Once the federal government retreats from environmental protection, some states are working to fill that void and sought lawsuits to remedy the harms that arise from climate change and other environmental damage.
The Hawaii Attorney General filed such lawsuits last month against oil companies such as BP, Shell and Exxon. The complaint includes eight separate causes of action.
The Hawaiian Constitution encompasses what is known as the doctrine of public trusts, declaring that “all public natural resources are trusted by the state for the benefit of the people.” As a trustee, the complaint argues that the state has a “constitutional obligation to protect these resources, including water resources,” and that the defendant’s deception regarding fossil fuels “has hurt, threatened, and threatened the state’s public trust resources and unfairly obstructed the use and enjoyment of public trust resources.”
Hawaii’s litigation is part of the trend in environmental litigation. Over the past eight years, at least 10 states and even more cities have filed similar complaints as Hawaii, claiming that businesses are hurting public trust resources. These lawsuits target fossil fuel companies, plastic manufacturers and PFA manufacturers (so-called eternal chemicals, especially polyfluoroalkyl substances) on behalf of the citizens. They usually rely on public nuisance, private nuisance and deceptive trade practices, and they claim that companies know their products are causing harm, but continue to mislead consumers about safety. In doing so, businesses are undermining the use and enjoyment of resources that are common to everyone, such as air, water, and land.
For example, in a November 2024 complaint against major oil companies, Maine’s Attorney General argued that fossil fuel defendants continue to “create, cause, contribute, and continue to “state-owned use and enjoy the use and enjoyment of state-owned property””.
While the discussion of Maine’s public trusts has been made as part of a broader legal theory, Hawaii does not only organize the doctrine of public trust as a clear legal basis for relief. Rhode Island’s 2018 complaints and New Jersey’s 2022 complaints both claim the impairment of public trust resources as separate numbers. The New Jersey filing alleges that the defendant’s “torturistic and deceptive conduct has already been significantly damaged and significantly harmed public trust resources throughout New Jersey.” The New Jersey complaint was rejected in February 2025, and the court found the case relating to interstate and international emissions and therefore complied with federal law. The rest of Rhode Island is pending.
The Public Trust Doctrine provides for governments to protect on behalf of future generations as trustees of natural resources “common to humanity.” Due to the origins of Roman law, early iterations of public trust in US law protected “the public values of fisheries, voyages and commercial associated with waterways.” The first legal decision to link public common resources, such as waterways, to the doctrine of public trust was the 1821 New Jersey Supreme Court suit regarding rights to tide waterways and ownership of submerged oyster formations. The US Supreme Court was also held in 1892 and accepted the doctrine. Illinois Central Railroad V. Illinois “The state holds the title of land under the navigable body of water… Trusted for the people of the state, they enjoy the voyage of the water, continue their business dealings on them, and have freedom of fishing within it, and are free from the obstruction or interference of private political parties.”
Since then, doctrine has evolved both in purpose and scope through customary law, statutory law and constitutional law, with considerable variation from state to state. This doctrine, once used primarily to resolve disputes over ownership and access to waterways, is considered to impose a positive obligation on the state to protect resources for the benefit of current and future citizens. The types of “resources” protected under public trusts are also expanding to include air and other public values.
The constitutions of some states explicitly and clearly express this broader obligation. The Hawaiian constitution includes a drastic language, defining public trust resources, including “land, water, air, minerals and energy sources are held for the benefit of the people.” Similarly, the Pennsylvania constitution ensures that citizens “have the right to clean air, pure water, and preserve the natural, scenic, historical and aesthetic values of the environment” and that “as a trustee of these resources (Pennsylvania) will save and maintain them for the benefit of all.” In contrast, Idaho’s law limits the obligation to public trust to “navigable waters.” In some states, like New Jersey, the doctrine of public trusts is based solely on customary law.
These variations in scope and purpose may help explain the differences in how states incorporate arguments of public trust into climate deception cases. Whether it is treated as a standalone claim, like the Hawaiian lawsuit, or part of a broader legal theory, like the Maine complaint, public trust-based lawsuits currently face federal pushbacks. The day before the Hawaiian lawsuit was filed, the Justice Department sued the state, claiming that the state’s lawsuits and laws were hampering the Trump administration’s national energy strategy. Citing an executive order issued by President Donald Trump in early 2025, the agency argues that the national efforts to address climate change and climate deception claims have been preempted by the Clean Air Act and violated the president’s diplomatic forces. On the same day, the Justice Department filed a similar lawsuit against the state’s climate deception lawsuit and against Vermont and New York, which was enacted to recover costs associated with climate-driven disasters such as floods, against Michigan.
As federal resistance to efforts to combat climate change continues and the nation continues to evoke the doctrine of public trust to combat climate harm, courts are asked to clarify the scope and boundaries of national authorities.
Sarah J. Morath is a professor of law at Wake Forest University Law School and is Associate Dean of International Affairs.
Suggested Quote: Sarah J. Moras, Hawaii’s lawsuit against oil companies alleges “harm to public trust resources”sᴛᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (June 10, 2025), https://statecourtreport.org/our-work/analysisis-opinion/hawai-lawsuit-gainst-oil-kompanies-pupupup public-rust-sources