Can environmental legislation still protect the Commons?

December 19, 2004
by Mark Dowie

With privatization of natural resources sweeping the country like a new dance, it’s time to polish up a venerable legal weapon: the Public Trust Doctrine.

Excerpt:
In the early 1900s, a company known as Waiahole Water constructed an elaborately engineered ditch and tunnel system across the Hawaiian island of O’ahu. Its purpose was to channel stream water from the island’s windward, rainy side to sugar plantations on its drier side. By the 1990s, the ditch was delivering an average of twenty-seven million gallons a day to leeward O’ahu, usurping water that had once been used by small taro farms on the windward side. The so-called Waiahole Ditch left these traditional farmers high and dry.

In 1993, Amfac, the island’s last big sugar producer, ceased operations, and a legal battle over the water ensued. Native groups, represented by the environmental law firm Earthjustice, fought to restore the streams and their traditional uses, while suburban developers and their lawyers fought to keep the water flowing through the Waiahole Ditch for use on golf courses, and for condominiums and new hotels. The state’s Commission on Water Resources held seven months of hearings in the mid-’90s, then ruled that twenty percent of the flow diverted via the ditch would be restored to the eastern streams. The rest, they said, could be used for commercial purposes on the west side of the island.

This ruling was a minor victory, as millions of gallons of water were restored to the original watercourse and some small farms returned to production. However, Earthjustice appealed the decision to the state Supreme Court, which in August of 2000 ruled in favor of the Native Hawaiians. The court ordered the cancellation of all permits the commission had issued to developers for water withdrawals, citing a little-known legal principle called the Public Trust Doctrine, which says that common resources such as water are to be held in trust by the state for the use and enjoyment of the general public, rather than private interests.

(Read the original story here)