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Judicial Resources and the Public Trust Doctrine: A Powerful Tool of Environmental Protection?

Published online by Cambridge University Press:  17 September 2018

Anne Richardson Oakes Open the ORCID record for Anne Richardson Oakes [Opens in a new window]
Anne Richardson Oakes*
Affiliation:
Centre for American Legal Studies, Law School, Birmingham City University, Birmingham (United Kingdom (UK)). Email: [email protected].
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Abstract

United Kingdom Supreme Court Justice Robert Carnwath has urged the judiciary to develop ‘common laws of the environment’, which can operate within different legal frameworks, tailored where necessary towards specific constitutions or statutory codes. One such mechanism with the potential for repositioning environmental discourse in both common law and civil law jurisdictions is the doctrine of the public trust. Basing their arguments upon a heritage of civil law and common law, supporters of the public trust doctrine are currently testing its scope in United States federal courts via groundbreaking litigation aimed at forcing the federal government to uphold its duty to protect the atmosphere. This article considers whether common law judicial resourcefulness can transform a transatlantic hybrid of uncertain parentage into a powerful tool of environmental protection.

Keywords

Public trust doctrineFiduciary obligationsCommon law constitutionalismCommon laws of the environmentJurisdictional hybrid
Type
Article
Information
Transnational Environmental Law , Volume 7 , Issue 3 , November 2018 , pp. 469 - 489
Copyright
© Cambridge University Press 2018 

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References

1 Presidential Executive Order on Promoting Energy Independence and Economic Growth, 28 Mar. 2017, available at: https://www.whitehouse.gov/the-press-office/2017/03/28/presidential-executive-order-promoting-energy-independence-and-economi-1.

2 C. Reid, ‘Environmental Law Outside the EU: An Attempt to Set Out the Continuing Ground Rules and the New Influences under which Environmental Law Will Operate when the UK Leaves the EU’ (2016) Journal of the Law Society of Scotland online articles, available at: http://www.journalonline.co.uk/Magazine/61-7/1021967.aspx. In April 2015, the UK Supreme Court (UKSC) made a declaration that the UK was in breach of Art. 13 of EU Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe [2008] OJ L 152/1 (EU Air Quality Directive 2008), which requires production of a plan for combating air pollution: R (ClientEarth) v. Secretary of State for Environment, Food and Rural Affairs [2015] UKSC 28. In 2016, the UK High Court (Garnham J) ruled that the 2015 Air Quality Plan published by the Secretary of State failed to comply with Art. 23(1) EU Air Quality Directive 2008 and its domestic transposition, the Air Quality Standards Regulations 2010 (UKSI 2010/1001), reg. 26(2): ClientEarth v. Secretary of State for Environment, Food and Rural Affairs [2016] EWHC 2740 (Admin). In April 2017, the UK High Court (Garnham J) declined the Secretary of State’s request to extend the deadline for producing a plan until after the election: R (ClientEarth) v. Secretary of State for Environment, Food and Rural Affairs, Case No. CO/1508/2016, transcript available at: https://www.judiciary.gov.uk/judgments/the-queen-on-the-application-of-clientearth-v-secretary-of-state-for-the-environment-food-and-rural-affairs.

3 564 US 410, 424 (2011) (holding that ‘the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants’). For commentary, see Davies, H., ‘From Equal Protection to Private Law: What Future for Environmental Justice in US Courts?’ (2013) 2(1) British Journal of American Legal Studies, pp. 163–203 Google Scholar, at 180, and sources cited at 180, n. 105. For a more general discussion of the failure of ‘first-wave’ climate change suits, see R.H. Weaver & D. Kysar, ‘Courting Disaster: Climate Change and the Adjudication of Catastrophe’, 8 May 2017, p. 32, available at: https://ssrn.com/abstract=2965084 (concluding: ‘[w]hether through deference, displacement, or deliberate sabotage, anxious courts have found ways to ignore the climate change plaintiff’).

4 42 USC §7401

5 696 F.3d 849 (9th Cir. 2012).

