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Virginia Environmental Law Journal


This article situates the modern public trust doctrine (PTD) in contemporary trust law. Grounding the PTD in trust law leads to two important corollaries. First, the PTD planted in trust law imposes upon government actors and agencies trust law’s fiduciary duty of loyalty. In the context of the PTD, that duty of loyalty runs to the public as the beneficiary of the PTD. Second, faced with plausible claims that this fiduciary duty of loyalty to the public has been violated, courts should apply trust law’s de novo standard of review to those administrative and legislative decisions alleged to impair public trust resources. Such searching review stems from recognition that public trustees of the environment invariably confront conflict between their fiduciary obligation of loyalty to the public and the private interests which seek to capture such trustees and the natural resources they control.

In light of that conflict between public and private interests, when evaluating PTD claims, courts should deploy trust law’s de novo review rather than using one of administrative law’s deferential standards of review. Since public trustees are trustees with trust law’s duty of loyalty to the public, their compliance vel non with that fiduciary duty of loyalty should, as a matter of trust law, be assessed by the courts de novo rather than deferentially in light of the conflicts such trustees invariably confront.





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University of Virginia School of Law


Administrative Law | Environmental Law | Estates and Trusts | Law



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