 45 HARV. ENVTL. L. REV. 239, 240 (“This Environmental Justice Symposium Issue contributes to the country’s much-needed and long-overdue recommitment to EJ issues, motivated by today’s racial justice efforts and the disparities evident in the COVID-19 pandemic.”); see also Villa, supra note 151 (part of a symposium on climate justice). 162. See generally Marc R. Poirier, Environmental Justice and the Beach Access Movements of the 1970s in Connecticut and New Jersey: Stories of Property and Civil Rights, 28 CONN. L. REV. 719 (1996); Jeff Todd, A “Sense of Equity” in Environmental Justice Litigation, 44 HARV. ENV’T L. REV. 169 (2020). 163. See generally OUR CHILDREN’S TRUST, supra note 24. 164. See Todd, supra note 162, at 210–33. 165. See, e.g., Confronting Racial Inequality in Beach Access, SURFRIDER FOUND. (June 17, 2020), https://www.surfrider.org/coastal-blog/entry/confronting-racial-inequity-in-beach- access [https://perma.cc/57F6-85TP] (“Beaches have long been a marker of racial segregation in America.”). 166. See, e.g., Borough of Neptune City v. Borough of Avon-By-The-Sea, 294 A.2d 47, 55 (N.J. 1972) (holding that municipalities may charge fees for use of beaches but may not charge non- residents more). 80 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 minority—there was concern that the building would displace resi- dents and impair their access to public trust parklands.167 Although lawsuits seeking to block the Obama Presidential Center failed, they nonetheless illustrated the ways in which public trust asset impair- ment can be concentrated in environmental justice communities.168 Localizing the public trust doctrine can help to counteract these tendencies. For localities that are not environmental justice com- munities, localizing the public trust provides clarity and consistency around that locality’s obligations under the public trust. No more can a wealthy community keep out non-residents under the pretense that they did not know they had to make their public trust resources accessible. Furthermore, more than just making localities aware of their role in the doctrine, localizing the public trust places affirma- tive obligations on each locality to maintain—and maintain access to—public trust resources. This recognition of each locality’s re- sponsibilities under the doctrine should prevent or reduce the gate- keeping that is too often the hallmark of wealthy communities.169 For environmental justice communities, localizing the public trust provides them with a formal role in the doctrine, enhancing their voice and autonomy.170 Any potential impairment of public trust re- sources in these communities will need to answer to that local voice. 167. Taylor Moore, The Obama Library is Coming to Chicago. Will Local Residents Be Dis- placed?, GUARDIAN (May 24, 2021), Error! Hyperlink reference not val- id.https://www.theguardian.com/environment/2021/may/24/obama-library-chicago- gentrification-fears [https://perma.cc/TLV8-K6AZ]; see also Protect Our Parks, Inc. v. Chi. Park Dist., 971 F.3d 722, 738 (7th Cir. 2020) (affirming dismissal of public trust claims against Obama Presidential Center). 168. See Protect Our Parks, Inc. v. Buttigieg, No. 21-CV-2006, 2022 WL 910641 (N.D. Ill. Mar. 29, 2022). The phrase “environmental justice communities” is not federally defined, but it is commonly understood to mean minority and/or low-income communities that face dispro- portionate environmental harms. Some states have formally defined the phrase; see, e.g., Envi- ronmental Justice Definitions, NEW MEXICO DEP’T OF HEALTH Error! Hyperlink reference not valid.https://www.nmhealth.org/publication/view/help/309/ [https://perma.cc/6GUW- Z6LD] (last visited Nov. 5, 2023) (“Environmental Justice Community of Concern (EJCOC)—A neighborhood or community, composed predominantly of persons of color or a substantial proportion of persons below the poverty line, that is subjected to a disproportionate burden of environmental hazards and/or experiences a significantly reduced quality of life relative to surrounding or comparative communities.”). 169. See supra notes 77–79 and accompanying text. 170. See Fox, supra note 34, at 186 (“Local governments can be sites of minority empow- erment.”). See also Heather K. Gerken, Abandoning Bad Ideas and Disregarding Good Ones for the Right Reasons: Reflections on a Festschrift, 48 TULSA L. REV. 535, 536 (2013) (“[D]ecentralization plays a crucial role in furthering the aims of the First and Fourteenth Amendment—that minority rule can be as important as minority rights for the great projects of American constitutionalism.”). 2024] Localizing the Public Trust 81 It may not prevent impairment entirely, but it at least provides an opportunity for the local community to be a part of the process. D. Environmental Federalism Finally, localizing the public trust can be an important part of lo- calizing environmental federalism.171 Environmental law is, by its nature, a test of the country’s federalist system.172 The major envi- ronmental statutes were designed to encourage state sovereigns and the federal sovereign to work together in ways that the framers hoped would be cooperative.173 Every presidential administration brings new ideas to navigating its relationship with the states on en- vironmental policy, some decidedly more cooperative than others.174 As Professor Sarah Fox notes, “[b]ecause of the inherent complexity of environmental issues environmental federalism scholars often es- chew arguments in support of regulation by a particular level of gov- ernment, and instead focus on the importance of multiscalar govern- ance mechanisms that reflect, create, and promote overlapping authority.”175 However, the focus has traditionally been almost ex- clusively on the federal-state relationship.176 This is not surprising, as most federal environmental statutes explicitly contemplate a fed- eral-state relationship, as does the Constitution.177 171. See Fox, supra note 34, at 156–62. Environmental federalism examines the roles—and limitations—of states and the federal government in creating and implementing environmen- tal policy. 172. See id. at 159 (“[M]any of the major federal environmental law statutes involve schemes of cooperative federalism.”). 173. See id. 174. See, e.g., Jonathan H. Adler, The Administrative Presidency Encounters Opportunistic Federalism, CATO INST. (Winter 2021/2022), https://www.cato.org/regulation/winter-2021 /2022/administrative-presidency-encounters-opportunistic-federalism [https://perma.cc/9F92-QYJS] (describing the Trump administration’s approach to federalism, including on environmental issues, as “opportunistic,” rather than “cooperative”). 175. See Fox, supra note 34 at 162. 176. See Owen, supra note 28, at 179 (“Within that literature [on cooperative federalism], almost all of the attention focuses upon the federal government and the states.”); see also Roes- ler, supra note 36, at 1114 (“Questions of scale and allocation of governmental authority gen- erally focus on the state-federal relationship, ignoring local governments or simply subsuming them within the state.”). 