6 Juliana v. United States, No 6:15-cv-01517-TC (Dist. OR 10 Nov. 2016).

7 Ibid.

8 Our Children’s Trust, ‘Our Mission’, available at: https://www.ourchildrenstrust.org/mission-statement.

9 N. Geiling, ‘Can This Group of Kids Force the Government to Act on Climate Change?’, ThinkProgress, 25 Nov. 2015, available at: https://thinkprogress.org/can-this-group-of-kids-force-the-government-to-act-on-climate-change-349abc0809ab (the case referred to by Wood is Illinois Central Railroad Co. v. State of Illinois, 146 US 387 (1892).

10 Ibid. For a full account of the Juliana litigation and a discussion of the ‘pathbreaking’ nature of the case, see Blumm, M. & Wood, M., ‘“No Ordinary Law Suit”: Climate Change, Due Process and the Public Trust Doctrine’ (2017) 67(1) American University Law Review, pp. 1–87 Google Scholar. See more generally Wood, M., Nature’s Trust: Environmental Law for a New Ecological Age (Cambridge University Press, 2013)CrossRefGoogle Scholar; Wood, M. & Blumm, M., The Public Trust in Environmental and Natural Resources Law, 2nd edn (Carolina Academic Press, 2015)Google Scholar.

11 Holmes, O.W., The Common Law (Little, Brown & Company, 1881), p. 1 Google Scholar.

12 Shapiro, F. & Pearse, M., ‘The Most-Cited Law Review Articles of All Time’ (2012) 110(8) Michigan Law Review, pp. 1483–1520 Google Scholar (listing J. Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ (1970) 68(3) Michigan Law Review, pp. 471–566, at joint 46th in their list of the most-cited law review articles). A Westlaw search conducted on 9 May 2017 revealed 3,174 articles in which the term ‘public trust doctrine’ appears.

13 See Huffman, J., ‘Speaking of Inconvenient Truths: A History of the Public Trust Doctrine’ (2007) 18(1) Duke Environmental and Policy Forum, pp. 1–102 Google Scholar. See also Huffman, J., ‘Why Liberating the Public Trust Doctrine Is Bad for the Public’ (2015) 45(2) Environmental Law, pp. 337–377 Google Scholar, at 346, 348–9.

14 Sax, n. 12 above, p. 473.

15 Sax, J., Defending the Environment: A Strategy for Citizen Action (A. Knopf, 1971), p. 165 Google Scholar.

16 Sax, n. 12 above, pp. 473–4, 484 (stating that ‘certain rights are so intrinsically important to every citizen that their free availability tends to mark the society as one of citizens rather than serfs’).

17 See Huffman (2015), n. 13 above, pp. 346, 348–9 (discussing Arnold v. Mundy, 6 NJL 1 (1821); Martin v. Waddell, 41 U. 367 (1842); Illinois Central Railroad Co., n. 9 above).

18 Rose, C.M., ‘Joseph Sax and the Idea of the Public Trust’ (1998) 25(3) Ecology Law Quarterly, pp. 351–362 Google Scholar.

19 Such a rule would assume a legislative intent to maintain a broad public use, and bring with it requirements of attention to matters such as ‘the collection of adequate information, public participation in decisions, informed and accountable choices, and close scrutiny of private giveaways of environmental resources’: Rose, ibid., p. 355 (quoting Sax, n. 12 above, pp. 557–65). See Sax, n. 12 above, pp. 491–5 (citing Gould v. Greylock Reservation Commission, 215 N.E.2d 114, 117–19 (Mass. 1966), which held that a lease of 4,000 acres of reservation land and management agreement exceeded the statutory grant of authority), pp. 509–10 (citing Priewe v. Wisconsin State Land and Improvement Co., 67 NW 918 (Wis. 1896)); and pp. 528–30 (discussing the development of tideland protection in California).

20 Sax, J., ‘Liberating the Public Trust Doctrine from Its Historical Shackles’ (1980) 14(2) UC Davis Law Review, pp. 185–194 Google Scholar.

