The Mississippi Department of Marine Resources is currently reviewing rules that would allow for oil and gas development in state waters to determine if they are consistent with the Mississippi Coastal Plan. This consistency review involves the management of coastal assets that fall under the public trust doctrine. The basis for the doctrine is fifteen centuries old and is given in Roman Emperor Justinian’s Institutes (2.1.1): “The air, the rivers, the sea and seashore are incapable of private ownership; they are dedicated to the use of the public.” Its rationale was, in part, that maritime trade depended on free passage between ports and on the reliable and easy use of seashores and other places to land a ship and goods. To promote commerce and the general welfare, the sovereign held certain things for unencumbered use of citizens.
Fast forward to today. Justinian’s doctrine matured, migrated, and filtered into the legal systems of Spain, France and England and later into American Common Law. We have this doctrine in use in Mississippi case law and state regulations. The public trust gets a specific reference in the Mississippi Coastal Program’s regulation document: wetland and ecosystem preservation are favored, but specific alterations to specific wetlands and ecosystems must be in compliance with the public purposes of the public trust. (Goal 2 Chapter 1 of the MCP)
From Roman Empire times to present day Mississippi, the doctrine still has a sovereign (the Legislature) managing public assets for the use and benefit of the state’s citizens. The Legislature shares some of its regulatory power with agencies like the Department of Marine Resources (MDMR) that carry out trust duties. The MDMR consistency review now being written on the leasing and seismic testing rules is about public trust assets in the coastal zone. Does development of oil and gas under state waters fit with the management of the other valuable assets in the public trust: wetlands, ecosystems, seafood, air and water quality, natural scenic qualities (tourism), and the national interest? This analysis requires balancing economic benefit with risk of economic and ecological harm.
Justinian’s code recognized that the coastal zone merited special treatment under the law. Mississippi’s Coastal Zone is a special place and deserves resource management decisions tailored to its unique assets and setting. It has its own set of regulations to guide these decisions. The MDMR’s consistency review should have a hard time justifying unbridled oil and gas exploration that can directly and indirectly harm the other valuable assets in the Mississippi Sound and in state waters offshore of the barrier islands. We will soon find out how well MDMR acts as trustees over these assets. The agency’s decision will be announced before November 19th.
Andrew Whitehurst is Water Policy Director at Gulf Restoration Network.