When Professor Joseph Sax wrote his famous Public Trust article in 1970, the environmental movement was in a state of agitation and flux. Commentators were writing about plastic trees, Ways Not to Think About Plastic Trees, and whether we should bestow legal rights on natural objects. The Green Movement took hold in Europe, and in the United States scholars, activists, and ordinary citizens were calling for greater attention to the problems of decreasing quality of life, increasing pollution, and over development of the nation's farm and wilderness lands.
The time was exactly right for Sax's article. Sax proposed a simple,easily understood, and intuitively appealing approach to environmental protection. Because the nation's natural resources and park lands are limited commodities which, if too rapidly consumed, will not be available to ourselves and later generations, Sax argued, we should regard ourselves as trustees who hold these precious goods for the benefit of all. The nation's rivers, beaches, and other natural resources are not ours alone to spend; we must deplete them judiciously, setting aside as much as prudence dictates for our own use and that of future generations."
Sax's idea caught on quickly, influencing the National Environmental Policy Act, whose history reflects trust considerations at numerous points." His article is discussed in virtually every environmental law casebook,' hornbook,' and law review article. Courts have cited it heavily.'
This Essay argues that Sax's public trust doctrine is a wrong - or, at least, a seriously flawed-solution to our environmental crisis. Its oversimplified answer- to regard the nation's environmental resources as goods held in trust-forestalled more searching reconsideration of our environmental predicament and postponed, perhaps indefinitely,the moment when society would come to terms with environmental problems in a serious and far-reaching way.'6 Part I of this Essay out-lines Sax's proposal and its adoption into law.
Part II shows that the trust approach is a poor way to deal with our environmental problems. The trust approach places responsibility for protection of natural resources in the hands of individuals (trustees) who share our society's presuppositions and understandings and thus are unlikely to provide far-reaching protection for the environment.
Part III discusses how Sax's theory has impaired the development of more promising approaches to environmental protection. A concluding section recapitulates some of the themes developed in the Essay and draws some lessons for the cause of law reform generally. I believe the lesson of Sax's trust approach can be generalized as follows: Most serious reform movements fail because society prefers incremental rather than wide-ranging change. In a version of the maxim that "bad money drives out good," we are almost invariably drawn to doomed, moderate approaches, like Sax's, when society needs more weeping, ambitious ones. We resist precisely the medicine that could save us. We turn to strong solutions only when it is either too late, or when our thinking has advanced so far that the solutions seem commonplace and tame.
Our Better Natures: A Revisionist View of Joseph Sax's Public Trust Theory of Environmental Protection,and Some Dark Thoughts on the Possibility of Law Reform,
44 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol44/iss6/1