David Sive and Joe Sax, Titans of Environmental Law: An Appreciation
Posted March 14, 2014
Within a single week, the nation’s environmental law community has lost two of its most respected founding fathers.
Joseph L. Sax, a distinguished emeritus professor of law at UC Berkeley School of Law whose writing helped expand the public trust legal doctrine to protect natural resources and whose advocacy helped open the courthouse doors to environmental plaintiffs, died on Sunday at his home in San Francisco. He was 78.
And David Sive, an expert in administrative law who helped launch one of the nation’s first and most prominent boutique environmental law firms (now known as Sive, Paget & Riesel) in New York City and who represented citizen groups in landmark environmental cases, passed away on Wednesday at a retirement home in West Orange, New Jersey. He was 91.
The modern environmental movement is popularly considered to have begun in 1970, the year of the first Earth Day, the creation of the U.S. Environmental Protection Agency, and the passage of the federal Clean Air Act. But David and Joe had been fully engaged in the emerging issue well before then.
David Sive was one of the lawyers who participated, beginning in 1966, in the litigation over a proposed pump storage power plant at Storm King Mountain on the Hudson River. After years of administrative proceedings and judicial reviews, Con Edison dropped its plans to build the plant. In addition to preserving the unparalleled scenic vista in the Hudson Highlands, the Storm King case served as an early judicial precedent for granting citizens “standing” to sue based upon their aesthetic and environmental (as opposed to financial) interests.
In 1969, both Sive and Sax were among a group of visionary lawyers and law professors who attended the seminal Conference on Law and the Environment at Airlie House in Virginia. The attendees mapped out bold strategies for enhancing the role of litigation in protection of the nation’s natural resources. And it was at this conference where the term “environmental law” was formally coined, according to Georgetown University law professor Richard Lazarus.
David Sive and Joseph Sax -- founding fathers of environmental law -- leave behind generations of grateful students and lawyers who benefitted from their teaching, expertise and wisdom.
During the formative years of the modern environmental movement, David and Joe were among the most prominent members of the legal profession arguing that expanded use of the courts was necessary to achieve environmental progress.
In 1971, environmental group access to the courts still a relatively novel concept, David wrote, in a New York Times op-ed piece:
“To deny standing in court to a citizen or group because it speaks out for the public interest, rather than a private pecuniary interest, is to license any violation of substantive law which is on so broad a scale that it injures society as a whole, instead of only a few ….”
David was a thoughtful, soft spoken but determined litigator – the kind of lawyer that citizen groups always wanted on their side.
He was the lead attorney in a case, decided by the Second Circuit Court of Appeals in 1970, that blocked a proposed superhighway, called the Hudson River expressway, which would have permanently marred the river’s majestic landscape, north of Tarrytown, New York.
He served as lead counsel in litigation that challenged the siting of a proposed Trident submarine base in Bangor, Washington; in that case, the D.C. Circuit Court of Appeals in 1976 rejected the government’s argument that the Navy was exempt from the requirements of the National Environmental Policy Act and its environmental review requirements.
And he prevailed in the 1979 Mohonk Preserve case in the New York State Court of Appeals; the state’s highest court recognized that preserving land in trust for nature and future generations was serving a charitable purpose and therefore such land holdings were entitled to an exemption from real property taxes.
While Sive’s career was centered in New York, Joe Sax’s journey took him to law schools at the University of Colorado, the University of Michigan, and UC Berkeley
Joe was one of the fledgling environmental movement’s most influential and innovative legal scholars.
In the mid-1960s, while teaching public lands law at the University of Colorado, he noticed that the coursework’s focus was on commodity development and private rights. So, as he recounted to the Portland Oregonian in a story retold in his Los Angeles Times obituary this week, he decided to create a new course that focused on conservation law. “Some people said, ‘It’s a fad. It shouldn’t be in the curriculum. You ought to teach something serious.’”
But Sax was simply ahead of his time. Today, virtually every law school in the United States offers courses focused exclusively on conservation and environmental law.
Joe is perhaps best known in legal circles for reviving interest in the “public trust doctrine.” Historically, this ancient doctrine has been invoked to allow or require the government to retain certain property rights in navigable waterways and the lands beneath them, and to hold such properties in trust for the public. In a widely read 1970 law review article, Sax launched a campaign aimed at expanding the use of this doctrine to protect other natural resources for public use.
Sax also drafted the landmark 1970 law that made Michigan the first state in the nation to grant citizens standing to go to court and challenge projects that could lead to “pollution, impairment or destruction” of the state’s natural resources. This law became the model for similar statutes adopted in other states. And Joe’s advocacy for this concept in Congress paved the way for inclusion of “citizen suit provisions” in virtually all of the major federal environmental statutes enacted in the 1970s and 1980s.
Sive and Sax remained true to their values over the decades and remained active even in recent years -- advising environmental organizations (David was a longtime NRDC board member), writing, teaching and enjoying the great outdoors.
The nation’s environmental law movement will benefit for years to come thanks to the vision and courage of these two wise men.
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