cameron cox senior honors thesis (4)
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Boston College
Department of History
The Historical Development of American Legal, Political, and
Cultural Conceptualizations of Environment
By
Cameron Cox
Honors Thesis
May 2016
Adviser: Professor Ling Zhang
Table of Contents
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Chapter 1- Varying Evolutions of American Environmental Thought . . . . . . . . . . . . . . . 12
1.1- The Cultural Evolution of Environmental Thought . . . . . . . . . . . . . . . . . . 15
1.2- The Political Evolution of Environmental Thought . . . . . . . . . . . . . . . . . . 30
1.3- The Legal Evolution of Environmental Thought . . . . . . . . . . . . . . . . . . . 36
Chapter 2- The Prioritization of Tangible Environmental Factors in the Environmental Decade. 43
2.1- The Fourth Strand of Environmental Thought: Environmentalism . . . . . . . . . . 46
2.2- The Political Push Towards the Environmental Decade . . . . . . . . . . . . . . . .52
2.3- The Law of the Environmental Decade . . . . . . . . . . . . . . . . . . . . . . . . 55
Chapter 3- The Divergence of Cultural and Legal Environmental Thought . . . . . . . . . . . . 81
3.1- The Fifth Strand of Environmental Thought: Climate Change . . . . . . . . . . . . 85
3.2- Carter, Reagan, and the Conservative War on the Environment . . . . . . . . . . . . 98
3.3- The Legal Environmental Conceptualization and 1970s Language Issues . . . . . . 106
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
2
Introduction
By 2012, only two recognized states in the world hadn’t ratified the Kyoto Protocol.1 The
Protocol was one of the United Nations first major international efforts to combat climate
change, and as such, participation from world leaders was crucial. Of the two countries who
refused to ratify the accord, one was particularly concerning for the international community.
The United States refused to sign or ratify the Protocol despite producing a large share of
the world’s total carbon dioxide emissions.2 America’s singular decision to not sign the Kyoto
Protocol was part of a greater systemic inability of the country to adequately respond to climate
change.3 This thesis will seek to argue, that this inability to adequately address climate change
was linked to a flawed, narrow, and outdated domestic legal conceptualization of environment.
From 1997-2012, 82 countries signed, and 193 countries ratified the Kyoto Protocol that
pledged, among other things, to lower the rate of fossil fuel emissions by 2020 in an effort to
combat climate change.4 The Protocol was by no means a final solution to the international
problem; in fact the Protocol was quite flawed.5 Nevertheless, over the course of 15 years, the
vast majority of the world’s approximately 195 nations ratified the Accord. The overwhelming
support indicated that most nations of the world were ready to combat climate change, if not
substantively, then at least symbolically. In other words, many countries that signed the
agreement didn’t do so with the belief that they would solve the climate change problem, but
1 United Nations, “Status of Ratification of the Kyoto Protocol,” United Nations Framework Convention on Climate Change, http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php (accessed April 29, 2016).2 The World Bank Group, "CO2 Emissions (metric tons per capita),” The World Bank, http://data.worldbank.org/indicator/EN.ATM.CO2E.PC?page=3 (accessed April 26, 2016).3 United Nations, “Status of Ratification of the Kyoto Protocol,” United Nations Framework Convention on Climate Change, http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php (accessed April 29, 2016).4 ibid. 5 James Hansen, Storms of My Grandchildren (New York, Bloomsbury, 2009), 182-183.
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rather, to show they were eager to address it. That 193 of the world’s 195 nations exhibited a
willingness to address climate change was reassuring, but it was one of the two nations in the
world, the United States, that happened to be the main culprit of carbon dioxide emissions.
In 1997, the year the Kyoto Protocol was initially adopted by the United Nations, the
average Afghan citizen (Afghanistan being one of the two non-ratifying nations pre-2012)
produced 0.1 metric tons of carbon dioxide.6 In comparison, the average citizens’ carbon dioxide
emission in the United States was 19.7 metrics tons, some 200 times higher.7 Countries like
Qatar, Luxemburg, and Bahrain were some of the few who exceeded this per capita production,
but the populations of these countries paled in comparison to the approximately 266 million
people living in America on January 1, 1997.8 No highly populated, developed country in the
world, not Russia, Japan, or Germany even came close to the per capita emission rate of the
United States.
For all intents and purposes, when the Kyoto Protocol was proposed, the United States
was one of the single worst carbon dioxide emitters in the world, and for a self-declared
hegemony, and the leader of the world economy, it was troublesome that the United States did
not at least ratify the Accord. Why didn’t other developed countries, who also had highly
developed economies refuse to ratify the Protocol? Though there is no one conclusive answer to
this question, it will be the aim of this thesis to offer a possible historical explanation, at least in
part, for the failure of the United States to not only sign the Kyoto Protocol, but also it’s failure
to garner any substantive legal or international action to address climate change.9 This thesis will
6 The World Bank Group, "CO2 Emissions (metric tons per capita),” The World Bank, http://data.worldbank.org/indicator/EN.ATM.CO2E.PC?page=3 (accessed April 26, 2016).7 Ibid.8 U.S. Bureau of the Census, “Population Profile of the United States: 1997,” https://www.census.gov/prod/3/98pubs/p23-194.pdf (accessed April 21, 2016). 9 David Ismay (Staff Attorney at Conservation Law Foundation), interview by author, Chestnut Hill, Massachusetts, October 28, 2015.
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argue that an inadequate American legal conceptualization of environment in the 1970s made it
difficult for American law to adjust to climate change in the 1980s and beyond.
Before going further, it is necessary to address the abstract nature of the historical topic at
hand. The main focus of this thesis will be on differing concepts of environment across three
sectors of American life; cultural, legal, and political. All three of these sectors understood the
concept of “environment” differently, and between the mid-19th century and the late 20th century,
these three sector’s conceptualizations of environment constantly shifted and evolved due to
varying socio-political forces such as demographic change, industrialization, and scientific
research. This thesis will seek to observe and articulate the historical interrelationship of the
cultural, legal, and political conceptualizations of American environment, in an effort to better
understand the shortcomings of the American legal conceptualization that eventually triggered
the stagnation of American domestic and international environmental law in the 1970s.
As concerns over the natural world steadily rose in the American political mind during
the 1960s, the term “environment” was readily applied to cover a whole assortment of problems,
new and old, which plagued the natural world. The choice of the term “environment” was in
large part due to the words connection with Rachel Carson and the Environmentalist movement
of the early 1960s. In 1969, the cultural popularity of Carson’s concept of environment pushed
lawmakers to comprehensively respond to the public’s call for environmental legislation.
Lawmakers in the 1970s sought to systematically transfer the cultural concept of environment
into law during what lawmakers called “The Environmental Decade”.10 With the best of
intentions, lawmakers worked to incorporate the vague cultural understanding of the term
10 House Subcommittee of the Committee on Government Operations, The Environmental Decade (Action Proposals for the 1970), 91st Cong., 2d sess.,1970 (Statement of Henry Reuss, Chair, Conservation and Natural Resources Sub-Committee, Washington D.C.).
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“environment” into statutory law, blissfully unaware in many cases, of the full complexity of the
concept, and its deep roots in American cultural history.
In American cultural history there existed four distinct strands of American cultural
environmental thought before 1969; Transcendentalist, Preservationist, Conservationist, and
Environmentalist. All four strands sought to articulate a different understanding of the natural
world. Though they differed, all four strands contributed to a greater understanding of
environment in American culture. For all their best efforts, by decades end, it became clear that
1970s lawmakers did not properly account for Transcendentalist and Preservationist intangible
understandings of environment in their greater environmental conceptualization. Rather,
lawmakers conceived of the environment only as an observable or quantifiable physical thing,
centered on Conservationist and Environmentalist thought.
The failure of law to properly account for the intangible strands of cultural environmental
thought during the Environmental Decade would be costly when global climate change reached
cultural prominence in the 1980s. Furthermore, since virtually all major environmental laws were
passed between 1968-1978, modern American environmental law today still does not allow for
intangible conceptualizations of environment. By not allowing for intangibility in American law,
lawmakers of the 1970s inadvertently damaged the United States ability to adjust to the largely
intangible, global ecosystem based environmental problem of climate change. Thus the failure of
law to properly conceptualize the cultural understanding of environment in the 1970s, set the
course for a narrow, misled political environmental conceptualization in the 1980s that still
carries implications today.
To understand the relationship between the evolutions of the political, legal, and cultural
conceptualizations of environment, this thesis will seek to historically reconstruct the
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development of these three conceptualizations. In the 19th and early 20th centuries, the political,
legal, and cultural conceptualizations of environment grew parallel to one another, but by the end
of the 1980s, the legal conceptualization failed to evolve alongside the cultural
conceptualization, and as a result, the political conceptualization, drawing largely from the legal,
began to diverge away from the cultural understanding of environment as well. In the end, this
thesis by reconstructing the parallel, then diverging evolutions of legal, political, and cultural
conceptualizations of environment from the mid-19th-late 20th century will aim to show how the
law’s failure to properly conceive of the environment in the Environmental Decade has damaged
United States domestic and international efforts to combat climate change. To achieve this end,
this thesis will be broken up into three chronological chapters.
Chapter One will seek to examine the historical development of and the relationship
between three unique strands of cultural environmental thought. The chapter will begin with the
Transcendentalists of the mid-19th century who prioritized a spiritual understanding of the natural
world. The Transcendental spirituality eventually evolved into the Preservationist’s recreational
prioritization of the late 19th, early 20th century. This evolution from Transcendentalist thought
into Preservationist thought was subsequently followed by an evolution of Preservationist
thought into Conservationist thought in the early-20th century. These three strands of
environmental thought collectively represented spiritual, recreational, and economic
understandings of the natural world. Though each one strand chronologically evolved into the
next, this did not mean any one strand was alienated or left out of a greater understanding of
environment. In reality, all three strands collectively composed the greater American cultural
understanding of environment.
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As the cultural understanding of environment grew, so too did the legal and political
understandings. Theodore Roosevelt and Gifford Pinchot, while serving to represent the third
cultural strand of environmental thought, also incorporated the natural world into the American
political consciousness by focusing on natural resource use and economic growth. Subsequently,
though environmental laws were not unified before 1969, they still reacted to certain societal
demands deriving from the cultural understanding of environment. Laws like the Wilderness Act
of 1964 responded to the intangible strands of environmental thought, and laws like the Air
Pollution Control Bill of 1955 responded to the tangible strands of environmental thought. As
such, law evolved alongside the new political consciousness of the environment as the 20th
century wore on, and both law and politics grew parallel to culture.
Beginning with Rachel Carson, Chapter Two will first look at a fourth strand of
environmental thought, Environmentalism. Environmentalism represented the last strand of
environmental thought in the greater cultural environmental conceptualization that would carry
over into the Environmental Decade in 1969. Chapter Two will then turn to the political
byproducts of Environmentalism’s popularity, highlighting Lynton Caldwell’s Environment: A
New Focus For Public Policy that introduced the idea of a comprehensive legal approach. From
the political build up the chapter will turn to the Environmental Decade itself, dealing with
specific laws and policies of the Decade. Lawmakers of the 1970s strove for a comprehensive,
fluid understanding of environment as Caldwell suggested, but in the law’s substance and in
lawmakers’ rhetoric, they unintentionally prioritized health and economy, and largely
disregarded intangible conceptualizations of environment.
Finally, Chapter Three will aim to observe how the law and a changing political reality
prevented America from adequately combatting global climate change despite another cultural
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evolution of environmental thought. In effect, the law, by improperly conceptualizing
environment as something primarily economic and health oriented, diverged away from a deeper
cultural conceptualization comprised not only of economy and health, but spirituality and
recreation as well. In the 1980s, this cultural conceptualization grew to include global climate
change, which drew from both tangible and intangible strands of the cultural conceptualization.
Scientists could conceive of climate change numerically and as it pertained to people’s long term
health, but when it came to immediately observable every day effects, climate change offered
very few. As a result, the law could not account for or address an environmental problem like
climate change because it only protected against tangible, quantifiable, and observable
environmental disturbances. If the law in the 1970s had properly conceptualized the
environment, it would have allowed for intangible environmental thought that largely sought to
protect the environment for it’s inherent value to the human spirit. To borrow from Ralph Waldo
Emerson, this would have forced lawmakers to protect elements of the natural world “in and for
themselves”, which would have set a more flexible legal precedent that wasn’t so reliant on
tangible understandings of environment. But since the law allowed for only tangible
environmental understandings during the Environmental Decade, and neglected flexible, value
based intangible environmental thinking, American law was not flexible enough to adjust to
climate change research, and as such, when the cultural conceptualization of environment grew,
the legal conceptualization did not. Chapter Three will seek to exhibit the ramifications of this
split in environmental thought, first by laying out the fifth strand of environmental thought, the
global ecosystem understanding, before exhibiting how the legal system failed to respond to the
new cultural conceptualization. Then the chapter will turn to the 1980s political climate, in effort
to show the separation of the cultural, and political understandings of environment, as a result of
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this improper legal conceptualization. Chapter Three will conclude by articulating specific
examples of how the rhetoric of law damaged the legal environmental understanding, and by
looking at the natural resource coal as a case study.
This thesis seeks to observe the historical evolution of American environmental thought,
and its subsequent evolutions in politics and law. Until the 1970s, these three evolutions grew
parallel to one another, that was, until the law failed to adequately conceptualize the intangible
aspects of environment, focusing on economy and health. This sent the tangible political and
legal understandings of environment diverging away from the tangible and intangible cultural
understanding of environment during the Reagan administration in the 1980s. In essence,
America’s failure to effectively participate in the international fight against global climate
change was partially due to a prioritization of tangible strands of environmental thought in
domestic American law, which did not properly account for an issue like climate change. When
an intangible fifth strand of environmental thought emerged in 1980, the cultural
conceptualization evolved, but the legal conceptualization, largely void of intangibility, could not
evolve alongside it. This in turn allowed politicians in the 1980s to use the tangible legal
conceptualization, to justify the prioritization of economy in the climate change era. The Bush
Administration’s decision not to sign the Kyoto Protocol was due in large part to economic
concerns.11 If law’s 1970s environmental conceptualization hadn’t allowed for economic
prioritization, perhaps the United States would have been one of the first countries to sign the
Kyoto Protocol, not the very last.
11 James Hansen, Storms of My Grandchildren, 182-183.
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Chapter 1
Varying Evolutions of American Environmental Thought
Primary forms, as the sky, the mountain, the tree, the animal, give us a delight in and for
themselves.” Ralph Waldo Emerson, “Nature”, 1836. 12
Introduction
The cultural evolution of environmental thought can be traced back some almost 200
years to the time of the New England Transcendentalists, and two leading figures, Ralph Waldo
Emerson and Henry David Thoreau. Growing from Unitarian traditions of 19th century New
England, Transcendentalist thinkers held spirituality in high regard. Though the intellectual and
philosophical movement covered a wide array of societal topics, spiritual tones almost always
dominated Transcendentalist works, and Emerson and Thoreau’s nature writings were no
different. Both thinkers were among the first Americans to articulate a relationship between man
and nature. Inspired by the simplicity of rural New England life in the mid-19th century, Emerson
and Thoreau were allowed to freely explore ideas of nature and it’s worth for the individual,
without threat from industry or the disruption of urban life. From this freedom, Emerson and
Thoreau found that nature’s greatest worth was for the human spirit. From this finding, the two
Transcendentalist thinkers contributed a spiritual understanding of the natural world, to the
12 Ralph Waldo Emerson, "Nature,” (1836), in The American Transcendentalist: Essential Writings, ed. Lawrence (New York: The Modern Library, 2006), 38.
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evolution of American environmental thought. Their successor, John Muir, enjoyed the same
spiritual connection to nature as Emerson and Thoreau, and from it, evolved American
environmental thought to accommodate a changing demographic reality.
By the time Muir began to write heavily in the last two decades of the 19th century,
America was rapidly expanding West, and it was becoming clear that the natural world was for
the first time, seriously threatened. John Muir was a nature writer and policy-advocate who
fought much of his life to ensure that nature’s spiritual beauty remained in pristine condition,
even if that meant opening the gates of the natural world to the awe-seeking American public.
Muir realized that a veil of recreational worth was necessary in preserving the natural beauty that
he cherished. Muir fought for a National Park system and encouraged nature’s recreational use
because he understood that recreation and tourism would ensure federal spending and protection
of the natural world. Towards the end of his life, Muir positively influenced the father of the
third strand of environmental thought, Theodore Roosevelt.
While Muir advocated for the preservation of the natural world for spiritual and
recreational reasons, Theodore Roosevelt saw another value in the natural world worth
protecting; it’s economic potential. The economic focus of Roosevelt and the Conservationists
grew primarily from their concern with the sustainable and efficient use of natural resources.
Roosevelt possessed a genuine spiritual connection with nature (Transcendentalist), and he
manifested it through his recreational activities as Muir intended (Preservationist). From his
close connection to the natural world, Roosevelt sought to incorporate nature into the political
realm. Much like Muir, Roosevelt understood that in order for nature to be protected, yet another
evolution in environmental thought was necessary. As a result, Roosevelt and his National Forest
Director, Gifford Pinchot, championed the Conservation movement during his presidency from
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1901-1909. Conservation was a utilitarian approach, “the most good for the most people for the
longest period of time.”13 For early 20th century Americans the “good” was most often monetary,
and Roosevelt sought to ensure nature was protected alongside, and in harmony with, the
economic demands of the country. This testament to sustainability was central to the Roosevelt
administration, and from it emerged the concepts of efficiency and waste elimination. The
Roosevelt administration effectively shifted public awareness and recreational appreciation for
nature into a new political age dedicated to conservation and economic growth. The production
boom of the 1920s exemplified this shift, and sustainable management of resources allowed
industry to flourish throughout the century. Roosevelt believed that a protected, productive us of
the natural world, could drastically improve public life, by creating a sustainable, enriched
economy.
What ultimately differentiated the Transcendentalists, Preservationists, and
Conservationists was how they conceived of, appreciated, and placed worth on the environment.
In this sense, the Transcendentalists believed the environment bore spiritual worth, the
Preservationists recreational worth, and the Conservationists economic worth. Each strand chose
to focus on a particular element of environmental thought, emphasizing it importance, but not at
the expense of other conceptualizations. In reality, the three environmental strands of thought
grew into one another chronologically, bringing to light different American appreciations of the
natural world at different historical times, to create a collective understanding of “environment”.