177. See, e.g., Claudia Copeland, Clean Water Act: A Summary of the Law, CONG. RSCH. SERV. (Oct. 18, 2016), https://sgp.fas.org/crs/misc/RL30030.pdf [https://perma.cc/Z6MN-VJWH] (“Certain responsibilities are delegated to the states, and the act embodies a philosophy of fed- eral-state partnership in which the federal government sets the agenda and standards for pol- lution abatement, while states carry out day-to-day activities of implementation and enforce- ment.”). 82 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 In the past several years, however, scholars have begun exploring environmental federalism’s local component.178 What, exactly, is the role of local governments within this framework? Is there room for local autonomy? Does local power further federalism? The answers are that local governments do have an important role to play in fur- thering federalism and that they oftentimes already are playing that role.179 Some scholars view local authority in the federalist scheme as a byproduct of federal empowerment.180 Others see local autonomy as a gratuity from the state.181 Another emerging view combines both perspectives: “local governments are part of the interrelated web of government actors in environmental law.”182 While it is not neces- sary here to pinpoint the precise legal foundation for local authority, it suffices to say that localizing the public trust contemplates a nego- tiated relationship between localities and the state, a relationship that is impossible without some federal grounding for local govern- ments.183 In any event, local governments can play distinct roles in environ- mental federalism. Professor Sarah Fox raises three particular bene- fits of a local role: (1) local governments’ “greater degrees of respon- siveness of local conditions”; (2) local governments’ ability to experiment at a magnitude greater than states; and (3) local gov- ernments’ capacity to “offer additional degrees of voice to the politi- 178. See supra note 36 and accompanying text. 179. Though, of course, not all scholars necessarily agree that local actors are empowered by federalism. See, e.g., Gregory Ablavsky, Empire States: The Coming of Dual Federalism, 128 YALE L.J. 1792, 1865 (2019) (“At its inception, federalism was not solely about dividing power to protect individual rights, nor was it always a method to decentralize authority and empower local communities.”). 180. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State Sover- eignty, supra note 36, at 961 (“This Article proposes a new framework for conceptualizing fed- eral empowerment of local governments that is not only consistent with the Court’s contempo- rary view of federal structure, but in fact advances the normative and pragmatic goals the Court is seeking to achieve.”). 181. See Roesler, supra note 36, at 1111 (“Historically, the federalism literature—both within and outside environmental law—has reflected an assumption that theories of federal- ism simply do not speak to questions of local authority and power separate from state authori- ty. Rather, as political subdivisions of states, local authority is simply one incarnation of state authority for purposes of federalism.”). 182. Fox, supra note 34, at 166. 183. See id. at 163 (“[A]s both a matter of practice and of common understanding, local governments are part of the federal system.”). 2024] Localizing the Public Trust 83 cal process.”184 These benefits might be re-framed as local expertise, local flexibility, and local voices. When properly channeled and di- rected, these three facets of local involvement can be immensely beneficial to supporting good environmental governance.185 Importantly, recognition of local governments in environmental federalism allows for consideration of and attention to such govern- ments’ particular vulnerabilities and limitations and means to curtail or address them. The usual concern with empowering localities is enabling parochialism and fragmentation.186 Rather than fueling these fears, accepting local governments as meaningful actors in the federalist scheme can counteract these concerns. First, avoiding recognition of local governments does not necessarily avoid these concerns; local impacts exist even without recognition.187 Second, acknowledging these vulnerabilities allows for incorporating local governments in ways that address them. As further explained later in this Article,188 this is precisely why states should create and en- force minimum state requirements as a proactive means of empow- ering localities within express boundaries. Far from just a theoretical exercise, the reality is that local gov- ernments are already playing these distinct roles. Professor Dave Owens studied examples in Oregon, Florida, and California of local governments assuming responsibility for land use and air quality in a cooperative scheme with their respective states.189 Professor Sa- rah Fox pointed to climate policies in New York City and Phoenix that similarly illustrate local roles in environmental governance.190 And Professor Shannon Roesler highlighted local action on concen- trated animal feeding operations and hydraulic fracturing to do the same.191 Each example showcases how local governments—often ingen- iously—use their existing authority to act on environmental issues. 184. Id. at 180. These benefits overlap with the traditionally accepted benefits of localism. See supra Part III(B). 185. See Owen, supra note 28, at 212 (“Participants in cooperative subfederalism programs generally agreed that a balance of local expertise and state oversight is a good model for gov- ernance.”). 186. I further address these and other potential disadvantages infra in Part III(E). 187. See Owen, supra note 28, at 197 (“But in the real world, often the choice is between cooperative federalism and largely unfettered local authority—or no regulation at all.”). 188. See infra Part IV(A). 189. See Owen, supra note 28, at 205–11. 190. See Fox, supra note 34, at 190–91. 191. See Roesler, supra note 36, at 1155–72. 84 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 In this way, local governments are an important element of the envi- ronmental federalism conversation, whether as a tool for advancing environmental progress or as a roadblock to it. Either way, local governments must be considered. What is perhaps most surprising is not just that local governments are relevant environmental actors with agency, but that they are ef- fective at exercising it. With (and sometimes even without) state permission, local governments are often successful in achieving their particular environmental goals, at least unless or until states ex- pressly preempt them.192 Whether it be plastic bag bans, solar or other clean energy ordinances, or even climate change mitigation or adaptation measures, local governments have been extraordinarily nimble in effectuating environmental policy.193 Part of their success, no doubt, stems from such governments’ traditional autonomy over land use, an area that intersects heavily with environmental is- sues.194 The sheer number of state preemption laws in the past sev- eral years—reactive state measures to counteract proactive local ac- tion—is a testament to the resourcefulness of local governments in this space.195 In sum, local governments play a significant role in environmental federalism, one that the academy is only beginning to recognize. Lo- cal governments can bring local expertise, local flexibility, and local voices to environmental policy, a set of benefits that has already proven advantageous.196 The trend is towards increased acceptance and incorporation of local governments into the scheme in ways that empower local expertise without falling prey to parochialism. Localizing the public trust doctrine, then, would be just another example of this trend. Formally recognizing the role of local gov- ernments in the maintenance and preservation of the public trust is an important step—one that acknowledges the benefits of local ex- pertise, local flexibility, and local voices in administering the public trust. Importantly, that recognition allows us to account for the par- 192. See Wyman & Spiegel-Feld, supra note 33, at 325. 