Before Earth Day

The Origins of American Environmental Law, 1945-1970

Karl Boyd Brooks

• Publisher: University Press of Kansas
• Year: 2017
• ISBN:
  9780700623181
• Topic: Jura
• Subtopic: Umweltrecht

Most Americans—even environmentalists—date the emergence of laws protecting nature to the early 1970s. But Karl Boyd Brooks shows that, far from being a product of that activist decade, American environmental law emerged well before the first Earth Day, often in unexpected places far from Capitol Hill.Surveying the landscape from the end of World War II to Earth Day 1970, Brooks traces a dramatic shift in Americans' relationship to the environment and the emergence of new environmental statutes. He takes readers into legislative hearing rooms, lawyers' conferences, and administrators' offices to describe how Americans forged a new body of law that reflected their hopes for rescuing the land from air pollution, deforestation, and other potential threats. For while previous law had treated nature as a commodity, more and more Americans had come to see it as a national treasure worth preserving.Brooks explores the way key features of the New Deal's legal legacy influenced environmental law. This path-breaking environmental history examines how cultural, intellectual, and economic changes in postwar America brought about new solutions to environmental problems that threatened public health and degraded natural aesthetics. Visiting riverbanks and freeways, duck blinds and airsheds, Before Earth Day reveals the new strategies and efforts by which the unceasing process of legal change created environmental law. And through real-world examples—how Los Angelenos pressed cases about water and air quality, how an Idaho lawyer helped clients pursue new environmental regulations, how citizens challenged government and corporate plans to dam rivers—Brooks demonstrates that key changes in property, procedure, contract, and other legal rules in those early years stimulated the national environmental laws to come.Gracefully written and meticulously researched, Brooks's work dramatically updates our understanding of the origins of environmental law. By taking the postwar years more seriously, he shows that earlier actions across the country played a central role in shaping the structure and goals of well-known federal laws passed during the "environmental decade" of the seventies. Before Earth Day describes nothing less than an entirely new way of thinking, as environmental law emerged from local jurisdictions to reshape national agendas, firing the popular imagination and only then remodeling law school curricula. A long-needed corrective to standard political and legal history, it demonstrates both the longstanding environmental concerns of Americans and the resilience of law.

“TO THINK LIKE AN ENVIRONMENTAL LAWYER” MAKING AMERICAN ENVIRONMENTAL LAW THROUGHOUT THE POSTWAR ERA

1

“It is only within the last year or two that the term ‘environmental law’ has come into common usage. . . . At the same time there is actually very little new law in the field of environmental law.”

—Norman J. Landau and Paul D. Rheingold, The Environmental Law Handbook (1971)

“Today both state and federal legislatures have the authority they need to protect the environment. . . . Courts are powerful enough so long as they are enabled to build a common law for the environment, remand dubious proposals to the legislatures, and declare moratoria.”

—Joseph L. Sax, Defending the Environment (1970)

“These materials [in our book] are designed to explore traditional questions of law and politics which have assumed heightened significance in a society increasingly influenced by science and technology and increasingly concerned with the quality of its natural environment.”

—Louis L. Jaffe and Laurence H. Tribe, Environmental Protection (1971)

Start this search for American environmental law’s origins at the drinking fountain outside my office in the quiet university town of Lawrence. The water I drink tastes better because in July 2003 an ambitious project expanded and modernized the city’s Kansas River Water Treatment Plant. City engineers in smudged hard hats scuffed through thick dust beneath the humid summer sun to certify that the contractors’ work complied with state and federal water-quality laws. Their colleagues in City Hall sent me a pamphlet celebrating the project. The Water We Drink reminded 80,000 Lawrence homeowners, landlords, and renters that “water is one of the most vital elements in our lives, [so] we must have confidence in its safety and quality.” To “ensure customer satisfaction by consistently delivering high quality water today and in the future,” the Utilities Department announced that its new Water/Wastewater Master Plan would spend over $18 million during the next three years to keep expanding infrastructure and installing newer technology.¹

