Joseph Sax and the Idea of the Public Trust

Abstract

In the 1970s, Joseph Sax revived of the historical “public trust” doctrine and extended it from waterways to natural resources more generally. This essay argues that Sax’s doctrinal “rediscovery” was closely linked to his growing concern that governments may be too much influenced by partial interest groups and hence unable to manage large and diffuse environmental resources. Sax turned to water law because water has traditionally been subject to community management. But his use of the language of “public trust,” though very arresting, was somewhat idiosyncratic. Traditionally, public trust doctrine focused on navigation and communication, and hence a revived public trust doctrine might have been more appropriate for new communications media than for environmental concerns. Many critics have pounced on the uncertainties of Sax’s public trust doctrine as applied to natural resources. In fact, a different area of water law–riparian law–was actually more consonant with Sax’s concerns for community management of environmental resources. But “riparianism” is a rather boring word by comparison to “public trust.” In sacrificing some historical precision and choosing the more dynamic language of “public trust,” Sax was able to dramatize important issues of environmental governance, in a way that has had great resonance to later scholarship.