193. See supra notes 141–143 and accompanying text. 194. See generally Nolon, supra note 33. 195. See Sarah Fox, Home Rule in an Era of Local Environmental Innovation, 44 ECOLOGY L.Q. 575, 578 (2017) (“There has been a growing conversation about the potential for local action on environmental issues. There has also been much discussion of preemption as it relates to local law making, and of the limitations on city authority in the face of state action.”). 196. See id. at 580–81 (“[C]ities have been at the forefront of environmental activism for a long time, and have long innovated with regard to local solutions to environmental problems.”) (quotation omitted). 2024] Localizing the Public Trust 85 ticular vulnerabilities and limitations that local governments bring. Further, endorsing a distinct role for local governments begins the conversation of how to manage the relationship between localities and their states given their shared responsibilities and obligations under the public trust. It is that conversation that I turn to in the next Part. E. Potential Disadvantages of Localizing I must account for the bitter with the sweet; while there are bene- fits to localizing the public trust, are there not also disadvantages? Indeed, every argument for greater local control is followed by a quick retort of criticism.197 Broadly speaking, the critiques come in two varieties: fears of parochialism and concerns about fragmenta- tion.198 We might call these localism’s traditional disadvantages. And while I do not discount the grave and sincere nature of these concerns, I contend that the potential disadvantages of localism are slight in the public trust context. First, there is parochialism. Parochialism is the concern that local preferences will manifest in ways that reflect narrow-minded inter- ests, be they discriminatory, self-interested, externality-producing, or some combination of the foregoing.199 Professor Nestor Davidson aptly sums up this concern and roots it in historical debates that date back to the country’s founding: “Local governments often give life to the Madisonian fear of the tyranny of local majorities: they some- times reinforce racial, ethnic, and economic segregation; exclude outsiders; and generate significant externalities for neighboring 197. See, e.g., David D. Troutt, Localism and Segregation, 16 J. AFFORDABLE HOUS. & CMTY. DEV. L. 323, 325 (2007) (“[L]ocal government law has played a key structural role in fashioning a more durable system of racial and economic inequality than de jure racial discrimination could.”). 198. See, e.g., id. at 335 (“A fourth reason for localism’s succession is the role of politics in promoting racial and economic distance (fragmentation) among communities of voters whose interests might otherwise be shared. Decentralization creates a political framework for paro- chialism.”); see also Sheryll D. Cashin, Localism, Self-Interest, and the Tyranny of the Favored Quarter: Addressing the Barriers to New Regionalism, 88 GEO. L.J. 1985, 2016–19 (2000) (devel- oping a theory of parochialism); Alexandra B. Klass & Rebecca Wilton, Local Power, 75 VAND. L. REV. 93, 154–58 (2022) (discussing how to overcome parochialism in local energy projects). 199. See Cashin, supra note 198, at 2016–19; see also Owen, supra note 28, at 199–200 (de- tailing concerns about self-dealing). 86 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 communities.”200 To be sure, history is replete with examples of lo- cal autonomy being used in regressive ways.201 Second, there is fragmentation, where local autonomy splinters public policy and decision-making into disparate fiefdoms, often out- sourcing a locality’s problems to its neighbors.202 The concerns raised by fragmentation take abstract forms—decreased political ac- countability,203 decreased ability to govern,204 and decreased capaci- ty for state coordination205—and concrete forms, like increased ra- cial and socio-economic disparities,206 increased externalities,207 and increased inequalities.208 With the sheer number of localities209 and the vast differences between those even within the same state,210 it becomes easy to see how unchecked local autonomy could be disad- vantageous. The usual response to parochialism and fragmentation concerns is to shift the locus of power, at least in part, away from the locality. Be 200. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State Sover- eignty, supra note 36, at 962. 201. See Troutt, supra note 198, at 325 (“With respect to racial segregation and concentrat- ed poverty, localism has been characterized in a facilitative, rather than a causal, light. It is time that localism, legal and cultural, be recognized as the primary agency behind resegregation, without which it would have been neither accommodated nor sustained.”). 202. See Bush, supra note 115, at 220 (“In lay-men’s terms, new localities can simply out- source their problems to other localities and segregate themselves from undesired residents and land uses. Furthermore, localist-minded economic policy produces externalities on neigh- boring localities as well.”). 203. See Briffault, Our Localism: Part II—Localism and Legal Theory, supra note 115, at 401–02 (“[T]raditional political scientists warned that the fragmentation and overlap of local governments that characterize most metropolitan areas posed a threat to political accountabil- ity[.]”). 204. See Frug, supra note 115, at 1062; see also Bush, supra note 115, at 221 (“Purely local democratic participation also stifles the effectiveness of policies geared towards solving prob- lems that are inherently regional in nature as well.”). 205. See Owen, supra note 28, at 198 (“In all but the smallest states, there are many more local government units than there are states within the United States . . . And while the state, by retaining oversight authority, may provide checks on cross-border effects and work to ensure interjurisdictional coordination, doing so requires coordinating with many more entities than a federal agency working with just fifty states.”). 206. See Troutt, supra note 197, at 325. 207. See Bush, supra note 115, at 220. 208. See id. at 222 (“Finally, unbridled localism creates immense inequality among the ac- tors inside and outside of a locality’s boundaries.”). 209. Per the Census Bureau, there are some 89,004 local governments in the United States. See U.S. CENSUS BUREAU, Census Bureau Reports There Are 89,004 Local Governments in the Unit- ed States (2012), https://www.census.gov/newsroom/releases/archives/governments/cb12- 161.html [https://perma.cc/C8YE-LC8W] (last visited Nov. 5, 2023). 