21 Ibid., pp. 185–6.

22 Ibid., p. 193.

23 See Brief of Law Professors in Support of Granting Writ of Certiorari as Amicus Curiae for Petitioners, Alec L. ex rel Loorz v. McCarthy, 561 F. Appx 7 (DC Cir. 2014) (No. 14-405) 2014 WL 5841697, p. 1 (Amicus Curiae Brief) (arguing that the doctrine is an ‘inherent limit on sovereignty which antedates the US Constitution and was preserved by the Framers as a reserved power restriction on both the federal and state governments’. For Richard Lazarus’ critique of the value of ‘atmospheric trust advocacy’ and a response from M.C. Blumm, see Lazarus, R.J., ‘Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: Can Two Wrongs Make a Right?’ (2015) 45 Environmental Law, pp. 1139–1162 Google Scholar (reviewing his earlier article ‘Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine’ (1986) 71 Iowa Law Review, pp. 631–716, in which he argued that the public trust doctrine was outdated and should make way for federal and state statutory regulation). For Blumm’s response see Blumm, M., ‘Two Wrongs? Correcting Lazarus’s Misunderstanding of the Public Trust Doctrine’ (2015) 46(3) Environmental Law, pp. 481–489 Google Scholar, at 489 (‘Properly understood, the PTD’s sovereign ownership is not only a defense for government regulators, but an antidote to government inaction, preventing privatization and calling for protection of select resources to preserve them for the beneficiaries: the public, including future generations’).

24 Alec L. ex rel Loorz v. McCarthy, ibid. (citing PPL Montana LLC v. Montana, 565 US 576, 603 (2012)).

25 Ibid.

26 Juliana v. United States, n. 6 above.

27 R. Craig, ‘Climate Change, State Public Trust Doctrines and PPL Montana’, The Water Report, Feb. 2014, University of Utah College of Law Research Paper No. 57, available at: https://ssrn.com/abstract=2380754.

28 Illinois Central Railroad Co., n. 9 above.

29 This parallelled the definition in federal law for the purposes of commerce clause regulation and reflected a geographical imperative: many of the big American rivers (such as the Mississippi and the Missouri) were not tidal.

30 Huffman (2015), n. 13 above, pp. 348–49 (although ‘Justice Field’s opinion in Illinois Central is routinely cited for the proposition ... that the sovereign cannot alienate submerged lands affected by the public trust ... [t]hat is not what the case holds. ... What the case holds is that while the state can alienate submerged lands for the purposes of promoting navigation and commerce or for any private purpose so long as it does not interfere with the public interests in navigation, commerce, and fishing, it cannot alienate the entire present and future harbor of the state’s largest city (citing Illinois Central Railroad Co., n. 9 above, p. 452 (Fields J)).

31 Ibid.

32 Craig, R., ‘Adapting to Climate Change: The Potential Role of State Common-Law Public Trust Doctrines’ (2010) 34 Vermont Law Review, pp. 781–853 Google Scholar, at 850; see also Craig, R., ‘A Comparative Guide to the Western States’ Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust’ (2010) 37(1) Ecology Law Quarterly, pp. 53–197 Google Scholar; Craig, R., ‘A Comparative Guide to the Eastern Public Trust Doctrines: Classifications of States, Property Rights, and State Summaries’ (2007) 16(1) Penn State Environmental Law Review, pp. 1–112 Google Scholar. See also Blumm, M., ‘The Public Trust Doctrine: A Twenty-First Century Concept’ (2010) 16(1) Hastings West-Northwest Journal of Environmental Law and Policy, pp. 105–110 Google Scholar (discussing the evolution of the public trust doctrine); Blumm, M., ‘Public Property & the Democratization of Western Water Law’ (1989) 45 Environmental Law, pp. 573–640 Google Scholar (predicting that state courts will continue to expand the public trust, relying especially on constitutional provisions declaring water to be publicly owned).

33 E.g., Rhode Island, Louisiana, Vermont, Pennsylvania, Illinois, Alaska, Florida, Hawaii. According to Mary Turnipseed and her co-authors, at least 42 states now either expressly mention public trust principles or contain some mention of environmental protection or natural resources: Turnipseed, M. et al., ‘The Silver Anniversary of the United States’ Exclusive Economic Zone: Twenty-Five Years of Ocean Use and Abuse, and the Possibility of a Blue Water Public Trust Doctrine’ (2009) 36(1) Ecology Law Quarterly, pp. 1–70 Google Scholar, at 23, n. 129 (citing generally Klass, A., ‘Modern Public Trust Principles: Recognizing Rights and Integrating Standards’ (2006) 82(2) Notre Dame Law Review, pp. 699–754 Google Scholar, at 714: ‘While some state constitutional provisions do no more than authorize the legislature to enact environmental laws (which it already has authority to do under its inherent police power), others codify the common law public trust doctrine or set out a constitutional policy to protect the environment. Yet others grant rights to all citizens for a “clean and healthful environment” or place mandatory duties on the state to protect the environment’ (footnote omitted); Kirsch, M., ‘Upholding the Public Trust in State Constitutions’ (1997) 46(5) Duke Law Journal, pp. 1169–1210 CrossRefGoogle Scholar.

