Judicial missteps, legislative dysfunction, and the public trust doctrine: can two wrongs make it right?

• Author: Lazarus, Richard J.
• Position: Author's reflections on his response to Joseph L. Sax, Michigan Law Review, vol. 68, p. 471, 1970

1. INTRODUCTION II. WHAT I GOT WRONG A. Judicial Missteps in Regulatory Takings B. Legislative Dysfunction. III. How I Would Refine My Thinking IV. How I Would Not Refine My Thinking Conclusion I. INTRODUCTION

   Last April, I joined other environmental and natural resources law scholars at Lewis & Clark Law School to celebrate the life and legal scholarship of Professor Joseph Sax, especially his seminal article on the public trust doctrine: The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention. (1) That 1970 article, more than any other, has inspired generations of environmental lawyers and legal scholars. It is without scholarly peer in the field of environmental law, as was its author.

   Joe Sax played an enormously influential role in shaping my thinking about environmental and natural resources law--as he did for many other legal academics. It is no overstatement that I literally began my academic career in the early 1980s thinking about the public trust doctrine and Joe Sax. One of my first oral arguments after graduating from law school was on behalf of the United States before the California Supreme Court in the Mono Lake public trust water rights case. (2) And my first law review article as a brand new professor, published in 1986,3 4 5 was on Joe Sax's public trust doctrine thesis. The article arose out of my experience as counsel for the federal government, first in the Mono Lake case and then in another California public trust doctrine case before the U.S. Supreme Court. (4)

   The thrust of my 1986 article's thesis was to question the continuing value of the public trust doctrine as a necessary and appropriate basis for advancing environmental protection goals. (5) saw the principal value of the public trust doctrine as twofold. The first was to provide a public property basis for resisting the exercise of private property rights in natural resources deemed contrary to the public interest. (6) The second was to provide citizens with a right to sue to prevent the government from acting contrary to public trust interests in natural resource conservation and preservation. (7) I argued that the public trust doctrine was becoming at best unnecessary and at worst counterproductive. Unnecessary because trends in legal evolution were, wholly apart from the public trust doctrine, otherwise weaving a new fabric for natural resources law--reflected in new federal and state statutes, regulations, and common law doctrine--that made resorting to the expansive notions of the public trust doctrine increasingly of less value. (8) And potentially counterproductive because the public trust doctrine rested on the perpetuation of absolutist notions of property rights that I worried were inconsistent with those same trends. (9) Finally, I argued that reliance on ever-expansive public trust doctrine theories was misguided because it rested on assumptions of judicial expertise and the judiciary's championing of environmental protection concerns that I worried could not be legitimately or safely assumed over the longer term. (10) relatedly worried that reliance on the public trust doctrine risked unleashing a populist rebellion against environmental protection laws by putting environmentalists on the weaker side of the debate on how laws should be made and the role of the courts in lawmaking in a non-constitutional context. (11)

   Not surprisingly, mine was a controversial thesis--one not welcomed by many of my colleagues in the environmental law community. Some described me as "cynical" or, completely missing my point, dubbed me a conservative scholar favoring economic development over environmental protection. (12) My good friend and faculty colleague, Lewis & Clark law professor Michael Blumm, certainly did not think much of my argument. Blumm was one of the first to comment on my article in an article of his own. He characterized me as "hopelessly naive." (13) A description to which, Blumm may recall, I gamely responded when we first met a few years later: "Naive, perhaps! But how can you say 'hopelessly?' This is my first article!"

   My favorite review was that written by former Lewis & Clark law professor, Erin Ryan. (14) No doubt I naturally gravitated towards Ryan's review because she was the most respectful of my own and best grasped my thesis in characterizing it as a "Green Dissent." (15) Unlike most, Ryan distinguished between the ends and the means. (16) My goals were okay even if most thought my conclusions were wrong-headed.

