The Torch Has Been Passed: David Sive, 1922 – 2014; Joseph Sax, 1936 – 2014 0

With guest contributor Eric Goldstein,
Senior Attorney, Natural Resources Defense Council

David Sive. William Paxton (Own work) [CC-BY-SA-3.0], via Wikimedia Commons

Legendary environmental attorney David Sive died on March 12 at age 91. It is a measure of his pervasive influence on American environmentalism that even after nine decades on the planet his sudden absence came as a shock.

Sive’s death and that of environmental law scholar Joseph Sax on March 9, and Pete Seeger on January 27 (EarthDesk, February 2), remind us too that the environmental torch has been passed to a new generation. It is a generation taught the wonders of the natural world in elementary school — scores of thousands aboard the sloop Clearwater, co-founded by Pete. And it is a generation of law students trained in environmental law — a field woven from whole cloth by the groundbreaking efforts of attorneys such as Sive and Sax.

David Sive’s legacy is particularly felt here at EarthDesk‘s home in New York’s Hudson River Valley. A renowned environmental litigator and innovative legal thinker, he helped defeat the Hudson River Expressway — the proposed Interstate 487, a pet project of Governor Nelson Rockefeller that would have run along the Hudson River from the Bronx to Beacon, and required extensive filling of biologically important Hudson River shallows in Westchester County. The barely used four lanes of Rt. 117 that stretch from Governor Rockefeller’s former home at Pocantico to a presumed intersection with the non-existent expressway stand today as a reminder of the project’s demise.

Sive was also a key figure in the Storm King case, which establsihed the principle that citizens have legal standing to defend aesthetic and environmental values, such as embodied by the Hudson River Highlands, rather than just property, pocketbook and person, as had been so for generations. The Storm King case is taught in environmental law courses nationwide.

Sive and Sax were giants. And lots of young environmentalists don’t really know about them. — Eric Goldstein, NRDC

In a poignant note to faculty, students and staff here at Pace University, law professor Jeffrey Miller, an environmental law pioneer in his own right, wrote:

David is there on the Elgin marbles of environmental law, along with Ed Muskie, Russ Train, Bill Ruckleshaus, and a few other gods and giants fighting the centaurs to keep them from wrecking the world.  We were privileged to know them, to be mentored by them, and to receive their heritage.  David stood out with his gentle wisdom, good humor and optimism.  Seeing David go is like losing my parents. I’m alone with you, brothers and sisters of my generation, and we’re fast letting go to our children and former students.  Nice to think we might all meet again in an unpolluted paradise, complete with pre-industrial climate.  That’s a thought David might have had.

In an email exchange with EarthDesk, Eric Goldstein, an accomplished environmental attorney in the tradition of Sive and Sax who works for Natural Resources Defense Council, wrote, “They were giants. And lots of young environmentalists don’t really know about them.” It is true. Perhaps an environmental Howard Zinn will come along and provide us a definitive history. Certainly there would be chapters reserved for Seeger, Sive and Sax. We stand on their shoulders.

Below is Eric’s excellent tribute to David Sive and Joseph Sax that appeared in his March 14 post on the NRDC Switchboard blog:

David Sive and Joe Sax, Titans of Environmental Law: An Appreciation

Within a single week, the nation’s environmental law community has lost two of its most respected founding fathers.

Joseph L. Sax, a distinguished emeritus professor of law at UC Berkeley School of Law whose writing helped expand the public trust legal doctrine to protect natural resources and whose advocacy helped open the courthouse doors to environmental plaintiffs, died on Sunday at his home in San Francisco. He was 78.

And David Sive, an expert in administrative law who helped launch one of the nation’s first and most prominent boutique environmental law firms (now known as Sive, Paget & Riesel) in New York City and who represented citizen groups in landmark environmental cases, passed away on Wednesday at a retirement home in West Orange, New Jersey. He was 91.

The modern environmental movement is popularly considered to have begun in 1970, the year of the first Earth Day, the creation of the U.S. Environmental Protection Agency, and the passage of the federal Clean Air Act. But David and Joe had been fully engaged in the emerging issue well before then.