For this reason, the term environment was partially complicated and abstract (Transcendentalist
and Preservationist), while simultaneously tangible and finite (Conservationist). Over the course
of approximately a century, the three strands articulated in this chapter shared the mutual belief
that protection of the natural world was of the utmost importance. From this advocation for
13 Gifford Pinchot, The Fight For Conservation (New York: Doubleday, Page & Company, 1910), 47.
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natural world protection both politicians, and lawmakers before 1962 sought to incorporate both
the tangible, and intangible cultural understandings of environment into the political/legal realm.
It will be the aim of this chapter to illustrate the evolution of cultural environmental thought in
American history preceding the Environmentalist movement, alongside this parallel, non-
conflicting political/legal understanding.
1.1- The Cultural Evolution of Environmental Thought
The First Strand: Transcendentalism
One of the first relationships articulated in the United States between man and the
environment grew out of European Romanticism and enlightened, religious zeal. The
unobservable, intangible, abstraction that is spirituality, is the exact opposite of what law strives
to be. Nevertheless, the Transcendentalists thinkers of the mid-19th century bore little concern for
legal implications. For them, nature possessed an awe-inspiring power that connected every
individual man and woman who opened up to it, with the universe. The Transcendental spiritual
understanding of the environment though abstract, inspired centuries of American environmental
thought, and set a precedent for future American environmental thinkers.
“Nature satisfies the soul purely by its loveliness, and without any mixture of corporeal
belief.”14 These were the words of Ralph Waldo Emerson in his famous Nature essay (1836). To
his dismay, Emerson was often identified by literature scholars and the general public as the
14 Ralph Waldo Emerson, "Nature,” in The American Transcendentalist: Essential Writings, 38.
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father of the Transcendentalist movement.15 The movement originated out of Unitarian traditions
of the 1830s, and comprised principally of religious ferment and intellectual, philosophical, and
often-existential exploration.16 As the Transcendentalist movement grew and broadened to cover
topics ranging from religion to resistance of civil government, the first distinguishable
articulation of the relationship between society and the environment emerged. Emerson’s Nature
essay was amongst the first to articulate this relationship, and Henry David Thoreau’s essays
Walden, Walking, and Two Proposals for Land Preservation further expanded upon Emerson’s
declaration of environmental worth.
The heart of the Transcendental ethos can best be described as “the idea of a divinity
latent within each person, whose ordinarily underactivated potential is not to be reasoned into
being so much as ignited.”17 Charles Dickens seemed to agree with this interpretation of ethos
when he wrote in 1842, “whatever was unintelligible would be certainly transcendental.” 18 The
noticeable lack of reason, or intelligibility, was intentional by Transcendentalists thinkers. They
were primarily concerned with spiritual philosophy, and found great worth in questions of the
spirit, as opposed to well-reasoned, analytical understandings. For the Transcendentalists, nature
was a gateway and nurturer of existential thought and individual growth. Their relationship with
nature was perhaps best articulated by Emerson when he wrote, “It is the great organ through
which the universal spirit speaks to the individual, and strives to lead back the individual to it.”19
Both Emerson and Thoreau believed that there was an innate, unintelligible attraction between
15 Lawrence Buell, introduction to The Transcendentalist: Essential Writings, ed. Lawrence Buell (New York: The Modern Library, 2006), xxii. 16 Ibid., xx.17 Ibid., xxiii. 18 Charles Dickens, “On Boston Transcendentalism”, in The American Transcendentalist: Essential Writings, ed. Lawrence Buell (New York: The Modern Library, 2006), 123.19 Lawrence Buell, introduction to The Transcendentalist: Essential Writings, xxii.
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the individual spirit and the nature world. In his 1836 essay Nature, Emerson sought to articulate
this unintelligible spiritual truth to the American public.
Spiritual rhetoric was abundant within Nature. In subsection IV (Language), Emerson
wrote, “But this origin of all words that convey a spiritual import, so conspicuous a fact in the
history of language, is our least debt to nature.”20 Later in subsection VI (Idealism) he wrote,
“Nature is made to conspire with spirit to emancipate us”.21 And again in Beauty Emerson wrote,
“What angels invented these splendid ornaments, these rich conveniences, this ocean of air
above”.22 These several examples were indicative of Emerson’s spiritual focus, and helped to
highlight the intrinsic tie Emerson observed between man and the natural world.
Nature is “perhaps the most complex word in the [English] language.”23 Emerson in his
introduction to Nature supported this opinion. He defined both a strict and common definition to
try and grasp the complexity of the term. He articulated the strict definition of nature as, “all that
is separate from us,” further clarifying, “all which Philosophy distinguishes as the NOT ME, that
is, both nature and art, all other men and my own body, must be ranked under this name,
NATURE.”24 In contrast, he defined, “Nature, in the common sense” as “essences unchanged by
man; space, the air, the river, the leaf.”25 Emerson went on to iterate that he would use both of
these definitions interchangeably, believing “that in an impression so grand as that of the world
on the human mind, they do not vary the result”.26 Emerson’s broad and ambiguous definitions of
nature were indicative of the Transcendentalist abstract interpretation of man’s relationship with
20 Ralph Waldo Emerson, "Nature,” in The American Transcendentalist: Essential Writings, 43. 21 Ibid., 54.22 Ibid., 37.23 Daniel J. Philippon, Conserving Words: How American Nature Writers Shaped the Environmental Movement (Athens, GA: University of Georgia Press, 2004), 11. 24 Ralph Waldo Emerson, "Nature,” in The American Transcendentalist: Essential Writings, 34. 25 Ibid., 34.26 Ibid., 34.
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nature, and the inherent complexities of terms (nature, environment) intended to embody the
natural world.
Emerson’s work independently influenced Preservationist thought in the 20th century,
who had a particular interest in Emerson’s common definition of nature, and the idea of
“essences unchanged by man.” This intangible, abstract connection that both the
Transcendentalist and Preservationist shared with nature indicates evolution of one idea into
another, not strictly defined lines that separate the two conceptualizations. “essences unchanged
by man” represents and idea, an idea that American environmental thought was built upon.
Similarities like this that multiple strands share give insight into the complex, non-rigid,
evolutionary tendency of the environmental concept.
Perhaps the most convincing example of the link between Transcendentalists and later
Preservationist thought can be found within the subsection Beauty in Emerson’s Nature essay.
Emerson wrote, “that primary forms, as the sky, the mountain, the tree, the animal, give us a
delight in and for themselves.”27 This line not only exemplified the spiritual rhetoric of Emerson,
but also represented the essence of later Preservationist interpretations and desire for wilderness
preservation. The passing of the Wilderness Act of 1964, which sought to preserve wilderness in
and for itself, is proof that Emerson’s 1838 thought influenced environmental thought over a
century later. This is indicative of an evolving, interrelated understanding of environment, as
opposed to a strictly defined, tangible understanding.
The spiritual relationship with nature articulated by Emerson in Nature inspired his
younger contemporary Henry David Thoreau. Thoreau molded Emerson’s relationship with
nature to make it more accessible, and ultimately more workable for later environmental thinkers
and policy-makers.
27 Ibid., 38.
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Scholars generally believe that, “Henry Thoreau drew heavily on Emerson’s theory of
the “correspondence” between the realms of nature and spirit even as he took Emerson’s poetic-
philosophical view of nature in a more empirical, proto-environmentalist direction.”28 There are
also scholars who argue that Thoreau was more influential than Emerson in the evolution of the
American environmental conception. “One could not understand the emergence of
environmentalist thought in American culture without identifying its origins in the radically new
conceptions of nature presented in Thoreau’s literature and journals.”29 Though scholars are not
wrong in their assertion that Thoreau further defined the American environmental concept, it is
overzealous to argue that Thoreau was the “originator” of radically new conceptions of nature.
To do so, is to take credibility away from Emerson, who served as a greater influence on Muir
than did Thoreau. As one major Transcendental scholar wrote, “Thoreau was hardly the first
American to envision park preservation”, and to label him as such, is to disregard other
important figures, mainly Emerson, in an incredibly complicated evolution of the American
environmental conception.30
“Thoreau must have imbibed Transcendentalism through almost every pore during his
two years living with Emerson, though he would modify it to suit his own temperament by
granting nature more reality than Emerson did.”31 Walden was noticeably less intellectual than
Nature, but what it sacrificed in sophistication it made up for in accessibility. Though Thoreau
shared Emerson’s poetic, spiritual tendencies, his material came across a bit more flowery than
Emerson’s. In Walden and later in his essay Walking, Thoreau approached nature simply,
28 Ibid., 32. 29 Kent Curtis, “The Virtue of Thoreau: Biography, Geography, and History in Walden Woods,” Environmental History 15, no. 1 (2010), http://www.jstor.org.proxy.bc.edu/stable/20749642 (accessed October 29, 2015), 34. 30 Lawrence Buell, introduction to “Two Proposals for Land Preservation” in The Transcendentalist: Essential Writings, 336. 31 Richard J. Schneider, “Thoreau’s Life,” The Thoreau Society, http://www.thoreausociety.org/life-legacy (accessed October, 29, 2015).
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discussing daily occurrences on the pond, and the simple pleasures of a walk in the woods.
Simple lines like, “I go and come with a strange liberty in Nature, a part of herself,” 32 or “what
sweet and tender, the most innocent and divinely encouraging society there is in every natural
object” are examples of Thoreau’s simple and accessible material.33 Furthering his accessibility
was his use of journal entries as his means of conveyance. His work was more relatable to people
who were more often to open a journal than they were to entrench themselves in a formal
scholarly paper. Furthermore, Thoreau’s use of a single pond in his work (Walden Pond) allowed
readers to more easily visualize nature in his works. A pond is a natural landscape that most
people could identify with. Thus, anyone could go to a pond and ponder “every natural object” as
Thoreau did. His work brought the environment into the public eye in a way that Emerson’s
more scholarly Nature could not. Thoreau and Walden shouldn’t be credited with the origination
of Preservationist thought, but should be credited with improving environmental accessibility,
and bringing Emerson’s influences and beliefs to a wider audience.34
Thoreau symbolized an evolution in the cultural concept of the environment. Building off
Emerson’s intellectual understanding, Thoreau began to think more clearly about society’s
relationship with nature. This gave way to Thoreau’s essay Two Proposals for Land Preservation
(1858,1859). In his first proposal, Thoreau argued that nature should not be reserved for the elite,
but for all members of society and community.35 He followed this point with the iteration that
nature should be preserved “not for idle sport or food, but for inspiration, and our own true
32 Henry David Thoreau, Walden (New York: Oxford University Press, 1997), 97.33 Henry David Thoreau, "First Days at Walden,” in The American Transcendentalist: Essential Writings, ed. Lawrence Buell (New York: The Modern Library, 2006), 437.34 Nina Baym, “The New England Quarterly Region and Environment in American Literature,” New England Quarterly 77, no.2 (2004): 301-307. 35 Lawrence Buell, introduction to “Two Proposals for Land Preservation” in The Transcendentalist: Essential Writings, 337.
20
recreation.”36 In his second proposal, he more or less echoed the reasoning of the first proposal,
ensuring the reader understood the spiritual worth of nature when he said, “we are all
schoolmasters, and our school-house is the universe.”37 Ultimately, Thoreau proposed that
communities set aside “five hundred or a thousand acres” to remain untouched and in their
natural state.38
Thoreau’s proposals were not impractical in their own time, but in the years to come,
they would become less feasible. Nevertheless, his essay Two Proposals for Land Preservation
carried with it lasting implications. Thoreau’s references to recreation and keeping the
environment in its “natural state” would be primary concerns of the Preservationists in the next
stage of environmental thought.
The Transcendentalist movement, embodied by Emerson and Thoreau, represented the
first major strand of environmental thought, and it was among the first American movements to
articulate a distinct relationship between man and the natural world. The Transcendentalists
permanently engrained spirituality into the American environmental conscious, though its
influences would largely be hidden from the public eye, as future strands of environmental
thought layered on top of it.
36 Ibid., 337.37 Ibid., 337.38 Ibid., 337.
21
The Second Strand: Preservationism
While Emerson and Thoreau pondered existential questions, 3,000 miles west of New
England, John Muir was getting his fill of “the blessed woods about Yosemite Valley.”39
Enthralled with the spiritual teachings of Emerson, an eager and motivated Muir invited his
predecessor to California for a month-long camping excursion into his beloved Sierra Nevada.40
In May 1871, Ralph Waldo Emerson, then in his later years, went to visit a young and
relatively unknown naturalist from California, John Muir. Muir showed Emerson around
Yosemite with gleeful pride, and hoped that the aged naturalist writer from New England would
accompany him on a trip into the wilderness. Instead, Emerson’s visit with Muir turned out to be
one of Muir’s greatest disappointments.41 He found that Emerson had fallen victim to an “indoor
philosophy”, and Muir wrote of the traveling party that accompanied Emerson, they “failed to
see the natural beauty and fullness of promise of my wild plan, and laughed at it in good-natured
ignorance.”42 The plan that Muir referred to was his plan to protect and preserve the Yosemite
Valley, a concept not shunned by Emerson, but one that in his age he may have drifted away
from. For the most part, it was Emerson’s traveling party that insulted Muir. It was on their
suggestion that Emerson regretfully declined to adventure into the Sierras. Regardless, Muir left
Emerson’s company disappointed with the outcome of the visit. Emerson, the father of spiritual
American environmental thought, failed to meet Muir’s enthusiasm adequately.43 There could be
39 John Muir, "Alaska, July 1879,” in John Muir: Spiritual Writings, ed. Tim Flinders (Maryknoll: Orbis Books, 2013), 103. 40 Daniel J. Philippon, Conserving Words: How American Nature Writers Shaped the Environmental Movement, 107. 41 Ibid., 107. 42 Ibid., 107. 43 Ibid., 107-108.
22
no greater symbol for the evolution of cultural environmental thought, than Muir’s unfulfilling
visit with Emerson in 1871.
Social forces Emerson did not have to consider in his own historical time inspired Muir's
"wild plan" These power forces were rapid industrialization, and population growth in the late-
19th century. In the years between Thoreau’s Two Proposals for Land Preservation (1859) and
John Muir’s meeting with Ralph Waldo Emerson in 1871, the United States was changing
rapidly. The Transcendentalists developed a relationship with nature based largely on the belief
that nature was relatively unthreatened, as evidenced by Thoreau’s belief that each community
could set aside a thousand acres of preserved land. However, rapid industrialization and
westward expansion were quickly necessitating an evolution in American environmental
thought. As such, much of the Preservationists work was a reaction to the changing demographic
landscape of America. Preservationists like Muir understood that in order to mitigate
demographic harm, they would have to evolve and adapt mans relationship with nature, to allow
for new and powerful forces that threatened the natural world, without sacrificing the spiritual
connection both the Transcendentalist and Preservationist shared with nature.
In the 1860 census, the “northwestern states” were Indiana, Illinois, Michigan,
Wisconsin, Iowa and Minnesota, better known today as the Midwest. Texas and California were
the only two states established more westerly at the time, and fell within no geographical
grouping in the Census. Around the time Thoreau wrote Two Proposals for Land Preservation in
1859, California (John Muir’s home state) had a population of about 165,000 people.44. By 1890,
railroads facilitated the means for massive population expansion to every corner of the United
States, and as a result, the population of San Francisco by 1890 was around 300,000. This figure
44 United States Bureau of the Census, “Population of the United States in 1860,” under “Census of Population and Housing 1860,” https://www.census.gov/prod/www/decennial.html (accessed October 25, 2015).
23
was almost two times greater than the entire state’s population just three decades prior.45 Muir,
who was writing in California throughout this transformation, understood the necessity to
anticipate and adapt his spiritual relationship with nature in order to defend the natural world
against the rapidly growing American population. When Emerson came to visit in 1871, the
“ignorance” that Muir accused him of was very likely Emerson’s ignorance of the changes
occurring in California and America at the time.
Understanding that the natural and pristine landscapes of the American West were under
threat from population growth, Muir developed an intense devotion for the protection of nature.46
As much as he rebelled against what Emerson and his accompanying party had become in 1871,
later in his life he began to understand, as Emerson wrote him in 1872, that “solitude… is a
sublime mistress, but an intolerable wife.47 By 1903, Muir took to the idea that, “the fate of his
beloved Sierra Nevada rested as much on the domesticating influence of civilization as it did on
wilderness devotees like himself.”48 Muir’s recognition of the changing tides in American
demographics allowed him to shape and mold Thoreau’s somewhat impractical Two Land
Proposals to fit the industrializing powers of his time. The Preservationist desire for national
parks and wilderness areas grew out of Transcendental spirituality, but Preservationists preached
recreational use with the understanding that all of society would intrinsically become connected
to the natural world in the years to come.
The same spiritual tendencies exhibited by the Transcendentalists were also found in
Preservationists writings, especially in the earlier years (1860s-1890s). Muir’s spirituality and
45 United States Bureau of the Census, “Report on the Population of the United States at the Eleventh Census,” under “Census of Population and Housing 1890: Final Reports,” https://www.census.gov/prod/www/decennial.html (accessed October 25, 2015). 46 Daniel J. Philippon, Conserving Words: How American Nature Writers Shaped the Environmental Movement, 109. 47 Ibid., 109. 48 Ibid., 109.
24
devotion to nature grew from a rebellion against his strict Calvinist upbringing.49 His father,
Daniel Muir, believed that nature served a strictly utilitarian function, and that humans were put
on this Earth to “subdue it” as they had in the book of Genesis.50 His son John, who would later
be referred to as “the Taoist of the West,” preferred to look for divine love in Nature, rather than
the divine wrath his strict and violent father observed.51 Dozens of excerpts from Muir’s writings
were representative of his search for divine love in nature. One such example came in April
1875, when Muir wrote from Mt. Shasta in California, “spiritual life filled every pore of rock and
cloud; and we reveled in the marvelous abundance and beauty of the landscapes by which we
were encircled.52 This type of spiritual rhetoric was especially abundant in Muir’s earlier years,
before his pure naturalist love for nature gave way to more rational and practical recreational
sentiments.
Muir was not the only spiritual Preservationist thinker, although he was by far the most
prominent figure. Aldo Leopard was another influential Preservationist thinker representative of
the strand’s underlying spiritual tendencies. Leopold, like Muir, played a critical part in
advocating for park protection and recreational uses of nature, understanding as Muir did, the
reality social forces of his own time.