210. Consider, for example, the needs and values of Austin, Texas versus the rest of the state, or those of Newport Beach, California with the rest of the state. 2024] Localizing the Public Trust 87 it regional, state-level, or even federal, the oft-cited remedy is to re- strict local autonomy when and where it creates a likelihood of prob- lematic results.211 In the public trust context, this solution is readily applicable. After all, localizing the public trust is not intended to be a wholesale trans- fer of power from the state to the locality. Localizing the public trust recognizes some—but not unbridled—authority for local govern- ments. It envisions a robust role for the state in overseeing and channeling the empowerment of local governments. Should a locali- ty act in ways that trigger parochialism—for example, by using their public trust authority to keep non-residents off the beach212—the state retains authority to restrain the local government. And should localities begin to fragment in ways that produce externalities or en- trench inequalities, the state can generate minimum standards be- low which no locality can go. In other words, the response to the very real problems of parochialism and fragmentation is not to abandon localizing altogether, but to do so in ways that retain a role for the state. None of which is to say that parochialism and fragmentation are obviated in the public trust context. The academic literature—not to mention history’s examples—persuasively counsels against under- counting localism’s potential disadvantages.213 But those disad- vantages can be addressed, proactively, by localizing the public trust in particular, careful, ways. The next Part details how. IV. LOCALIZING THE PUBLIC TRUST The previous Parts of this Article have endorsed the notion of lo- calizing the public trust, centering the doctrine around the public and cataloging the various benefits that could result from doing so. Although I have broached the edges of what that localizing would 211. See Bush, supra note 115; see also Davidson, Cooperative Localism supra note 37 at 962 (“Local governments often give life to the Madisonian fear of the tyranny of local majorities: they sometimes reinforce racial, ethnic, and economic segregation; exclude outsiders; and gen- erate significant externalities for neighboring communities. In other contexts, scholars have argued for regionalist solutions to these problems of local parochialism. A regionalist perspec- tive, I argue, can be incorporated into the jurisprudence of federal-local cooperation, temper- ing the scope of federal power and local autonomy to ensure that federal interests are not un- dermined by local parochialism.”). 212. See, e.g., Borough of Neptune City v. Borough of Avon-By-The-Sea, 294 A.2d 47, 55 (N.J. 1972) (holding that municipalities may charge fees for use of beaches but may not charge non- residents more). 213. See Troutt, supra note 197, at 325. 88 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 look like, I have yet to describe it in detail. That is what this Part en- deavors to do. I envision localizing the public trust as a process that centers on three guideposts: (1) minimum state requirements; (2) local auton- omy; and (3) shared state and local responsibilities. To be sure, each guidepost appears broad and can mean different things in different contexts. But that flexibility is intentional—to articulate a set of cri- teria that can be adaptable enough to accommodate different state political systems, histories, and legal regimes. Additionally, I acknowledge that these tenets are policy choices, perhaps attainable through judicial adoption or state regulations, but more likely through state legislation. Here, too, the flexibility has a purpose: to make the process of localizing the public trust more at- tuned to an individual state’s conditions and thus easier to enact. A. Minimum State Requirements Localizing the public trust is not a free-for-all; the state must as- sert and maintain minimum standards by which all localities must abide. Local actions that impact the public trust must be consistent with these statewide requirements. If this general setup sounds familiar, it is. There are numerous ex- amples of states setting minimum requirements on which local gov- ernments can implement and experiment. This is perhaps nowhere more ubiquitous than in land use planning, an authority traditionally delegated to local governments.214 There are several reasons why local governments are best positioned to make decisions around planned land uses, local knowledge and local expertise chief among them.215 Yet many states delegate land use planning authority with strings attached. For example, Rhode Island has a generous grant of home rule au- thority for local governments around land use decisions.216 But the state has retained significant oversight authority, with a State Plan- ning Council that operates the Division of Statewide Planning.217 214. See supra notes 91–94 and accompanying text. 215. See supra Part III(B). 216. See Home Rule for Cities and Towns, R.I. CONST. art. XIII; but see Terrence P. Haas, Comment, Constitutional Home Rule in Rhode Island, 11 ROGER WILLIAMS U. L. REV. 677 (2006) (arguing that “Rhode Island’s Home Rule Amendment has spent most of its half-century exist- ence nearly dormant”). 217. See STATE OF R.I. DIV. OF STATEWIDE PLANNING, State Planning Council, https://planning.ri.gov/staff-committees/state-planning-council [https://perma.cc/MX2R- 2024] Localizing the Public Trust 89 Long-term planning is centralized in the State Guide Plan—approved by the State Planning Council—which sets forth broad goals, policy positions, and standards.218 The idea is for the State Guide Plan to act as a tool to coordinate the various plans implemented by local governments.219 Indeed, local governments must submit local com- prehensive plans for state approval at least every ten years.220 More than just a procedural requirement, the local comprehensive plans must include planning on density, sustainability, green spaces, and more.221 In this way, Rhode Island maintains significant substantive oversight over land use planning, while leaving the experimentation and implementation to local governments. In other words, the model of state minimum standards that allows for local implementation is well established. It simply needs to be imported to the public trust context. Some examples of possible minimum state requirements for local actions impacting the public trust include: 1. Cataloging Public Trust Resources The state could require local governments to catalog and confirm the public trust resources within their jurisdiction. This could in- clude any navigable waters, shorelines or tidelands, parklands, or other identified public trust assets. The purpose is twofold: (1) it raises awareness for local governments and their citizens of what and where the public trust assets are; and (2) it can be used to create a statewide database of the public trust resources in the state. 