34 Commonwealth v. National Gettysburg Battlefield Tower, Inc., 311 A.2d 588, 596 (Pa. 1973) (Jones CJ dissenting) (emphasis omitted).

35 R (on the application of Newhaven Port and Properties Ltd) v. East Sussex County Council [2015] UKSC 7 (Newhaven).

36 106 ER 1190 (1821).

37 Newhaven, n. 35 above, [33] (quoting Holroyd J in Blundell v. Catterell, ibid., p. 1197.

38 Newhaven, n. 35 above, [34].

39 Ibid.

40 Blundell v. Catterall, n. 36 above, (Best J dissenting) (emphasis added).

41 Newhaven, n. 35 above, [130] (Lord Carnwath) (emphasis added).

42 Huffman (2007), n. 13 above, pp. 9–10.

43 Ibid., pp. 9–11 (internal citations omitted).

44 Ibid., p. 30, and generally pp. 29–93.

45 See ibid., pp. 12 (n. 32) and 13 (explaining that he has relied heavily on the historical research and analyses of Patrick Deveney and Glenn MacGrady, whose work he claims has been generally ignored: ‘Before them, Stuart Moore’s comprehensive treatise was similarly ignored’. See Deveney, P., ‘Title, Jus Publicum, and the Public Trust: An Historical Analysis’ (1976) 1 Sea Grant Law Journal, pp. 13–81 Google Scholar; MacGrady, G., ‘The Navigability Concept in the Civil and Common Law: Historical Developments, Current Importance, and Some Doctrines that Don’t Hold Water’ (1975) 3 Florida State University Law Review, pp. 511–615 Google Scholar; Moore, S., A History of the Foreshore and the Law Relating Thereto (Stevens & Haynes, 1888)Google Scholar.

46 521 US 261(1997) (Idaho).

47 Ibid. (citing Institutes of Justinian, Lib. II, Tit. I, § 2 (T. Cooper tr, 2nd edn, 1841) (‘Rivers and ports are public; hence the right of fishing in a port, or in rivers are in common’).

48 Idaho, n. 46 above pp. 284–86.

49 PPL Montana LLC v. Montana, 565 US 576, 603 (2012).

50 Huffman (2007), n. 13 above, p. 8; Huffman (2015), n. 13 above.

51 Ibid.

52 Brooks v. Robinson, 284 NE 2d 794, 797 (Ind. 1972).

53 Huffman (2015), n. 13 above, p. 339.

54 Ibid.

55 See Juliana v. United States, n. 6 above.

56 For a discussion of ‘[t]he long reach of EU governance mechanisms’ in environmental law, with specific reference to the post-Brexit vulnerability of the EU Habitats Directive (Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora [1992] OJ L 206/7), see M. Lee, ‘Brexit: Environmental Accountability and EU Governance’, 17 Oct. 2016, OUPblog, available at: https://blog.oup.com/2016/10/brexit-environment-eu-governance. Lee notes that the ‘multi-level dense relationship’ of reporting, Commission scrutiny and publicity set up by the Directive is ‘far from unique’ in environmental matters generally and will be hard to replace. She finds some cause for optimism in the ‘highly structured system of mandatory (probably justiciable) planning and reporting requirements’ of the UK Climate Change Act 2008 which, in conjunction with the establishment of the UK Climate Change Committee, offer the ‘beginnings of a national model for post-EU governance’. A reviewer of this article adds the thought that ‘though the EU has assumed collective responsibility for negotiating member states’ international treaty obligations, and has fairly ambitious mitigation commitments, successive UK administrations from Blair through to May have pursued and maintained considerably more ambitious greenhouse gas reduction targets. This, in turn, may explain why the UK does not (yet) need something like the public trust doctrine in this field, and why common law nuisance has not been invoked as it has in the US’.

57 M. Willers & E. Shirley, ‘The Public Trust Doctrine’s Role in Post Brexit Britain’, UKELA e-law newsletter, Mar./Apr. 2017, Issue 99, available at: https://www.gardencourtchambers.co.uk/the-public-trust-doctrines-role-in-post-brexit-britain/#_ftnref4.