Leopold’s spiritual relationship with nature came by way of a conversion experience. He
wrote in his essay “Thinking Like a Mountain” of the spiritual power he experienced in watching
the “fierce green fire” die in the eyes of a wolf he shot.53 His conversion experience in the
mountains, and even his essay titles (“The River of the Mother of God”) were indicative of
49 Ibid., 118. 50 Ibid., 118.51 Ibid., 119.52 John Muir, "Mount Shasta, April 1875,” in John Muir: Spiritual Writings, ed. Tim Flinders (Maryknoll: Orbis Books, 2013), 101.53 Daniel J. Philippon, Conserving Words: How American Nature Writers Shaped the Environmental Movement, 160.
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Leopold’s spiritual roots, although his legacy is primarily political (he was a major force behind
the Wilderness Act in 1964). Leopold represented a bridge between Muir’s spiritual tendencies
and Roosevelt’s political aims, exemplifying further, the constructive, evolutionary tendencies of
cultural environmental thought.
The importance of recreational value was a realization of Muir’s later in his life. He
understood that a touristic counterpart was essential to the preservation of nature.54 The Yosemite
Park Act of 1864 established Yosemite as one of the first major state parks in the United States.
The Act opened the natural world to tourists coming from the rapidly expanding San Francisco
area.55 By opening the park to the public, Preservationists and nature lovers gained political
justification for the preservation of parks, namely, the recreational and aesthetic pleasure
afforded to the public. For a strict spiritualist, masses of people using the natural world for
recreation wasn’t ideal, but for Muir and the Preservationist, it was a necessary and sought after
occurrence. Muir played a large part in making Yosemite the consummate American National
Park in 1890, and also helped draft legislation in 1881 to try and have Mount Shasta recognized
as a national park. Muir eventually set up the Sierra Club, one of the leading environmental non-
for-profits in America. The Sierra Club was built on the understanding “that wilderness
protection could not occur without “park” status, and that “park” status could not occur without
tourism.”56 Thus, to preserve the spiritual worth of nature, Muir allowed for the recreational use
of parks for those who were less pure in their spiritual inclinations.
Eventually Muir and the Preservationists provided the first layering of the cultural
environmental concept. Motivating almost all preservation was a spiritual desire to protect and
sustain nature. When Preservationist leaders perceived that the vector for their spiritual interests
54 Ibid., 110. 55 Ibid., 126.56 Ibid., 136.
26
was threatened by westward expansion, Muir and the Preservationists opened the gates of
pristine beauty to the public, in hope that the public may find something worth protecting as
well. The chief accomplishment of the Preservationists was the establishment of the National
Park system in 1916, a federally run system which allowed all Americans access to protected
land for spiritual, aesthetic, and recreational purposes. In essence, the creation of the National
Park System was the physical representation of intangible American environmental spirituality.
Sadly, after submitting his plans for a National Park system to President Taft in 1911, Muir
would pass away before he could see his work come into fruition. Nonetheless, Muir represented
a major shift in American environmental thought, a shift that protected spirituality, and brought
to the American public a recreational and aesthetic appreciation for the natural world.57
In the early 20th century, the “cathedral” of nature that Emerson and Thoreau held so dear
came up against the industrial and demographic forces of a changing America. It was the father
of Preservationism, John Muir that rose to the challenge and layered the spiritual understanding
of environment with a new recreational understanding. By doing so, John Muir made sure that
pristine natural areas were preserved, even thought that meant allowing masses of tourists with
more recreational interests into his beloved Yosemite Valley.
The Preservationists’ advocacy for recreation helped to build a substantial appreciation of
the natural world within the American public. As a result, cultural environmental thought began
to push for political/legal action. One President of the early 20th century, with his own cultural
understanding of environment, was eager to incorporate environment into the American political
consciousness as the public desired.
57 Michael McCloskey, National Leaders of American Conservation, ed. Richard R. Stroud (Washington D.C.: Smithsonian Institute Press, 1985), 274.
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The Third Strand: Conservationism
On the heels of a spirited loss for the presidency in 1913, Theodore Roosevelt set off to
chart a river in the Amazon jungle. Roosevelt was a rugged outdoorsman. He loved to hunt, hike,
and explore, three skills he utilized during his Amazonian adventure. The timing of his adventure
was no coincidence. Roosevelt often times escaped to the natural world after heartbreak or
disappointment that left him feeling vulnerable. For example, after his mother’s death in 1884,
Roosevelt moved to the remote hills of South Dakota to ranch cattle as a form of mourning. He
was never quite satisfied with a simple hike or peaceful afternoon spent on the porch, rather
Roosevelt sought to pit himself against nature in increasingly intense manners throughout his
life. In 1913, both Roosevelt and his son Kermit nearly lost their life in the Amazon because of
Teddy’s intense desire to challenge nature.
Roosevelt’s attraction to nature in times of deep personal grief certainly bore spiritual
undertones, but his relationship to nature was mainly recreational (hunting, fishing, hiking).
Roosevelt in many ways hid his spiritual love for nature behind his recreational activity, and it’s
doubtful he knew the difference between the two strands of thought. It was Muir’s intention to
preserve spirituality behind the veil of recreation, and Roosevelt’s relationship to nature was a
living example of the veil’s success. From Roosevelt’s intimate relationship with nature, he too,
like his processors, came to appreciate nature for its inherent personal worth, but unlike his
predecessors, he also came to appreciation the natural world for it’s more practical economic
potential.58
Roosevelt published three nature-oriented books in his life. The titles of these books
spoke especially well to Roosevelt’s recreational tendencies. They were Hunting Trips of a
58 Candice Millard, The River of Doubt (New York: Broadway Books, 2006).
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Ranchman (1885), Ranch Life and the Hunting Trail (1888) and The Wilderness Hunter (1893).59
Roosevelt’s establishment of the Boone Crockett Club alongside George Grinnell in 1887 further
indicated his love for outdoor sport. The Boone Crocket Club aimed to protect hunting, fishing,
and the natural areas necessary for these recreational activities to continue. His writing, lifestyle,
and business ventures preceding his presidency were all indicative of a man versus nature,
recreational appreciation for the natural world. This sentiment was noticeably different from the
man with nature approach of Emerson and Muir. This occurrence is worth further consideration,
as this very concept of nature as an observable, conquerable thing was what allowed Roosevelt to
bring economic thought to the intangible conceptualization his predecessor established.
Roosevelt’s conquerable understanding of nature established a new tone in understanding
humans’ relationship with the natural world. He believed as Muir and Emerson did that the
natural world needed to be protected, but he also came to understand that Americans could use
the natural world for other means, while simultaneously protecting it. In this way, Roosevelt set
out to conquer and regulate the natural world, an innovative and necessary step, but in doing so,
he moved away from peaceful coexistence, and into sustainable development.
In 1903, during Theodore Roosevelt’s first term in office, he went to visit the aging John
Muir in his beloved Yosemite Valley as Emerson did some 30 years prior. Unlike Emerson
however, Roosevelt was a bit more enthused about going on a camping trip with Muir.60
Theodore Roosevelt wrote to John Muir before his trip to Yosemite in 1903, “I do not want
anyone with me but you, and I want to drop politics absolutely for four days, and just be out in
the open with you.”61 These were surely welcome words to John Muir after his experience with
Emerson. Roosevelt’s trip to visit Muir in 1903, as Emerson’s trip in 1871 had been, represented
59 Daniel J. Philippon, Conserving Words: How American Nature Writers Shaped the Environmental Movement, 43. 60 Ibid., 108. 61 Ibid.
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a symbolic transference of leadership in the quest for nature’s protection. In the first decade of
the 20th century, the cultural evolution of environmental thought finally inspired serious political
action. As such, Roosevelt represented the third strand of cultural environmental thought and the
beginnings of an American political approach to the natural world.
1.2- The Political Evolution of Environmental Thought
In February 1909 the 60th Congress of the United States met to hear a report written by
the National Conservation Commission. This report featured a special message from the
President. Roosevelt wasted no time emphasizing the importance of the report. He said of the
report, “it is one of the most fundamentally important documents ever laid before the American
people.”62 The report was essentially the first ever inventory of a nation’s natural resources.63 For
Roosevelt, the report signified the first major recognition of conservation principles, which were
largely engaged in approaching the utilitarian idea of public good. The use of the term “public
good” was indicative of Roosevelt’s utilitarian desires. Roosevelt’s utilitarian ideology was not
reserved for nature, but his affinity for the natural world made the topic of natural resource
conservation an important topic during his presidency. The lengthy three-volume report entitled
Use and Abuse of America’s Natural Resources sought to show the American public that natural
resources were being used at an unsustainable pace, and an expanding population meant that
preemptive action had to be taken to avoid unnecessary waste.
62 Senate, Report of the National Conservation Commission: Use and Abuse of America’s Natural Resources, 60th Cong., 2d sess., 1909, (Statement of Theodore Roosevelt, President of the United States), 1. 63 Ibid., 1.
30
The avoidance of unnecessary waste that Roosevelt referred to meant largely the wasting
of natural resources without any tangible economic gain. In an age that Roosevelt himself called
a consumerist age, money was the creator and physical representation of well-being.64 Roosevelt
understood that by eliminating waste, and conserving resources, the American economy could
flourish, and in this sense, the environment was a valuable economic tool that needed only to be
properly regulated, to produce the desired public good.
The Use and Abuse of America’s Natural Resources report included an abundance of
different resources like water, forests, fish, game, public lands, and minerals. All of these
resources had sub-sections devoted to their economic impacts. Roosevelt in the introduction
cited that “needless waste costs {Americans} hundreds of human lives and nearly $300,000,000
a year.”65 Under the sub-section “Mineral-Resources” the report cited that $159 million dollars of
clay products were produced in the United States in 1907, $53 million in natural gas, $71 million
in stone, and so on through several more minerals.66 The economic losses due to inefficiency
were a primary concern of the Conservationists, who understood that 1900s well-being primarily
depended on a healthy economy that put money in consumers’ pockets. Conservation was not
just an environmental philosophy, but a political, economic, and social policy aimed at the
elimination of waste.
In his introduction to the 1909 report he saw population growth and consumerism as a
great threat. He said “the steady growth in population and the still more rapid increase in
consumption” would “make greater and not less demands per capita upon all the natural
resources”.67 Thus, Roosevelt was tasked as Muir was, with adapting environmental thought to
64 Ibid., 2.65 Ibid., 2.66 Ibid., 95.67 Ibid., 2.
31
his rapidly changing times. No longer would it be considered practical to preserve large areas of
land just for people to enjoy recreationally. One had to think about the economy (well-being of
people) and how to incorporate it in order to protect the environment effectively. By prioritizing
natural resource protection, Roosevelt found a way to regulate the inevitable damage to the
environment caused by the economic wants of industry. So it was that the third environmental
strand of thought emerged alongside the Preservationists, and represented yet another evolution
by environmental thinkers, in response to the rapid demographic and industrial expansion of their
era.
On the political end, the public need for recreation was present, but not influential enough
to sustain large-scale environmental support and policy-making. In his presidential tenure (1901-
1909) Roosevelt set aside 234 million acres of public domain for national forests.68 The motive
for this massive preservation of land was partially to prioritize environmental protection, but
more so to federalize natural resources, and strengthen the American economy. Mineral and coal
reserves were part of the 234 million acres of protected land, and Roosevelt was a heavy
advocate of multi-purpose resource development projects. 69 Roosevelt maintained a vested
interest in the expansion of natural resource harvesting. Natural resources such as coal, minerals,
timber, and oil offered immense economic potential. Though he preferred to minimize the
harvesting of these precious resources, Roosevelt also readily encouraged their regulated
harvesting for the public good.
Adding to the Conservation movement was Gifford Pinchot, Director of the United States
Forest Service under Roosevelt. In 1910, a year after Roosevelt left office, Pinchot published The
Fight For Conservation. His book was an articulation of what conservation meant, and how it
68 Elwood R. Maunder, National Leaders of American Conservation, ed. Richard R. Stroud (Washington D.C,: Smithsonian Institute Press, 1985), 332.69 Ibid.
32
understood the environment. Pinchot wrote, “conservation demands the welfare of this
generation first, and afterward the welfare of the generations that follow.” 70 This simple idea
was the beginning of sustainability, or the belief that we needed to conserve our resources, to
maximize their use. Pinchot proceeded to encourage the use and preservation of coal, emphasize
the importance of development, and advocate for the prevention of waste. Pinchot’s work helped
Roosevelt bring to the public mind the notion that resources were under threat from the
expansion of industry. Pinchot concluded that conservation should be a societal goal, and applied
not only to forest conservation, but also to politics and industry.71 Thus, Pinchot argued that the
economy and utilization of our natural resources needed to be held in high regard, just as
Roosevelt did at the end of his presidency in 1909.
70 Gifford Pinchot, The Fight For Conservation, 43. 71 Ibid., 48.
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The famous photo of John Muir and Teddy Roosevelt standing on a mountain with
Yosemite Valley in the background was a visual representation of a changing tide. In the photo
John Muir with his long beard looks the older and wiser man, and Teddy the strapping youthful
predecessor. In a broad sense this was true. As Muir’s time came to a close, his spiritual battle to
preserve nature by way of recreational preservation was left to his contemporary (Roosevelt) and
the coming generations. Politically, it would be Roosevelt’s task to preserve the precious natural
world the Preservationists and Transcendentalists so admired. Though he admired and
internalized his spiritual connection to nature, the America Roosevelt governed was drastically
different from the one Emerson and Thoreau knew. For this reason, the Transcendentalist
relationship with nature was becoming ever more foreign to Americans as recreation and
34
resource conservation took center stage in the American cultural environmental concept. The
time of vast areas of untouched, unthreatened land was gone during Roosevelt’s presidency. The
environmental concept was continuing to layer, and each new strand strived to adjust and adapt
the cultural environmental conceptualization to a changing America. In 1909, the economy could
no longer be ignored, and the Conservationists battled to ensure that the exploitation of natural
resources was regulated. As harmless, and as necessary as the Conservationist actions and
arguments were in their time, the addition of an economic strand of thought to the pre-1970s
environmental concept, would carry with it unforeseen consequences some half-century later in
the Environmental Decade. Justified by the work of Roosevelt and Pinchot, the economy would
forever become part of the American cultural, political and legal understandings of environment,
and unintentionally eat away at the American intangible understanding of nature. The law of pre-
1970s America, though valuing economy and other tangible aspects, did not neglect intangible
appreciations of nature. In effect, before 1970, much like the political conceptualization of
environment, the legal conceptualization of environment grew alongside, and not away from, the
cultural conceptualization.
35
1.3- The Legal Evolution of Environmental Thought
American legal consciousness of environment emerged gradually.72 Environmental policy
followed a theory of policymaking that political scientists call “Incrementlism.” This
policymaking theory proposes that policies, if they change, change very slowly over time.73
Much in the same way that the American environmental concept evolved slowly overtime in
light of changes in society, environmental laws changed incrementally and mainly in response to
the same societal changes. One such societal change that called for immediate consideration was
clean air. In the years following World War II, America entered into a period of unparalleled
economic growth. Subsequently, American industry grew at an outstanding rate, and with it,
pollution. Accompanying the growth in industry post World War II was newly acquired
affluence. With necessities taken care of, it was inevitable that matters like air pollution were
going to become a concern for those who could afford to make it one. With scientific data in the
1950s suggesting, “that extremely high levels of particulate-based smog could produce large
increases in the daily mortality rate,” American citizens began to demand legal action.74 The
result was the Air Pollution and Control Act of 1955.
The Air Pollution Control Act was a rare example of environmental legislation at the
federal level before 1969, and was among the first major environmental laws passed in American
history. In it’s intent written purpose, the Air Pollution Control Act was drastically different in
72 Paul S. Weiland, “Amending the National Environmental Policy Act; Federal Environmental Protection in the 21st
Century,” Journal of Land Use and Environmental Law 12, no. 2 (Spring, 1997): 275-297, http://archive.law.fsu.edu/journals/landuse/vol122/weiland.pdf (accessed October 15, 2015). 73 Ian Ostrander and William R. Lowry, “Oil Crises and Policy Continuity: A History of Failure to Change,” The Journal of Policy History 24, no. 3 (2012): 384-404.74 Joel Schwartz, “ What Are People Dying of on High Air Pollution Days,” Environmental Research 64, no. 1 (January 1994), under “Abstract,” http://www.sciencedirect.com/science/article/pii/S0013935184710048 (accessed October 1, 2015).
36
its approach than later Environmental Decade clean air laws. The 1955 Act dealt directly with a
short-term overabundance of pollution, and was not as “forward thinking” as the health oriented
policies of the 1970s. The stated purpose of the Air Pollution Control Act of 1955 was not so
much determined to stop pollution, or mitigate its effects by way of law, but rather the Act was
exploratory, stating its purpose as an Act “to provide research and technical assistance relating to
air pollution control”.75 In contrast the Clean Air Act of 1963, which marked a gradual evolution
in legal approach, contained a stated purpose, “ to improve, strengthen, and accelerate programs
for the prevention and abatement of air pollution.”76 In effect, over the course of 8 years, law
went from advocating for research, to taking positive action. This example of the evolution of air
pollution control legislation was exemplary of the “incremental” evolution in approach to
environmental problems as a whole.
As America moved towards the 1970s, environmental law grew incrementally closer to a
comprehensive, legislative understanding of environment. But in the years leading up to 1969,
environmental policy continued to only incrementally grow as it pertained to public health.
Accompanying health-oriented policy in this slow legal process were also, Preservationist based
environmental policies that bore no tangible economic or health minded results. The presence of
bills that sought to protect the environment for it’s inherent value, provided a link between older
spiritually based strands of American environmental thought and mode modern law. Politicians
in the first half of the 20th century were slow to move on environmental concerns. Nevertheless
politicians did Act, some more than others, and when they did, they acted comprehensively,
accounting for all values of the natural world
75 Air Pollution Control Act of 1955, Pub. L. No. 159-360, 69 Stat. 322. 76 Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392.
37
A key figure behind the gradual growth of American environmental policy was Senator
Gaylord Nelson of Wisconsin, best known for his sponsoring of Earth Day in 1970, a mass grass
roots movement of environmentally minded college students celebrating the natural world and
advocating for its protection. Well before 1970 and the scientific work of Carson in 1962, Nelson
was one of the few politicians that showed a genuine concern towards the protection of
recreational and spiritual aspects of environment. As a Senator in Wisconsin, Nelson had a
positive track record in environmental affairs. He was Rooseveltian in that he found great worth
in hunting, fishing, and outdoor sport. He thought it was important to leave some wild areas
untouched as Muir, Emerson and Thoreau advocated for. In this sense, Nelson embodied exactly
what one would look for in a wholesome environmental thinker. He carried with him an
appreciation for the Preservationist and Conservationist agenda by seeking to use the natural
world economically as a politician, while simultaneously setting aside land to be enjoyed in its
natural state as a nature enthusiast.
