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Dec 05, 2014
With the passing of Joseph L. Sax this past spring, Berkeley Law and the global environmental community lost a beloved colleague, friend, mentor, and hero. At the time, we offered some words in his honor on Legal Planet. (link: http://legal-planet.org/2014/03/10/in-memoriam-joseph-l-sax-gentleman-scholar-giant-of-environmental-law/) We are very pleased to have another occasion to celebrate him here in Currents. The Environmental Law Section of the State Bar of California has quite appropriately named Joe as the recipient of its inaugural Lifetime Achievement Award in recognition of “his significant and profound role in shaping modern environmental law.” To celebrate Joe’s many and varied contributions we offer here three tribute essays. Joe’s longtime friend and colleague Dan Tarlock celebrates Joe’s role in the founding of environmental law with a remembrance of the Airlie House conference, often considered the field’s founding moment. Joe DiMento, a student of Joe’s at Michigan who became a co-author, friend, and close colleague, captures Joe’s scholarly brilliance and the global importance of his career, as well as his personal influence on students and others. Chris Carr, who also first encountered Joe in the classroom, remembers Joe as a towering figure in the field, a mentor, and an inspiring lunch companion. Together these pieces offer a picture of two vital aspects of Joe Sax: he was, of course, a leading scholar and advocate in the fields of environmental and natural resources for more than fifty years. He was also, just as importantly to the field and those in it, a teacher, mentor, and personal inspiration who brought many of us into the field, helped us develop our own expertise, and encouraged us to make our own contributions. The combination of these two sets of contributions ensures that while Joe is and will be deeply missed, his influence will continue far into the future.
A. Dan Tarlock
Environmental law did not evolve over a period of time, as have almost all areas of law. It was consciously created by a small group of lawyers and academics between the late 1960s and early 1970s. One of the seminal events in the creation of the field was the September 1969 conference held at Arlie House in northern Virginia. The Arlie House Conference was organized and funded by the conservation community. At that time, environmental protection meant primarily the protection of large areas of public land from development and the acquisition of private land for open-space preservation. Thus, it was natural that two pillars of the small conservation community in Washington, D.C., the Conservation Research Foundation and the Conservation Foundation, took the lead in bringing together a group of academics, lawyers, congressional aids, and others struggling to create a new field. The conference was a great success. As the introduction to the published proceedings accurately reported, it was a “fertile exchange among many lawyers who are breaking new ground,” and it helped create the notion that we in what soon became environmental law were part of a special community.
In 1968, when the idea for the conference took shape, the task seemed daunting. Environmental values were ignored by the mission agencies, which were intent on pouring as much concrete and cutting as many trees as possible. The possibilities of obtaining standing to sue them and of finding a legal basis to challenge their New Deal-entrenched discretion seemed remote. As the Santa Barbara oil spill in January of 1969 reminded us, pollution was widespread despite the common law’s prohibition against nuisances.
Joe Sax was the youngest of the three academics on the conference steering committee. In retrospect, it seems almost unthinkable that he was not the lead speaker, but he was not asked (or declined) to prepare a paper. Instead, he moderated the first session, and as he would do so often in his career, he briefly and modestly made major contributions to the issue at hand. Specifically, his contribution to the conference showcased one of the many important characteristics that made him the most influential member of a small group of founders of environmental law. From the start to the untimely end of his extraordinarily distinguished career, Joe was first and foremost a lawyer. He had a clear understanding of reasons why the dice are always loaded against environmental protection, and he thought long and deeply about how to use the existing legal system to give environmental values a fighting chance. In 1969, he was just on the verge of stardom. For example, his name does not appear on the list of 358 existing “environmental” articles compiled for the conference. The paper on the possible use of the public trust, Law in Action: The Trust Doctrine, was written by three lawyers whose practice concentrated on the then-Federal Power Commission. However, the authors did direct readers to Joe’s forthcoming classic article, noting that “the analysis is an absolute necessity both for the availability of precedents and to facilitate an understanding of the doctrine.”