I couldn’t get to Wichita, 200 miles southwest of Lawrence, that summer, so I missed its annual Arkansas River Festival, “the state’s largest party centered on a natural resource.” Officials in Kansas’ biggest city, halfway between the Arkansas’ source in the Colorado Rockies and its confluence with the Mississippi, hoped beer and barbeque would inspire new civic activism to clean the turbid river, officially known only in Kansas as the “Ar-kan-sas.” Wichita’s mayor and city council president joined nongovernmental organizations to unveil the lime-green T-shirts that “river ambassadors” would sport during the Arkansas Festival. In bold white letters, the ambassadors’ uniform asked, “Why isn’t the river blue?” and “Are there fish in the river?”²

News that same summer told me “river experts and managers” from seven states—stretching nearly two thousand miles from Montana to Missouri—were convening in Atchison, Kansas, for the Missouri River Natural Resources Conference. Project leader Rosemary Hargrove explained why revising the Army Corps of Engineers’ Missouri River Master Operations Manual was taking such a long time. The Manual, which “dictates priorities and policies for the river,” was sparking political controversy the breadth of the Missouri Basin. Hargrove pleaded for “better communication” between all the interests that cared about the river, but, she admitted, “We don’t have that yet.”³

Problems with rivers a half-century before, half a continent away, carried this search for environmental law’s beginnings to my home state of Idaho, where ordinary people grappled with many of the same environmental challenges Kansans faced in 2003. In January 1954, the Idaho Wildlife Federation’s (IWF) annual meeting in Boise resolved to oppose any new power dam in the Hells Canyon of the Snake River, or on the Snake’s principal tributaries, the Salmon and Clearwater. Dams proposed by the Army Corps of Engineers for north Idaho’s Clearwater River would “be the worst possible example of butchering fish and game on the altar of power,” charged Lewiston forester Mort Brigham. Boise lawyer Bruce Bowler, who had been doing the federation’s legal work for almost a decade, smoldered as he recounted his November trip to testify against the Clearwater dams. After a 300-mile drive on icy mountain roads to Orofino, Idaho, he found the army’s “public fact-finding” hearings were neither. Sounding a little like new Secretary of State John Foster Dulles, Bowler told IWF that the Corps hearings were “undemocratic dupes,” contaminated by “arbitrary and unfair procedures” that encouraged “factual misrepresentations.” Flawed legal procedures ensured bad environmental decisions, Bowler believed, because government agencies would use biased testimony to act “without consideration of wildlife values involved.”⁴

Three months later, in Wenatchee, Washington, the Washington Sportsmen’s Council and Oregon Wildlife League resolved to join their Idaho neighbors’ fight against new Clearwater dams. New political alliances that ignored state lines to span watersheds encouraged Bruce Bowler to take an unprecedented legal step. His March 1954 Protest on behalf of the Idaho Wildlife Federation urged the Federal Power Commission to block Clearwater dams because Section 10 of the Federal Power Act protected ecological, cultural, esthetic, and recreational values. “Eighty organizations functioning within the State of Idaho . . . which have a total membership of 20,000 persons make this protest on behalf of the public interests involved in the wildlife and its habitat.” Citizen-conservationists’ first legal intervention in regulatory decisions claimed a new procedural right to participate fully in FPC decisionmaking. IWF’s Protest also articulated a novel redefinition of the “public interest” in water. Section 10, Bowler told the commission, precluded “destruction of magnificent natural resources and facilities so affected by said project.”⁵

Idaho conservationists’ legal innovations paralleled political strategies aimed at linking urban recreationists with small-town wage workers. IWF joined the state AFL-CIO in summer 1954 to launch a two-front campaign for better hunting and stable wood-products employment. IWF and the unions lobbied Idaho’s congressional delegation to back bills dedicating a fixed percentage of United States Forest Service timber-sale receipts “to improve wildlife and recreational facilities in our national forests.” And the federation tasked Bowler to write a questionnaire, to be printed and sent with union funds, probing all state legislative candidates about their views on restoring the state’s Fish and Game Commission’s independent nonpolitical status.⁶