In August 1961, Nelson proposed and passed the Outdoor Recreation Act Program,
which Secretary of the Interior Stewart Udall called, “The boldest conservation step ever taken
on a state level in the history of the United States”.77 Despite it’s boldness, and in light of the
rapid change and technological advancement of Nelson’s time period, “the bill was popular as
hell.”78 For the state of Wisconsin, 1961 marked a watershed moment in the state’s approach to
the environment, and this before Carson wrote Silent Spring in 1962. This positive response
suggests that at least at the state level, intangible aspects environmental thought placed in both
the 1960s cultural, and political understandings of nature. The passing of the Outdoor Recreation
77 Bill Christofferson, The Man From Clear Lake: Earth Day Founder Senator Gaylord Nelson (Madison, University of Wisconsin Press, 2009), 144. 78 Ibid., 144.
38
Act Program into law showed that environmental protection measures with no health
implications were still of concern to newly affluent Americans in the 1960s.
The public’s desire to preserve nature temporarily increased after the publishing of Silent
Spring in 1962. The Wilderness Act, the brainchild of Aldo Leopard, had both the spiritual and
preservation strands of environmental thought at its core. In the Act it was written that its
purpose was to set aside, “an area where the earth and its community of life are untrammeled by
man, where man himself is a visitor who does not remain.”79 This was the essence and
overlapping sentiment shared by Preservationism and Transcendentalism. The bills language and
mission was directed at protecting the spiritual beauty man found in nature, as Leopold found in
the “fierce green fire” in a wolf’s eyes.80 While the Wilderness Act was pending in 1964, Senator
Gaylord Nelson was trying his hand at federal policymaking, advocating for the protection of the
Appalachian Trail in a similar Preservationist minded proposal. The Wilderness Act of 1964,
Nelson’s Outdoor Recreation Act of 1961, and Nelson’s proposed Act to save the Appalachian
Trail in 1964 were all indicative of the prevalence of the spiritual/preservation strands in early
1960s environmental law.
Before 1969, environmental law at the federal level distinguished between issues
pertaining to health, and issues pertaining to the natural world, it did not combine them. The law
that pertained to the natural world was preservation based, spiritually rooted, and sought to
protect the natural world in and of itself, while separately, issues of pollution control were being
challenged for their clearly negative effects on human health. This separation of health and
79 The National Park Service, "What Is Wilderness? FAQ,” Wilderness: Gateway to National Park Service Wilderness, http://wilderness.nps.gov/faqnew.cfm (accessed April 23, 2016). 80 Daniel J. Philippon, Conserving Words: How American Nature Writers Shaped the Environmental Movement, 160.
39
environment in law, allowed for each to be treated without regard for the other. The result was a
wider array of intangible preservation based environmental laws.
After Silent Spring, the majority of environmental legislation would begin to increasingly
shift towards health-oriented concerns. The Wilderness Act and Nelson’s attempted Appalachian
Trail legislation in 1964 were some of the last predominately preservation based bills on the
floor of Congress. As the Environmental Decade approached, health became the primary
concern, and although certain major laws like the Endangered Species Act in 1972 were
preservation based, health was prioritized, and it’s inclusion in environmental law, complicated
and confused the American understanding of environment for years to come.
From the Transcendentalists through the Conservationists the cultural concept of
environment evolved and adapted to changing social forces between the mid-19th and mid 20th
centuries. Politically at the end of the 1950s and into the early 1960s, Senators like Gaylord
Nelson proposed bills that were predominately concerned with preservation and recreation,
among other health oriented bills. In the 1970s, a legal shift would occur away from preservation
and towards health in reaction to Rachel Carson’s work. The result was an overemphasis on
health during the Environmental Decade, which prioritized point source pollution control and
tangible aspects of environmental understanding. The legal shift towards health was not a
negative thing, it was a necessary thing, but while carrying out this necessary action, lawmakers
unintentionally neglected other strands of environmental thought.
40
Conclusion
Three distinct yet related strands of environmental thought and conception emerged in
American society in the century or so before the Environmental Decade. The three strands
Transcendentalism, Preservationism, and Conservationism all evolved naturally from one
another, simultaneously advocating for different areas of environmental protection. By 1969,
these three strands were well represented in the infantile environmental law, and with the rapid
popularization of Rachel Carson’s Environmentalism, it seemed hopeful that a fourth evolution
of American environmental thought was about to take its place in a long and natural process. An
article published in 1969, in hopeful optimism, observed the interrelatedness of the four 1970s
strands of environmental thought. The article read, “the importance of the conservation
objectives of the fish and wildlife program which began with efforts to preserve wildlife which
now leads directly to concern for the whole environment.”81 Just months before the
Environmental Decade, the idea of preservation, conservation and environment all coexisted in
one journalists understanding of environmental efforts.
The use of the term “environment” in the article signaled a cultural evolution in rhetoric.
“Environment” was selected to speak for Transcendentalism, Preservationism, and
Conservationism due to Environmentalism’s more recent popularity. This simple rhetorical
occurrence in American cultural, law and politics to refer to all things in the natural world as
“environment” carried with it a hindrance in properly conceptualizing the environment. As time
moved on, and historical strands of environmental thought became more antiquated, the
American cultural consciousness and lawmakers understandably began to lose touch with past
81 Irston R. Barnes, “Rachel Carson Refuge: The Naturalist,” Washington Post, Times Herald, December 28, 1969, http://search.proquest.com.proxy.bc.edu/docview/143603090/fulltextPDF/F4354DAAB0D54A66PQ/1?accountid=9673 (accessed October 25, 2015).
41
terminology. As a result the term “environment” was culturally understood to represent all four
strands of environmental thought, but for lawmakers, they more readily looked to the movement
from whom the name derived, Environmentalism. The result would be an overreliance on
Environmentalist concerns in the Environmental Decade.
In the 1970s, the Transcendentalist, Preservationist and Conservationist relationships
with nature were shaded from the public eye by the Environmentalism of the 1960s. One single
term, “environment”, came to embody all three of the distinct environmental movements
approached in this chapter. They chronologically grew from one another, and when Rachel
Carson wrote Silent Spring in 1962, her work symbolized yet another natural evolution of the
environment. Culturally, all was in order. However, politically, the decision to seek a
comprehensive legal approach to federal environmental law, for all of its good intentions would
inadvertently prioritize health and economy during the Environmental Decade. By aiming to
comprehensively protect the environment, but failing to do so by only passing largely point
source pollution control based laws focused on human health, lawmakers opened up the
environment to manipulation and eventual stagnation.
42
Chapter 2
The Prioritization of Tangible Environmental Factors in the Environmental Decade
“The question of the seventies is shall we surrender to our surroundings, or shall we make peace
with nature and begin to make reparations for the damage we have done to our air, our land and
our water? Restoring nature to its natural state is a cause beyond party and beyond factions. It
has become a common cause of all the people of America.” –President Richard M. Nixon, State
of the Union Message, 1970 82
Introduction
Fifty or so years passed between Conservationism and the next major evolution of
environmental thought. In a country so rapidly changing as the United States in the first half of
the 20th century, this was a significant period time. Before environmental thought evolved away
from Conservationism, America experienced the Roaring 20’s, the Great Depression, and two
World Wars. On the other side of those monumental events, America emerged victorious,
quickly moving to the suburbs and starting families in the affluence that followed World War II.
A culture of consumption emerged, in large part thanks to the expanded limits of production
from the 1920s, World War II, and federal subsided programs like the GI Bill that allowed for
middle-class Americans to rise to economic well-being with relative ease. Cars, radios,
82 Richard N.L. Andrews, Managing the Environment, Managing Ourselves: A History of American Environmental Policy, 2nd edition (New Haven, Yale University Press, 2006), 227.
43
televisions, and new kitchen appliances were just a few of the inventions that found their way
into most American homes, indicating the new wealth and well being of the country as a whole.83
The growth of marketing only furthered the countries infatuation with an endlessly growing
supply of consumer goods. Thanks in large part to the environmental principle of conservation,
an age of scientific achievement and exponential growth of production flourished with little
resistance well into the 1960s. That was until 1962, when a concerned naturalist named Rachel
Carson turned the ripe, newly affluent American middle class’s attention towards an issue that
threatened to rob them of their newly found ease. When Carson published her findings of the
effects of DDT on the environment, a new strand of environmental thought emerged. For the first
time in American cultural history, Carson convincingly demonstrated that humanity was capable
of causing serious harm to the natural world, and in a way that could drastically affect the
welfare of the American people. In effect, Carson was the harbinger of the fourth major strand of
American environmental thought, and the movement best known to the modern day historical
observer as Environmentalism.
Chapter Two will begin with the cultural evolution of environmental thought embodied
by Rachel Carson and the Environmentalist movement. The goal will be to show that Carson’s
strand of thinking, though unique and evolutionary, did not claim to be more important than
preceding strands, but rather added to the evolutionary growth of the environmental
conceptualization as a whole in American culture. Her worked introduced a health strand of
thought, and emphasized the clean up of pollution, and the mitigation thereof. Though Carson
understood the part she played in a greater understanding of environment, lawmakers, many new
to environmental affairs and separate from the natural world, came to view the Environmentalist
interpretation of environment as an end, not an addition, to the greater environmental
83 David Halberstam, The Fifties (New York, Ballantine Books, 1994).
44
conceptualization. It would be with this mindset that lawmakers at the end of the 1960s would
attempt to approach environmental law, although one of the key figures in advocating for
environmental law, warned against prioritizing any one aspect of environment.
Lynton Caldwell was a key political figure in the process of legalizing the environment.
His paper Environment: A New Focus For Public Policy introduced the idea of a comprehensive
legal understanding of environment, warning against a focus on any one area of understanding.84
His work was groundbreaking, and lawmakers adapted his suggestion of comprehensiveness into
many Acts’ “Purposes” throughout the Environmental Decade. This did not mean the
comprehensive understanding Caldwell advocated for was achieved however. Lawmakers,
beginning in 1969 with the National Environmental Policy Act, systematically neglected past
strands of environmental thought when approaching environmental legislation, simultaneously
shutting out intangible strands (Preservationist and Transcendentalist) and broadening the
definition of the natural world to prioritize health and economy in conceptualizing the
environment. An indicator of this tangible lean was point source pollution control, a legal
mechanism that sought to stop pollution at its source. The shutting out of intangible strands from
the legal conceptualization of environment, the prioritization of health and economy, and the
dominance of point source pollution control can be evidenced across seven Acts passed during
the Environmental Decade.
Chapter Two will conclude with a close inspection of the rhetoric in seven major
environmental Acts passed between 1969-1978. The environmental conceptualization of
lawmakers, for all it’s good intentions, gradually narrowed as the Environmental Decade wore
on, first focusing mainly on health and point source pollution control, and then shifting to
84 Lynton K. Caldwell “Environment: A New Focus for Public Policy?,” Public Administration Review 23, no. 3 (September 1963), 135.
45
prioritize more economic aspects of environment by decade’s end. The gradual narrowing of the
legal environmental conceptualization slowly separated the legal understanding of environment
from the cultural understanding. By looking closely at certain Acts across the duration of the
Decade, this chapter will aim to illuminate this process.
2.1 The Fourth Strand of Cultural Environmental Thought: Environmentalism
Rachel Carson was born on May 27, 1907 in Springdale, Pennsylvania. She grew up with
a “special affinity for nature,” not unlike Emerson, Thoreau, Muir and Roosevelt.85 Unlike her
predecessors, Carson’s attraction to the natural world was primarily scientific. Though her
scientific focus suggests a more empirical connection to nature, Carson enjoyed a spiritual
connection with nature as well. She grew up with a special affinity for the Pennsylvanian
wilderness, a love that would inspire much of her work, as well as influence her collegiate
interests. She graduated with a degree in Biology from the Pennsylvania College for Women in
1928, choosing Biology over English due to her passion for the natural world.86 Upon graduating,
Carson returned to her home in Springdale, Pennsylvania only to find that the farms she had
adored growing up were turned to smokestacks. “The river had been polluted by industrial waste,
and the smell of sulfur, a by-product of the coal industry, rose in the air”.87 These powerful
forces of economic expansion, urbanization, suburbanization and industrialization were rapidly
accelerating in Carson’s life, and what she witnessed in her adulthood was a far greater
85 Arlene R. Quaratiello, Rachel Carson: A Biography (Westport: Greenwood Press, 2004), 1. 86 Ibid. 87 Ibid., 12.
46
acceleration of change than Roosevelt or any prior environmental thinker experienced. For
Carson the concept of the environment started, as it had for her predecessors, as a genuine quasi-
spiritual connection, but as her life and circumstances shifted, she gradually came to understand
the environment in an entirely new, and necessary way.
In defining the environment, Carson echoed Emerson’s strict definition of nature, which
was, “all that is separate from us.”88 Carson varied this definition only slightly, defining
environment as “all that surrounds us.”89 Emerson’s strict definition of nature was his less-
spiritual interpretation. It was indicative of the changing relationship between man and nature,
that Carson understood the environment most similarly to Emerson’s less spiritual definition.
This less spiritual definition was not the only difference between Carson and her predecessors.
She also believed that “only within the moment of time represented by the present century has
one species---man--- acquired significant power to alter the nature of his world.”90 The concept
that mankind could have profound influence on the environment was definitely radical, though
not previously unheard of. During the Roosevelt Conservationist years, the realization that
resources were not infinite was groundbreaking. However, there had not been much thought
given to the effects of resource use on public health. With such large-scale resource use in 1960s
America, Carson was forced to expand the perception of environment; in order to make her
argument that mankind was adversely affecting the natural environment.
Although Rachel Carson was born with the same love of the natural world as the
Transcendentalists and Preservationists, and shared the same naturalist perspective as the
Conservationists, what truly distinguished Carson and the Environmentalist strand of thought
was it’s vast expansion of environmental understanding to be “all things natural.” This broadly
88 Ralph Waldo Emerson, "Nature,” in The American Transcendentalist: Essential Writings, 34.89 Rachel Carson, Silent Spring (Greenwich: Crest Books, 1962), 12. 90 Ibid.
47
defined environment, Carson argued, was being threated by the resource use that Roosevelt’s
Conservation principles had encouraged. Though Environmentalists prioritization of health
challenged Roosevelt’s economic worth of nature in some ways, Carson’s work was also in
accordance with the principles of Conservation in that her primary concern was public health, a
faction of Roosevelt’s “public good.”
“The most alarming of all man’s assaults upon the environment is the contamination of
air, earth, rivers, and sea with dangerous and even lethal materials.”91 The term lethal was key to
understanding the implications of this quote from Silent Spring. The term was used 33 more
times in the book to describe pollutions affect on the environment. Silent Spring was famous for
its exposition of DDT’s adverse affect on local bird species, but its message was deeper than just
one case study. Carson studied how DDT affected entire ecosystems, even if it was just a single
species in an entire ecosystem that suffered. One such example she cited was of a study carried
out by Montana Fish and Game, the Federal Fish and Wildlife Service, and the National Forest
Service in 1956.92 The biologists of the various services set out to study the effects of DDT on
900,000 acres of state land. Their findings were indisputable. Death always surfaced, and the
animals that died always contained traces of DDT in their system. Native trout were one such
common causality, and “all fish analyzed, whether taken alive or dead, had stored DDT in their
tissues.”93 The studies often found that the trout became contaminated from the insects that they
ate, meaning the chemical was working its way through the food chain. Through it’s studies
between 1956-1957, “The Montana Fish and Game Department registered strong opposition to
further spraying, saying it was ‘not willing to compromise the sport fishery resource for
91 Ibid.92 Ibid., 75.93 Ibid., 75.
48
programs of questionable necessity and doubtful success.”94 Not only does this quote from Silent
Spring speak to the general consensus of Carson’s piers with her work, but it also offers an
example of an intermingling of strands. The Montana Fish and Game did not want to
compromise it’s “sport fishery resource”, which was a recreational resource. In this instance, the
trout, which were fished recreationally, were dying of DDT that was adversely affecting the
environment’s health. If recreational and health strands of environmental thought could find
common ground for concern, why couldn’t economy and health, or economy and recreation? In
this instance, the common ground found between recreation and health strands suggests that the
health worth articulated by Carson, was in accordance, and grew off of past American cultural
environmental conceptualizations.
The health worth articulated by Carson more often than not worked alongside the
Transcendentalist spiritual worth, and the Preservationists recreational worth. Keeping the
environment healthy allowed it to be preserved and kept pristine, and seldom did the two strands
conflict in anyway. What would most often become the conflicting strand in the 1970s was the
economic strand of environmental thought that prioritized the maximization of resources.
Pinchot encouraged, albeit with little knowledge of the true effects, for the expanded use of coal
in 1910, and Roosevelt himself seemed in some sense to view resources as a valuable economic
tool.95 The environment to Conservationists was a resource that when regulated correctly, could
maximize public good, or in other words, maximize profit. Though conflictions happened
between strands, the Environmentalists and Conservationists conceptualizations of environment
shared one very important thing in common, a tangible understanding of environment. Both
Roosevelt and Carson actively pursued a quantifiable understanding of nature.
94 Ibid., 75. 95 Gifford Pinchot, The Fight For Conservation.
49
While concluding her discussion on the adverse affects of DDT on Montana trout, Carson
wrote, “invasion of streams, ponds, rivers, and bays by pesticides is now a threat to both
recreational and commercial fishing.” 96 She wrote that $3 billion dollars annually were spent by
the approximately 25 million who looked at fishing as “a major source of recreation” and the
approximately 15 million others who at least were “casual anglers”.97 She concluded, “anything
that deprives them of their sport will also reach out and affect a large number of economic
interests.”98 The economic interests she referred to were garnered from recreational interests, and
those $3 billion dollars were made from recreation. In this case, fish were both recreational and
economical in worth, and as such found themselves as recipients of three separate stands of
environmental protection; conservationist, preservationist, and environmentalist. Examples like
the Montana trout in Carson’s work show that Environmentalism worked in equal complex
harmony with previous environmental strands. Though Conservationists and Environmentalists
focused on tangible aspects of environment, their close care for recreation and spiritual
connections ensured that the environmental understanding protected intangible areas as well, and
treated them with equal importance. This complex, natural evolution of cultural environmental
thought was performing its function in the late 1960s, with each strand learning from the prior,
and offering something new to the greater environmental concept.