The conference’s first session, Problems of Litigation, featured papers by two “established” figures in the field. The lead paper, The Santa Barbara Oil Spill, was written by one of the forgotten pioneers of environmental law, Malcolm Baldwin. The second, Securing, Examining and Cross-Examining Expert Witnesses in Environmental Cases, was given by the rock star of the conference, David Sive, who died at age 91 just over a week after Joe. Dave had been one of the lead lawyers in the case Scenic Hudson Preservation Conference v. Federal Power Commission, which opened the possibility that courts could play a major role in creating environmental law. For the first time, a court had reversed an agency decision for the failure to adequately consider environmental values and potentially less-destructive alternatives. The session focused on the problems of bringing an action that could have prevented the spill as well as recovering post-spill damages.
In his opening remarks, Joe exhibited wisdom beyond his seven years in law teaching, went right to the heart of the problem of the day, and focused the group on the essential issues of good lawyering:
As someone who has been the victim of conferences that turn out to be nothing more than a lot of chitchat, it is my feeling that our discussion should be a prototype of a strategy session among lawyers trying to decide what to do when confronted with a problem like Santa Barbara. . . .
First, what if anything ought lawyers to do if a client comes to them with this potential problem? Ought there to be some kind of intervention? If so, at what point in the various processes of decision-making, leasing authorization, granting of permits, and so forth?
Second, what expert scientific knowledge do we need and where do we look for it?
And, third, what are the long-range effects of some kind of legal intervention? That is, what are we going to buy for the rather considerable expenditure of time and money that would go into it?
Much of the discussion focused on the problem of quantifying the post-spill damages. The following colloquy between Joe and Norman Sanders, a professor of geography at the University of California Santa Barbara, identified one of the central, unresolved problems of environmental law that haunts the field to this day and added a bit of dark humor:
Mr. Sanders: . . . [Y]ou will find that no ecologist at this time will say that he knows enough to establish what the ecology of the area is or should be . . . . A few of our ecologists say, yes, there has been great damage in the Santa Barbara oil spill. Others say no, there has not been any damage, and many say they don’t know yet, it is too early. . . .
Mr. Sax: Of course in every case we characterize as environmental, the problem of future uncertainties exists. But is it your conclusion that there is really nothing we can do?
Mr. Sanders: No. No. Not nothing. Probably my view is too colored by the Santa Barbara oil issue, which is, of course—
Mr. Sax: Black.
As the session drew to a close, Joe laid out the central thesis of his soon-to-be-published public trust article. The group had been discussing the ethical and practical problems to achieve political ends. Joe’s answer to the dilemma was to recognize that “[a] good deal of environmental litigation, even some of the older cases, is actually a situation in which people say to the court: A different political or a different administrative constituency should have a role or the last word on the issue.” His support for this argument was the California and Wisconsin public trust cases that he brought up from the muddy depths where they had lain for years. “One should never lose sight of litigation as a technique that legitimately feeds into the political process.”
The much-revered Rabbi Hillel was once challenged by a potential convert who asked Hillel to teach him the whole Torah while he stood on one leg. The Rabbi replied: “That which is hateful unto you do not do to your neighbor. This is the whole of the Torah, the rest is commentary.” The same can be said of Joe’s career. All the characteristics that he displayed in his extraordinarily distinguished and justly revered career were on display that warm, northern Virginia morning. Joe was first and foremost a lawyer who acted like a doctor, as the best lawyers do. He diagnosed the illness first and then worked backwards to find a cure. Joe had a clear vision of what a new relationship between humans and nature should be, but he knew how hard it would be to achieve this vision. He saw law as one of many essential tools. He understood law as an envelope that was malleable but not infinitely so. Others in the field have gone further than Joe in trying to re-imagine an alternative environmental law based on a radically new human-nature relationship. But no one has gently but creatively pushed the legal envelope so effectively to advance the project of environmental protection in ways that were both fair and consistent with the rule of law. And he did it with modesty, grace, and humor. He stayed true to the spirit of Arlie House, and, for this, generations of his students, friends, lawyers, and many others will be eternally grateful for his career, even as they mourn his untimely death. Like many others, I am proud to call myself a fifty-year student and friend of Joe’s.