58 Ibid.

59 Freedman, B. & Shirley, E., ‘England and the Public Trust Doctrine’ (2014) 8 Journal of Planning and Environment Law, pp. 839–848 Google Scholar.

60 Willers & Shirley, n. 57 above.

61 Freedman & Shirley, n. 59 above, p. 841.

62 (1977) Ch 106 (Megarry J, discussing Kinloch v. Secretary of State for India (1882) 7 App Cas 619).

63 Ibid., pp. 211–16.

64 Finn, P., ‘Public Trusts and Fiduciary Relations’, in K. Coghill, C. Sampford & T. Smith (eds), Fiduciary Duty and the Atmospheric Trust (Ashgate, 2012), pp. 31–41 Google Scholar, at 34.

65 C. Sampford, ‘Trust Governance and the Good Life’, in Coghill, Sampford & Smith, ibid., pp. 43–68, at 47–55.

66 Finn, n. 64 above, p. 36.

67 British Columbia v. Canadian Forest Products Ltd (2004) 240 DLR (4th) 1, para. 155 (Binnie J).

68 336 A.2d 750 (NJ Super. Ct App. Div. 1975).

69 Specifically, the harm was to public resources arising from a fish kill in tidal waters as a result of water temperature variations caused by negligent pumping.

70 British Columbia v. Canadian Forest Products Ltd, n. 67 above, para. 155. Also cited were State of Washington, Department of Fisheries v. Gillette, 621 P.2d 764 (Wash. Ct App. 1980); State of California, Department of Fish and Game v. SS Bournemouth, 307 F. Supp. 922 (CD Cal. 1969); State of Maine v. M/V Tamano, 357 F. Supp. 1097 (D.M. 1973); State of Maryland, Department of Natural Resources v. Amerada Hess Corp., 350 F. Supp. 1060 (D. Md 1972). Binnie J observed that ‘[t]hese were all cases decided under the common law, not CERCLA’: ibid., para. 81.

71 Blumm, M. & Guthrie, R., ‘Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision’ (2012) 45(3) UC Davis Law Review, pp. 741–808 Google Scholar. See also Takacs, D., ‘The Public Trust Doctrine, Environmental Human Rights, and the Future of Private Property’ (2008) 16(3) NYU Environmental Law Journal, pp. 711–715 Google Scholar, at 737.

72 Ibid., p. 741.

73 Ibid.

74 M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 (India), para. 34, available at: https://indiankanoon.org/doc/1514672.

75 See Blumm & Guthrie, n. 71 above, p. 762, n. 105 (citing M.I. Builders Private Ltd v. Radhey Shyam Sahu (1999) 6 SCC 464, 466 (India), available at: http://www.indiankanoon.org/doc/1937304, stating: ‘A year before the MI Builders decision, the High Court of Jammu and Kashmir declared that the public trust doctrine “is now considered as part and parcel of Article 21 of the Constitution of India.” Th. Majra Singh v. Indian Oil Corp, 1999 AIR 81 (JK) 82, para. 6 (Jammu and Kashmir HC) (India), available at: http://indiankanoon.org/doc/201603. Earlier, the High Court of Kerala interpreted Article 21 to include the right to a healthy environment, stating: “The right to life is much more than the right to animal existence and its attributes are many fold, as life itself. A prioritization of human needs and a new value system has been recognized in these areas. The right to sweet water, and the right to free air, are attributes of the right to life, for these are the basic elements which sustain life itself.” Attakoya Thangal v Union of India, 1990 AIR 1 (KLT) 580, 583 (Kerala HC) (India).’) See also M.C. Wood, ‘Atmospheric Trust Litigation Across the World’, in Coghill, Sampford & Smith, n. 64 above, pp. 99–164, at 114–22 (examining the public trust doctrine in legal systems around the world).

76 See nn. 35–41 and associated text.

77 R. Carnwath, ‘Judges for the Environment: We Have a Crucial Role to Play’, The Guardian, 22 June 2012, available at: https://www.the guardian.com/law/2012/jun/22/judges-environment-lord-carnwath-rio.

78 Ibid.

79 Ibid.

80 Carnwath, R., ‘Judges and the Common Laws of the Environment: At Home and Abroad’ (2014) 26(2) Journal of Environmental Law, pp. 177–187 CrossRefGoogle Scholar, at 177, 184.