Another example of the complex intermingling of the environmental strands in Carson’s
work can be found later in Silent Spring. When discussing a decrease of chickadees as a result of
DDT, she cites that “the feeding habits of all these birds not only make them especially
vulnerable to insect sprays but also make their loss a deplorable one for economic as well as less
96 Rachel Carson, Silent Spring, 78. 97 Ibid., 78. 98 Ibid., 78.
50
tangible reasons.”99 The feeding habits Carson referenced were the predation of spruce beetles
and cankerworms, two bugs that adversely affect apple orchards, by various birds like the
woodpecker, chickadee and other winter-resistant birds spruce beetles and cankerworms.100
When the chickadees died due to DDT, the spruce beetles grew unchecked, and the adverse
affects spruce beetles had on apple orchards in turn adversely affected local crops and local
economies. The economic loss that resulted from DDT’s negative effects on chickadees showed
that even economy benefited from a healthy environment. For Carson, viewing the environment
for its health worth was just as important as viewing the environment for its worth to the
economy, recreation, or spirituality. Carson understood that a healthy environment helped push
forward the aims of the other environmental strands of thought. In short, Carson understood the
place of Environmentalism in the broader evolutionary picture of the American cultural
understanding of environment.
Carson’s broad definition of the environment encompassed and built upon her
predecessors conceptions, and brought them to the forefront of the American consciousness. The
death of birds, trout and other relatable creatures whose loss often affected local communities,
made the natural world more relatable and identifiable than ever. Carson’s strand of
environmental thought was most unlike the ones that came before her. Her approach was
scientific, tangible, and empirical. Perhaps this helped politicians and lawmakers to try their hand
at integrating a mass of environmental laws in the 1970s. One thing is for sure, Carson and Silent
Spring brought the concept of the environment to American popular culture in a decade oozing
with liberal, provocative, youthful activity. For most people of the 1960s, the concept of the
environment was new and foreign. Rachel Carson brought it to the public, and she chose to
99 Ibid., 64. 100 Ibid., 64.
51
define the environment as “all that is separate from us,” in an effort to evolve the American
understanding of the environment as an interconnected entity. Despite no intention on the part of
Carson, American lawmakers heard Carson’s definition of environment, and saw here scientific
approach as the culmination of, not a part of, a greater evolutionary process. The
Environmentalist, Conservationist, Preservationist, and Transcendentalist strands of thought
were all accounted for in the 1970s cultural conceptualization of environment, but legally, the
environmental conceptualization was narrowed largely to only the Environmentalist and
Conservationist strands of thought.
2.2 - The Political Push Towards the Environmental Decade
One of the key contributors, if not the key contributor, to beckoning in the Environmental
Decade was Lynton K. Caldwell.101 Caldwell was a professor of Government at the University of
Indiana in 1963 when he wrote Environment: A New Focus for Public Policy?102 Born in Iowa in
1913, a nature enthusiast just like all great environmental thinkers mentioned prior, and a
prominent political scientist, Caldwell was custom built to formulate a cohesive approach to
environmental policy. Caldwell shared a connection with past environmental thinkers, as was
often the case with environmental thinkers of the past. Caldwell drew inspiration from his fellow
Iowan Aldo Leopard, who was a primary contributor to the Wilderness Act of 1964, and a man
whom Caldwell spent “a memorable evening” in the company of in 1946. Perhaps his closeness
101 Wendy R. Wertz, Lynton Keith Caldwell: An Environmental Visionary and the National Environmental Policy Act (Bloomington: University of Indiana Press, 2014).102 Lynton K. Caldwell “Environment: A New Focus for Public Policy?,” 132.
52
to an intangibly minded Preservationist inspired his advocation for a broad, inclusive legal
environmental conceptualization.
Understanding the complexities of the term “environment,” Caldwell compared the term
to the qualities of sound. He wrote, “in both concepts, the physical reality of the objective
universe is distinguishable from the interaction between that reality and the perceiving object.”
In other words, sound exists only when there are ears to hear it, and environment exists only if
there are people to be affected by it. He goes on to admit his limitations as a scholar,
understanding that “the human environment in its complex totality extends far beyond our
present comprehension and technology.”103 Perhaps his best articulated understanding of the
environment could be found in the introduction to his paper, where he equates the environment
to a picture of seemingly unrelated dots.104 When viewed closely, the dots seem random and
unrelated, but from afar, the dots compose a picture. In this way, he sought to show that “the
picture was there all the time, even though the viewer did not at first perceive it, and then saw it
only when distance lent the right perspective.”105 Caldwell in his paper tried his best to justify his
idea of comprehensive environmental policy. By accepting a broad definition of environment
and human’s inadequate understanding of its complexity, Caldwell sought to propose a holistic,
comprehensive, and flexible approach to public policy. He ultimately proposed a two-tier
approach. He wrote, “First the public must have begun to see the comprehensive environment as
a legitimate and necessary field for public action.”106 The first step was accomplished through the
Environmentalist movement. “Second, means must be found for more effectively interrelating or
103 Ibid., 133. 104 Ibid., 132.105 Ibid., 132. 106 Ibid., 139.
53
integrating the tasks of the public agencies as they bear upon the environment.” (the aim of the
Environmental Decade lawmaking).107
Caldwell’s definition of environment was laughed at by his colleagues; he was even
ridiculed as an academic. His colleagues saw his idea as “too broad” and “too generalized”.108 In
such a strictly defined, and rigid community as the higher echelons of academia, Caldwell
understandably was required to play up the research oriented, tangible aspects of his broad
environmental concept. To make tangible his idea of environment, Caldwell played heavily on
scientific research, often citing the inadequacy of past environmental policies due to their
inability to address problems pertinent to public health such as water supply, industry and
sewage.109 He talked of urban renewal, public health, and development planning in his paper, and
though all of these things certainly were relevant to the environment as a whole, they noticeably
focus in on health.110 Urban renewal is the act of restoring polluted urban areas, public health is
in and of itself concerned with health, and development planning is instituted to mitigate harmful
health effects on the natural world as a result of industrialization or commercialization. Throw in
a sporadic mention of economic issues such as natural resource management in Caldwell’s paper,
and you have a strict adherence to tangible aspects of environment under the inadvertent veil of a
purpose stated otherwise. It would seem that Caldwell was aware of this heavy dependence on
science in his environmental conceptualization. He wrote, “The scientific base and content of
environment-focused decisions would (in the event of major environmental policy) no doubt be
increased beyond that employed in our characteristically segmental decisions.”111
107 Ibid., 139.108Wendy R. Wertz, Lynton Keith Caldwell: An Environmental Visionary and the National Environmental Policy Act, 13.109 Lynton K. Caldwell “Environment: A New Focus for Public Policy?,” Public Administration Review, 23, no. 3, 135. 110 Ibid., 136.111 Ibid., 138.
54
Caldwell, aware of his proposal’s scientific dependence, remained optimistic that value
would play a prominent role in the political environmental understanding. He envisioned a
political understanding of environment with “value judgments, particularly with respect to ends,
ethics, and accountability in public action” that would influence laws alongside the scientific
research of environment.112 He intended for policies to ask such questions, as “what in a given
instance is a “good environment” 113 Or, “What kind of environment should, in a given instance
be sought?”114 Caldwell was fully aware he did not have all of the answers, and warned against a
hasty, ill-conceived, and strict definition of the natural world. He concluded by saying, as a sign
of caution for the day of policy making, “until we find answers to these questions, better than
those we now have, our environmental polices, although capable of great improvement, will still
leave much to be desired.”115 This statement was perhaps the most insightful of a reality soon to
come, in a paper filled with groundbreaking ideas.
2.3- The Law of the Environmental Decade
The 91st congress of the United States convened on January 3, 1969 and came to
completion two years later. Richard Nixon was in his first two years in office, and there were
Democratic majorities in both the Senate and the House of Representatives. This was the federal
112 Ibid., 138-139. 113 Ibid., 139.114 Ibid., 139. 115 Ibid., 139.
55
political situation for the unprecedented emergence of American national environmental policy
in the 1970s.
In alignment with the scientific environmental perspective set forth by both Carson and
Caldwell, politicians sought to incorporate a comprehensive understanding of environment into
major national policy. The results of this action as they pertain to this thesis would be two fold.
First, a real and genuine scientific dependence emerged from the major policies of the
Environmental Decade, negating the comprehensive goals of Caldwell, and the intent written
purpose of the National Environmental Policy Act. This scientific dependence led to a heavy
emphasis on issues of “health” more so than ecology, and consequently, emphasis was also put
on economic rhetoric later in the Decade, as a result of the strict tangible health oriented
approach of earlier Decade law. The scientific, health, and economy prioritization of the
Environmental Decade dictated the legal mechanism used to address environmental problems.
The most prominent legal mechanism used was point source pollution control, which sought to
mitigate pollution at the source. The law’s focus on health, science, and economy can be
evidenced in the rhetoric of many of the major laws and policies passed between 1969-1978.
Despite Caldwell’s hopes that the concept of environment would not be pigeonholed politically
into a concentration on science and other tangible realms, the law knew no other way to
approach the topic. The result was a broad statements of purpose at the onset of the
Environmental Decade that was backed up not comprehensively, allowing for complexity and an
intermingling of strands, but with health oriented, point-source pollution based policy, that
neglected to adequately protect all previous strands of environmental thought, and hindered the
ability of the environmental concept to evolve successfully within the law.
56
Caldwell’s policy suggestion of intended comprehensiveness was immediately apparent
in both the stated purpose of the Environmental Policy Act of 1969 and the Action Proposals
Hearing of the 91st Congress in 1970. Considering that both of these documents were particularly
comprehensive, and aimed to set a path for the future of all other environmental policy, the
statement of purpose in both was necessarily broader. A closer look at the Congressional
declaration of national environmental policy at the forefront of NEPA (National Environmental
Policy Act) should suffice to show how lawmakers intended to approach environmental policy.
The use of terms like “all”, “profound”, and “welfare” were indicative of the inclusive
intentions of lawmakers.116 There was an understanding that the concept environment was broad,
and unique in its composition. All four strands of environmental thought were sought to be, in
theory, equally protected under the law. Through terminology, and specific rhetorical devices,
lawmakers kept the concept of environment broad and loosely defined, so as not to neglect any
part of “all that surrounds us,” from equal protection under the law.
The primary example of this in the Congressional declaration of national environmental
policy was at its conclusion, in subsection b. The subsection sought to articulate the method by
which the Federal Government would combat environmental challenges, laying out six duties.
The Conservation strand of environmental thought was represented in duty two with phrases like
“productive,” “beneficial uses of the environment,” and “high standards of living.”117 The
Environmentalist strand with phrases like “healthful,” without “risk to health and safety” in duty
three, and “healthful environment” in the short subsection c.118 The Preservation strand and
Transcendentalism strand being closely intertwined, were collectively accounted for in duty 2
under subsection b with phrases like “esthetically pleasing surroundings,” in duty four with
116 National Environmental Policy Act of 1969, 42 U.S.C.§ 4331 (1969). 117 Ibid.118 Ibid.
57
“preserve important historic, cultural, and natural aspects of our national heritage,” and
“individual choice.”119 With rhetoric like this, the National Environmental Policy Act of 1969 in
its purpose articulated a desire to encompass all previous environmental strands of thought under
the umbrella term “environment” and treat the four strands collectively and equally under the
new, all inclusive system of law.120
Similarly, the Action Proposal Hearings in February 1970 just a month after NEPA was
passed showed a similar broad, optimistic environmental conceptualization that sought to
encompass all previous strands of environmental thought. The hearing was in the House of
Representatives and was a meeting of the Conservation and Natural Resources Subcommittee of
the Committee on Government Operations.121 On December 16, 1969 eighty members of the
House of Representatives collectively joined in “A Call for the Environmental Decade.122 The
members collectively emphasized a wide assortment of environmental ills and goals that needed
to be addressed in the next 10 years. Included in the list of these ills and goals were problems and
missions pertinent to each past environmental strand. The Preservation strand was represented by
the statement “preservation of our wildlife habitat and of our marine resources.”123 The
Environmentalist strand was represented by “standards for industrial and powerplants, to
eliminate pollutional discharges of sulfur oxides, hydrocarbons, and particulate matter.”124 The
Conservation strand was accounted for in “provision for better management of our mineral and
forest resources.”125 And finally, even Transcendentalism with its spiritual abstractness, as
119 Ibid. 120 Ibid.121 House Subcommittee of the Committee on Government Operations, The Environmental Decade (Action Proposals for the 1970), 91st Cong., 2d sess.,1970 (Statement of Henry Reuss, Chair, Conservation and Natural Resources Sub-Committee, Washington D.C.).122 Ibid., 1.123 Ibid., 2.124 Ibid., 2.125 Ibid., 2.
58
opposed to being buried under Preservation, seemed to be accounted for in a call for protection
of the more simple pleasures of the natural world, albeit mainly recreational ones. The
Transcendentalist statement reference was “Expansion of our programs for parks, playgrounds,
wilderness areas, wild rivers and seashores, and fish and wildlife areas.”126
The attempt by lawmakers to show inclusiveness in their goals was well met. They truly
took to heart the idea of a broad, comprehensive sense of environment as Caldwell advocated
for. However, it was only to the end of intent that lawmakers unequivocally succeeded. In the
policies of the Environmental Decade as a whole, the reality did not match the intention. The
scientific dependence that Caldwell feared took root over the nine years between 1969-1978, and
lawmakers held onto the tangible, observable, and research oriented appeal of the
Environmentalist strand of thought, while neglecting that which could not be easily quantified or
understood (Preservationist). Human health took precedence, and the notion of well-being
dominated. Closely tied to this well-being, or “welfare,” were economic interests, considering
the close relationship of money and happiness in a capitalist society. This health/economy
orientation directly used the legal approach of point source pollution control, or abatement
prioritization, as the tangible approach to confronting environmental ills. As necessary as these
steps were, they quietly ate away at a comprehensive, complex legal understanding of
environment.
To better understand the shift towards health and economy, and how point source
pollution control measures later narrowed law’s ability to protect the environment, the next
section will focus on different major environmental laws of the 1970s. The sections aim will be
to show the rhetoric and procedures that indicated the narrowing of the legal environmental
126 Ibid., 2.
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conceptualization to solely tangible aspects, which in turn failed to adequately allow for the
comprehensive understanding of environment lawmakers initially strove for.
The National Environmental Policy Act of 1969
After Subchapter I of the National Environmental Policy Act, which was designated for
policies and goals, followed Subchapter II- Council on Environmental Quality. The Council on
Environmental Quality was primarily designed to oversee, and prioritize environmental policy in
the years moving forward.127 Today, it’s primary duty is to issue and conduct Environmental
Impact Assessments, a commonly used legal tool in environmental law, that requires any
development to fulfill an assessment of the possible environmental damages of their project.128 In
Subchapter II, there are 8 duties explicitly laid out, with duty numbers 4 and 5 exhibiting specific
relevance to health.
Though Subchapter II doesn’t deviate much from the general, broad overtone of NEPA,
duties 4 and 5 offer insight into how the broad interpretation of environment could subtly be
neglected. Duty 4 states, “to develop and recommend to the President national policies to foster
and promote the improvement of environmental quality to meet the conservation, social,
economic, health, and other requirements and goals of the Nation.”129 In accordance with the
broad approach of Subchapter I, duty four seemed to fall right in line. However, duty five gives
the same impression of a broad, non-specific definition of environment, but in reality, perhaps
unintentionally, prioritized Environmentalist thought. Duty five reads, “to conduct
127 The White House, "The Council on Environmental Quality- About," Council on Environmental Quality, https://www.whitehouse.gov/administration/eop/ceq/about (accessed April 23, 2016).128 Ibid.129 National Environmental Policy Act of 1969, 42 U.S.C.§ 4344.
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investigations, studies, surveys, research, and analyses relating to ecological systems and
environmental quality.”130 Though hidden away in an obscure list of duties, within duty 5 there
existed a clear adherence to the scientific method. Transcendentalism, or a spiritual connection to
the natural world can hardly be “researched”, “studied”, or “analyzed”, nor can Preservation or
recreational worth to a large extent. It’s not to say its impossible, in fact sociology in many
respects strives to scientifically identify with such things, but in terms of priority, the scientific
method, undoubtedly, encouraged priority of that which we can measure or control. The science
based approach to environment was thus prioritized in duty five of the Environmental Quality
Council, and though subtle and non-worrisome on its own, small advocation for the advancement
of the scientific method in the greater legal environmental approach, signaled the beginnings of a
larger shift to be evidenced over the course of the Environmental Decade, namely the
prioritization of health and science over previous modes of environmental thought.
Less subtle, and more directly health oriented within NEPA was the emphasis on health
in Subchapter III. Among the first issues laid out in the first few pages of NEPA was the directly
health relevant, Interagency cooperation on prevention of environmental cancer and heart and
lung disease.131 In effect, directly following the purpose, and the establishment of the
environmental quality committee, in the Subchapter labeled Miscellaneous Provisions
lawmakers sought to combat “environmental cancer.” The provision called for the establishment
of a task force, no later than August 7, 1977 that would “recommend a comprehensive research
program to determine and quantify the relationship between environmental pollution and human
cancer and heart and lung disease.”132 A separate provision later in the bill was labeled Pollution
130 Ibid.131 Ibid.132 Ibid.
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control technologies demonstrations, which established a Science Advisory Board.133
Immediately following the call for a comprehensive environmental approach, the foundational
Act of the Environmental Decade laid out only provisions and subsections relevant to health,
nothing else.
The absence of any specific Preservationist based or Transcendentalist based provision
indicated a failure by lawmakers to achieve the comprehensiveness Caldwell advocated for. In
fact, overdependence on science was what Caldwell feared. Thus, the National Environmental
Policy Act of 1969, the harbinger of the Environmental Decade, brought with it a broad and
inclusive purpose and goal, but in substance, prioritized only health and science, accounting for
only the Environmentalism strand of environmental thought in the broad legal term environment.
For the remainder of the Environmental Decade, a wide array of different policies would
be passed, largely in accordance, at least in purpose, with the intent stated goals of the 1970s
House of Representatives hearing and NEPA. Each subsequent Act, either obviously health
oriented (Clean Air, Clean Water) or not, continued to prioritize and narrow down the concept of
“environment” to the Environmentalism health oriented, pollution control based understanding.
As the Decade progressed, this strict adherence to health evolved to economic concern as
lawmakers grew accustomed to a conceptualization of tangible environment, not a complex
conceptualization as was intended. The various Bill’s rhetoric and construction should serve to
exemplify this point.
An indicator of this tangible dependence in most, if not all of the Bills of the Decade, was
the prominence of point source pollution control measures. Essentially, law sought out the most
attainable solution to curing environmental ills, namely the stopping of pollution at its source.