The IWF’s new Stream Pollution Committee, chaired by Bowler, pressed Idaho legislators in 1957 to toughen the state’s new statute controlling dredge mining. And the federation began lobbying the federal government to build water-pollution control muscle to complement state regulations. Resolutions drafted by IWF’s Fish Committee in 1958, also chaired by the indefatigable Bowler, urged the Eisenhower Administration and Congress to renew the Federal Water Pollution Control Act and to double appropriations “for municipal aid for sewage treatment.” IWF asked the president’s new Health, Education, and Welfare Department to appoint “an undersecretary . . . fully devoted to water pollution problems.”⁷

Five years before Silent Spring appeared in 1962, IWF members, like outdoors enthusiasts elsewhere in the 1950s, were raising alarms about DDT. In late summer 1957, Bowler buttonholed the Boise National Forest supervisor on the street to quiz him about chemical spraying in the mountains north of the city. Meant to kill weeds around newly planted seedlings, the DDT “had resulted in the complete elimination of fish life” in streams downhill from the pine plantations, according to outfitters’ reports that reached Bowler. Forest Supervisor K. D. “Ken” Flock immediately wrote to Idaho Fish and Game Department Director Ross Leonard, assuring him that Bowler’s questions raised legitimate concerns. Flock and the supervisor of the adjoining Payette National Forest pledged their agency’s cooperation should Fish and Game want “to work together . . . to investigate thoroughly to find out what the facts might be.”⁸

Idahoans’ search for practical solutions to problems already present in the 1950s signals environmental law originated in the years just after World War II. Kansans’ use of environmental law in summer 2003 confirms the persistence of an environmental lawmaking process that enlisted millions of Americans during three postwar decades. Many legal professionals—attorneys, judges, and administrators—played an important part in making new law. And much lawmaking occurred purposefully in legislative chambers, courthouses, and agency offices, the traditional venues dedicated to the legal process. Most environmental lawmaking, however, simply happened as people used water, breathed air, and turned soil. American environmental law kept evolving in the opening years of the twenty-first century much as it had been created during the quarter-century following World War II. Less a designed philosophical system than a necessary social product, environmental law emerged daily, fashioned by people who needed rules to help them live sociably, productively, and peaceably in the natural world they did not make.

American environmental law reflects the many rules citizens have imposed on themselves to govern their complex relationships with the natural world. Historian Richard Andrews has broadly framed environmental lawmakers’ task as one of “managing the environment by managing ourselves.” More precisely, environmental law expresses the purpose of those rules humans have adopted to prolong their survival within the nonhuman natural world. Law teacher William H. Rodgers, Jr., defined the field a generation ago as “the law of planetary housekeeping, . . . concerned with protecting the planet and its people from activities that upset the earth and its life-sustaining activities.” Even more strictly speaking, Americans have made environmental law since 1945 to ensure a modicum of human health, to guarantee roughly equal political access to natural resources, and to afford nonhuman life forms a basic level of protection against human demands. Leading contemporary legal commentator Richard J. Lazarus recently observed, “Environmental law regulates human activity in order to limit ecological impacts that threaten public health and biodiversity.”⁹

Kansans in 2003, like Idahoans in the fifties, demonstrated one way ordinary people made environmental law: by continuously reworking their multiple, dynamic relationships with water. Ecological, economic, political, and cultural imperatives express these relationships. In revising any of their environmental relationships with water, Americans necessarily readjust their social relationships with each other. Law reflects one important, although not exclusive, means they use to order their ever-evolving relationships with water and with their fellow citizens. And human action has contributed one important, although not the only, lawmaking impetus. Incessantly and inevitably, natural features and forces—water flowing downhill, chemistry unfolding molecular structures, microorganisms living and dying—have stimulated legal change. The natural world has exercised sovereignty’s prerogative by posing challenges to some humans and presenting opportunities to others. Kansans, like Idahoans a half-century before, were always scooting their chairs over to make room at the table for nonhuman environmental lawmakers, their not-so-silent partners in legal change.¹⁰