81 Sax, n. 12 above, p. 509.

82 By one count, ‘Nomos and Narrative’ (n. 83 below) is the 5th most cited law review article written in the 1980s: Shapiro & Pearse, n. 12 above, p. 1489.

83 Cover, R., ‘The Supreme Court, 1982 Term, Foreword: Nomos and Narrative’ (1983) 97(1) Harvard Law Review, pp. 4–68 CrossRefGoogle Scholar.

84 Ibid., p. 11.

85 Brooks v. Robinson, n. 52 above, p. 797.

86 Sax, n. 12 above, p. 509.

87 See A. Richardson Oakes & I. Di Gioia, ‘Uncooperative Federalism or Dinosaur Constitutionalism: The Affordable Care Act and the Language of States’ Rights’ Nomos, Le attualita’ nel diritto, p. 1 (2017).

88 Definitive Treaty of Peace, US–GB, 3 Sept. 1783, Art. 1.

89 See Pollard v. Hagan, 44 US 212 (1845).

90 Arnold v. Mundy, n. 17 above, p. 13 (Kirkpatrick CJ).

91 Illinois Central Railroad Co., n. 9 above, p. 457 (quoting Stockton v. Baltimore and N.Y.R. Co., 32 Fed. Rep. 9 (1887), Bradley J). See also Martin v. Waddell, 16 Pet. 367, 410 (1842) (Taney CJ: ‘When the Revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government’).

92 Idaho, n. 46 above.

93 Ibid., p. 284.

94 US Term Limits, Inc. v. Thornton, 514 US 779, 821 (1995) (Stevens J).

95 See Petition for Writ of Certiorari, Alec L. ex rel Loorz v. McCarthy, n. 23 above, WL 5017962 (US), pp. 15–6. See also Amicus Curiae Brief, n. 23 above, p. 1.

96 C. Wilkinson, ‘The Public Trust Doctrine in Public Land Law’ (1980) 14(2) UC Davis Law Review, pp. 269–316, at 277–8.

97 Ibid., p. 284.

98 Huffman (2015), n. 13 above, p. 365.

99 Ibid., p. 368.

100 Wood, M., ‘“You Can’t Negotiate with a Beetle”: Environmental Law for a New Ecological Age’ (2010) 50(1) Natural Resources Journal, pp. 167–210 Google Scholar, at 203.

101 Huffman (2015), n. 13 above, p. 363 (referring to Lochner v. New York, 198 US 45 (1905); Muller v. Oregon, 208 US 412 (1908); and Griswold v. Connecticut, 381 US 479 (1965)).

102 Wood, n. 75 above, pp. 122–3.

103 Wood, n. 100 above, p. 203.

104 US Const. Amend. X: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people’. See, e.g., Printz v. United States, 521 US 898 (1997) (a provision in the Brady Handgun Violence Prevention Act requiring sheriffs to undertake background checks before registering transfers of handguns violated the Tenth Amendment because it sought to ‘commandeer’ state executive functions).

105 See R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5.

106 Finn, P., ‘The Forgotten “Trust”: The People and the State’, in M. Cope (ed.), Equity Issues and Trends (Federation Press 1995), pp. 131–151 Google Scholar.

107 Finn, P., ‘Public Trusts, Public Fiduciaries’ ( 2010 ) 38 Federal Law Review, pp. 335–351 CrossRefGoogle Scholar.

108 Ibid., p. 336.

109 Holmes, n. 11 above, p. 1.

110 Fox-Decent, E., Sovereignty’s Promise: The State as Fiduciary (Oxford University Press, 2011)CrossRefGoogle Scholar; E. Fox-Decent, ‘From Fiduciary States to Joint Trusteeship of the Atmosphere: The Right to a Healthy Environment through a Fiduciary Prism’, in Coghill, Sampford & Smith, n. 64 above, pp. 253–68, at 253.

111 Wood, n. 75 above, p. 152.

112 Ibid.

113 Ibid.

114 N. 105 above.

115 See L. Green, ‘Should Parliamentary Sovereignty Trump Popular Sovereignty?’, Semper Viridis (2016-11-03), available at: https://ljmgreen.com/2016/11/03/should-parliamentary-sovereignty-trump-popular-sovereignty.