A. Dan Tarlock
Distinguished Professor of Law
Chicago-Kent College of Law
In his pathbreaking book, Defending the Environment, Joe Sax wrote:
No magic wand can be waved over the multitudinous problems of environmental quality. No elegant declaration of rights will simply and quickly solve our problems. Protracted struggle lies ahead, and the citizen fighting to vindicate his rights will be a central figure in that struggle. Regulation in the name of the public interest can no longer remain a two-party enterprise carried on between the regulated and the professional regulator. Effectuation of the public interest must begin to embrace the active participation of the public.
This passage is characteristic of all the pioneering legal contributions of Professor Sax. His contributions and work were professional, innovative, and profound.
I begin with “professional.” I had the joy of working with Professor Sax as a student, an assistant hearing-officer working for the government, a mentee, and a co-author. He modeled to me, and the many others who had the privilege to learn from him, not only how to be an advocate, but how to do so in a way that respects others' views, performs impressively, delivers superior results, and does so without fanfare or hubris.
Some, when they hear "Joe Sax" or learn that Joe was an avid on-the-trails environmentalist, picture an informal person. But Joe was formal in all of the best connotations of that term. He taught us how to present clearly and impressively, how to articulate arguments persuasively, and even how to look when appearing before agencies, courts, legislators, and hearing boards. He taught us not that we would all reach the ideal standard, but rather how to be elegant in our work and how to represent environmental law.
Professor Sax’s impeccable legal scholarship and advocacy was complemented by his innovation and creativity. He not only drafted the Michigan Environmental Protection Act—the Model Natural Resources and Environmental Protection Act, which demolished obstacles to citizen standing and created substantive rights in the public trust for the protection of the air, water, and other natural resources, as well as the public trust therein—but he also wrote persuasively of its doctrinal roots. And then he looked back—several times—using empirical methods to see how that Act and its many cousins throughout the United States were being used. He drew from his history, literature, and social-science knowledge, which made his work convincing, exciting, and based in critical worldly appreciations.
Professor Sax's thoughts were deep and profound. Millions of words were written during the early decades of the first environmental laws. Many of them will never be read, let alone quoted. But the ideas and the artful expressions in Defending the Environment, in Takings, Private Property and Public Rights, in Mountains Without Handrails, in Playing Darts with Rembrandt, and in Helpless Giants: The National Parks and Regulation of Public Lands have shaped the way we think of the environment, of property, and of our relationships to these concepts. To illustrate, read an excerpt from Professor Sax’s Blue Planet lecture in Japan, where he articulated our relationship to biodiversity:
. . . any notion of the importance of protecting biodiversity builds on what may be thought of as the economy of nature, as contrasted with the transformational or developmental economy. In the economy of nature, land is not a passive entity waiting to be transformed by an owner. Nor is the world composed of distinct tracts of land. Rather the ecological perspective views land as a system defined by function, not by man-made boundaries. Land is already at work performing important functions in its unaltered state. Forests regulate global climate, marshes sustain marine fisheries, and prairie grass holds the soil in place. In the economy of nature, wetlands would be governed by laws based on their ecological role, not on lines drawn on a map. And their protection would be the responsibility of all those whose activities—wherever carried on—adversely affected them. If today we are seriously to protect what remains of our biological heritage, to restore degraded rivers and landscapes, and to redeploy forests to play a positive role in controlling human-induced climate change, we need a legal system that is as well-attuned to achieving those goals as the conventional legal system we have inherited was attuned through transformation of nature to achieving the goals of the industrial revolution.
No jargon, no superfluous phrasing: the passage is clear, communicative, and transformative.