2. Minimum Access Requirements The state could require minimum access requirements for mem- bers of the public to certain public trust assets. This could include restrictions on resident-only areas, including resident-only or per- 6WL8] (last visited Nov. 5, 2023); see also Meredith E. Brady, STATE OF R.I. DIV. OF STATEWIDE PLANNING, The State Guide Plan: Rhode Island’s Big-Picture Policy Guide for Agencies and Munici- palities (Oct. 19, 2021), https://planning.ri.gov/sites/g/files/xkgbur826/files/documents/LU /2021/SGP--Land-Use-Commission-10-19-21.pdf [https://perma.cc/H6D2-H43L]. 218. See id. 219. See id. 220. See Rhode Island Comprehensive Planning and Land Use Regulation Act, R.I. GEN. LAWS § 45-22.2. 221. See id. § 45-22.2-6. 90 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 mit-only parking adjacent to public trust assets.222 It could also in- clude limitations on the amount a local government may charge for access to public trust resources.223 Or it could limit the kinds of reg- ulations a local government may impose on use of public trust re- sources.224 All of these suggestions are drawn from real examples. The purpose here is to create a baseline of public access to public trust assets—and a presumption towards it—that local governments must abide by. Minimum access requirements would go a long way to combat lo- cal attempts to restrict access to public trust resources. In so doing, it sets forth a statewide policy around public access. 3. Management Requirements States could also delineate management requirements for local governments to preserve and maintain public trust resources. In each, local knowledge could ensure efficient and effective implemen- tation. First, states could officially designate local governments as co-trustees of the public trust, thereby inhering in localities the af- firmative obligations of the doctrine.225 This has the benefit of for- mally recognizing local governments under the doctrine and allows local governments to be held judicially accountable. Second, states could outline requirements for maintenance of ac- cess points to public trust assets. There are legitimate concerns around the right to access public trust assets; what good are public trust resources if they are not accessible? Stories abound of over- 222. See supra notes 2–3 and accompanying text. 223. See, e.g., Borough of Neptune City v. Borough of Avon-By-The-Sea, 294 A.2d 47, 55 (N.J. 1972) (holding that municipalities may charge fees for use of beaches but may not charge non- residents more). 224. See, e.g., Weden v. San Juan Cnty., 958 P.2d 273, 276 (Wash. 1998) (en banc) (uphold- ing county regulation that banned all motorized personal watercraft), abrogated on other grounds by Yim v. City of Seattle, 451 P.3d 694, 702 (Wash. 2019) (en banc); see also State v. Vill. of Lake Delton, 286 N.W.2d 622, 642 (Wis. Ct. App. 1979) (upholding municipal regula- tions that zoned public lake for exclusive use of a public water ski exhibition). 225. Some state courts have already done so. See, e.g., Robinson Twp. v. Commonwealth, 83 A.3d 901, 977 (Pa. 2013) (“With respect to the public trust, Article I, Section 27 of the Penn- sylvania Constitution names not the General Assembly but ‘the Commonwealth’ as trustee . . . [A]s a result, all existing branches and levels of government derive constitutional duties and obligations with respect to the people.”); see also Kramer v. City of Lake Oswego, 446 P.3d 1, 19 (Or. 2019) (“Because the state’s authority to enact restrictions on the public’s access to public- ly-owned waters is limited [by the public trust doctrine], the same limitations apply to the au- thority of a city, to which the constitution has assigned a portion of the authority of the state.”). 2024] Localizing the Public Trust 91 grown rights of way, left unusable.226 There are also stories of pri- vate landowners blocking public rights of way, with little local gov- ernment pushback.227 Affirmative maintenance requirements for rights of way could tamp down problems of overgrowth and intru- sive private property owners. Third, states could delineate maintenance requirements for the public trust assets themselves. Here, too, regular attendance to plant overgrowth could be required. States could also mandate routine in- spections of public trust resources and ensure that the built envi- ronment—picnic tables, benches, other amenities—is in good repair. Fourth, states could go further and issue impairment standards for public trust assets. Particularly for water trust assets—rivers, lakes, shorelines—minimum standards for environmental quality could guide development, water usage, and even lawn chemicals. Essen- tially, states could target existing state water quality standards on public trust assets specifically.228 Fifth, states could compel local governments to assess the impacts of any development on public trust resources. Functioning some- thing like an environmental impact statement or environmental as- sessment from the federal National Environmental Policy Act,229 this 226. See Brian Amaral, In Rhode Island, Rights-of-Way Offer Another Way to Get to Beaches, BOS. GLOBE (May 21, 2021), https://www.bostonglobe.com/2021/05/21/metro/rhode-island- rights-of-way-offer-another-way-get-beaches/ [https://perma.cc/76VC-RRH8]; see also David Jones, Local Men Continue Mission to Clean Up and Reopen Lincoln Beach, City Planning to Apply for Federal Grant Funding, FOX 8 NEW ORLEANS (Feb. 21, 2022), https://www.fox8live.com /2022/02/22/local-men-continue-mission-clean-up-reopen-lincoln-beach-city-planning- apply-federal-grant-funding/ [https://perma.cc/S9VF-KUXM]. 227. See, e.g., Brian Amaral, Finding a 50-Foot-Wide Path to the Shore in Westerly, R.I., BOS. GLOBE (Sept. 30, 2021), https://www.bostonglobe.com/2021/09/30/metro/finding-50-foot- wide-path-shore-westerly/ [https://perma.cc/F9M9-JVJV]; see also David Collins, DEEP to Al- low Homeowner to Put Beach Obstructing Fence on State-Built Groin, DAY (Nov. 23, 2021), https://www.theday.com/article/20211123/NWS05/211129789 [https://perma.cc/K7P8- ARK5]; Lynda Clancy, Camden Select Board Debate Highlights Tension Between Waterfront Pub- lic Access and Private Property Rights, PENOBSCOT BAY PILOT (Mar. 8, 2022), https://www.penbaypilot.com/article/camden-select-board-debate-highlights-tension- between-waterfront-public-access-and-pr/157626 [https://perma.cc/3XH5-5ALB]; Tony Briscoe, Where Can You Walk on a Lake Michigan Beach? It Depends on Which State You’re In, CHI. TRIB. (Mar. 15, 2019), https://www.chicagotribune.com/news/ct-met-lake-michigan- states-beach-access-20190312-story.html [https://perma.cc/QXZ6-ZBBB]. 228. The Clean Water Act requires states to adopt water quality standards which establish minimum protections for water bodies. See 33 U.S.C. § 1313. These water quality standards usually create limits on various chemicals and toxins. See, e.g., Julie Furr Youngman, Water, Water, Anywhere?: Protecting Water Quantity in State Water Quality Standards, 94 IND. L.J. 1613, 1622 (2019); see also Annie Brett, Transboundary Waters, 44 HARV. ENV’T L. REV. 473, 478–79 (2020). 229. 42 U.S.C. § 4321. 92 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 procedural check would force local governments to consider the im- pacts of development on public trust assets. 