Volume 52, Issue 4

The Chilean public, which has expressed widespread dissatisfaction with Chile’s environmental policies, recently rejected a new constitution that would have entrenched the public trust doctrine in the country’s fundamental charter. The rejection had little to do with the public trust provisions in the proposed constitution, and Chile’s president has promised a revised constitution will be drafted for a second referendum soon. This Article maintains that the revision should continue to include the public trust provisions.

The ancient public trust doctrine, which emanated from Roman law and was reflected in the 13th century Spanish treatise Las Siete Partidas, offers the promise of making publicly enforceable commitments to environmental protection that under current Chilean law have been discretionary, and therefore unfulfilled. An interdisciplinary white paper sponsored by the Chile California Conservation Council in 2021 drew on language from the Pennsylvania Constitution in recommending that the convention drafting the constitution include the public trust doctrine. The convention did in fact include public trust principles in the proposed constitution that was rejected. This Article explains what the public trust doctrine would mean to Chileans if future iterations of the constitution retain public trust doctrine language, arguing that such revisions will better position Chile to meet the environmental challenges ahead while accommodating the country’s commitment to private property.

There is a better way. Federal agencies charged with administering section 7(a)(2) should instead focus on maintaining minimum survival thresholds and species’ timely progress toward recovery in interpreting what it means to “jeopardize” listed species. These agencies should also embrace a “no net loss” approach to conservation of the physical and biological features of critical habitat that are essential to species’ recovery. While far-reaching, these reforms require no amendments to the ESA itself, and only minor changes to regulations interpreting the law. Additionally, this approach to biodiversity conservation is consistent with both the vision of the Congress that passed the ESA and the language of the ESA itself and would significantly advance U.S. protections for its most imperiled species and the ecosystems upon which they depend. At the same time, these reforms would improve standards for management of protected areas in the U.S. and thus help fulfill President Biden’s commitment to advancing biodiversity conservation and slowing climate change through protecting at least 30% of land and marine areas under U.S. jurisdiction.

Public green spaces, such as parks, sporting fields, streams and riverbanks, trails, and community gardens, are extremely beneficial to the health and wellbeing of a community. Unfortunately, environmental justice (EJ) communities, including low-income communities of color, are largely excluded from these benefits compared to middle and upper income communities. The federal government has acknowledged this disparity by providing competitive grants to fund green spaces in underserved neighborhoods. However, the current grant-based system does not address the systemic disenfranchisement that helps define EJ communities, and is therefore unlikely to properly address the absence of green space. This Comment explains the specific benefits of green space and the level of disparity between EJ communities and middle and upper income communities. It then outlines the current federal grant-based system, which primarily relies on state applications and matching funds. Next, it discusses why the current grant-based system is a poor solution to the lack of green space in EJ communities. Finally, this Comment provides alternative methods of properly funding equitable green spaces. While the current grant-based system is ill-equipped to solve the disparity in access to green spaces, the Biden administration is showing an interest and emphasis on environmental justice, which will hopefully allow EJ communities to come closer to matching the green space available in middle to upper income communities.