Mobilizing the Public Trust Doctrine in Support of Publicly Owned Forests as Carbon Dioxide Sinks in India and the United States

摘要

Notwithstanding the challenging factual issues that any court would need to resolve in order to determine whether a publicly owned forest had been diverted to a use incompatible with its role as a CO_2 sink, precedents exist for many essential elements of a public trust cause of action in support of that role in both India and the United States. American courts have applied the traditional public trust doctrine to publicly owned forests, albeit not in upland contexts, and have recognized the protection of certain trust lands for their favorable impacts on climate as a protected public use. They also have applied the federal public trust doctrine to federally owned forested lands in appropriate statutory contexts. The U.S. Forest Service, which manages sixty percent of all publicly owned forested lands in the United States, has proposed to consider their value in mitigating climate change in its land management planning for national forests, thus making clear that the agency considers any public trust obligations imposed on it by statute to permit, if not necessarily to require, the management of those forests for CO_2 sequestration purposes. Although fewer precedents exist in India than in the United States for essential elements of a public trust cause of action in support of publicly owned forests as CO_2 sinks, India probably offers a more fertile field for realizing their full potential, at least in the near term.