"Environmental law" - a response to Farber

I have some objections to a recent post by Dan Farber at Legal Planet, "Learning to Name Environmental Problems". 

Farber raises the interesting issue of when various issues seen today as "environmental problems" became thought of as such by the law, both in terms of seeing various issues – air pollution, water pollution, wilderness protection, and so on – as parts of a larger problem, and with regard to use of modern terms like "environment" and "pollution". But I think his answers are problematic.

Farber focuses on US Supreme Court decisions, finding its earliest uses of "air pollution" and "water pollution" and references to wilderness as something worthy of preservation in decisions from the 1960s. He also goes on to state that "The 1960s were also Congress’s first forays into issues like air and water pollution, wilderness protection, and the endangered species.  These developments set the stage for the blossoming of federal environmental law with the passages of NEPA, the Clean Air Act, the Clean Water Act, and other major legislation in the decade that followed."

Even allowing for methodological nationalism and the focus on the unrepresentative Supreme Court, this is all rather strange.

Paul E. Wolfe, Los Angeles County Air Pollution Control District vehicle, Burbank, 1947-1950?

First of all, the chronology of the federal legislation is off. What Americans typically refer to as "The Clean Air Act" of 1970 was actually officially titled the "Clean Air Amendments of 1970", reflecting the fact that it was actually a set of (very significant) amendments and additions to an earlier series of laws: the Air Pollution Control Act of 1955, the Clean Air Act of 1963, and the Air Quality Act of 1967. Similarly, the "Clean Water Act" was actually the Federal Water Pollution Control Act Amendments of 1972, rewriting a series of federal laws originating with the Federal Water Pollution Control Act of 1948.

Second, the focus on federal legislation obscures the fact that the lead in pollution control was taken by the states, as reflected, for example, in a 1922 article by Hickey and Sargent entitled "State Legislation on Industrial Pollution of Streams", or Kennedy and Porter's 1955 "Air Pollution: Its Control and Abatement", which focused on California's Air Pollution Control Act of 1947. These sources also reveal that the term "pollution" was used in the modern sense in legal texts long before the 1960s.

Farber's claim that issues such as pollution and nature preservation were not seen as part of a whole "environmental" issue is also not borne out by the evidence. Here (as well as for the prehistory of the laws mentioned above) I would point to Karl Boyd Brooks's important Before Earth Day, in which he demonstrates the connections between pollution law and nature preservation law in the period before World War II.

For a longer (while still brief) treatment of the history of environmental law before the term existed, see my "Historical Analysis in Environmental Law", published in the Oxford Handbook of Legal History (and reviewed by Jan-Henrik Meyer in Rechtsgeschichte).