The Public Trust Doctrine Under Louisiana Law A Presentation to the Coastal Protection and Restoration Authority January 18, 2011 Mark Davis Senior Research Fellow and Director Tulane Institute on Water Resources Law and Policy

Public Trust Under LA’s Constitution Art. IX, Section 1. “The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.”

Who the Doctrine Applies To The Louisiana Supreme Court says the 1974 Constitution imposes a duty of environmental protection on all state agencies and officials. Save Ourselves Inc., v Louisiana Environmental Control Commission. 452 So. 2d 1152, 1156 (1984).

What the Doctrine Requires 1. A reasonable, individualized and good faith consideration of factors to determine that adverse environmental impacts have been minimized or avoided to the extent consistent with public welfare. (Save Ourselves, at 1157 and In Re Rubicon, Inc., 670 So2d 475, 482 (La 1st Cir 1996)). 2. Environmental costs and benefits be full considered along with economic, social, and other factors. Id. 3. Independent assessment by the state (can’t passively call balls and strikes for a adversaries). Id. and In Re American Waste and Pollution Control Co., 642 So. 2d 1258, 1262 (La 1994). NOTE: The Nature of the Public Trust review can vary depending on the nature of the interests at stake and the elaborate of the applicable statutory/regulatory regime involved. Lake Bistineau Preservation Society, Inc. v Wildlife and Fisheries Commission, 895 So.2d 821 (La 2nd Cir 2005).

What the Doctrine Does Not Do 1. Compel any specific outcome. 2. Make environmental protection the exclusive goal (Save Ourselves, 1157). 3. Limit application to hazardous waste siting cases or Louisiana Department of Environmental Quality or Louisiana Department of Natural Resources. (Avenal v State, 886 So.2d 1085 (La 2004) dealing with oyster leases and coastal restoration, Lake Bistineau Preservation Society, Inc. v Wildlife and Fisheries Commission, 895 So.2d 821 (La 2nd Cir 2005) dealing with fisheries management and Dept. of Wildlife and Fisheries). 4. Have anything to do with water bottom ownership—that is a different public trust doctrine.