Oil and the Public Trust Doctrine in Washington

Abstract

The tragic spill of millions of gallons of oil into Alaska's Prince William Sound alerted the people of Washington to the danger of spills in Puget Sound. In Washington, the danger heightens as the amount of oil transported through the Sound increases. Indeed, Coast Guard figures show about 1,500 tanker movements in Puget Sound in 1988, a 50 percent increase over 1974.2 Moreover, the spill from the Exxon Valdez taught us that, because very little can be done after a spill, the only truly effective means of preventing damage from oil spills is to prevent them in the first place. This Article proposes a unique source of prevention: the public trust doctrine. The public trust doctrine dates from ancient times and protects the public interest in navigation, commerce, and fisheries. The trust gives to the public an easement-like interest, which predates all private ownership,in the protected resources. The fundamental resources to which the public trust applies are navigable waters, their tributaries, and their beds. However, state courts are now expanding the doctrine to protect the public's interest in recreation," wildlife habitat, and water-quality management. The doctrine is both a source of, and a limitation upon, legislative and administrative power over the protected resources. The doctrine also provides common law remedies to the state as well as to private citizens, beyond existing statutes, for threats or damage to public trust resources.