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The Public Trust Takes to the Sky

[Originally published in the The Wendel Report, Winter 2008 issue.]

As with any new technology, the implementation of renewable energy technology is not entirely benign. The Center for Biological Diversity (CBD) recently sued owners and operators of wind turbine generators in the Altamont Pass Wind Resource Area in Alameda and Contra Costa Counties, alleging, among other things, that the operators were responsible for killing and injuring tens of thousands of raptors and other birds in violation of the public trust doctrine. The public trust doctrine had been generally thought to be founded on state ownership of certain types of lands –lands underlying navigable waters – held in trust for the benefit of the public. No such lands exist in the Altamont Pass, which raised the question of whether the CBD had a basis for the claimed public trust violation.

The California Court of Appeal, in Center for Biological Diversity, Inc. v. FPL Group, Inc., Case No. A116362 (1st App. Dist.), held that the public trust doctrine extends not only to the lands underlying navigable waters, but also to wildlife not associated with any particular property. The Court described the scope of the public trust doctrine as including the governmental power and responsibility to preserve and regulate natural resources, held in trust for the benefit of public. Under this doctrine, public agencies are responsible for striking “an appropriate balance between protecting trust resources and accommodating other legitimate public interests. ”In reviewing the body of case law that has applied the doctrine, the Court found that it encompasses the protection of the public’s rights with regard to both lands underlying navigable waters and undomesticated birds and wildlife.

Importantly, the court determined that members of the public have standing to bring an action to enforce the public trust over wildlife when the trustees – the responsible public agencies – fail to discharge their duties. But the Court held that such actions by members of the public must be brought against the responsible public agencies, not against private parties to whom those agencies have granted permits in alleged violation of the agencies’ duties as trustees. According to the opinion, while members of the public may compel public agencies to perform their duties, “neither members of the public nor the court may assume the task of administering the trust,” for only the appropriate public agencies have the expertise, time, and discretion to consider the competing public interests at stake when public trust resources are jeopardized.

This extension of the public trust doctrine and recognition of the standing of members of the public to enforce the doctrine may provide project opponents with an additional basis on which to oppose certain projects. But the Court observed that while the public trust doctrine requires government agencies to account for the effect of proposed permits on wildlife, government permitting agencies are not required to protect wildlife in all circumstances. As trustees under the public trust doctrine, agencies must strike an “appropriate balance” between protecting natural resources and other public interest considerations. For example, in the case of turbines, the court acknowledged that other public interest considerations would include the strong public interest in the development and operation of sustainable energy systems. Thus, while agencies must take the protection of wildlife into account, they need not place that interest above all others.