One of the oldest doctrines of environmental law, the public trust doctrine, is sufficiently ambiguous that it risks threatening widespread adoptions of alternative energy sources such as wind energy. Because of this, the public trust doctrine threatens the protection of the environment in the name of protection of the environment. Yet, the public trust doctrine and future energy policy should be complementary and not exclusionary of each other. In light of this, whether an agency has public trust authority should be determined based on six factors: the legal authority of state fiduciaries; due diligence by state fiduciaries in determining if actions are in the public interest; state fiduciaries’ responsibility to mitigate harm; state fiduciaries’ responsibility to manage protected resources and uses; state action that risks or causes substantial harm to a protected resource must be outweighed by the benefits to the entire State’s resources; and State action that risks or causes substantial harm to a protected public use must be outweighed by the benefits to protected resources or the public interest. Without significant change to environmental laws, particularly the public trust doctrine, environmental law runs the risk of ceasing to become a coherent body of law.



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