Professor Sax did not write unless he had something important to say, and when he said it, he said it beautifully. One of my lasting memories is of his workmanship. In his lovely wood-paneled office in the Michigan Law Quad, he would type a triple-spaced draft of a manuscript. The editing of that draft would be craft—with handwritten additions noted clearly and precisely in the margins and the interval spacing. Then another draft, then another, and then one read by his wonderful wife Ellie, until every phrase was as clear as possible. Triple spacing and elegant editing. I have tried to emulate and teach this not-so-mysterious method to my students for decades.
When a group of Japanese historians asked me to give a lecture on environmental law with an emphasis on the 1960s, my first thought was “Joe.” Professor Sax represented the roots of the most important thinking on law and the environment, not only in the United States, but in other places, including my host country of Japan, India, and the larger international community. Professor Sax made Minamata a name that would haunt the world and lead to major reforms in environmental safeguards, both in Japan and elsewhere. He made citizen environmental action, then a revolutionary notion, a household concept—something that is talked about on network morning television and described in popular magazines. He added to the public-policy calculus a serious consideration of a public trust in nature. He moved us to think about property in ways that society must consider if our natural environment is to be sustainable.
He was consistently on the cutting edge in his career. More recently, he laid out new ideas for addressing the effects of contemporary environmental challenges by writing about the arcane doctrines of accretion and avulsion in property law, which are deeply relevant in times of climate change.
Professor Sax changed the way the government and private entities can treat our beloved streams and countryside, our water, our mountains, and our wilderness, critters, and patrimony. Very few people influence the way societies approach these kinds of challenges, the challenges that matter most, as Joe did. But Joe also deeply affected the way we think about and view people around us—both friends and enemies.
As the testimonials came in for Joe, who was mentor, teacher, colleague, and opposing counsel, many focused on Joe as a caring, helpful, patient teacher—and friend:
—Who recognized the good efforts, and sometimes unsuccessful attempts, of others, and who offered a different, deeper view of behaviors that were easy to write off;
—Who let the crying baby stay in his classroom—because babies cry;
—Who read manuscripts from young scholars whom he hardly knew;
—Who treated others based on their potential.
Joe was committed to, and confident about, a specific set of values, which directed his choices and actions. No temptations or incentives could change those values. It sounds simple, but how many of us at our life’s end will be described that way?
I end with some memories I will never forget:
—His inspirational love for Ellie and how they cared for one another throughout their long and happy marriage, and most inspirationally, in the last couple of years.
—His guidance and understanding of his three wonderful and very different daughters.
—His handsome bow ties.
—The name of one of his most important contributions: “The Sax Act” (although he was always a bit sensitive to teach it to young students under that name).
. . . something that few can emulate: that expression when he patiently responded to a question that may have not been as well thought-out as one could have hoped . . .
An imperfect approximation. If you knew him, I am sure you can picture it, even if you were never its subject.
By Chris Carr
I am honored to provide the perspective of a student, practitioner, and friend on Joe Sax’s lifetime of contributions to the field of environmental law, so deservedly recognized by the California State Bar in posthumously bestowing upon Joe its inaugural Lifetime Contribution Award. Joe had a profound influence on my life—professional and otherwise—over the last twenty years. Not a day goes by that he does not come to mind. I’m confident that this would be so even if I didn’t happen to be a practitioner of environmental and natural resources law, because Joe’s shining example illuminates many parts of my life.
I will come back to Joe’s powerful influence on my individual professional development, but it is appropriate to begin with a brief comment on Joe’s monumental and revolutionary impact on the course of environmental and natural resources law over the last fifty years. A modest and measured man, Joe would surely resist such a grand characterization. But it is unquestionably true. Joe is in fact the leading figure in the field over this period.
Joe’s role in launching the public trust doctrine is well known, but to this could be added a staggering list of achievements: his responsibility for Michigan’s model environmental review statute, his pathbreaking work in support of citizen suits, his scholarship and advocacy in the field of takings law, his decades-long co-authorship of the leading casebook on water law, his work on important water rights disputes around the United States and as expert consultant to governments around the world on water issues, his scholarship about and support of our national parks (including his pro bono work for the National Park Service), his work (both within government and without) on biodiversity conservation, and, more recently, his scholarship in the area of cultural preservation. The list of important, pressing issues in the field of environmental and natural resources law to which Joe devoted his historical capaciousness, humanistic sensitivity, and formidable powers of analysis goes on.
