Monday, December 23, 2013

Environmental law and the collapse of New Deal constitutionalism

Arthur McEvoy's recent article, "Environmental law and the Collapse of New Deal Constitutionalism", he writes, is a précis for a book in progress about the history of late twentieth-century U.S. environmental law, a book to which I am very much looking forward. (His The Fisherman's Problem (Cambridge UP, 1986) is a key work of environmental-legal history.) The article, he writes:
argues that our modern environmental law is peculiarly a creature of the New Deal. Despite its obvious legacy from common-law nuisance and Progressive regulation, what makes modern environmental law different from anything that came before is the way in which reformers built it out of parts copied from New Deal reform projects: cooperative federalism, the tax-and-spend power, representation-reinforcing, rights trumps, and so on. Environmental law’s history, its character, its accomplishments, and its shortcomings thus entwined with those of the New Deal regime as a whole, as it reached the peak of its vigor in the early 1970s and decayed gradually but steadily thereafter.

McEvoy's article also has an interesting account (taken from an interview Hendrik Hartog did with Willard Hurst) of the environmental origins of J. Willard Hurst's groundbreaking work in legal history (footnotes omitted):
His masterwork was a legal history of the lumber industry in Wisconsin, entitled Law and Economic Growth, which appeared in 1964.  Hurst got the idea for this “grim and passionate” book from a chance meeting with the wildlife ecologist Aldo Leopold, who also taught at Wisconsin. Leopold introduced him to “the then-strange word ecology” and impressed him with the “tremendous interrelation between the facts of botany and the facts of wild life and human beings and what they did with the earth.” Hurst recalled also that Leopold “was very interested in what had happened to trees.”
Hurst himself was not particularly interested in environmentalism per se— “there were no environmentalists” in the woods, as he put it—but he cared deeply about the central issue of environmental law: society’s capacity to use law effectively to protect its common interest in shared values. The nineteenth-century clearing of the Lake States forests showed how creative Americans at all levels of society could be in using law to promote economic development, but also how progress “meant throwing away much that a broader future development could use.”

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