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Property rights and the public trust doctrine in environmental protection and natural resource conservation


  • Brewer, Jedidiah
  • Libecap, Gary D.


We examine the implications of the public trust doctrine in natural resource protection and conservation. A model of litigation and settlement among disputing parties suggests that the public trust doctrine introduces more costs and is more time consuming than would be the case with alternative approaches, such as the purchase of private rights through market transactions or application of eminent domain powers to reallocate the resource. Because the doctrine allows for uncompensated redistribution, it is resisted by current resource owners. Furthermore, by providing open standing to members of the public in challenging existing uses, public trust disputes encourage excessive demands, increasing the incidence of trial over settlement. This outcome is exacerbated if the plaintiffs derive utility from the ‘cause’ and provide litigation services at below-market rates, leading to greater investment in litigation. The costs of the public trust doctrine appear to have limited its application beyond the level anticipated by proponents. We present a case study of Mono Lake, part of the well-known 1983 litigation, National Audubon v. Superior Court to illustrate our arguments.

Suggested Citation

  • Brewer, Jedidiah & Libecap, Gary D., 2009. "Property rights and the public trust doctrine in environmental protection and natural resource conservation," Australian Journal of Agricultural and Resource Economics, Australian Agricultural and Resource Economics Society, vol. 53(1), March.
  • Handle: RePEc:ags:aareaj:161908

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    References listed on IDEAS

    1. Cooter, Robert D & Rubinfeld, Daniel L, 1989. "Economic Analysis of Legal Disputes and Their Resolution," Journal of Economic Literature, American Economic Association, vol. 27(3), pages 1067-1097, September.
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    Cited by:

    1. Krutilla, Kerry & Alexeev, Alexander, 2014. "The Political Transaction Costs and Uncertainties of Establishing Environmental Rights," Ecological Economics, Elsevier, vol. 107(C), pages 299-309.
    2. R. Quentin Grafton & Clay Landry & Gary D. Libecap & Sam McGlennon & Robert O'Brien, 2010. "An Integrated Assessment of Water Markets: Australia, Chile, China, South Africa and the USA," NBER Working Papers 16203, National Bureau of Economic Research, Inc.
    3. Soliman, Adam, 2014. "Using individual transferable quotas (ITQs) to achieve social policy objectives: A proposed intervention," Marine Policy, Elsevier, vol. 45(C), pages 76-81.
    4. R. Quentin Grafton & Clay Landry & Gary D. Libecap & R.J. (Bob) O'Brien, 2009. "Water Markets: Australia's Murray Darling Basin and the US Southwest," Centre for Water Economics, Environment and Policy Papers 0902, Centre for Water Economics, Environment and Policy, Crawford School of Public Policy, The Australian National University.
    5. Eric C. Edwards, 2016. "Book Review: “Chasing Water — A Guide for Moving from Scarcity to Sustainability”," Water Economics and Policy (WEP), World Scientific Publishing Co. Pte. Ltd., vol. 2(02), pages 1-4, June.
    6. Gary D. Libecap & R. Quentin Grafton & Clay Landry & J.R. O’Brien, 2009. "Markets - Water Markets: Australia’s Murray-Darling Basin and the US Southwest," ICER Working Papers 15-2009, ICER - International Centre for Economic Research.


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