But Joe’s influence has not been limited to the evolution of environmental law and policy itself. He has profoundly shaped the intellectual and personal approaches of several generations of environmental lawyers, public officials, academics, and others who grapple with the perennial yet ever-changing challenges of how we relate to and interact with the environment. Whether Joe was teaching his students at the University of Colorado, the University of Michigan, or the University of California, Berkeley, one of his core messages—taught by example—was that “these issues are not easy, and working through them requires patience and concerted thought.” I carry this habit of mind with me to this day, as no doubt countless other of Joe’s students do. It informs our professional work and how we relate with our fellow citizens.
My own experiences with Joe are but one data point, but I believe they illustrate his great influence on students. I met Professor Sax in the spring of 1993 as a student at Boalt Hall, where I was also a doctoral student in the Jurisprudence and Social Policy Program. Like many students, I did not have any firm sense of what I wanted to do professionally, but I had done some work on international ocean law as a research assistant the prior year and thought that domestic environmental law might be worth exploring. I signed up for Professor Sax’s Public Land Law course. I only wish I had “discovered” Professor Sax earlier in my law school career. I would have taken more of his classes.
The course proved immensely rewarding, introducing for consideration all of the complexities of managing public lands and resources for multiple uses, within a federal system, in a democratic society. It was an introduction not only to federal resource management, but also to the administrative law system and judicial review of agency action. The course illustrated the intellectually rich confluence of law, science, and policy that characterizes American environmental and natural resources law. Although, as I would later appreciate, Professor Sax had his own views on the appropriate resolution of the issues presented in the course, his teaching conveyed the unmistakable message that the issues needed to be engaged deeply, with rigor, and with an appreciation for the perspectives of others.
My appetite whetted for more, I signed up for Professor Sax’s Public Trust Seminar in the fall 1993 semester. Over the summer, I had learned that Professor Sax was the progenitor of the contemporary public trust doctrine, which was so critical and transformative in California water and resources law. Joe sparked its modern revival with his seminal article in the 1970 Michigan Law Review, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention. Joe’s seminar was an intellectual feast, tracing the doctrine from its origins in Roman law, through its treatment by the U.S. Supreme Court in the Illinois Central Railroad case in the late nineteenth century, to its assertive application and expansion by California courts in the 1970s and 1980s. Joe assigned all seminar students a weekly problem to answer in a one-page paper, which he carefully graded and provided written feedback on. Students also had to produce a seminar paper, to which Joe devoted great time and attention. I finished mine only the next spring, when I had already moved to Washington D.C., because I was (delightedly) responding to Joe’s repeated follow-up questions. This seminar provided another lesson that informs my work (and, again, doubtless that of countless other of Joe’s students) to this day: every day as an environmental lawyer, you play a critical role in helping society mediate, in a thoughtful way consistent with the rule of law, transitions and transformations in what we collectively value about our environment and natural resources.
I next had the privilege of spending time with Joe in 1995 in Washington, D.C. Joe had come to Washington in 1994 to serve as Counselor to Secretary of the Interior Bruce Babbitt. I was completing a year at the State Department’s Office of Marine Conservation, and Joe hired me to work as an assistant to him at the Interior Department at the beginning of 1995. The new Congress had just been elected, and the Gingrich Revolution took aim at the federal Endangered Species Act and included takings legislation as part of its Contract with America. Joe was asked to head up the Clinton Administration’s defense of the ESA and federal environmental regulation generally. I helped Joe prepare position papers, Congressional testimony, and the like in support of this effort. Joe’s effective and successful advocacy for the ESA and reasonable environmental regulation in the highly charged political environment of Washington, D.C. in 1995 vindicated the ideal that in our democracy there remains a role for serious, rigorous thought in the environmental policy-making process.
