Joseph L. Sax was teaching mining, oil and water law in the 1960s when he realized the plundering of America’s natural resources was wrong—that it violated the “public trust.” His research and activism led to a dozen U.S. states adopting environmental laws based on the Michigan Environmental Protection Act that he authored, “the first statute in history to authorize citizens directly to enforce their right to environmental quality.”
Even those of us who were alive in the late 1960s have mostly forgotten what so much of America was like before the environmental laws that swept the nation in the early 1970s. The skies over the cities were toxic brown, open-air garbage dumps marked the edge of town, polluted riverbanks and lake shores were barren of plants and animals. I saw my first wild hawks and eagles in the 1990s, decades after their slow recovery brought these raptors back from the verge of extinction.
On the occasion of Joseph Sax’s death in San Francisco last week, the New York Times notes the scope of his accomplishment, and how his wide knowledge of ancient law informed his view that the fate of the planet should not be entirely decided by industrialists.
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.
By legally establishing the “public trust” necessary to protect the sky, water and land from complete destruction by industrialists, Joseph Sax upended two centuries of American law. He proved that one person really can change the world for the better, but his accomplishment also shows the importance of these groundswells of public passion. Had Joseph Sax done the same work in the 1940s, it would have likely gone unnoticed in an era dominated by world war and economic collapse. Advocacy for the “public trust” in the 1950s would have likely fallen to anti-communist hysteria.
But in the time between Rachel Carson’s Silent Spring and the first Earth Day, people were ready. The appetite was there for big changes, fast, and nothing illustrates this more than the sweeping environmental protection laws enacted in the late 1960s and early 1970s. The Clean Water Act, an updated Clean Air Act, the Wild and Scenic Rivers Act, the creation of the National Oceanographic and Atmospheric Administration, the Marine Mammal Protection Act, the Endangered Species Act, the banning of the eagle-killing pesticide DDT, and the establishment of the Environmental Protection Agency all happened during this rush to stop the destruction of nature and the fouling of our shared resources and habitat.
And most of this happened during the presidency of Richard Nixon, who presided over this great surge of environmental regulation simply because America demanded it. Industry had yet to rebrand Republicans as hostile to the protection and enjoyment of the natural world. Nixon signed one immense environmental law after another because it was the popular thing to do.
The worst we can do today is look at Joseph Sax’s achievements as part of a lost era, a time of greatness past. If the embrace of Professor Sax’s views on nature and the public good could occur during the cynical and paranoid Nixon Era, think of what is possible in these “mainstream green” days of four decades later. And anyway, Joe Sax did not stay in the 1970s—he kept fighting, kept doing his crucial work. The photo above shows Joseph L. Sax not in the 1960s black-and-white portrait of his New York Times obituary, but being honored last year by the Mono Lake Committee. His legal breakthroughs led to the protection of that weird and beautiful national treasure on the California-Nevada line. His philosophy of leaving national parks in a natural state was still controversial in the 1980s when he published Mountains Without Handrails: Reflections on the National Parks.
The next Joseph Sax may be toiling at a corporate law firm today, or making apps in Silicon Valley, or otherwise standing at a split in the trail, with a reasonably safe professional career in one direction and wild possibility in the other. You probably know people like this, you probably are one of these people. Might as well take the other way. At least it won’t be dull!
Photo courtesy of the Mono Lake Committee.