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.