4. Planning and Zoning Requirements Finally, states could mandate certain planning and zoning re- quirements for land that abuts or contains public trust assets. As noted supra, although many states have delegated planning and zon- ing requirements to local governments, they do so with certain guidelines.230 In making decisions around land use, localities already have to account for state guide plans,231 state housing policies,232 and state environmental restrictions.233 Adding consideration of public trust assets to all future comprehensive plans or zoning changes is in line with these other requirements. Or the state requirements could be even more granular for land that abuts or contains public trust assets: density requirements, public easements, lot size require- ments, setback requirements, or nonconforming uses—all of which change the built environment around the public trust and have im- pacts on access. These are just a few suggestions for how states can set forth mini- mum state requirements that make maintenance and preservation of public trust assets a priority for local governments. There are, un- doubtedly, many more ideas out there. As explained supra,234 mini- mum state requirements can go a long way towards minimizing con- cerns around parochialism and fragmentation; they ensure that all local government action that impacts the public trust does so in a way that furthers state goals, be they increased access or preserva- tion. They also have the benefit of formally recognizing of local gov- ernments under the public trust. 230. See supra Part IV. 231. See supra notes 214–221 and accompanying text. 232. See, e.g., Molly Bolan & Daniel C. Vock, The Governors Wading Deeper Into the Housing Crisis, ROUTE FIFTY (Jan. 20, 2023), https://www.route-fifty.com/management/2023/01 /governors-wading-deeper-housing-crisis/382048/ [https://perma.cc/JN47-8W7E] (“A na- tional housing crunch is spurring governors around the country to venture into debates that typically consume local officials: regulating where new housing can go and figuring out how to entice developers to build more of it.”). 233. See, e.g., States and Local Jurisdictions with NEPA-like Environmental Planning Re- quirements, NEPA.GOV, Error! Hyperlink reference not valid.https://ceq.doe.gov/laws- regulations/states.html [https://perma.cc/5AKL-MZX7] (last visited Nov. 5, 2023) (noting that many states already require localities to review anticipated environmental impacts of pro- posed actions). 234. See supra Part III(D). 2024] Localizing the Public Trust 93 B. Local Autonomy The second guidepost for localizing the public trust is local auton- omy. This notion is somewhat obvious; localizing any doctrine re- quires decentralizing authority and empowering localities. And, be- cause of minimum state requirements, the particular areas for local empowerment need not be spelled out as independent grants of au- thority. Indeed, recognizing local governments as co-trustees of the public trust is itself a broad grant of authority. Tempered by mini- mum state requirements, a sweeping grant of local authority can be appropriately cabined and channeled. But it is worth considering the mechanics of how states can give local governments autonomy over the public trust. The traditional means of decentralizing power from states to localities has been through grants of home rule authority,235 though not all states grant such authority.236 Even within the states that have done so— legislatively or constitutionally—there are vast legal differences in what home rule authority means.237 Empowering local governments means working within these dis- parate home rule regimes. Some states may have strong enough home rule that granting local autonomy around the public trust will be little effort.238 For others, empowering local governments will re- quire a wholesale shift.239 235. See, e.g., Rick Su, Have Cities Abandoned Home Rule?, 44 FORDHAM URB. L.J. 181, 190 (2017) (“Home Rule defines the basic legal standing of local governments and their relation- ship with the state.”); see also Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial Scrutiny, 86 DENV. U. L. REV. 1337, 1338 (2009) (“Home rule doctrine reflects a far- flung effort over more than a century’s time to find meaning in the ambiguous phrases ‘local affairs’ and ‘matters of state-wide concern.’ The result of these efforts has been a highly devel- oped, and still developing, case law, one that involves drawing lines between what is properly the domain of state government and those powers which may be exercised by municipalities free of state preemption.”). 236. See Baker supra note 235, at 1338 n. 10 (“Five states have no municipal home rule at all: Alabama, Hawaii, Nevada, North Carolina, and Vermont.”). 237. See Terrance Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 MINN. L. REV. 643, 644 (1964) (“[T]here is perhaps no term in the literature of politi- cal science or law which is more susceptible to misconception and variety of meaning than ‘home rule.’”). 238. See, e.g., Adam Coester, Dillon’s Rule or Not?, 2 NAT’L ASS’N OF CNTYS. (2004), Error! Hyperlink reference not val- id.https://web.archive.org/web/20151010114031/http://celdf.org/downloads/Home%20R ule%20State%20or%20Dillons%20Rule%20State.pdf [https://perma.cc/39T4-TBRX]. 239. See id. (describing Wyoming, Vermont, and Virginia, among others, as “Dillon’s Rule” states where local autonomy is curtailed by the state). 94 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 Finally, local autonomy also means creating an ethos around the public trust doctrine that does not currently exist. For both state and local actors alike, the general consensus is that only the state has the power—or, indeed, the means—to impact the public trust.240 Grant- ing local autonomy will require a shift in perspective. This bears emphasis because, even in other contexts, local governments have often failed to advocate for their own authority.241 As Professor Rick Su observes, “[t]he problem is not just that cities are not raising Home Rule in their political appeals. It is also that they are not ad- vancing a substantive vision of the city and why they should have control over their affairs.”242 While localities’ reluctance to advocate for a more assertive role may be justified by political considera- tions,243 it can be detrimental to any localizing efforts. Local auton- omy is more than a legal structure; it is a “state of mind.”244 Political pressures may foreclose local action even in areas where local au- tonomy is undisputed.245 Localizing the public trust thus requires a commitment to local autonomy in the face of these headwinds. C. Shared Responsibilities Finally, localizing the public trust envisions a process of shared re- sponsibilities. This is not a “set it and forget it” model. Instead, the framework envisions a partnership between states and their local governments, a back-and-forth conversation about how to best pre- serve and maintain public trust assets. It would be easy enough, to be sure, for the state to grant some local autonomy with minimum state standards and then recede into the background. But that mod- el nearly removes the state from the public trust; this proposal is lo- calizing, not localist. There are surely times when course corrections and feedback from the state level will be necessary. 240. See supra Part II(A). 