1349. Joseph L. Sax, Pioneer of Environmental Law, Dies

By Douglas Martin, The New York Times, March 11, 2014

Joseph L. Sax in 2013

Joseph L. Sax, a legal scholar who helped shape environmental law in the United States and fuel the environmental movement by establishing the doctrine that natural resources are a public trust requiring protection, died on Sunday at his home in San Francisco. He was 78.

The cause was complications of a series of strokes, his daughter Katherine Dennett said.

In 1970, as Americans were becoming increasingly alarmed about pollution, Professor Sax emerged as one of the most prominent of a new breed of lawyers focusing exclusively on the environment.

That year, amid concerns about smog and contaminated waterways, 20 million Americans were mobilized to participate in Earth Day, and President Richard M. Nixon signed the Clean Air Act and legislation creating the Environmental Protection Agency, a year after the Council on Environmental Quality was created in the executive branch.

In his signal achievement, Professor Sax reached back to ancient Roman law to formulate a far-reaching legal doctrine that recognizes the air, seas and other natural resources as a public trust that must be protected from private encroachment.

He traced his work on the issue to the early 1960s, when he was a law professor at the University of Colorado teaching courses on mining, water, and oil and gas law. He realized then, he said, that he was grooming lawyers who might one day help companies extract resources, mainly from public lands.

He asked, as he recalled in an interview last year, “How come there’s no public dimension to natural resources law, and the public who uses these areas and actually owns most of them doesn’t have a say in what goes on?”

By 1970 he had an innovative answer. In an article frequently described as seminal, Professor Sax proposed that some natural resources — the oceans, other bodies of water, shorelines, the air and portions of land — are so important that they should be treated in the courts as a “public trust,” and that citizens had the right to sue to protect them against government, business and private individuals who might threaten them.

Other legal scholars questioned his reasoning, saying that few constitutional or statutory precedents supported it. But Professor Sax found justification in Roman law, in English common law and, perhaps most persuasively, in an 1892 case in which the Illinois Legislature voted to grant the Illinois Central Railroad ownership of 1,000 acres of Lake Michigan shoreline.

The United States Supreme Court rejected the deal, saying such land was “held in trust for the people of the state.”

The public trust doctrine has spread to constitutions and laws in at least a dozen states, and has been used as a common law basis for decisions in others. Professor Sax himself wrote Michigan’s environmental act, which became law in 1970. (By then he was teaching at the University of Michigan.) From 1997 to 2008 the doctrine was used in nearly 300 federal and state decisions.

“It’s now really part of our law,” Carol M. Rose, a law professor at Yale and the University of Arizona, said in an interview.

The doctrine has been adopted in a host of other countries, including India, Pakistan, the Philippines, Uganda, Kenya, Nigeria, South Africa, Brazil, Ecuador and Canada.

Professor Sax’s article, in The Michigan Law Review, coincided with an explosion of environmental concern. Lawyers wielded the public trust doctrine along with an arsenal of new laws in pursuing an increasing number of conservation cases in the courts.

The doctrine’s importance grew in 1979 when the National Audubon Society and others successfully sued the State of California for allowing Los Angeles to tap tributaries of Mono Lake, several hundred miles north of the city. Mono Lake was subject to traditional interpretations of the public trust because it was navigable, but the streams and creeks feeding it were not.

The California Supreme Court ruled that nonnavigable streams also merited protection, citing the public trust doctrine and Professor Sax by name.

The case opened the way to an expansion of the doctrine to include land, wildlife, air and beaches. Professor Sax saw even cultural resources as belonging to the public trust. In his 1999 book, “Playing Darts With a Rembrandt: Public and Private Rights to Cultural Treasures,” he argued that someone offended by a portrait of himself should be able to prohibit its exhibition only during his lifetime.

Joseph Lawrence Sax was born in Chicago on Feb. 3, 1936, and loved to hike, canoe and ride horses. He graduated from Harvard in 1957 and the University of Chicago Law School. He worked for the Justice Department and in private practice before joining the University of Colorado in 1962. There, he helped Sierra Club efforts to curb development on the Colorado River.

He began teaching at the University of Michigan in 1965. In 1968, he joined a campaign to stop the use of DDT; a lawsuit failed in court, but it persuaded 39 cities to stop using the pesticide. He became intrigued with how a majority of people with diverse interests often lost to a minority intensely focused on one interest.

“While attention is focused on majorities who deal badly with minorities, powerful and organized minorities are having their way at the expense of the majority,” he said in an interview with The New York Times in 1969. “Remote, profit-seeking interests have become skillful in manipulating governmental processes to their own ends, and often to the virtual exclusion of citizens who will be affected.”

But lawsuits, he said, can force “a silent wedge of attention into governmental decision-making.”

Professor Sax served as counsel to Interior Secretary Bruce Babbitt during the Clinton administration, particularly on strategies to protect endangered species’ habitats.

“Unlike a lot of academic people, he understood that ideas ultimately would make a difference if they were relevant and coherent in a political context,” Mr. Babbitt said in an interview. “That’s what made him so valuable to me.”

Professor Sax later taught at the law school of the University of California, Berkeley. In 2007 he received a Blue Planet Prize, which is given by the Asahi Glass Foundation and has been likened to a Nobel for environmental science.

Professor Sax’s wife of 55 years, the former Eleanor Gettes, died in December. In addition to his daughter Katherine, he is survived by two other daughters, Valerie Sax and Amber Rosen, and four granddaughters.

Mr. Sax never denied that the success of his legal doctrine owed much to the rising tide of environmentalism in 1970s America.

“I don’t mean it in a bad sense,” he said, “but I think if you’re going to work on issues like environmental protection, you have to be opportunistic in the sense that you wait until the time is ripe, and then you can get some things done.”