The origins of American environmentalism

The upcoming issue of Environment and History has an interesting, extended review by Thomas Le Roux (translated from the original French review in Le mouvement social) of Chad Montrie's The Myth of Silent Spring: Rethinking the Origins of American Environmentalism (U Cal Press, 2018). According to the review, the book does not try to downplay the importance of Rachel Carson's Silent Spring, but rather to point out the rich history of environmentalism (and environmental regulation) long predating Carson's work, with sources in labor, public health, social justice, and other movements. An excerpt:

In the second half of the nineteenth century... local municipalities were pressed to provide public health services or access to drinking water. The fight against pollution was one of the main issues of the urbanising nineteenth century, and this is the subject of the second chapter, which exposes different types of action to protect urban environments between 1870 and 1945. In particular, women, industrial workers and racial minorities began to claim environmental justice. As unions organised, and within the context of a wider social movement during this period, the working and lower classes managed to have their voices heard in order to improve their living conditions in an insalubrious urban environment. Often pressured by radicals, socialists and reformers, a number of communities took action to address local injustices. For example, between 1897 and 1904, under the directives of the radical Mayor Jones, Toledo, Ohio inaugurated a municipal service for garbage collection, as did Milwaukee, Wisconsin, which was led by a socialist-leaning mayor after 1898. It is particularly interesting that environmental activists also found themselves fighting for better industrial hygiene to protect the health of factory workers. It is in this milieu that the socialist John R. Commons, who established several health and safety measures in Milwaukee, participated in creating the American Association for Labor Legislation. His work, alongside that of Professor Alice Hamilton, resulted in a more protective regime for industrial hygiene in Chicago and in the whole of the State of Illinois. In this urbanising world, the desire for nature was not only a privilege of the upper classes, but the contemporary push for segregation was such that numerous conflicts emerged regarding the use of forests, beaches or the rural surroundings of cities for a day’s relaxation. In the middle of natural spaces, unions and local communities created educational camps that focused on learning about natural environments for urbanites otherwise confined to their city districts or to their factories. These different actions diffused a renewed sentiment of the need for nature which was well-rooted prior to the second World War, and Montrie highlights that this need was reinforced with the federal program for conservation during the New Deal.

The Cigarette: A Political History

The Cigarette: A Political History (Harvard UP, 2019) by Sarah Milov, co-founder of this blog, was recently reviewed by Reuel Schiller for Jotwell. Schiller writes that Milov's "narrative weaves together legal, political, and economic history in a manner that calls for a revaluation of the dimensions of twentieth-century liberalism and the nature of its decline. The book is a compelling exercise in historical synecdoche: its subject is the political history of the cigarette, but its story is that of the twentieth-century American state." Further excerpts:

Frankly, one could teach a course on twentieth-century legal history using this book as a textbook. It speaks to a broad range of subjects central to the interests of legal historians: the role of law in constituting capitalism; the interaction of law, gender, and race in the construction of social movements; the simultaneously emancipatory and constraining potential of framing policy preferences as rights; the profound role of the administrative state in structuring politics and policy; the rise of public interest litigation; the importance of understanding the legal history of agriculture, a field sorely neglected by legal historians. While different readers will find different analytic points particularly compelling, two stand out for me.

First, Milov’s narrative suggests the need to reevaluate the postwar state’s legal and political contours. For readers familiar with early New Deal policies such as the National Industrial Recovery Act and its industry-written “codes of fair competition,” American tobacco policy is familiar. It was “associationalism” — an interweaving of public and private power that obscured the extent to which private institutions acted as vehicles for public policy. In the traditional narrative of the New Deal, associationalism ended with the political and legal demise of the National Recovery Administration in 1935. Joining scholars such as Brian Balogh, Milov shows how, in fact, associationalism outlasted the NRA and became an integral component of postwar state. Far from being replaced by the light touch of Keynesian fiscal policy, Milov shows how producer-oriented associationalism melded with consumer-oriented Keynsianism to give an alliance of corporate and state interests an active role in structuring the post-war economy as it simultaneously created an illusion of statelessness.

The environment in Dan Ernst's legal history exam

Dan Ernst (Georgetown Law) regularly posts a long exam question from his legal history course at Legal History Blog. This year's question was on federal grazing policy in the US. Some excerpts:

One of the Forest Service’s first projects was to subject stockmen used to roaming the mountains at will to the principles of forestry.  To develop and defend the new regulations, Pinchot hired, as chief legal officer of the Forest Service, an able and imaginative lawyer, who was personally indebted to him for, among other things, lending him money in the past.  The chief legal officer, who reported directly to Pinchot rather that the more politically connected Solicitor of USDA, soon worked out an ingenious constitutional justification for criminal enforcement of the grazing regulation, turning in part on the claim that the use of the public domain was not a private right but merely a privilege.  In 1908, Pinchot’s lawyer convinced the Department of Justice to bring a test case against a sheepherder named Pierre Grimaud.  A federal district judge ruled that the prosecution violated the nondelegation doctrine.  On direct appeal to the U.S. Supreme Court, the justices at first deadlocked, 4-4.  Pinchot was unfazed.  “I hold it to be the first duty of the public officer to obey the law,” he explained, “but I hold it to be his second duty, and a close second, to do everything the law will let him do for the public good.”  After Charles Evans Hughes and another justice joined the Court, Grimaud was reargued, and, in 1911, the Court upheld the prosecution.  The Forestry Service immediately brought scores of criminal prosecutions, and, by 1912, USDA could report that overgrazing in the forest reserves had ended.