Bold in its creators’ aspirations yet modest in restructuring the world their successors have inherited, environmental law and its origins deserve a hard look. Most histories have conventionally dated American environmental law’s emergence to the “environmental decade” of the 1970s, triggered by a handful of publicized events that occurred late in the 1960s.¹¹ During the decade that began with the first Earth Day in April 1970, Congress did enact many new federal environmental laws that have since significantly affected American life. “The years 1969 through 1979 saw the passage of 27 [federal] laws designed to protect the environment, as well as hundreds of administrative regulations,” Nancy Kubasek and Gary Silverman have calculated.¹² Between 1969 and 1980, citizen activism and mass-media coverage intensified political pressure on public officials at all governmental levels, who responded by elevating environmental protection into a higher policy priority. However, John Adams’s retrospective judgment about the long march to American Independence suggests environmental law originated through a process of legal change operating throughout the entire postwar era. The quarter-century before 1970, as well as the years just before and after Earth Day, must figure into a satisfactory explanation of a social phenomenon so complex in form but limited in substance.

Adams the old revolutionary, writing more than a generation after the thunderous days of 1775–76, believed fighting at Bunker Hill and adoption of the Declaration of Independence ratified more than they initiated. The American Revolution, he concluded, “was effected before the war commenced. The Revolution was in the minds and hearts of the people.” Americans made a revolution when they changed their way of thinking, Adams argued, not when their representatives in Philadelphia approved parchment pronouncements. Like American independence and revolution, the most fundamental changes in legal thought and action that created American environmental law had been effected before elected representatives ratified them in formal statutory enactments. Major federal statutes passed in response to the intense political pressure cresting between 1970 and 1976 reflected legal principles already being applied by citizens and legal counsel. Even as scholarly analysis and teaching about environmental law were still in their formative stages, American environmental law had emerged before the first Earth Day, before the first law-school classes in the late 1960s or the first environmental law books of the early 1970s. Its central features had appeared even before 1962, when Rachel Carson’s Silent Spring galvanized citizens into a new political consciousness of their environmental peril.¹³

Environmental law did not appear in a revolutionary moment of intense national creativity after 1969. A slower, more complicated, evolutionary process of legal change laid down environmental law’s foundation before the first Earth Day. By using various lawmaking methods in diverse settings millions of Americans had already established modern environmental law’s basic principles by 1970. Environmental law emerged steadily, over more than a quarter-century, in the most ordinary, commonplace ways, its birth less spasmodic than episodic. Its makers were citizens seeking desired outcomes to actual disputes, lawyers representing clients, judges deciding cases, and representatives expressing constituents’ views. Recovering environmental law’s seed-time in the postwar years puts popular politics and culture into necessary context. The environmental decade accelerated the process of legal change that citizens and their advocates had set in motion before 1970. Like American law as a whole, environmental law developed contextually and sequentially, a series of responses to serve concrete needs and to attain specific goals.¹⁴

Environmental law teacher John-Mark Stensvaag declared in 1999 his chief purpose for writing textbooks and teaching was getting students to “think like an environmental lawyer.” Millions of Americans, among them a few trained environmental lawyers, had already begun to think like environmental lawyers before the first Earth Day. They had been translating their thoughts into actions by making environmental law well before the “environmental decade” opened in 1970. From their thoughts expressed in words and made tangible in deeds, throughout a quarter-century after World War II, emerged a new field of law rooted in the felt necessities of life in the postwar United States.¹⁵

In jurisdictions from California to Massachusetts, citizens and clients pursuing goals on their own initiative and throu...