   Ryan's assessment had remained my favorite until my research for this Essay came across a very different characterization. It is a critique based on a mix of legal realism and political economy theory, not crafted by a legal academic writing scholarly analysis in a published law review article. I instead discovered it in a most unlikely location: a legal brief filed by a clearly zealous attorney litigating a public trust doctrine case before the Iowa Supreme Court who sought in his brief to discredit my article:

   Imagine Professor Lazarus sitting in his office in Indiana, probably trying to attain tenure on the faculty, wondering what great academic debate he could create to satisfy the "publish or perish" requirements of law school faculty. The Public Trust Doctrine is certainly an issue which has not been totally circumscribed as to its parameters and has not been the subject of a great many Court decisions. Professor Lazarus would also have noted that Professor Sax, one of the founding fathers of environmental law, had written his article on the Public Trust Doctrine in 1970, before all of the federal environmental laws which are now a part of our legal pantheon were enacted. What better way for a law school professor to make a name for himself than to take on an acknowledged expert in the field and challenge a law review article over fifteen years old. None of this background, of course, was mentioned by the Iowa Supreme Court in Sorensen. (17) The advantage of tenure is that I could afford to be amused, while nonetheless somewhat baffled as to why counsel considered my law review article sufficiently important to warrant discrediting.

   What did Joe Sax think of all of this? Perhaps, similarly, that I was a young academic trying to get tenure. If so, he too was respectful. He wrote a very nice letter in support of my tenure, which I greatly appreciated. (18) But I certainly do not think he ever embraced my view.

   In one of our last conversations, not long before Joe passed away, during a wonderful evening I spent with Joe and Ellie Sax at Yosemite, he did ask me whether, in light of actual events since I wrote my 1986 article-in contrast to the legal trends I predicted--I still thought I was correct in my legal analysis. (19) It is a topic that many scholars have addressed, comparing my mid-1980s assumptions and predictions about trends in environmental and natural resources law to what in fact has since happened. (20) What I told Joe is the subject of this Essay.

   To that end, this Essay is divided into three parts. First, what I got wrong in 1986. In particular, what I failed to anticipate in terms of how environmental and natural resources law would evolve. Second, how I would refine my thinking about the efficacy of the public trust doctrine in light of that new, unanticipated information. And, third, how I would not change my thesis, thereby perhaps confirming, finally, Mike Blumm's original supposition that I am not only naive, but "hopelessly" so after all. (21)

2. WHAT I GOT WRONG

   Without question, and with the benefit of hindsight, I was overly optimistic about what I perceived back in the mid-1980s as certain positive trends in environmental law. In particular, I did not sufficiently anticipate the efforts by opponents of more demanding pollution control and natural resource conservation laws to resurrect a constitutional barrier to their full enforcement based on the Fifth Amendment's Just Compensation Clause. (22) I likewise failed to anticipate the virtual collapse of the U.S. Congress as an effective environmental lawmaker after 1990.

   1. Judicial Missteps in Regulatory Takings

      In March 1986, when the Iowa Law Review published my public trust doctrine article, (23) the federal judiciary was very different from today. Regulatory takings claims did not seriously threaten full and effective enforcement of strict environmental protection requirements in the mid-1980s. The new conservative on the U.S. Supreme Court was Justice Sandra Day O'Connor--a relative moderate. (24) Justice Antonin Scalia had not yet joined the Court and when he took his seat on the bench six months later, in September 1986, there was no widespread appreciation for the transformative role he would seek to play with regard to environmental law. (25) The Senate vote in favor of his nomination was ninety-eight to zero; (26) the Senate report on his nomination was only seventy-six words long, (27) and neither that report nor the confirmation hearings included a single reference to environmental law. (28) It was a nonissue, even though there was in fact reason in then-Judge Scalia's record for concern. (29)

      Yet it did not take long for now-Justice Scalia's skepticism, if not outright disdain, for much of the legal architecture of modern environmental law to become clear and to influence the Court's rulings in ways wholly opposed to what I had perceived as positive legal trends rendering the public trust doctrine less useful. (30) Within a few weeks of Justice Scalia joining the Court, the Court granted review in Nollan v. California Coastal Commission, (31) which led to the Justice's first salvo in June 1987. (32) In an opinion by Justice Scalia, the Court struck down a restriction on development on the beach side of Highway One along the Pacific Coast as an unconstitutional taking of private property absent payment of just compensation. (33) The Coastal Commission permitted a...