David Sive was one of the lawyers who participated, beginning in 1966, in the litigation over a proposed pump storage power plant at Storm King Mountain on the Hudson River. After years of administrative proceedings and judicial reviews, Con Edison dropped its plans to build the plant. In addition to preserving the unparalleled scenic vista in the Hudson Highlands, the Storm King case served as an early judicial precedent for granting citizens “standing” to sue based upon their aesthetic and environmental (as opposed to financial) interests.

In 1969, both Sive and Sax were among a group of visionary lawyers and law professors who attended the seminal Conference on Law and the Environment at Airlie House in West Virginia. The attendees mapped out bold strategies for enhancing the role of litigation in protection of the nation’s natural resources. And it was at this conference where the term “environmental law” was formally coined, according to Georgetown University law professor Richard Lazarus.

During the formative years of the modern environmental movement, David and Joe were among the most prominent members of the legal profession arguing that expanded use of the courts was necessary to achieve environmental progress.

In 1971, environmental group access to the courts still a relatively novel concept, David wrote, in a New York Times op-ed piece:

“To deny standing in court to a citizen or group because it speaks out for the public interest, rather than a private pecuniary interest, is to license any violation of substantive law which is on so broad a scale that it injures society as a whole, instead of only a few ….”

David was a thoughtful, soft spoken but determined litigator – the kind of lawyer that citizen groups always wanted on their side.

He was the lead attorney in a case, decided by the Second Circuit Court of Appeals in 1970, that blocked a proposed superhighway, called the Hudson River expressway, which would have permanently marred the river’s majestic landscape, north of Tarrytown, New York.

He served as lead counsel in litigation that challenged the siting of a proposed Trident submarine base in Bangor, Washington; in that case, the D.C. Circuit Court of Appeals in 1976 rejected the government’s argument that the Navy was exempt from the requirements of the National Environmental Policy Act and its environmental review requirements.

And he prevailed in the 1979 Mohonk Preserve case in the New York State Court of Appeals; the state’s highest court recognized that preserving land in trust for nature and future generations was serving a charitable purpose and therefore such land holdings were entitled to an exemption from real property taxes.

While Sive’s career was centered in New York, Joe Sax’s journey took him to law schools at the University of Colorado, the University of Michigan, and UC Berkeley

Joe was one of the fledgling environmental movement’s most influential and innovative legal scholars.

In the mid-1960s, while teaching public lands law at the University of Colorado, he noticed that the coursework’s focus was on commodity development and private rights. So, as he recounted to the Portland Oregonian in a story retold in his Los Angeles Times obituary this week, he decided to create a new course that focused on conservation law. “Some people said, ‘It’s a fad.  It shouldn’t be in the curriculum. You ought to teach something serious.’”

But Sax was simply ahead of his time. Today, virtually every law school in the United States offers courses focused exclusively on conservation and environmental law.

Joe is perhaps best known in legal circles for reviving interest in the “public trust doctrine.”  Historically, this ancient doctrine has been invoked to allow or require the government to retain certain property rights in navigable waterways and the lands beneath them, and to hold such properties in trust for the public. In a widely read 1970 law review article, Sax launched a campaign aimed at expanding the use of this doctrine to protect other natural resources for public use.

Sax also drafted the landmark 1970 law that made Michigan the first state in the nation to grant citizens standing to go to court and challenge projects that could lead to “pollution, impairment or destruction” of the state’s natural resources. This law became the model for similar statutes adopted in other states. And Joe’s advocacy for this concept in Congress paved the way for inclusion of “citizen suit provisions” in virtually all of the major federal environmental statutes enacted in the 1970s and 1980s.

Sive and Sax remained true to their values over the decades and remained active even in recent years — advising environmental organizations (David was a longtime NRDC board member), writing, teaching and enjoying the great outdoors.

The nation’s environmental law movement will benefit for years to come thanks to the vision and courage of these two wise men.

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Eric Goldstein is a senior attorney in NRDC’s New York office and director of New York City Environment. He has worked for more than 30 years on urban environmental issues, including air pollution, solid waste, drinking water and environmental justice. Eric gained nationwide attention in the early 1980s for spearheading the public campaign to get lead out of gasoline. He is co-author of The New York Environment Book and co-teaches the environmental law clinic at New York University School of Law.

Read Eric’s Switchboard blog here.