*****

In 1934, the Colorado Cattleman’s Association sent [Farrington] Carpenter to Washington, DC, to lobby Congress to add beef cattle to the Agricultural Adjustment Act’s list of “basic agricultural commodities” and permit them to enter into marketing agreements controlling cattle prices.  Having succeeded, Carpenter stopped by his Congressman Taylor’s office to say his goodbyes, just as the grazing act was having a hearing.  Realizing that Carpenter would be an effective witness and learning that he did not think the public domain should be turned over to the states, Taylor asked him to testify.  (Carpenter was no fan of national power, but he believed that once the land was devolved to the states, different grazing interests would capture different state legislatures and produce an unworkable patchwork of regulation.)  Before the House committee, Carpenter spoke for small-scale cattle stockmen such as himself, plagued by nomadic sheep herds and pushed off public domain by larger cattle outfits.  Federal control was the small stockman’s only chance to avoid being “completely wiped out of existence,” he testified.

When, a few months later, [Secretary of the Interior] Ickes’s undersecretary offered Carpenter the directorship of the new Grazing Division created within the department to enforce the Taylor Grazing Act, Carpenter warned that sheep herders would object to his appointment because he was known as a champion of cattlemen in his corner of Colorado.  He claimed also to have said that he did not intend to create “a great centralized bureau” like the Forest Service, “run by Eastern people who know little about the public domain.”  After consulting a government official who once represented sheep herders, Ickes decided Carpenter would treat them fairly.  Whether Carpenter’s other warning registered with the Interior Secretary Ickes is not known. 

Historical analysis in environmental law III: Winds of change

In the previous post in this series I discussed the seeming lack of interest of legal historians in environmental angles. Nonetheless, recent years have seen deepening interest in the history of environmental law, with a few scholars highlighting the connections between the supposedly foundational environmental legislation of the 1970s and earlier law. One prominent work in this genre of pushing back environmental law's start date is Karl Boyd Brooks's Before Earth Day. Brooks's book is notable not only for identifying the statutory precursors of modern environmental regulation, but for its attempt to trace the manifold legal, personal, and institutional connections between legislation and litigation, and between pollution control law and the law of nature protection, two areas of modern environmental law that might be assumed to have distinct, even antagonistic, origins.

Another front opened recently regards the relationship between modern environmental law as it coalesced in the 1970s and the New Deal administrative state. On the one hand, Arthur McEvoy has argued that environmental law was a project of the New Deal regime, and that after the early 1970s it declined along with the wider regime. On the other, two recent articles have argued that the environmental law of the 1970s marked a break with New Deal liberalism. Paul Sabin explains the era's public interest law organizations as growing out of environmentalists' increasing disillusionment with the state as an engine of public-minded environmental protection, spurring a turn to an oppositional and litigious stance. Jedidiah Purdy, meanwhile, sees the salient federal legislation of the 1970s and the organizations that grew up around it as departing from an earlier tradition that viewed environmental issues in a wider context of social and economic justice. Mainstream environmental lawyers, he argues, were lulled by the shrinking economic inequality of the postwar period into focusing on elite and professional advocacy and environmental issues narrowly defined, forsaking issues, such as the disproportionate impacts of environmental harms (and environmental regulation) on minorities and workers, that would later come to be labelled 'environmental justice'.

Yet while these works do the valuable service of suggesting connections to wider themes of legal history such as the rise of—and reaction to—the administrative state, they push back the start of environmental law by only a few decades. They also make no connections to environmental regulation before the twentieth century, outside the US, or indeed outside the arena of federal regulation.

It bears noting that the relative dearth of historical work on environmental law, as well as the relatively narrow jurisdictional and chronological frames of what work there is, are far more marked in the American context than in the European. For instance, scholars have produced a significant body of work on French regulation of early industrial pollution, and quite a few British legal historians have given significant attention to environmental issues. Noga Morag-Levine's work has bridged some of these bodies of scholarship, compellingly arguing that English and Continental approaches to pollution control in the nineteenth century continue to inform current American debates over issues such as the appropriateness of the precautionary principle or feasibility standards. The blindness as to the history of environmental law may be a particularly American disease. (To the extent it is, this exceptionalism is itself a topic worthy of research).

The work that perhaps treats American environmental law in the most comprehensive manner is Betsy Mendelsohn's chapter on law and the environment in The Cambridge History of Law in America, which notes in its opening section:

Historical analysis in environmental law II: "The one came not near the other all the night"

Edvard Munch, Separation (1896)

(Continuing the series on historical analysis in environmental law. Links to the full series and the article are here.)

