Buffalo Environmental Law Journal

First Page


Document Type



In Copyright


The origins of the public trust doctrine ma} be traced back to Roman laiw. The Institutes qf Justinian state: "By the lav of nature these things are common to all mankind - the air running water the sea, and consequently the shores of the sea. " The traditional scope of the public trust doctrine in the United States affirms the public right to use waters for navigation, fishing, and commerce. The precise expression of the doctrine varies from state to state because each state is responsible for applying the public trust doctrine within its borders. New York applies the doctrine to prohibit the alienation of parkland or the conversion of parkland to non-park use absent authorization by the Legislature. Uncertainties remain, howtever as to the full scope of lands and actions covered under this doctrine. For instance, no court has spoken directly to the doctrine's applicability to a subsurface use or alienation. This question has gained new sign/ifcance as Yew York takes steps toward commencing shale gas development within the state. Regulations proposed by the Aeui York State Department (fEnvironmental Conservation iwould permit the exploitation qf shale gas resources underlying state lands provided such resources are accessed iwithout disturbing the land surface. This ma be accomplished via a horizontal iwellbore connected to a iwell sited on adjacentprivate land. This article examines the scope of the alienation ofparkland doctrine and examines its applicability to subsurface impacts ofshale gas development.