The public trust doctrine can become a game changer in Guyana

Jun 30, 2023 Features / Columnists, Peeping Tom

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Kaieteur News – An interesting case is taking place in the American state of Montana. The legal principles being argued and determined in that case have implications for environmental challenges to the continued production of fossil fuels, the gas-to-shore project and the supervisory actions of Guyana’s regulatory bodies.

The case was filed three years ago, just around the time that Guyana was embroiled in its elections’ controversies.  A group of children and youth filed legal action against the State of Montana claiming that the fossil fuel industry is violating their right, under the Montana Constitution, to a clean and healthy environment. They are claiming various reliefs revolving around the right to a clean environment.

The basis of the action by the young people – whose ages incidentally range from 2 years to 18 years – is that the Montana State Constitution guarantees the right to clean environment. The right to a healthy environment also encompasses the right of individuals to access justice and seek remedies when their environment or health is adversely affected. The law has long provided avenues for the public to challenge decisions or actions that may harm the environment or negatively affect public health. These challenges can include judicial review of administrative decisions that fail to adequately consider environmental impacts or public health concerns.

The litigants in the Montana case however are proceeding on an interesting limb. They are contending that under the doctrine of ‘the public trust’, the government has responsibility to ensure a clean and pristine environment for present and future generations.

The Constitution of Guyana entitles citizens to an environment that is not harmful to them or their well-being. But the Constitution also creates an implied duty of public trust on the part of the State. It explicitly states that the State is required to protect the environment for present and future generations, through legislative and other means. It is these provisions of the Constitution which create a duty of public trust.

Legal systems, both English and American, recognize that the Earth’s natural resources are part of the world’s common heritage and that governments serve as trustees of rights held in common. These rights include the right to a safe environment for present and future generations.

But what is this public trust doctrine? The public trust essentially is a doctrine which places an obligation on governments to protect natural resources, including through ensuring the welfare of citizens.

The doctrine of public trust is a longstanding legal principle that recognizes the government’s obligation is to act as stewards of the public in safeguarding critical resources essential to the public’s well-being. These resources must be preserved for the benefit of current and future generations.

The doctrine of public trust has been recognized and upheld in numerous legal cases. Courts have consistently acknowledged that the government has a fiduciary duty to act as a trustee and protect essential natural resources for the benefit of the public. This fiduciary duty extends to preventing actions that would harm the public trust, such as permitting or promoting activities that lead to the degradation of natural resources.

The doctrine of public trust helps to buttress the right to a healthy environment. And this right, in turn, includes the requirement for environmental impact assessments to be conducted before certain activities can proceed. It is hard to imagine a major project taking place without an environmental impact assessment to determine environmental and health implications and to decide what measures need to be put in place to mitigate such risks.

It is hardly debatable, also, that public trust fossil fuels are detrimental to the environment and endangers public health and contributes to climate change. Fossil fuel production, including extraction, refining, and combustion, poses significant risks to public health. The burning of fossil fuels releases harmful pollutants, such as particulate matter, nitrogen oxides, sulfur dioxide, and volatile organic compounds, which contribute to respiratory illnesses, cardiovascular diseases, and premature deaths.

Fossil fuels contribute to environmental injustice. They result in biodiversity loss and damage to ecosystems. The extraction and burning of fossil fuels are major contributors to climate change,

Fossil fuel production clearly falls within the ambit of the government’s public trust responsibilities.  Whether it is dealing with crude oil or natural gas production, governments have a duty, under the public trust doctrine, to demonstrate that such activities are not detrimental to the environment and to people’s well fare and well-being. Governments also have a fiduciary duty to ensure the preservation of essential resources for future generations.

When therefore governments refuse to undertake environmental impact assessments for major projects, this refusal can be challenged on the grounds that the government is violating the public trust doctrine and by extension its responsibilities to the public.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions and beliefs of this newspaper and its affiliates.)

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• American, Guyana, Montana, Peeping Tom, public

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