In May 2010 Environmental History, the leading journal in its field, published an article by Aaron Sachs on antebellum environmental thought as expressed in contemporary American cemeteries. A few months later legal historian Alfred Brophy published a blog post on American antebellum constitutionalism as expressed in speeches made in cemeteries. Though both pieces focused on the same cemeteries, with rich discussions of the political, social, and cultural contexts in which they operated, neither work made any reference to the other, nor, indeed, to the literature or historical sub-discipline in which the other was located. Three years later, both pieces were released in expanded form, again with no interaction between them or their scholarly worlds.

This was not an isolated (non-)incident. Though the fields of environmental history and legal history seemingly share a wealth of common interests—the histories of capitalism, slavery, and the administrative state are a few of the topics receiving intense attention in both fields in recent years—the two fields move through parallel intellectual universes with nary a glance at one another.

If there is a certain symmetry in the blissful ignorance in which each field operates with regard to the scholarship of its sister field, the same cannot be said of the relative interest each takes in the subject matter of the other. In the last decade (2007-2016) Law and History Review, the leading English-language legal history journal, published only three articles that might be described as engaging with environmental issues; and only one of these—its author an environmental historian, not a legal one—was directly on an environmental topic. Meanwhile the situation in Environmental History, the leading journal in its field, in the same period was radically different; counting conservatively, over twenty-five articles in this journal engaged significantly with legal issues, on a wide variety of topics, including a collection of essays dedicated to a single environmental statute. A similar picture emerges from an examination of leading European journals in the two fields: On the one hand, Journal of Legal History with two articles dealing with issues of public property that might be tagged as environmental and Rechtsgechichte with three on environmental topics; on the other, Environment and History with close to thirty articles with significant treatment of legal issues.

FDR and environmental law

I've long thought that the New Deal era doesn't get its rightful due as a critical phase in the history of environmental law. It seems Douglas Brinkley's new book, Rightful Heritage: Franklin D. Roosevelt and the Land of America (Harper Collins, 2016), makes a similar argument. As one would expect for a Brinkley book, it's already been reviewed by the New York Times and Washington Post.

Clay Risen in the Times puts the emphasis on the supposed tension between environmental protection and economic growth. Dennis Drabelle in the Post is a little more sensitive to legal history, writing that "Brinkley can be superficial when it comes to legal issues — it’s not always clear what authority FDR is drawing on when he takes a pro-environmental stance". Drabelle writes of the Duck Stamp Act:

Brinkley is good at showing how strands of Roosevelt’s life united to shape approaches to preservation that other presidents might have missed. Take an idea to raise money for waterfowl conservation which had been working its way through Congress. It culminated in the Duck Stamp Act of 1934, which requires all waterfowl hunters over 16 to buy, in addition to a state hunting license, a federal stamp, the proceeds from which go to acquiring wetlands and funding wildlife refuges. As a lifelong philatelist, Roosevelt “loved stamps too much to allow each year’s duck issue to be anything but irresistible.”

Roosevelt was a great believer in bipartisanship, and the director of what was then the Biological Survey in the Agriculture Department (now the U.S. Fish and Wildlife Service in the Interior Department) was Jay Norwood “Ding” Darling, a Republican who, in his previous job as a Pulitzer Prize-winning editorial cartoonist, lampooned the Democratic president repeatedly. At FDR’s request, Darling designed the first duck stamp, featuring “two striking mallards in flight descending on a lake.” From this literally splashy beginning evolved a much-anticipated annual contest — still being held — in which wildlife artists vie to submit the winning design (and to rake in the income generated by fans who buy reproductions). In addition to excitement and artistry, the program has generated more than $500 million through 2009, which has been used to purchase 5 million acres of waterfowl habitat.

The Duck Stamo program is still running. For all the stamps, see here.

Flood control and soil conservation districts

Despite it's future-leaning title, Jerrold Long's "Making ‘Conservation’ Work for the 21st Century – Enabling Resilient Place" has quite a lot of discussion of the history of environmental sensibility and land-use regulation in the US. The abstract:

During the New Deal, as part of a larger effort implementing Progressive-era “conservation” regimes, the federal government authorized the structurally-invasive Flood Control Act of 1936. At the same time, the Standard State Soil Conservation Districts Law promoted the creation of local, place-based efforts to protect or restore locally-valued resources. “Conservation” thus came to signify both the invasive, structural, engineering approach of mid-20th Century flood control, and the local, more responsive and flexible nature of soil conservation districts. But our understandings of our place in the natural world have changed subtly but significantly over the past century. Any legitimate natural resource regime must achieve its resource management goals while balancing its demands with local cultural expectations, which now generally include some desire to protect the natural environment. This article argues – using a case study focused on a small flood control district – that local conservation districts can be used to implement 21st-Century understandings of “conservation” that more accurately reflect local culture and needs. These locally-driven and place-based conservation efforts can improve and protect the aesthetic, health, ecological, and economic resources of a particular landscape, even as they manage that landscape – in part – to satisfy human needs. A system succeeding on all goals would be truly socio-ecologically resilient, promoting resilient ecosystems, a resilient local culture and economy, and a resilient local legal system – together creating a resilient place.

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:

FDR

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.