Within three days in March, ACOEL lost two Fellows who were among the most important figures in the history of environmental law. David Sive, who died on March 12, 2014, was memorialized on our blog in the March 26, 2014 posting by our colleague Daniel Reisel, Mr. Sive’s longtime law partner. Three days earlier, on March 9, 2014, Professor Joseph L. Sax died in San Francisco at the age of 78.
Joseph Sax, Professor Emeritus at the University of California, Berkeley, was responsible for establishing the public trust doctrine in environmental law; the concept that there is a public interest in the protection and preservation of certain natural resources such as water bodies, shores, air and particular lands. He wrote of the principle in a seminal 1970 article in the Michigan Law Review, “The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention.”
The doctrine was taken up by environmental advocates as the basis to pursue both legislative initiatives to protect natural resources, and judicial actions and remedies to conserve lands, waterways and air.
In 1979, the National Audubon Society, evoking the public trust doctrine, sued in California state court to enjoin the Los Angeles Department of Water and Power from diverting certain waters from non-navigable tributaries of Mono Lake, far north of the City, due to the impact that the diversions would have on the lake itself. In February, 1983, the Supreme Court of California, referencing a number of the historical antecedents discussed in Professor Sax’s Michigan Law Review article, and citing the article itself for its history of the doctrine, rendered an important and influential decision in favor of the National Audubon Society, recognizing the application of the public trust doctrine both to navigable waters such as the lake, and to the non-navigable tributaries that feed it.
The doctrine has been incorporated in the laws of a number of states, including the Michigan Environmental Protection Act of 1970, which Professor Sax wrote while on the faculty of the University of Michigan Law School. It has also been adopted in other nations. According to the obituary published in the New York Times, the doctrine has been has been advanced almost 300 times in litigation in state and federal courts in the United States.
Professor Sax graduated from Harvard University (1957) and the University of Chicago Law School (1959). Before beginning his long and distinguished teaching career, he worked at the Department of Justice. He began teaching at the University of Colorado in 1962, then went to the faculty of the University of Michigan in 1965, and joined the U.C. Berkeley School of Law faculty in 1986. Throughout his career as a teacher and scholar, Professor Sax was actively involved in advancing environmental causes and advocacy. From 1994 to 1996, he also served as counsel to Secretary of the Interior Bruce Babbitt, during the Clinton administration.