This of course was a great and frankly necessary thing to do, but it’s prevalence in the 1970s
133 Ibid., § 4365.
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carried with it implications in the decades that followed, after the cultural environmental
conceptualization evolved away from health.
The Clean Air Act Amendments of 1970
The Clean Air Act Amendments of 1970’s purpose was based “solely on human health
risk without regard to cost.”134 In addition, the Bill sought, “to promote the public health and
welfare of the nation in the long term.”135 A large part of the 1970s amendments drew from legal
rhetoric already established in the 1963 Clean Air Act. The segment of the Bill that was “without
regard to cost,” was first established in 1963, and was substantive, as evidenced by the
proclamation that whenever there is a determination of a hazard to human health, the Federal
Government could cover up to two-thirds of the cost for the abatement of the polluting action in
question.136 Here was a clear and distinct example of the health-oriented strand of environmental
thought being prioritized over the economic strand. When human health was in question, cost
took a back seat in order for harmful environmental actions to be mitigated. To further
compliment this point it was written in Section 105 (a) of the 1970 amendments that the
Administrator should allow for grants for the “prevention and control of air pollution.”137 Not
only does this statement in Section 105 (a) exemplify health-oriented rhetoric, but also, overtly
refers to point source pollution control through the use of the word “prevention.”
134 Richard N.L. Andrews, Managing the Environment, Managing Ourselves: A History of American Environmental Policy, 2nd Edition, 233. 135 Clean Air Act of 1970, Pub. L. No. 91-604, 84 Stat. 1676. 136 Ibid., Stat. 1677. 137 Ibid., Stat. 1677.
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The process of legal “abatement” (term used instead of “prevention ”in the original Clean
Air Act of 1963) was the process by which a harmful action was unequivocally stopped.138 Point
source pollution control itself is a practice contained within one of the three major international
environmental policy principles, the Polluter Pays Principle, which demands that the polluter pay
for the cost of clean up.139 In the Clean Air Act, the Federal Government subsidized the Polluter
Pays Principle, with the covering of two-thirds the cost of clean up if changes were made by
industrial businesses to stop their pollution at it’s source. The aim of this principle, and the point
source pollution control that falls within it, was to stop pollution before it started. In the Clean
Air Act of 1963 the phrase “prevention and abatement” was used at the onset, and in Subsection
5A, with pollution of the air that endangered human life being “subject to abatement.”140 In short,
the word “prevention” summarized the two fold-mission of point source pollution control. Firstly
for, “the prevention and control of air pollution” at its source, and secondly for the prevention of
future sources of pollution.141
What the Clean Air Act of 1970 sought to amend was the shortsightedness of the
preceding Acts. Not shockingly, the 1970 amendments focused even more heavily on health and
welfare than did the 1955 Pollution Control Bill and 1963 Clean Air Act. A primary call of the
Act was for more research into air pollution and it’s harmful “behavioral, psychological,
toxicological, and biological” health effects.142 Particularly, lawmakers were interested in
calculating the short and long-term effects of air pollution as opposed to just the short term,
immediate effects.143 Though lawmakers expanded the scope of their legal thinking to include
138Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 396. 139 Kenneth Ross, “Environmental Law” (class lecture, Environmental Law, University of Glasgow, Glasgow, Spring 2015).140 Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 396. 141 Ibid. 142 Clean Air Act of 1970, Pub. L. No. 91-604, 84 Stat. 1676. 143 Ibid.
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future implications, they did not deviate from point source pollution control as the means of
abating harmful substances. With the expanded scope, the duty of air pollution control fell on
individual states that were grouped into “control regions.”144 Under these regions, the same
principles for addressing air pollution established in 1963, remained unchanged in 1970. The
Administrator still held final authority on if substances were harmful to “health and welfare,”
which was the case in earlier laws. If a substance killed people, the Administrator typically
would abate it’s discharge, if the substance hurt people’s health, typically the Administrator
would seek to control it, but if it did neither to an observable effect, the Clean Air Act had very
little cause for action.145
The Clean Air Act of 1970 was exemplary of the overarching health oriented
Environmentalist tones of the law, as well as the value placed on point source pollution control
in the Environmental Decade. The very nature of the name “Clean Air Act” indicated a health
dependence, and a necessary one at that. But other major bills, not as overtly related to health,
carried with them the same human health oriented rhetoric. The next example, from the same
introductory year (1970), shows once again the overt focus on health, but from a decidedly
different angle.
144 Ibid., Stat. 1678. 145 Ibid.
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The Occupational Safety and Health Act of 1970
In the Occupational Health and Safety Act it was the term “causal” that embodied the
idea of point source pollution.146 Both “source” and “causal” share a desire to find the beginning,
the cause, or the source of the pollution or creator of environmental harm.
In addition to the basic terminology relating this Act to other health oriented acts and
point source pollution, it also offers a unique perspective on the complexity, or intermingling of
the tangible strands of environmental thought in the law. To show how this complexity
manifested even in the most basic legal terminology, a close look can be taken at the lone phrase
“preserving human resources”.
This one phrase offers insight into how the term “preserve” was commonly used in
environmental legislation, but not necessarily to push forward the Preservationist agenda, rather,
it was used to validate Environmentalist and Conservationist agendas.147 For example, the term
“human” indicated a human-centric bill, or a bill that’s primary function was to benefit
humanity. Further, “resources” possessed a clear and distinct benefit to humans by way of
pushing forward the economy. Thus the terms “human” and “resource” represent
Environmentalist and Conservationist strands. “Preserving” represented the Preservationist
strand rhetorically, and the intangible, value based orientation of Preservationist environmental
thought. In this sense, a simple three-word statement speaks cleverly to all prior environmental
thought. Now, as clever and ideal as this type of efficient phraseology may be, it failed to
146 Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1590. 147 Ibid.
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account for the reality of the interpretation. The preservation of human resources preserved
humanity, but bore little relevance the natural environment.
Both human health and the economy, the tangible aspects of environmental thought,
were pushed forward in the Occupational Health and Safety Act. By dissecting simple legal
language, it becomes clear that the inclusion of the term “preservation” in the Act did not suffice
in equally treating for Preservationist principles. Rather, the term “preservation” only acted to
bolster tangible strands claims. So though the tangible and intangible continued to intermingle in
legal language as they had in the years before the Environmental Decade, laws interference only
protected Preservationist aims in language. Phrases like “preserving human resources” were
prevalent across an abundance of legislation in the Environmental Decade, and in their
simplicity, embodied a far more complex reality, and the inherent alienation of intangible
environmental thought in law, living on only through rhetoric, but not through action. By
preserving human resources, no Preservationist principle was being pushed forward, only human
centric Conservationist and Environmentalist goals.
As a final thought on the Occupational Health and Safety Act, the very name of the Act,
and it’s consideration as American environmental policy provides insight to the legal definition
of environment. The Act by title, and in composition, was clearly in the interest of human health,
and indicated a strict adherence to Carson’s definition of environment as “all that surrounds us.”
Lawmakers took this even more literally than Carson intended. Evidence of this can be seen in
the Act when reference was made to the “work environment,” similarly referred to as the
“environment where work is performed.”148 Though simple enough terminology, it undoubtedly
complicated the legal conceptualization of environment in that the environment in question in the
Act was strictly human. A human made warehouse where men and women worked could qualify
148 Ibid., Stat. 1597-1598.
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as environment in the Occupational Health and Safety Act. The purpose of the Environmental
Decade and all American environmental policy, as stated in NEPA was to recognize “the
profound impact of man’s activity on the interrelations of all components of the natural
environment.”149 This begs the question, why was the “environment where work is performed”
referred to in the substance of an Environmental Decade Bill, although the indoor work
conditions of employees’ bears little if any consequence on any component of the natural world?
The inclusion of strictly human environments in American environmental law expanded the
definition of “environment” well beyond the even the most broad of pre-Environmental Decade
scopes.150
The very existence of a Bill labeled “Occupational Health and Safety” under the umbrella
term environment complicated the idea of environment from that which was strictly concerned
with the interrelationship between man and the natural world, and that concerned with anything
that affects or damages a human beings health. This type of complexity would only continue to
build, as more and more laws and bills were passed in the Environmental Decade in accordance
with the Environmentalist definition of environment as “all that surrounds us.”
The Marine Protection, Research and Sanctuaries Act of 1972
The Marine Protection, Research and Sanctuaries Act of 1972 provided another example
of a bill whose health oriented; human-centric focus was veiled by preservation rhetoric. The
title suggested that Marine “protection” and the installment of “Sanctuaries” were to be the
149 National Environmental Policy Act of 1969, 42 U.S.C.§ 4331 (1969).150 Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1590.
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focus, and they certainly were a focus, but less so for preservation purposes and more so for how
they could better human health.
The stated purpose of the Act was, “to regulate the transportation for dumping and the
dumping of material into ocean waters and for other purposes.”151 Immediately proceeding this
purpose was a subsection entitled “Finding, Policy, and Purpose,” in which the health orientation
of the Act becomes clearer. The Congress wrote their goal was to prevent dumping of materials
that would “adversely affect human health, welfare, or amenities”.152 To be fair, this was
followed by “or the marine environment, ecological systems, or economic potentialities.”153
Marine environment and ecological systems both can be said to represent preservationist ideas,
but these came after an “or” statement. Human health was the priority; the well being of humans
took precedence. Again, this is not a “bad” thing to prioritize human health, in fact it was
incredibly important, but the extent to which human health was prioritized in “environmental”
law was significant. That health concerns were preceding ecological concerns seemed innocent,
but the language was radically out of line with the purpose of the Decade to recognize “the
profound impact of man’s activity on the interrelations of all components of the natural
environment as was stated as the purpose at the Decade’s onset. The Marine Protection, Research
and Sanctuaries Act was yet another example of how environmental law prioritized the
protection and welfare of man, over research or action pertaining to man’s impact, and how it
could be lessened on the natural world.
As if the human centric health focus didn’t detract enough away from the original
purpose of the Decade, the mention of human welfare, typically an economic concept, threatened
to divert even more focus away from the natural world. Not only did the Bill prioritize a singular
151 Marine Protection, Research, and Sanctuaries Act of 1972, Pub. L. No. 92-532, 86 Stat. 1052. 152 Ibid.153 Ibid.
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view of the environment (health strand), but also, the bill allowed economy to be prioritized over
marine well being. The bill was also a prime example of point source pollution control, in so
much that to mitigate health concerns, the act sought to “regulate the dumping” of hazardous
materials, at the source.154 In effect, the Marine Protection, Research and Sanctuaries Act of 1972
embodied all of the flaws of the Environmental Decade. The Bill was human health focused,
economically prioritizing, and point source pollution control abundant.
Within the Marine Protection, Research and Sanctuaries Act (MPRSA) there was a call
for both dump permitting, and cessation of hazardous waste dumping in oceans.155 Both of these
legal methods shared the goal of cutting off pollution at its source. The requirement of permitting
allowed both the Army Corp of Engineers and the Environmental Protection Agency to regulate,
at the source, and by requirement, the amount and type of substances dumped into marine
environments. Lawmakers’ belief was that if you cut off the pollutants, and oversee all pollutant
dumping, you effectively combat all negative environmental effects. Permitting and cessation
were and are two powerful tools for defending against pollution, and both were present in
MPRSA. This legal shift towards point source pollution control was necessary in protecting
marine ecosystems at the time, but became insufficient in later years.
In its totality, MPRSA represented a concrete example of the prioritization of health and
economy in understanding the “environment.” As lawmakers proceeded through the
Environmental Decade, they continuously focused in on that which they could control. The
result, once again evidenced in MPRSA, was prioritization of health, point source pollution
control methods, and the inclusion of economic concerns. Lawmakers continued to use rhetoric
like “protection,” or other such Preservationist terminology, but in doing so veiled the reality that
154 Ibid.155 Ibid., Stat. 1053-1055.
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though mentioned by name, the principles of past intangible environmental strands of thought
that prioritized protecting the natural world for it’s inherent value to society, were lacking
prioritization. If there was one Act in the Environmental Decade that attempted to combat this
shifting prioritization vehemently it was the Endangered Species Act of 1973.
The Endangered Species Act of 1973
In the first three years of the Environmental Decade there were Acts pertaining to an
assortment of “environmental” issues passed. To lawmakers, the environment constituted work
environments, the air, the water, and the ocean. This was evidence of the lawmakers taking to
heart, perhaps a little too much, the intention of “comprehensiveness” Caldwell advocated for.
All of the Acts passed however, focused on stopping pollution, or hazards to human health. The
Endangered Species Act in theory prioritized neither of those things, and rather, sought to protect
nature, in particular endangered species, “in and for themselves”.156
The Endangered Species Act truly represented a Preservationist inspired bill, and acted in
accordance with their ideals, but only, to use lawmakers words, “to the extent practicable.”157
Regardless of the safe guard rhetoric of lawmakers, the Bill did represent hope for the
Preservationist appreciation of nature, and was revolutionary in this sense. The Endangered
Species Act succeeded legally in producing a strong example of Preservationist policy. That said,
lawmakers could not neglect including tangible value to the protection of endangered species,
which they did innocently and with little consequence, through the introduction of science.
156 Ralph Waldo Emerson, "Nature,” in The American Transcendentalist: Essential Writings, ed. Lawrence Buell, 38.157 Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat .884.
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In terms of a relentless Preservationist-oriented purpose, lawmakers hit virtually all
points in the Endangered Species Act. The purpose read, “to provide for the conservation of
endangered and threatened species of fish, wildlife, and plants, and for other purposes.”158 The
Bill went on later to state that, “these species of fish, wildlife, and plants are of esthetic,
ecological, education, historical, recreational, and scientific value to the Nation and it’s
people.”159 Terms like “esthetic,” “education,” “historical,” and “recreational” were all of the
intangible sort, in so much that none of them proportioned any quantifiable gain, but were rather
things of value. In addition though, lawmakers could not refuse adding ecological and scientific
justification to the Act. This was of no observable harm but exemplified a hindrance to
comprehensive legal conceptualizations of environment. One goal of preserving endangered
species for lawmakers was namely to preserve the ability for mankind to use nature to further its
technological ability, or for its own purposes (i.e. medicinal). In lawmakers’ efforts to put into
law an intangible approach to environmental protection, they inadvertently defined the
environment as human property, an object to be studied, used, and protected but only with
tangible reason. Thus, by 1973, despite the best efforts of the Endangered Species Act, law still
could not pass an Act solely with the purpose of protecting the natural world “in and for itself.”
Even reference to economy found it’s way into the Endangered Species Act.
The economy though actively combatted in the Endangered Species Act, was still
protected in the subtlest of ways. The term “conservation” inherently carried with it economic
undertones. The use of the word conservation therefore carried with it a distinctly different
understanding of the natural world than did preservation. Thus, when the law wrote in the
purpose to “provide for the conservation of endangered species,” there was an inherent economic
158 Ibid.159 Ibid.
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justification.160 This of course means that instead of preserving, which would be the allowing of
the natural world to be in it’s natural state as Nixon declared was his desire in his 1970
statement, there was an effort at conserving which as Roosevelt proposed, must take into account
human economic implications as well. A hypothetical example can help to exhibit the difference
between Conservationist and Preservationist approaches to endangered species protection.
Hypothetically if preservation was the sole purpose of the Endangered Species Act, certain fish
species would be deemed unfishable, forever protected from human interference. If conservation
was the purpose, the fishing of endangered fish populations would be stopped, but only until the
fish species recovered to “an extent practicable,” after which, the species could be fished again
under regulation. The later Conservationist approach, which was more practical for the American
economy, was what the Endangered Species Act truly chose to follow. In this sense, the
Endangered Species Act, though full of preservationist sentimentality and groundbreaking legal
work, acted in accordance with Conservationist thought, which was inherently economic. As a
result, tangibility dictated the one plausibly intangible law in the Environmental Decade.
Comprehensiveness was once again proven to only be in the language of the law, not the
substance.
160 Ibid., Stat. 885.
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The Resource Conservation and Recovery Act of 1976
As the Decade progressed, the non-comprehensive, veiling rhetoric continued. Human
health continued to be prioritized in law, and the economic understanding of environment only
grew in the greater legal conceptualization of environment. The Resource Conservation and
Recovery Act of 1976 provided another good example of the continuing reign of Conservation
over Preservation as a result of law’s focus on tangibility, a strict adherence to human health in
law, and point source pollution control methods.
Similar to the Marine Protection, Research and Sanctuaries Act, the Solid Waste Disposal
Act was primarily concerned with combatting hazardous waste. Health oriented phrases
included, “open dumping is particularly harmful to health,” “without careful planning and
management (hazardous waste) can present a danger to human health and the environment,” and
“solid waste (has) created greater amount of air and water pollution and other problems for the
environment and for health.”161 The Act further cited the Clean Air Act, the Water Pollution
Control Act and other “laws respecting public health and the environment.”162 The subsection
under which most of this health rhetoric fell was even entitled “Environment and Health,” and
immediately proceeded the opening statements and provisions of the Act.163 Viewing the
environment through its impact on health was second nature to lawmakers by 1976, and the
abundance of direct references to public health in this Act were indicative of the ever prevailing
health oriented legal environmental conceptualization.
As with previous health oriented acts like the Clean Air Act and the Marine Protection,
Research, and Sanctuaries Act, the Resource Conservation and Recovery Act used point source
161 Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat.2797. 162 Ibid.163 Ibid.
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pollution control, as it’s common method to combat the environmental problems. In the case of
the Resource Conservation and Recovery Act of 1976, the environmental problem was solid and
hazardous waste. Unique to the case of solid and hazardous waste was that the waste couldn’t
necessarily be stopped at the source considering the source was all trash in the United States, and
preventing the creation of trash would’ve been impossible. As a result, lawmakers went after the
next closest thing to a source of waste, the landfills used to hold this waste. These landfills were
the vector of pollution, and as such, the Bill set out to regulate, and decrease the ability of the
harmful substances to enter the surrounding soil. The primary angle lawmakers took in carrying
out the control of polluting substances was funding research into new management plans and
facilities for the proper discarding of waste.164 In addition, a groundbreaking practice found its
way into law, representing collaboration between Environmentalist and Conservationist thought.
This method was recycling.
