Emerging Legal Strategies: Judicial Intervention

• Author: Joseph L. Sax
• Published date: 01 May 1970
• Date: 01 May 1970
• DOI: http://doi.org/10.1177/000271627038900109
• Subject Matter: Articles

Emerging Legal Strategies: Judicial Intervention
By JOSEPH L. SAX
ABSTRACT: Citizen-initiated environmental litigation is a
response to the inability of traditional administrative agencies
to accommodate to newly recognized ecological perspectives
in the management of natural resources. Old-line agencies,
freighted by single-mindedness, a particular sense of mission
and alignment with limited constituencies, are often unequal
to the broadened perspectives which modern legislation and
new public attitudes demand of them. Highway departments,
for example, are charged with continuing to attend to the
building of the "shortest, cheapest and straightest" roads,
minimizing or ignoring new mandates to concern themselves
with the environmental effects of their work.
In conse-
quence, important policy decisions are undermined or dis-
torted. Judicial assistance is sought to return important
policy decisions to a forum in which democratic processes
work more effectively. One such incipient technique is the
judicial "remand" of administrative action to the legislatures.
Joseph L. Sax, J.D., Ann Arbor, Michigan, is Professor of Law at the University of
Michigan. He teaches natural-resources law, and is on leave this year completing a
book on legal strategies for dealing with problems of environmental-quality management.
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ENVIRONMENTAL problems are eign-immunity doctrine-based largely
not a novelty in American court-
on the ancient notion that &dquo;the king can
rooms. Courts have traditionally abated
do no wrong&dquo;-has long been discred-
pollution as a nuisance, and it is quite
ited as a viable legal theory, and has
common for public agencies to obtain
gradually (though not yet fully) dis-
judicial enforcement of their orders
sipated as an effective defense.
regulating the use of land, water, and
The &dquo;standing&dquo; doctrine has only re-
air. In the last few years, however, a
cently come under full-scale attack, but
new kind of litigation has developed
it, too, is rapidly losing ground. Courts
which portends a dramatically different
used to accept unquestioningly the as-
role for the judiciary: The plaintiffs are
sertion that if citizens were allowed to
usually private citizens rather than
sue simply as members of the public,
government agencies; and they sue to
the way would be open to a plethora of
enforce rights which they assert as
crank suits.
And such suits were
members of the general public, not as
thought unnecessary because public of-
property-owners seeking to protect con-
ficials stood ready to vindicate the pub-
ventional economic interests. Moreover,
lic interest.
Judicial attitudes toward
the governmental agencies which are
standing have changed markedly in the
supposed to be protecting the public
last few years. In a recent case, in
interest are often themselves cited as
which local citizens intervened to chal-
defendants.
lenge a radio license renewal by the
Such citizen-initiated litigation is
Federal Communications Commission,
typified by suits against highway de-
the court said : 6
partments challenging the necessity or
The
location of
theory that the Commission can al-
a proposed road; ~ actions by
ways effectively represent the listener inter-
local citizens against the United States
ests
without the aid and
...
participa-
Forest Service challenging its manage-
tion of legitimate listener representatives
ment of public lands; 2 and suits to en-
fulfilling the role of private attorneys gen-
join offshore oil-drilling 3 or a proposed
eral is one of those assumptions we col-
airport extension 4 which, it is alleged,
lectively try to work with so long as they
will adversely affect scenic or wildlife
are reasonably adequate. When it becomes
resources.
clear .. , that it is no longer a valid as-
In the past, such cases were routinely
sumption which stands up under the reali-
ties of actual
dismissed at the
experience, neither we nor
outset, both because the
the Commission can continue to rely on
government was...