241. See Su, supra note 235, at 203 (“But if Home Rule depends on its ‘accept[ance] in spirit as well as in letter,’ cities are poor evangelists for its cause. They seldom raise Home Rule in their political appeals. They rarely make the case that local self-determination is meaningful in defending local legislation, or that local policy decisions should be entitled to deference.”). Er- ror! Hyperlink reference not valid. 242. Id. at 204.Error! Hyperlink reference not valid. 243. See id. at 205 (“Cities are not necessarily unjustified in eschewing Home Rule in their political appeals, because such appeals may be a political liability.”).Error! Hyperlink refer- ence not valid. 244. See id. at 203 (quoting Thomas Harrison Reed, Municipal Government in the United States 133 (Rev. ed. 1934)). 245. See id. at 203.Error! Hyperlink reference not valid. 2024] Localizing the Public Trust 95 Here, again, state and local collaborative efforts in other areas are instructive. Land use planning, for example, follows a similar collab- orative model. In Rhode Island, as noted supra, the state planning statute sets forth certain delineated powers for local governments to implement land use planning.246 Crucially, the state retains a say in how local governments implement that authority.247 Local govern- ments must re-submit their local plans for state approval every ten years.248 And the state continues building out its State Guide Plan, to which local comprehensive plans must conform.249 In the event of disputes between the state and local governments, a state panel may adjudicate.250 In this way, both the state and local governments share responsibilities for land use planning. A similar model could work in the public trust context. After set- ting forth the minimum state requirements that guide the grant of local autonomy, states could continue to monitor and oversee local implementation. There could be regular intervals for state approval of local actions that impact the public trust. Or there could be peri- odic state policies or directives that local governments must adhere to. Finally, there could be a state dispute resolution body created to facilitate any disagreements between the state and localities on pub- lic trust-related actions. The key here is for the state to retain a role. Both the state and lo- cal governments have responsibilities under the public trust; an ad- ditional one could be that they work to share those responsibilities in good faith. These guideposts for the state and local relationship around the public trust mirror many of the tenets of cooperative federalism.251 There are reasons to believe that the benefits of cooperative federal- ism are likely to apply similarly under this arrangement. Professor Dave Owen has detailed the benefits of cooperative subfederalism;252 localizing the public trust could be an example of those benefits in action. 246. See supra notes 216–221 and accompanying text. 247. See id. 248. See id. 249. See id. 250. See id. 251. See generally Robert L. Fischman, Cooperative Federalism and Natural Resources Law, 14 N.Y.U. ENV’T L.J. 179 (2005). 252. See Owen supra note 28, at 180 (defining “cooperative subfederalism” as “[t]he possi- bility of recreating cooperative-federalism-like regimes between states and local govern- ments”). 96 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 V. LOCALIZING THE PUBLIC TRUST IN ACTION: LOCAL CLIMATE ADAPTATION The preceding Parts describe the why and how of localizing the public trust; this Part seeks to describe what it might look like in one particular context: climate adaptation. As climate change worsens, scholars and advocates have looked for solutions in every conceivable area: litigation,253 federal legisla- tion,254 state legislation,255 and non-governmental organizations,256 among others. Local governments, often contentiously, have sought to take action on a number of fronts.257 Though local efforts at cli- mate mitigation exist, few believe they have sufficient impact to make a dispositive difference alone.258 Local climate adaptation, however, is a different story. Local gov- ernments are, in many ways, some of the most affected by climate change, presently, and in the future. Whether local governments want to or not, climate change will force adaptation at significant scale.259 The literature has accordingly posited a number of ways where local climate adaptation could make a meaningful differ- ence.260 253. See, e.g., OUR CHILDREN’S TRUST, supra note 24; see also Bruce Gil, U.S. Cities and States Are Suing Big Oil Over Climate Change. Here’s What the Claims Say and Where They Stand, FRONTLINE PBS (Aug. 1, 2022), https://www.pbs.org/wgbh/frontline/article/us-cities-states- sue-big-oil-climate-change-lawsuits/ [https://perma.cc/4KSS-9B8K]. 254. See, e.g., Tony Romm, Senate Approves Inflation Reduction Act, Clinching Long-Delayed Health and Climate Bill, WASH. POST (Aug. 7, 2022), https://www.washingtonpost.com/us- policy/2022/08/07/senate-inflation-reduction-act-climate/ [https://perma.cc/8DN2-QZKZ]. 255. See, e.g., Sam Ricketts, et al., States Are Laying a Road Map for Climate Leadership, CTR. FOR AM. PROGRESS, (Apr. 30, 2020), https://www.americanprogress.org/article/states-laying- road-map-climate-leadership/ [https://perma.cc/NUE3-E6UU]. 256. See, e.g., Chandra Lal Pandey, Managing Climate Change: Shifting Roles for NGOs in the Climate Negotiations, 24 ENV’T VALUES 799 (2015). 257. See, e.g., Jillian Blanchard, Local Governments Can Use Their Power to Combat Climate Change, BLOOMBERG L. (June 3, 2021), https://news.bloomberglaw.com/environment-and- energy/local-governments-can-use-their-power-to-combat-climate-change-17 [https://perma.cc/RE3X-X8QB]. 258. See, e.g., Jack Buckley DiSorbo, Note, The Limitations of State and Local Climate Policies, 57 HOUS. L. REV. 1169, 1171 (2020) (“State and local climate policies, as well as innovation within the private sector, are indispensable pieces in the national climate solution. However, physical and structural limitations cause the assumption of the national obligation to be im- possible. In short, state and local actors cannot cut enough carbon emissions without the fed- eral government.”). 259. See, e.g., J.B. Ruhl & Robin Kundis Craig, 4° C, 106 MINN. L. REV. 191 (2021). 