The phrase lawmakers used for recycling was “recovery of energy and other resources
from discarded materials.”165 Unfortunately, the rhetoric used by lawmakers in defense of
recycling was primarily economic. The reason for instituting recycling as stated earlier was to
prevent health effects, but the justification was economic. Up until 1976, health was often
prioritized over economy without need for justification. By 1976, lawmakers were beginning to
economically justify even protection of the environment as it pertained to human health. Under
Section 1002 (c), the Act read in justification of recycling that “the recovery and conservation of
such (useable) materials can reduce the dependence of the United States on foreign resources and
reduce the deficit in its balance of payments.”166 The mention of deficit, and the balancing of
payments was often not present in past environmental legislation, but by 1976, Conservationist
164 Ibid. 165 Ibid., Stat. 2795.166 Ibid., Stat. 2797.
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thought, primarily with respect to natural resources and the economic capacity of the natural
world, accelerated its growth into the American legal environmental conceptualization.
Recycling was billed as an economically beneficial concept. In addition under Section 1008 (a),
within the heading labeled “Solid Waste Management Information and Guidelines,” the first
guideline listed held economic concerns. It read that suggested guidelines should, “provide a
technical and economic description of the level of performance that can be attained by various
available solid waste management practices”.167 These statements within the Act reaffirm the
economic interest and justification behind the environmentally friendly act of recycling.
Lawmakers’ adherence and appreciation for tangible strands of environmental thought
only got stronger as the Environmental Decade progressed. As health continued to be the
primary environmental concern, economic concerns, sometimes blatantly, other times under the
guise of the term conservation, continued to grow more and more prevalent in environmental
law. Point source pollution control continued to be the primary focus of lawmakers in addressing
environmental concerns, and a clear and distinct legal-political approach to environment was
forming around pollution control and reduction of environmental harm. These gains were
necessary, and in accordance with the goal of making the environment healthier, but were rapidly
narrowing in view. Lawmakers and politicians were making the environment something that
could be seen, touched, and controlled. They were actively neglecting the intangible,
comprehensive, and complicated reality of environment that existed before 1969. Against the
wishes of Caldwell, lawmakers were overly dependent on science and health, and perhaps worse
yet, monetary gain.
167 Ibid., Stat. 2803.
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The National Energy Conservation Policy Act of 1978
A final Act should suffice to exhibit the continuing evolution of health oriented,
economically concerned policy in environmental law. Throughout the Decade the law continued
to focus on health and economy, and as the social and cultural context surrounding lawmakers
changed the legal adherence to tangible environment only became more deeply embedded. One
of the primary catalysts for this law’s economic shift was the continuation of the OPEC crisis in
the late 70s, which spawned the National Energy Conservation Policy Act (NECPA). NEPCA
came fittingly at the end of the Environmental Decade. In response to the oil embargo and
growing concerns over energy, the National Energy Conservation Policy Act strove to encourage
the use of renewable resources and domestic non-renewables. In the Act’s rhetoric it became
clear that the economy was the countries primary concern, and the environment was just another
source of income, or a by which the economy could be stimulated. Environmental law by 1978
effectively shifted entirely to economic rhetoric, incorporating energy into the ever broadening
definition of what constituted environment, and completely neglecting prior environmental
concepts that carried with them no quantifiable gain.
The National Energy Conservation Policy Act, in title and in substance, was a
political/legal reaction to an economic problem. The purpose of the Act was almost exclusively
economic, which was particularly strange considering previous law’s purposes at least made a
concrete effort at articulating environmental aims. The reason lawmakers didn’t even attempt to
show a comprehensive environmental approach anymore was because the concept of
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conservation was so deeply engrained in the American conceptualization of environment by
1978, that there was almost no need to account for other environmental strands of thought. The
purpose read, “the purposes of this Act are to provide for the regulation of interstate commerce,
to reduce the growth in demand for energy in the United States, and to conserve nonrenewable
energy resources produced in this Nation and elsewhere, without inhibiting beneficial economic
growth.”168 The terms “commerce”, “demand”, “conserve”, “resources” and of course the phrase
“beneficial economic growth” were all indicative of the prevalence of economic thinking.169 The
term “conservation” became a tool for economic minded politicians and lawmakers to gain entry
into environmental issues, as did the inclusion of energy in the environmental understanding. In
addition to specific terminology, the call for renewable resources, perhaps the one salvageable
aim of the Bill that didn’t necessarily exist for the economy, was nevertheless, also deceptively
economically motivated.
The call for renewable resources wasn’t a reaction to an environmental problem, though
today we may recognize it as one, but rather, it was a simple question of economic benefit.
Lawmakers were using the terms “environment,” “resources,” and “conservation” strategically to
back their political and economic interests. This was the result of many years of gradual shifting
in the legal conceptualization of environment with strict adherence to tangible environmental
ideas. Phrases like “to meet future needs” which Roosevelt used in the early 1900s, were echoed
in the Act.170 The future needs in this case, were clearly, and distinguishably economic, not
environmental. The Bill did not call for renewable resources so that harmful gases that would
alter the entire climate of the Earth would cease to be emitted, but rather, renewable resources
were called for in an effort to give our children better economic futures. The Conservationist
168 National Energy Conservation Policy Act of 1978, Pub. L. No. 95-619, 92 Stat. 3209.169 Ibid.170 Ibid.
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strand of environmental thinking made a viscous comeback on the heels of Environmentalist
health rhetoric, largely due to its easy rhetorical accessibility for those who wished to save
money and prioritize the economic base of the country.
The National Energy Conservation Policy Act did not concern itself with point source
pollution control, or pollution at all for that matter. The energy issue was strictly economic, no
need to pinpoint a source and stop it from causing environmental harm. In fact, the Act seemed
wholly unbothered with environmental harm or any possible impact that the shifting to
renewable resources may have on the environment. There was no mention of health or the
benefits of preserving nature. By 1978, it was getting harder to see how Nixon’s goal to restore, “
nature to its natural state” was a “common cause of all the people of America.”171 More and more
at the end of the 1970s it seemed rather that nature and the environment were a tool to help
Americans pursue a different common cause, economic well-being.
Conclusion
The National Energy Conservation Policy represented the culmination of a long process
in environmental law. It was a process that started with intangible laws like the 1964 Wilderness
Act, where the natural world had inherent value to society, and gradually moved toward
tangibility, health, and science at the beginning of the Environmental Decade. Despite the father
of environmental law, Lynton Caldwell, wishing for a more comprehensive approach, law ended
the Decade with an economic, human-centric focus. NEPA’s stated purpose of better
understanding man’s impact on the natural world turned into man better understanding how it
171 Richard N.L. Andrews, Managing the Environment, Managing Ourselves: A History of American Environmental Policy, 2nd edition, 227.
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can use the natural world to its advantage. The neglection of lawmakers to adequately fulfill their
aims, and their gradual broadening of the environmental definition led slowly to the fading of
spiritual and recreational appreciations of nature. As the definition of environment broadened,
the focus of law narrowed in on human health and economic impacts, perhaps because law’s
broadly defined environment was too complex for lawmakers to approach. This broadening
definition, yet narrow legal focus built a feeble legal foundation that could easily be manipulated.
In effect, the law used the term “environment” as a broad umbrella term under which all strands
of American environmental thought could fit, but failed to actually protect half of the greater
cultural conceptualization of environment. With the environment understood by law as “all that
surrounds us,” and the legal conceptualization of environment as strictly tangible, observable and
quantifiable, the cultural understanding of environment approached another evolution.
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Chapter 3
The Divergence of Cultural and Legal Environmental Thought
“It is now generally accepted that most climatic changes are to be attributed to a
complex of causes” Hubert H. Lamb, English Climatologist, 1969. 172
Introduction
The tangible stands of environmental thought (economic and health oriented) came to
dominate the Environmental Decade. The consequences of this improper legal conceptualization
became evident in the 1980s, as the cultural conceptualization of environment evolved, and the
political/legal did not. Law’s conceptualization of environment relied too heavily on Carson’s
fourth strand of environmental thought, as well as certain dimensions of Roosevelt’s
Conservationism, as was evidenced in Chapter Two. By doing so, the legal conceptualization of
environment neglected the more intangible, value-based understandings of the natural world that
Preservationism and Transcendentalism offered. This error hopelessly diverged the cultural and
legal conceptualizations of the natural world when the next cultural evolution of thought called
upon past intangible strands of thought that sought to protect the environment without purely
tangible justification. This chapter will focus on how the Environmental Decade’s legal
conceptualization of environment, hurt American law’s ability to adjust to climate change in the
1980s, and diverged the political/legal conceptualization of environment, away from the cultural
conceptualization.
172 Spencer R. Weart, The Discovery of Global Warming (Cambridge, Harvard University Press, 2003), 64.
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To show the consequences of the flawed legal conceptualization, this chapter will first
articulate the fifth strand of environmental thought, global climate change, and large-scale
ecosystem based thought. The fifth strand of environmental thought was largely scientific,
building upon Carson’s initial scientific work with interconnected ecosystems. Climate change
researchers like James Hansen expanded the environmental conceptualization towards a more
complex understanding of environment that inherently called upon the first and second strands of
environmental thought, which did not so heavily rely on immediately tangible aspects of
environmental understanding. The scientific base of climate change research, which addressed a
staggeringly complex global ecosystem, was the culmination of almost 150 years of
environmental thought evolution. In other words, climate change drew upon both the tangible
and intangible aspects of cultural environmental thought. This shift back towards intangibility
and complexity was not prepared for, or defensible in the legal understanding of environment,
that viewed the environment only for it’s tangible aspects articulated by Roosevelt and Carson.
Scientists advocated relentlessly on behalf of climate change research, and the American public
was largely receptive, but law did not adapt in any meaningful way. America’s legal
understanding of environment did not allow for the complex concept of climate change. One of
the main actors that advocated, unsuccessfully, for an evolution in legal/political understanding
of environment to combat this was Jimmy Carter.
In 1980, as the United States suffered through the OPEC crisis and economic hardship,
Jimmy Carter pleaded with Americans to build up their confidence now, in hopes of making
America’s future better. In a speech infamously known as the “Malaise Speech,” Carter made
reference to the environment, and advocated for a shift away from foreign oil, and where
possible, towards renewable resources. He urged the country to think about future generations,
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and he wanted American citizens to individually sacrifice today, for the betterment of the
country tomorrow. In this way, Carter attempted to prepare Americans for a fight against an
intangible, unobservable opponent, and their own lack of self-confidence. His efforts to fight
against intangible ideas like confidence and “malaise” fell largely on deaf ears, as Carter lost to
the anti-regulatory Reagan administration in 1980. Carter’s appreciation and awareness of
intangible challenges would have made him a valuable ally of climate change scientists who
hoped to help politics and law properly conceive of climate change. Unfortunately, in 1980,
America chose to not reelect Carter, opting instead for a strict adherer to cost/benefit analysis
with a strong preference for economic gain, Ronald Reagan.
Reagan’s war on the environment was primarily a war on regulation. Since
environmental efforts, primarily point source pollution control, required federal funding, the
Reagan administration did not only fail to help evolve the political environmental concept to
meet the cultural demand, but if anything, actively devolved the political environmental
understanding. Administrators like James Watt actively sought to harm the EPA, and constantly
prioritized economic expansion at the environment’s expense. In effect, the political concept of
environment became fragmented, and Reagan used the law of the Environmental Decade, to
justify his economic understanding of the natural world.
From the abundance of economic and health-oriented rhetoric throughout the major Acts
of the Environmental Decade, politicians in the 1980s justified a conception of environment
primarily concerned with economic welfare and the daily health of American citizens. For 1980s
politicians, this “all that surrounds us” was interpreted to mean the area immediately surrounding
a citizen. This conceptualization of the environment was essentially antithetical to the emerging
large scale, complex cultural conceptualization of the environment. For climate scientists,
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Emerson’s justification of protecting the natural world in and for itself would have been a more
fitting legal approach to climate change in the 1980s considering the difficult in scientifically
quantifying the problem at hand. In other words, had the Environmental Decade chosen to
protect the environment at times for it’s inherent value to society, as Preservationists sough to
do, perhaps the difficult to approach topic of climate change would have been more easily
approachable for lawmakers and politicians in the 1980s. Instead, the legal/political
conceptualizations of environment diverged away from the cultural conceptualization around the
same time that climate change research emerged.
To exemplify the divergence of the cultural and political/legal understandings of
environment, this chapter will end with a case study of coal. The treatment of coal in American
environmental law perhaps offers the most prominent example of law’s failure to adequately
account for climate change research. The point source pollution control approach of the
Environmental Decade, allowed the coal industry to remain under regulated due to the little
known negative effects of the resource on the greater global ecosystem. As a result, coal to this
day is still largely under regulated because no major environmental laws have been passed since
1978. 1978 predated the emergence of substantive climate change research that implicated coal
as a primary emitter of carbon dioxide.173
At the beginning of the Environmental Decade, there existed three parallel
understandings of environment, the cultural, the legal, and the political. In 1980, the legal and
political understandings would separate from the cultural, and stagnate American environmental
policy for years to come. The cultural emergence of global climate change, and the simultaneous
political emergence of American conservatism exposed the differences of conceptualization
173 David Ismay (Staff Attorney at Conservation Law Foundation), interview by author, Chestnut Hill, Massachusetts, October 28, 2015.
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between the political/legal and cultural realms manifested during the 1970s. The flawed legal
understanding of environment allowed Reagan to declare war on intangible understandings of
environment, and prioritize the economy. Thus, the stagnation of American environmental law
was not due to a flawed cultural conceptualization, but rather, a flawed legal conceptualization of
environment that was formally defined some 45 years ago during in the Environmental Decade.
3.1- The Fifth Strand of Environmental Thought: Climate Change
On April 24, 1980 in Washington D.C., a group of highly respected scientists from
around the country gathered to discuss a rapidly evolving scientific debate.174 The conference
aimed to discuss carbon dioxide and the concept of global warming. The research the scientists
met over was already in the process of forever changing the American environmental
conceptualization. Much like previous strands of environmental thought, the concept of global
climate change did not emerge for the first time in 1980, rather, it grew in strength over the
course of several decades, before science and time finally brought it to American popular culture.
Climate research began during World War II in hope of helping American military forces
predict weather conditions for battle.175 Questions about long-term climate change were not of
concern at the time, as climate scientists were just beginning to uncover the most basic of
meteorological capabilities. Nevertheless, a man by the name of Gilbert Plass did not fall victim
174 United States Department of Energy Office Of Health And Environmental Research, Proceedings of the Carbon Dioxide and Climate Research Program Conference, Washington DC, April 24-25, 1980, ed. Lois E. Schmitt, 96th Cong., 2d sess., vii.175 Spencer R. Weart, The Discovery of Global Warming, 22.
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to small-scale weather meteorology, but rather, Plass fixed his attention on the little explored
topic of greenhouse warming, and global climate cycles.176
The history of greenhouse gas research spanned back to the 18th century. English
scientists first observed carbon dioxide’s interesting relationship with rising temperature when in
1859, John Tyndall first proved the existence of opaque gases, today known as greenhouse
gases.177 Tyndall’s interest did not lie in carbon dioxide but rather with water vapor, and its
relationship with past ice ages and its effect on English agriculture.178 As time wore on, other
scientists built off of Tyndall’s finding on opaque gases, and expanded his work into global
climate research. In 1896, Svante Arrhenius, who also shared a vested interest in understanding
ice ages, observed that quantities of volcanic CO2 raised temperature, and theorized that if this
were to occur on a massive scale, it could increase the temperature of the entire global climate.179
Despite the retrospective scientific correctness of this observation, at the time, there existed
inadequate computational ability to support Arrhenius’s claim, and as such, his claims were
largely dismissed. That was until Plass, aided by archaic yet functioning digital computation,
brought Arrhenius’ theory back to life.180
Plass announced in 1956 that the average global temperature was rising as a result of
human activity at a rate of 1.1° Celsius per century.181 Though his science wasn’t sound enough
to convince the entire scientific community of his findings, it was the first time that a scientist
made a substantive, numerically backed observation of global warming.182 A few years later, a
scientist named Charles Keeling furthered Plass’s work, also demonstrating in 1960, this time
176 Ibid., 24. 177 Ibid., 3. 178 Ibid., 4.179 Ibid., 5.180 Ibid., 6-7. 181 Ibid., 24.182 Ibid.
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with new variables considered, that CO2 levels were rising at a consistent rate.183 Despite their
scientific breakthroughs, and the soundness of Keeling’s science, funding still didn’t show up for
research pertaining to the global warming trend.184 Despite the lack of funding, Keeling’s
findings established global warming as a mathematical possibility. The scientific correlation
between human activity and rising CO2 levels that Keeling substantiated would become more
and more powerful as the century wore on.
In 1963, Keeling and his coworkers at the Conservation Foundation published a new
report that suggested the doubling of CO2 projected in the next century could raise the world
temperature by 4° C.185 Keeling’s report was sent to the American Federal Government, who did
not act on his research with much urgency. Still four years before the Environmental Decade,
and just after Rachel Carson’s expansion of the cultural environmental understanding, the
concept of global warming struggled to garner any national attention, let alone research funding,
largely due to the complexity of the science behind the research.186 Though the government did
not think the research was significant, the scientific community was starting to pay attention. By
1965, a sizeable interest accumulated in the academic and scientific community on the topic of
global warming.187
In 1970, the Environmental Decade pushed lawmakers to address the environment, as
was discussed in Chapter Two. At the time, lawmakers believed the environment, as Lynton
Caldwell suggested, was complex, but the complexity lawmakers observed was just a fraction of
complexity climate change research approached. As lawmakers went to work on legalizing the
American environment, scientists met at MIT, still without sufficient science or technology, to
183 Ibid., 37.184 Ibid., 38.185 Ibid., 44.186 Ibid., 45.187 Ibid., 66.
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try and figure out how to approach the incredibly complicated variable of CO2 and its global
upward trend.188 As a result of the growing scientific interest in the complicated phenomenon, 14
nations met to discuss man’s impact on the global climate in 1971. At the conference, scientists
determined that human emissions of greenhouse gases presented a real risk to the global
climate.189 Scientists at the conference agreed that this trend was a problem, and that humans
were involved, but still struggled without proper technology to measure and substantiate their
scientific claims.
As scientists continued to try and better understand climate change, the American public
started to be exposed to climate change research. The New York Times published an article on
October 18, 1970 (in its back pages) that warned air pollution could perhaps “bring a new ice
age”.190 This conclusion by the Times was indicative of the scientific uncertainty that still
surrounded climate change research. Scientists still did not know what the consequences of
global warming would be, or how humans were involved, they just understood the global climate
was changing rapidly. In an age when point source pollution control took center stage in
“protecting the environment,” a far more daunting, complex environmental problem threatened
the usefulness of point source pollution control. If what climate change scientists observed was
true, stopping pollution at it’s source wouldn’t sufficiently protect the environment anymore, the
very composition of pollution would have to be altered away from fossil fuels. Within the next
10 years, scientists’ research would become more and more accessible to the American public,
slowly evolving the cultural environmental conceptualization, and challenging the law to
respond.
