It is not very often that plenary panels at the Association of American Law Schools annual meeting focus on environmental questions. By that standard, Yesterday’s panel “Creating a New Field: The Evolution of Environmental Law,” is quite notable. Keynoted by Professor Emeritus Joseph L. Sax, the panel focuses on how academics influenced – indeed, some might argue helped create – the field of environmental law. Sax is a giant in the field, having authored numerous books and articles advocating the expansion of government authority to address environmental concerns. Sax, more than anyone else, is responsible for the emergence of the public trust doctrine in modern environmental law. Sax is not only a scholar, however, having worked with numerous environmental organizations and as counselor to Interior Secretary Bruce Babbitt from 1994-96. His keynote address explains how he became engaged in environmental law, and how he launched a career combining scholarship and advocacy – a career that helped shape the entire field.

Sax began his legal career at the University of Colorado teaching water law, mining law and oil & gas law in 1962, when these were all “private law” subjects – that is they concerned the property rights and contractual relationships of those involved with the relevant resources. That fall, Sax noted a lawsuit filed by the Sierra Club alleging that the government was failing to fulfill its legal obligation to protect the Rainbow Bridge National Monument from the effects of constructing the Glen Canyon dam. To Sax’s dismay, the case was readily dismissed. Individuals who utilized or exploited natural resources had little problem bringing legal claims against the government, Sax observed, but those seeking to protect natural resources had little access to the courts. Interested in this alleged standing disparity – and how individuals might use the law to advance environmental values – Sax set about collecting information on environmental cases for an early seminar.

In the mid-1960s, Sax got involved in a series of lawsuits against pesticide spraying encouraged by Rachel Carson’s Silent Spring. The first suit, prior to Sax’s involvement, challenged local spraying of DDT by local governments. The next, in which Sax participated, sought an injunction against the spraying of dieldrin in Michigan. Subsequent suits tried to limit spraying in Wisconsin and elsewhere. The suits were wholly unsuccessful, but they further engaged Sax in the field of environmental law. Also of note, some of those involved in the suits would go on to form the Environmental Defense Fund.

In 1969, while in Washington, D.C., Sax learned of a lawsuit challenging the construction of an apartment building along the banks of the Potomac River. The basis for the suit was the public trust doctrine. Here, Sax finally found a legal hook that he could use to advance conservation causes. The public trust doctrine is central to Sax’s conception of environmental law, as it places fundamental limits on the private use of certain “public” natural resources. Private property in such resources is, Sax’s view, essentially “qualified,” and does not include the right to eliminate or compromise the public’s interest. Sax’s subsequent article on the public trust is arguably one of the most influential environmental law articles ever written, and the public trust doctrine remains a powerful force in environmental law. (See my discussion of the public trust doctrine here.) More recently, Sax has applied the concept to cultural property, which, he maintains, is similarly infused with public trust values.

Sax also got involved in drafting an environmental statute for the state of Michigan to authorize environmental citizen suits and ensure standing in environmental litigation. As Sax recounts, the bill got passed, in part, due to union support, and the then-Governor’s wife assured him that “pillow talk” would ensure that the bill was signed into law. These provisions became the model for equivalent citizen suit provisions in federal environmental laws and set in motion the authorization of “private attorneys general” to advance environmental values in courts of law.

Sax’s influence on the law is remarkable, noted commentator Richard Lazarus of the Georgetown Law Center, because his greatest contributions have been as a scholar. He is a “rock star” in environmental law; “Not Mick Jagger, but perhaps John Lennon.” While always focused on improving environmental protection, his scholarship remained of the highest quality. Unlike many he did not let his advocacy compromise the quality or honesty of his scholarly work. When Sax wrote, people listened. His work has been cited by the Supreme Court nine times. More astounding, Lazarus noted, seven federal appellate courts and thirty state supreme courts have also cited his work.

Another notable element of Sax’s work, Lazarus noted, was his recognition that the comprehensive environmental protections he envisioned would have profound redistributive effects. Sax saw rigid standing requirements and prevailing attitudes toward private property rights as a substantial obstacle to environmental progress and sought ways to solve these problems. Moreover, he identified the need for judicial oversight to ensure that legislatures and executive agencies complied with environmental demands. Absent such oversight, Sax argued, these institutions would inexorably compromise away environmental protections and the interests of future generations. His scholarship did more than just identify these obstacles to environmental protection law. It also identified historical traditions that could be used to address these concerns.

But Sax did more than write. He participated in the meetings that led to the creation of the Environmental Law Institute, the launch of the Environmental Law Reporter, and the legislative proposal that would eventually become the National Environmental Policy Act (NEPA) in 1969. This helped launch what was, without a doubt, the “environmental decade,” in which most of the federal environmental architecture was put in place. The task for environmental law scholars today, Lazarus urged, is to safeguard the legal architecture that Sax’s work helped inspire.

Professor Rachel Godsil of Seton Hall University addressed the evolution of environmental justice as a parallel to the evolution of environmental law. In the 1980s, Godsil noted, it was first claimed that environmental pollution disproportionately burdens non-white communities. Specifically, the environmental justice claim is that environmental harms track race more closely than income or class. These claims sparked Godsil’s interest in environmental law, and led to her publication of one of the first articles on environmental justice – an article, interestingly enough, that argued there was insufficient legal basis to bring many environmental justice claims. In candor, Godsil noted she considered not publishing her article due its conclusions – and this is the peril of engaged scholarship. Yet whereas an advocate may have buried the research, Godsil went ahead with publication – as an engaged scholar (in the tradition of Joseph Sax) should. For a scholar, to be a scholar, must conduct honest research, irrespective of the conclusions.

My Comments: Sax’s influence on the law is undeniable. I do not believe that all such developments have been positive, particularly the elevation of the public trust doctrine and the erosion of private property rights. Yet Sax has been diligent and genuine in his endeavors. As Lazarus observed, Sax did not let his advocacy corrupt his scholarly work. I may disagree with his work, but it is honest and fair. Alas, the same cannot be said about much in the environmental field. Many environmental "scholars" are unable to write anything beyond thinly sourced, analytically shallow advocacy pieces. Moreover, the relative uniformity of thought within the environmental law field allows much of this work to go unchallenged.

I would also question the implicit assumption of much of the remarks that centralized governmental authority lies at the heart of environmental protection, and that creating and defending a large federal regulatory framework is the proper normative end of environmental scholarship. The AALS conference this year had a theme of "engaged scholarship" -- that is scholarship that is engaged in trying to affect the world around us and influence public policy. I am all for such scholarship, but it is narrow-minded to suggest that the only properly "engaged" scholarship is that which embraces a left-wing agenda. Alas, that seemed to be the implication of this and some of the other panels at the conference.