I went off to a judicial clerkship later in 1995, and Joe returned to Berkeley in 1996. I returned to the Bay Area in 1996 and started legal practice at a boutique natural resources firm in San Francisco. In subsequent years Joe was a regular lunch companion. We enjoyed sharing the problems and issues we were working on, as well as engaging in wide-ranging discussions about political economy. I would frequently ask myself: “What would Joe say about this?” Then I would have the privilege of soon finding out over lunch. I still find myself frequently asking what Joe would think, but, to my deep regret, I’m now left to conjure answers as part of an inner dialogue.
I am currently representing a citizen group pro bono in litigation against the National Park Service related to management of visitation to Muir Woods National Monument and its impact on the surrounding environment. I wish I could have the benefit of Joe’s insights and wisdom on this (and countless other challenges) by asking him, over lunch, “What do you think about this?” My question finds at least a partial answer in Joe’s teaching and writing. In his Foreword to the 1988 compendium Our Common Lands: Defending the National Parks, Joe wrote:
From the perspective of preserving biological and genetic integrity, by which contemporary environmental opinion measures success, the parks (for all their wonders) are seriously deficient. If our parklands are to provide, in any degree, what we are now asking of them, far-reaching changes will have to be made. A great deal of land, both public and private, the use of which affects the parks and their resources, is going to have to be managed more sensitively.
The matter I am handling involves issues of the carrying capacity of Muir Woods and parking for its visitors. Managing visitor numbers is important not only for ensuring an appropriate visitor experience, but also to minimize the impacts of visitors on the sensitive environment surrounding Muir Woods. Redwood Creek, home to one of the last native coho salmon runs in California, flows through the heart of Muir Woods before spilling into the Pacific Ocean. Signs in the Muir Woods parking lot direct “overflow” visitor vehicles to park on the shoulder of Muir Woods Road, perched above Redwood Creek. I have a pretty good idea what Joe would say about this.
I have practiced environmental and natural resources law for almost twenty years, and I am fortunate to serve as head of the Environment and Energy Practice Group at Morrison & Foerster. I am forever indebted to Joe for his essential role in sparking my deep and abiding interest in environmental law, as well as instilling in me the habits of mind necessary to be a successful practitioner in this area. Once again, I am sure I speak for innumerable practitioners whom Joe taught at the University of Colorado, the University of Michigan, and the University of California, Berkeley.
Joe’s seminal article on Takings and the Police Power was published by the Yale Law Journal fifty years ago this fall. So it is fitting for the State Bar to honor Joe with its inaugural Award for Lifetime Contribution to the Field of Environmental Law in this fiftieth anniversary year of his leadership in the field. The State Bar’s award recognizes that Joe has bequeathed to the public a rich and robust body of scholarship, law, and policy. We practitioners, most especially, hold that body of work as a public trust. This trust continues to help our increasingly complex and changing society make thoughtful decisions about the values we collectively pursue in using and protecting the environment and natural resources of which we are, necessarily, stewards for future generations.
 Distinguished Professor of Law; Chicago-Kent College of Law.
 Law and the Environment (Malcolm F. Baldwin & James K. Page, Jr., eds., 1970).
 Edward Berlin et al., Law in Action: The Trust Doctrine, in Law and the Environment, supra note 2, at 166.
 Malcom F. Baldwin, The Santa Barbara Oil Spill, in Law and the Environment, supra note 2 at 5.
 David Sive, Securing, Examining and Cross-Examining Expert Witnesses in Environmental Cases, in Law and the Environment, supra note 2 at 48, reprinted in 68 Michigan Law Review, 1175 (1970).
 Scenic Hudson Preservation Conference v. Fed. Power Comm’n, 354 F.2d 608 (2d Cir. 1965).
 Law and the Environment, supra note 2 at 67.
 Id. at 75-76.
 Id. at 95.
Copyright Holly Doremus, Dan Tarlock, Joe DiMento, and Chris Carr 2014. All rights reserved.
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