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When Professor Joseph Sax wrote his famous Public Trust article in 1970, the environmental movement was in a state of agitation and flux. The status of the public trust theory today seems secure; it has been incorporated into legislation, case law, and, indeed, our basic thinking about the environment. But in wilderness preservation, the trust approach is unlikely to succeed, because the trustee will share the same values we hold. Sax's public trust theory won rapid and widespread acceptance during a time of considerable agitation when new theories and approaches to environmental protection were being explored. Each of these approaches to environmental protection was put on the back burner when Sax's public trust theory was adopted. I believe it is possible to generalize from society's experience with Sax's public trust theory of environmental protection. This Essay describes and analyzes the role of Joseph Sax's landmark article on the public trust model of natural resource law in both advancing and retarding the movement for environmental reform. Part II showed the defects of the trust approach, as well as why it proved attractive to national consciousness in the early and mid-1970s (and, indeed, remains so today). The public trust theory, although deeply compromised, solidified the partial revolution in social thought on the issue of environmental protection.

Trust Theory of Environmental Protection, and Some Dark Thoughts on the Possibility of Law Reform