260. See, e.g., Gremillion, supra note 31; see also Jenna Shweitzer, Climate Change Legal Remedies: Hurricane Sandy and New York City Coastal Adaptation, 16 VT. J. ENV’T L. 243 (2014); Paul Stanton Kibel, A Salmon Eye Lens on Climate Adaptation, 19 OCEAN & COASTAL L.J. 65 (2013); Maria L. Banda, Climate Adaptation Law: Governing Multi-Level Public Goods Across 2024] Localizing the Public Trust 97 This Article adds localizing the public trust doctrine as a means of effectuating local climate adaptation. In short, localizing the public trust can help set up a framework for local climate adaptation to oc- cur. This tool functions as both a sword and a shield—localizing the public trust doctrine works for local governments wishing to take more action on climate change and it works for state governments seeking to prod their recalcitrant local governments to do something on climate change. First, consider a local government that wishes to take action on climate adaptation in a state that is politically unmotivated on cli- mate change. Say, Bloomington, Indiana261 or Austin, Texas. Localiz- ing the public trust doctrine—or at least a version of localizing the public trust that provides autonomy to the locality—is one possible means of doing so. The locality can use its obligations (and autono- my) under the public trust doctrine as a catalyst to take action. Of course, that can take many forms: adjusting local planning and zon- ing requirements to increase tree cover, decrease development along flood plains or coastal areas, or increase building resiliency measures;262 increasing funding of so-called “hard armoring tools, such as bulkheads, levees, and dikes”;263 and using so-called “soft armoring tools like beach nourishment, dunes, and restoring wet- lands[.]”264 The justification for local action here comes from the lo- cal autonomy that is critical to localizing the public trust doctrine.265 To be sure, localizing the public trust doctrine is dependent on state approval in the first instance.266 Moreover, localizing the public trust doctrine does not counter proactive state efforts to preempt lo- Borders, 51 VAND. J. TRANSNAT’L L. 1027 (2018); Sarah J. Fox, How the Biden Administration Can Empower Local Climate Action, 51 URB. LAW. 203 (2021); Jessica Grannis, Community-Driven Climate Solutions: How Public-Private Partnerships with Land Trusts Can Advance Climate Ac- tion, 44 WM. & MARY ENV’T L. & POL’Y REV. 701 (2020). 261. See, e.g., City of Bloomington Climate Action Plan, CITY OF BLOOMINGTON (Sept. 6, 2021), https://bloomington.in.gov/sustainability/2020-climate-action-plan [https://perma.cc/R5C5- G855]. 262. See, e.g., Gremillion, supra note 31, at 1244–47; see also Shweitzer, supra note 260, at 261–62. 263. Shweitzer, supra note 260, at 263. 264. Id. 265. See supra Part IV(B). 266. See, e.g., John R. Nolon, Death of Dillon’s Rule: Local Autonomy to Control Land Use, 36 J. LAND USE & ENV’T L. 7, 8 (2020) (defining Dillon’s Rule as a rule “that municipalities are not sovereign entities, but merely instrumentalities of states and that the legal powers delegated to them by state legislatures are to be narrowly construed”). 98 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:1 cal action.267 So, certainly, states that wish to prevent local action on climate change are ill-suited for this proposal. But localizing the public trust does allow, in some circumstances, a proactive local government to begin taking action on climate change adaptation. Second, consider a state government that is motivated to seek cli- mate change solutions that wishes to prompt more local government climate adaptation, particularly from local governments uninterest- ed in doing so. Say, California and Orange County.268 Localizing the state’s public trust doctrine provides a suite of minimum require- ments that each local government must adhere to—that could in- clude access and management requirements that take into account the impacts of climate change.269 Using the public trust doctrine as a focal point for those requirements can help streamline discussions and provide a base line for assessing progress. Sharing responsibili- ties under the doctrine thus helps keep local governments accounta- ble. In either case, localizing the public trust doctrine brings unique benefits to climate change adaptation solutions. The traditional lo- calism benefits—increased democratic participation, community building, and local knowledge—are particularly impactful here. Part of the problem with climate change is the scale of the problem and the resulting malaise that results from trying to do anything about it.270 But localizing the public trust in the context of climate change adaptation allows for local involvement in the process, increasing citizen “buy-in” and fostering community identity.271 These facets help create social norms around climate adaptation which can create 267. See Sarah Fox, supra note 34, at 135 (“Local environmental actions are almost univer- sally vulnerable to preemption by state and federal law, and new trends in preemption have seen states removing authority from local governments to act in a variety of ways.”); see also City of Laredo v. Laredo Merchants Ass’n, 550 S.W.3d 586, 597–98 (Tex. 2018) (holding that local ordinance banning certain plastic and paper bags was preempted by state law). 268. See, e.g., Brooke Staggs, Climate Grade: Orange County and All of its Cities are Failing, ORANGE CNTY. REG. (Jan. 25, 2023), https://www.ocregister.com/2023/01/25/climate-grade- orange-county-and-all-of-its-cities-are-failing/ [https://perma.cc/VP7Z-WWK3]. 269. See supra Part IV(A). 270. See, e.g., Jill Suttie, How to Overcome ‘Apocalypse Fatigue” Around Climate Change, GREATER GOOD MAG. (Feb. 23, 2018), https://greatergood.berkeley.edu/article/item /how_to_overcome_apocalypse_fatigue_around_climate_change [https://perma.cc/CJ7P-BGB2]; see also Eco-anxiety: How To Avoid Being Paralyzed by the Fear of Climate Change, ENEL GREEN POWER (Dec. 12, 2022), https://www.enelgreenpower.com /learning-hub/gigawhat/search-articles/articles/2022/12/eco-anxiety-climate-change [https://perma.cc/UV7C-FKEJ]. 271. See supra Part III. 2024] Localizing the Public Trust 99 a positive feedback loop; as your neighbors “buy in” to climate adap- tation solutions, so do you.272 This gives communities a sense of agency in the face of a seemingly insurmountable problem. And it does so with the benefit of local knowledge of which solutions are most feasible and how to best implement them. Of course, this is not to suggest that localizing the public trust doc- trine is a panacea for parochial ills or political stalemates. Nor is it to claim that localizing the public trust doctrine is, itself, a substantive means of climate change adaptation. But it does provide a frame- work for mediating state and local cooperation and a process for tak- ing action on climate adaptation. For states and local governments looking for ways to make progress on climate change adaptation, lo- calizing the public doctrine offers a path forward. VI. CONCLUSION The public trust doctrine is not a spent force. The doctrine—even centuries on—has the potential to make meaningful differences in the way we preserve, maintain, and think about natural resources. Localizing the doctrine is a means of harnessing the benefits of de- centralization for a doctrine that could uniquely benefit from them. It can facilitate the ongoing relationship between states and their lo- cal governments around shared public trust obligations. It only re- mains, then, for states and local governments to try. 272. See Suttie, supra note 270 (“You’ll have a much higher impact if people perceive a cli- mate attitude is coming from somebody who’s like them or part of their social group than if it’s coming from outside.”). I. Introduction B. A Public-Centered Trust III. The Benefits of Localizing A. Reflecting Reality B. Localism’s Traditional Benefits C. Environmental Justice D. Environmental Federalism E. Potential Disadvantages of Localizing IV. Localizing the Public Trust A. Minimum State Requirements 1. Cataloging Public Trust Resources 2. Minimum Access Requirements 3. Management Requirements 4. Planning and Zoning Requirements B. Local Autonomy C. Shared Responsibilities V. Localizing the Public Trust In Action: Local Climate Adaptation VI. Conclusion