In recent years, much has been written about trust principles as a useful lens through which to view environmental obligations – particularly with respect to the obligations of the present generation to those who will live in the generations to come.
Underlying much of this discussion is the ancient principle of the public trust doctrine as a vehicle for meeting that intergenerational responsibility. However, while trust theory enjoys an impressive legal pedigree, it has not gained as much traction in American environmental law as might be effective for addressing contemporary environmental issues.
One reason that the trust model is not as effective as it could be in the environmental context is because there are parts of the trust analogy that simply do not exist in a clear, obvious way. Traditional trust doctrine requires a settlor, who entrusts the defined res of the trust to a trustee (or to multiple trustees) in a trust instrument that clearly sets forth obligations to defined classes of beneficiaries, present and future. The actions of the trustee are governed by the demands of the trust instrument as well as by well-established fiduciary obligations. The trust analogy in the environmental law context lacks all of these.
Paradoxically, at the very same time, today’s dissatisfaction with the highly politicized environmental statutory and administrative regime gives the trust doctrine a renewed appeal because of its straightforward conceptual approach and its deeply moral, rather than merely pragmatic, underpinnings. Yet, this appeal does not easily translate into a clear-cut path for using trust doctrine in a reasoned and effective way, in spite of recent efforts to do just that.
This paper will consider whether there is any value in creatively borrowing from trust law to devise a more narrowly focused way to keep the needs of the future in our present debates. This paper will begin by acknowledging the importance of intergenerational solidarity and the solemn responsibility of preserving environmental assets for future generations. It will then, very briefly, review the ways in which trust doctrine has been a vehicle for expressing and implementing principles of intergenerational responsibility in the environmental context. It will then discuss the practical difficulties with the trust paradigm in the environmental context. The paper will then propose that one approach to making ancient trust theory more useful as a way to protect environmental resources is to incorporate, in some manner, the modern concept of a “trust director” or “directed trust” function into the environmental regulatory regime. It will first discuss what a “directed trust” means in the private trust context. Then, it will explore some of the reasons such a model may be of use in the complex realm of environmental protection.
Lucia A. Silecchia, A "Directed Trust" Approach to Intergenerational Solidarity in American Environmental Law and Policy: A Modest Proposal, 45 Wm. & Mary Env't L. & Pol'y Rev. 377 (2021).