Joseph Sax

Getting Smart About Water

Recorded: October 15, 2013

Joseph Sax, famous for his legal paper about the public trust doctrine that eventually saved Mono Lake, speaks about water policy and how water is managed. Professor Sax's pragmatic views on water policy are discussed.

Joseph L. Sax is the James H. House & Hiram Hurd Endowment Professor, emeritus, at the University of California (Berkeley). From 1966-1986 he was the Philip Hart Distinguished University Professor at the University of Michigan, and prior to that taught at the University of Colorado and practiced law in Washington, D.C. Sax served as a visiting professor at the University of Paris I(Panthéon-Sorbonne) and Stanford University among others, and has lectured at the Ecole des hautes études en sciences sociales (Paris).

In 1994-1996 he served as Counselor to the U.S. Secretary of the Interior, where his responsibilities included federal water resource policy, endangered species law enforcement, and property rights legislation. At that time he represented the U.S. on a water delegation to Turkey, and consulted on water and environmental provisions for the new constitution for South Africa.

He has taught environmental law, water law, public land law, and property rights since 1962. Sax is the author of Defending the Environment (1970), Mountains Without Handrails (1980), and Playing Darts with a Rembrandt (2000); and co-author of Legal Control of Water Resources, 4th edition (2006). He is a contributing author to numerous books and has written more than 150 articles in scholarly journals.

While teaching at the University of Michigan Law School, Professor Sax analyzed the public trust doctrine, publishing articles about it in 1970 and 1980. In his innovative scholarship he translated the ancient Roman doctrine into a modern form, as relevant to the performance of regulatory agencies. His articles on the public trust helped persuade the California Supreme Court to reopen Los Angeles’ water rights to protect and repair Mono Lake and its tributaries.

Professor Sax is a graduate of Harvard College and the University of Chicago Law School. He holds an honorary doctor of law degree from the Illinois Institute of Technology. He is a Fellow of the American Academy of Arts and Sciences; and was a Fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford.

He is the recipient of many awards, including most recently the Blue Planet Prize (Japan, 2007); the Elizabeth Haub Award (Belgium, Gold Medal); U.S. Environmental Protection Agency Environmental Quality Award; Wm. O Douglas Legal Achievement Award of the Sierra Club; National Wildlife Federation Resource Defense Award; Professional Achievement Citation, University of Chicago Alumni Assn.; Environmental Law Institute Award; University of Michigan Press Biennial Book Award; Detroit Audubon Conservationist of the Year Award; University of Michigan Distinguished Faculty Achievement Award; American Motors Conservation Award; and the Water Education Foundation Distinguished Water Attorney Award.

From time to time, he serves as an expert witness, and recently provided an expert report in an original jurisdiction case before the United States Supreme Court involving a dispute over the Delaware River between the States of Delaware and New Jersey. He testified as an expert on public trust issues for the State of Mississippi in a case involving submerged lands under the Gulf of Mexico and has served as an expert for the U.S. Department of State in an international dispute over mining in the California Desert Conservation Area.

Joseph Sax lived in San Francisco and was married to Eleanor C. Gettes Sax.  Eleanor passed away December 24, 2013 and Joseph died March 9, 2014. They have three daughters and four grandchildren, all of whom live in California.




Joseph Sax:    My view about water is that we need to be much more imaginative in the way we allocate the water resources that we have.  You have to keep in mind that for well over a century, the notion was that you use water productively by taking it out of the stream and applying it to irrigation or hydro power or whatever.   Now, there’s at least a wide spread recognition that in stream values, including wildlife and riparian values are equally important.  And so the question is, how are we going to allocate the water in a way that makes it possible to do both of these things, to utilize it for the protection of in stream and riparian values as well as for the out of stream applications.  And, I mean water is still used in enormously wasteful way everywhere in the country, including in California.

We’ll always think of water being short because it’s going to be hard for us not to think of it as something that should be free and abundant, okay, even though it isn’t.  It isn’t free and it isn’t abundant.  But we learn, I think we learn to use all our resources more efficiently and more effectively when the squeeze is on.  And one thing I really strongly believe is that people are very imaginative you know, we’re very good at problem solving and I don’t think by any means that water is the most dire challenge I guess, to our imagination.  Pricing water in a more reasonable way is helpful.  I mean for example, if you want to grow Midwestern lawns all through the Southwest, you know in the most arid regions of the country, of course you’re not going to have enough water, and you want to make that water available to people cheaply, of course you’re going to have shortages you know.  But we don’t need to have shortages and in a lot of places now, including places like Los Vegas, people are being incentivized, encouraged to use more indigenous kind of plantings and that’s working well, that’s a huge saving if you could do that because in household use, most of the water is used outside for esthetic purposes rather than for feeding people and so forth.

I’m not a pessimist about the water situation, and I don’t think we need to use the 19th century methods to solve the problem, which is to say using engineering type methods to try moving rivers around and so forth.  I think that era really is over and its just a matter of, it’s a matter of being smart I guess is the way people talk about it now.  If we’re smart about it, we’ll have adequate water to meet both economic needs and, and esthetic needs and natural needs, and I think we are moving in that direction.