Many analysts, including the presidentially appointed U.S. Commission on Ocean Policy, have simply assumed that the public trust doctrine already extends to these federal waters, notes co-author Stephen Roady, senior lecturing fellow at Duke's School of Law and an environmental lawyer at Earthjustice. "Though the public trust doctrine is well suited to serve as a critical legal foundation for a coordinated, ecosystem-based federal ocean policy, it has not yet been formally articulated by the executive branch, nor has it been recognized by federal courts or expressly established in statutory law," Roady says.
The Duke researchers identify three possible avenues for establishing a public trust doctrine for federal waters.
"Each of the three branches of government has the authority to take action," says Larry B. Crowder, Stephen Toth Professor of Marine Biology at the Nicholas School and director of Duke's Center for Marine Conservation. "The doctrine could be established by a Presidential executive order; federal courts could extend it to the U.S. territorial sea and EEZ by invoking the same precedents and statutes relied upon by state courts; or Congress could mandate it by unambiguously writing the doctrine into a federal oceans law."
Regardless of which approach is used, the need to establish the doctrine is pressing, says Raphael Sagarin, associate director for coastal and ocean policy at Duke's Nicholas Institute for Environmental Policy Solutions.
"We need to move past th
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