Defending the Environment: A Strategy for Citizen Action
By Joseph L. Sax
Summary written by T.A. O'Lonergan, Conflict Research Consortium
Citation: Defending the Environment: A Strategy for Citizen Action, Joseph L. Sax, (New York: Borzoi Books, 1970), 252 pp.
Defending the Environment: A Strategy for Citizen Action examines the implications for the democratic state of a representative government which delegates authority for the management of natural resources to agencies. Further, it is a proposal for political and environmental activism which will mitigate the problems caused by agency management of these resources.
Defending the Environmental: A Strategy for Citizen Action will be of interest to those who wish to explore the relationship of the private citizen to the regulation and management of natural resources and environmental standards. Sax begins the book with an examination of the purchase, at auction, of a 4.8 acre tract of land at Hunting Creek in Virginia. The author chronicles the attempts of the Teamsters Union (winners of the auction) to obtain permits to dredge and fill the adjacent swamps in an attempt to expand their newly acquired property, obtained in 1958. The conclusion of the chapter discusses the victory by preservationist interests in the final denial of such a permits in 1970. The following chapter outlines the lessons to be learned from the Hunting Creek incident.
Sax asserts, in chapter three, that even the most forward minded reforms in the environmental policy-making process still treat the private citizen as an outsider to the that process. He proposes that until the private citizen is viewed as an integral part of the process with the "... authority to tip the balance of power..." there will be no real reform. In support of his assertions he offers an examination of the Hudson River Expressway. The solution to the problem of treating citizens as peripheral to the policy-making process is proposed to be an enlargement of the adversary processes. The author proposes an expanded role for the courts in resolution of disputes over management of natural resources. The courts are seen, not as usurping the responsibilities of the legislative or executive branches, but rather as a forum within which the private citizen can be heard on an even footing with more powerful and experienced adversaries.
The author examines the reluctance of the courts to address cases involving environmental issues except where very specific criteria are met. The case must involve: a violation of statute, procedural failings, or arbitrary and capricious actions. The authors assert that "The job of the courts is to raise important policy questions in a context where they can be given the attention they deserve and to restrain essentially irrevocable decisions until those policy questions can be adequately resolved." The author asserts that the courts should act to protect the public trust by upholding two principles. First, that "... even one's legitimate activity has spill-over effects on the rights of others that limit its scope and nature": secondly, that "... the limit of one's rights is measured by the ability of his neighbor to make a reasonably productive use of his own property" ought to be the guiding principles of the courts.
The remainder of the book is devoted to an examination of the ways in which the courts have employed public trust theory as a tool for dealing with environmental disputes. One technique employed by the courts which is compatible with public trust theory is legislative remand. Additionally, the courts have employed the practice of moratorium and focused attention on an issue by being the venue for litigation which may result in court ordered action, or prohibition of action. The book concludes with a renewed call for direct public participation and authority in the public policy-making process. Defending the Environment: A Strategy for Citizen Action is an examination of the shortcomings of agency management of natural resources and environmental standards and an argument for an expansion of the adversary processes which will increase private citizens' authority over the environment they live in.