I argue that the public has a current and continuing interest in the air resource. This commonly held interest requires that where the government has sanctioned the private trading of this asset the government must account for the profits of such trades. In short, it is not the government's property to give away. Ancillary benefits associated with cleaner air do not offset the public's interest in the value of the resource, especially where the regulatory scheme has effectively precluded private action in defense of the resource. This does not discount the government's obligation to protect the resource from predation; it merely suggests that the government's obligation is not exhausted by that effort. The government in those moments is acting both as a trustee and a referee. As a trustee it must protect the basic value of the resource. However, when it acts to alienate the resource to the detriment of other rightful claimants it has a high burden of justification that it must meet. While there has been no generalized public trust obligation imposed on the federal government, the federal government has recognized that it acts in a trustee capacity towards public resources. Yet this recognition can scarcely be enough. The limiting principle buried in that trustee role must arise from independent obligations that ground both claims to democratic legitimacy and protection of property. The law surrounding the evolution of the public trust doctrine suggests the contours of those obligations.
In addition to the property roots of the public claim on the air resource, economic research supports the conclusion that the efficiency gains made by using market mechanisms to reduce pollution also supports the capture by the government of scarcity rents created by the allocation of pollution rights. Put another way, the protection of the property interest of the public that is reduced to tradable pollution rights makes economic sense, as well as being justified by our deeply held normative commitments reflected in property doctrine. Moreover, when the efficiency arguments are combined with arguments rooted in equity claims, some of the benefits of the market mechanisms may be diminished, but other values like our commitments to equality and democratic legitimacy may be strengthened. We have looked at the sky as though it were a common resource free of any substantial public interest other than the protection of its quality. Yet by taking this narrow view we have permitted the government to transfer a substantial public resource to private hands free of charge. It is this failure that I have been arguing against.
Gerald Torres, "Who Owns the Sky?", 19 Pace Environmental Law Review (2001)