188 Ibid., 70.189 Ibid., 71.190 Ibid., 83.
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By 1974, the topic of global warming had gained significant traction in the scientific
community, subsequently, accelerating its incursion into the American public’s eye as well. With
the stage set by the OPEC crisis, droughts, and an abundance of scholarly literature, the
possibility of a massive global climate problem hit a cord with the American public. Finally in
1978, to address this mounting concern, Congress passed a National Climate Act, which
established a National Climate Program Office to help research the global climate problem.191
The program was underfunded, and the scientists were not pleased with the instituted research
plan, but the funding was a critical step forward in the acknowledgment of the problem.192 The
American public was slowly becoming aware of the topic of global warming, and by 1980, the
topic moved largely out of the scientific community, and into the American public
consciousness. One survey found that in 1981, about one-third of American adults were aware of
the greenhouse effect.193 Though slow in its evolution, this finding from 1981indicated that
climate change research was slowly evolving the American cultural understanding of
environment.
By 1980 the greenhouse effect, the understanding of Earth as a complex ecosystem, and
the warming of the planet due to CO2 were commonly agreed upon ideas within the scientific
community. Evidence of this can be seen in proceedings held on climate change research in
Washington D.C. in 1980. For the U.S. Department of Energy, and the Assistant Secretary for
the Environment Ruth Clusen, climate change and CO2 research could no longer be cast aside.194
As a result, on April 24, a group of prominent scientists gathered to discuss carbon dioxide and
191 Ibid., 97.192 Ibid., 97.193 Ibid., 116.194 United States Department of Energy Office Of Health And Environmental Research, Proceedings of the Carbon Dioxide and Climate Research Program Conference, Washington DC, April 24-25, 1980, ed. Lois E. Schmidt, 96th Cong., 2d sess., vii.
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the future of climate change research. What they concluded at the proceedings was that there was
a serious need for rigorous research of carbon dioxide, and inclusion of the international
community in addressing the critical issue. Those present believed that climate change research
was as “nonthreatening a posture as one could advance” to their international allies.195 Scientists
genuinely believed the topic of global climate change was irrefutable and foresaw no hindrance
in their pursuit to combat the problem. As American scientists were soon to find out, some very
serious economic interests stood to challenge their research.
Climate change science implicating CO2 as a harmful greenhouse gas inevitably came up
against American oil and coal interests. After all, one of the main goals of the scientists present
at the April 24th proceedings was to “design fossil fuel use strategies that would permit us to
manage release rates of CO2.”196 This did not sit well with the industrial sector whose primary
interest was the production and maximization of economic well-being, not the management or
restriction of it. This was problematic because if the carbon dioxide proceedings in April 1980
established anything, it was the need for more funding, and further regulation of industry amidst
difficult economic times. For scientists, the CO2 problem could not be ignored, the research was
too daunting. They could visualize the large-scale effects their research suggested. America (and
the rest of the world for that matter) need to regulate the output of fossil fuels, or the Earth’s
temperature will continue to rise with potentially devastating consequences. One critical problem
was that the consequences scientists were afraid of were still hotly debated within the scientific
community.197 There were “pragmatic pessimists”, “informed skeptics”, “option optimists”, and
“option minimalists” within the scientific community, who all differed in their opinions on the
severity of global warming, the connection between CO2 and the warming trend, and what to do
195 Ibid., xii.196 Ibid., xiii. 197 Ibid., xi-xii.
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about the problem.198 The lack of scientific consensus regarding the repercussions of global
climate change, made it difficult for climate change to enter into the cultural environmental
conceptualization, let alone the legal conceptualization.
With the narrowing of law’s environmental understanding in the Environmental Decade,
scientific confusion or uncertainty all but disabled the validity of the scientific research to
tangibly minded lawmakers. Would too much CO2 make people sick? Would it disrupt every day
economic life? These were the variables of environment the law prioritized in the Environmental
Decade, and neither of these variables were of particular interest to climate change researchers
present at the Carbon Dioxide Proceedings in April 1980.199 They were far too busy trying to
understand the complexity and seriousness of the problem at hand. For all the uncertainty
however, all scientists present at the proceedings agreed there was a problem. Though many
scientists continued to debate characteristics of climate change within the scientific community,
others understood the importance of presenting the research to the American public.
One leading voice in defense of climate change research at the dawn of the 1980s was
James Hansen. In 1981, Hansen published a scientific article confirming the prevailing research
of the academic community. He and his colleagues found that in proceeding decades, the average
global temperature of the planet would rise as a result of human activity.200 In the paper, Hansen
articulated some of the consequences that would arise as a result of unhindered CO2 emissions.201
He wrote of the formation of desert zones, and the melting of the polar ice caps, both of which
would eventually affect human life on coastlines or in previously temperate climatic zones.
198 Ibid., xi.199 Ibid.200J. Hansen, D. Johnson, A. Lacis, S. Lebedeff, P, Lee, D. Rind, and G. Russell, “Climate Impact of Increasing Atmospheric Carbon Dioxide,” Science 213, no. 4511 (August 28, 1981): 957-966, http://pubs.giss.nasa.gov/abs/ha04600x.html (accessed April 23, 2016).201 Ibid.
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Hansen’s proposed consequences did not stay sheltered away in the scientific community, in
fact, they were heard, and of concern to the American public.
Before the publishing of Hansen’s article in 1980, my Uncle Douglas Vincent wrote in
his journal about how concerned he was with the threat climate change posed to the polar ice
caps. He was amazed that nothing was being done to combat the potential consequences of
climate change.202 In 1980, my Uncle Doug was only in his 20’s, and James Hansen in his early
40’s. Some 35 years later, both my Uncle Doug and James Hansen are still amazed at the rapid
advance of global climate change, and the overwhelming inability of the American government
to do much about it.
After Hansen published his 1981 article, he served as the head of the Bush
Administrations Climate Task Force in the early 2000s, wrote books on the seriousness of the
global climate change phenomenon, and conducted countless formal presentations and talks in a
continued effort to spawn some substantial legal and political change to combat the climate
change problem.203 Hansen has been a leading advocate for action since climate change research
got its first substantial backing at the onset of the 1980s. Yet, so little action has been taken to
combat global climate change, that Hansen felt compelled to title his popular 2009 book Storms
of My Grandchildren: The Truth About the Coming Climate Catastrophe And Our Last Chance
To Save Humanity.204 Hansen’s scientific research was for so long ignored, that by 2009 he felt
the only way people would listen to he and his colleagues scientific research was if he outright
labeled the problem as a threat to humanity’s existence. Hansen, like Carson or Muir before him,
was one of the many leading voices throughout the fifth strand of environmental thought. Other
actors like Al Gore come to mind when discussing global climate change advocates. But none of
202 Douglas Vincent in discussion with the author, March 27, 2016. 203 James Hansen, Storms of My Grandchildren (New York, Bloomsbury, 2009). 204 Ibid.
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these leading voices, not Hansen, nor Gore, have been able to manifest substantive legal or
political action for climate change efforts. Why was it, that Hansen felt compelled to scare the
American people into reading his research? Why is it, that my Uncle Doug, now almost 60, still
worries 35 years later about a problem that concerned him while he was still in his college years?
Why didn’t the American government or the legal system fail to respond for longer than any
other cultural strand of environmental thought? Before the 5th evolution of environmental thought
in 1980, each of its predecessors achieved political/legal success shortly after the cultural
conceptualization grew. That was mostly because the legal and political conceptualizations grew
in response to the cultural conceptualization. That was not the case with global climate change,
or for James Hansen, or Al Gore, or any of the myriad of actors that begged the American
government to take the problem seriously. Historical events occurred between 1970 and 1980
that sewed the seeds for political/legal inaction pertaining to climate change. One such event was
the narrowing of the legal conceptualization of environment during the Environmental Decade.
Though it wouldn’t be the laws intention to hurt environmental efforts, laws failure to
properly conceive of the environment became apparent when cultural environmental thought
evolved in the 1980s, and the law failed to due to it’s narrow, strictly tangible conceptualization
of environment rooted in 1960s Environmentalism. The reason for law’s inability to adapt and
evolve with climate change research was two fold. First, the gradual prioritization of economy
and health in environmental law forced the economy to be heavily accounted for in
understanding the environment. Considering the economic difficulties of the late 1970s and early
1980s, law’s heavy prioritization of economy took precedence over climate change, and complex
environmental problems.205 Secondly, the focus of law on point source pollution control and
205 Cinnamon Piñon Carlarne, Climate Change Law and Policy: EU and US Approaches (Oxford: Oxford University Press, 2010), 29.
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health during the Environmental Decade didn’t particularly help in combating a more complex
ecosystem based climatic problem. The law as it was written in the 1970s cared more about the
protection of human health from pollution at the local and state levels.206 There was no more
need to regulate emissions so long as human health was protected. If environmental law in the
Environmental Decade accurately viewed the environment as a complex ecosystem, and valued
the environment strictly over the economy in law, the United States would have been better
prepared to address the emerging climate change research. Instead, when the cultural
understanding of environment evolved and called for a subsequent evolution of law, the legal
system was unable to do so, and American law in the 1980s and beyond stagnated partially as a
result of this.
The Inability of American Law to Adjust to the Fifth Strand of Environmental Thought
The primary focus of 1970s environmental law was on eliminating environmental
problems at their point source. The Clean Air Act sought to mitigate pollution at the smoke
stack, the Clean Water Act sought to mitigate pollution at the drainage pipe, and the Marine
Protection, Research and Sanctuaries Act sought to stifle pollution by eliminating the dumping of
hazardous waste into the ocean. Most all environmental laws in the 1970s were concerned with
slowing down, and stopping environmental harm at the source. But what if the problem at hand
spanned the entire globe? How did the environmental law of the Environmental Decade account
for this complex, globally linked ecosystem understanding of the environment? The short answer
is it didn’t, and yet by the early 1980s, Congress had already enacted “virtually all of the federal
206 Clean Air Act of 1970, Pub. L. No. 91-604, 84 Stat. 1676.
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environmental laws that continue to shape environmental decision making at the federal and state
level in the US today.”207
The type of law that was established in 1970s America was “ground-breaking at the
international level.”208 During the Environmental Decade, the United States, “provided
paradigms for environmental lawmaking worldwide.”209 After the Environmental Decade
however, the law failed to change in any significant way. This alone speaks to the United States
inadequate addressing of climate change, seeing as the “Clean Air Act Amendment of 1990,
arguably, represents the last time the US federal government adopted or revised a major, new
environmental law.”210 The Clean Air Act Amendments are also arguably the only major revision
of environmental law between 1980 and the modern day.211 This could in large part be due to the
nature of climate change, considering the problem isn’t so much domestic, as it is international.
As such, before criticizing the United States inability to adjust law to climate change research, a
look at their international efforts is necessary.
Scientists at the April 24, 1980 CO2 proceedings in Washington understood the
importance of international cooperation on the topic of climate change, and in 1988, the
establishment of the International Panel on Climate Change (IPCC) indicated the rest of the
world felt the same way.212 Some four years later, the IPCC would produce the United Nations
Framework Convention for Climate Change (UNFCCC) that would come into force in 1994, and
spawn the Kyoto Protocol in 1997. The United States inconsistent involvement with these
207 Cinnamon Piñon Carlarne, Climate Change Law and Policy: EU and US Approaches, 27.208 Ibid., 28. 209 Ibid., 28.210 Ibid., 30. 211 David Ismay (Staff Attorney at Conservation Law Foundation), interview by author, Chestnut Hill, Massachusetts, October 28, 2015.212 Cinnamon Piñon Carlarne, Climate Change Law and Policy: EU and US Approaches, 34.
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international environmental organizations was consistent with a flawed legal/political
environmental conceptualization.
Initially, the United States was in full compliance with the UNFCCC, suggesting that the
US would be a leading party in international environmental law as it had been in the 1970s. This
joining of the United States as a party of the UNFCCC was a symbolic gesture establishing
America’s official stance acknowledging climate change. Sadly, this acknowledgement was
about as substantial an effort as the United States made in the international community. “While
the US federal government does have an official climate change policy, this policy lacks the
form, substance, and direction that one would expect from a political, economic, and-formerly-
environmental world leader. In particular, the US climate change policy lacks substantive legal
content.”213 Legal commentators generally agree with this interpretation of the US federal
government’s legal failings as they pertain to international climate change efforts.214 One of the
most prominent examples of the United States refusal to join in on substantive international legal
efforts was its refusal to ratify or sign the Kyoto Protocol, as previously discussed.
Though flawed, the Kyoto Protocol was one of the first major international efforts aimed
at unifying the globe against the problem of climate change. The United States expressly anti-
Kyoto position was a position “different from any other country in the world,” and in accordance
with the argument of this thesis, the justification for this opposition to the Kyoto Protocol was
primarily economic.215 President Bush said, “he would not commit to any protocol to the
UNFCCC that would exempt developing countries from obligatory emission reduction
obligations.” 216 In other words, Bush was worried that by reducing emissions, the United States
213 Ibid., 35. 214 Ibid., 35. 215 Ibid., 36. 216 Ibid., 36.
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risked falling behind economically to developing countries with laxer obligations. In this respect,
the United States rejected the Kyoto Protocol to protect their economic interests. No other
country in the world did this. Although many reasonable arguments can be made defending the
United States decision, this did not excuse them from denying the Protocol outright, and refusing
to participate in international efforts when every other powerful economy signed on. The overall
stance of the Bush administration, much like the stance of 1970s lawmakers, was pro-
environment in purpose, but anti-environment in substance, focusing more on economy and
health, than on greater environmental issues. “Bush’s global climate change policy proposed to
address what many perceived as the most significant global environmental threat with only
further study and a voluntary incentives program for industry.”217
The lack of any major domestic environmental legislation other than the Clean Air
Amendments of 1990, and the inconsistent, often unsubstantiated international legal efforts of
the United States in the years following the Environmental Decade were indicative of an overall
stagnation of American environmental law that began in the early 1980s. The reason for this
stagnation, as this thesis has argued, was a flawed, tangibly minded legal environmental
conceptualization in the 1970s, that didn’t properly allow for the addressing of climate change.
As the legal and cultural conceptualizations of environment diverged in 1980, another major shift
in American life would send the political conceptualization of environment skewing away from
the cultural understanding as well. The flawed 1970s legal conceptualization allowed for the
opening of a economically minded political conceptualization of environment, and in 1980,
despite the best efforts of sitting President Jimmy Carter, the conservative administration of
Ronald Reagan would capitalize on the economic interpretation of environment, and declare war
on intangible environmental ideas.
217 Ibid., 37-38.
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3.2- Carter, Reagan, and the Conservative War on the Environment
Perhaps the reason the fifth strand of environmental thought did not have any one figure
as prominent as Carson, Roosevelt, or Muir was because the one person who may have been that
leader was not allowed the opportunity to be. During the Environmental Decade, lawmakers
responded to Rachel Carson’s expansion of cultural environmental thought, and when a new
cultural concept evolved in the late 1970s, Jimmy Carter tried to respond, but sadly, the
circumstances of Carter’s time did not grant him the opportunity to evolve political
environmental thought. Climate change research was just a few years away from achieving some
degree of substantial public acceptance by the end of Carter’s term in 1980. Carter could have
used more concrete research in appealing to the sensibilities of the public in 1979. Unfortunately,
when Carter spoke out to the American public in 1979 and 1980 about the necessity of
sacrificing for intangible, hard to define societal goals, one of which was combating climate
change, research just hadn’t reached the public acceptance necessary for it to matter to voters.
Carter was just a few years away from being able to successfully appeal to the cultural
conceptualization of environment, but instead, his words fell on deaf ears, and America elected a
man who instead actively tried to devolve the political environmental conceptualization.
One infamous speech, commonly referred to as the “Malaise Speech”, represented well
Carter’s efforts to encourage the American people to leap to action in confronting a myriad of
issues. The speech was exemplary of the staggering complexity of both American life, and
environmental understanding at the end of the 1970s. As a result of a wide variety of
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sociopolitical forces over the previous decade, Carter’s speech did not help the environment
become clearer to the 1979 American cultural consciousness, but rather entangled the topic with
the malaise that Carter’s speech sought to address.
In his 1979 speech, Jimmy Carter sought to address the nations confidence and a
mounting energy crisis. Throughout the duration of his speech, Carter hit on both the political
reality of the late 70s and a key problem with the term “environment” that took hold in the
American political rhetoric. The term “malaise” itself indicted the state of the political climate in
which Carter’s speech took place. Much like the term environment, the term malaise approaches
an intangible, often inarticulable reality. Its dictionary definition is “a vague or unfocused feeling
of mental uneasiness, lethargy, or discomfort.”218 Thus, when Carter went in front of the nation to
address the nations “moral and spiritual crisis,” it was clear that he would be approaching an area
of American life with very little backing in numbers and science.219 Carter argued in his 30-
minute speech that “all the legislation in the world can’t fix what’s wrong with America,” and
that America was suffering a “loss of unity and purpose.”220 He maintained that part of being an
American was believing wholeheartedly that “the days of our children would be better than our
own,” pleading with the American people to sacrifice in betterment of tomorrow.221 Rhetoric like
this called upon the American people to prioritize an “invisible” truth. He begged Americans to
sacrifice and to change, so that tomorrow could bring a better country, with more promise.222
Climate change was one such future oriented, purposeful endeavor that Carter’s speech
advocated for. Unfortunately for many Americans at the time, still unable to grasp the topic of
218 Dictionary.com, s.v. “malaise,” http://www.dictionary.com/browse/malaise (accessed April 20, 2016).219 Jimmy Carter, “The Malaise Speech”, Great Speeches, Volume 7, Boston College Films on Demand (originally aired July 1979) http://fod.infobase.com.proxy.bc.edu/p_ViewVideo.aspx?xtid=49145# (accessed April 12, 2016). 220 Ibid. 221 Ibid.222 Ibid.
99
climate change fully, environmental conservation demanded, “the welfare of this generation first,
and afterward the welfare of the generations that follow.”223
The difficulties facing the country in the 1970s certainly were abundant. As the
Environmental Decade wore on, behind the scenes, the country was reeling. The bitterness of the
failure in Vietnam, the mistrust of government after the Watergate scandal, the Iran hostage
crisis, soaring inflation, increased divorce rates, and the “the twilight peace of nuclear terror”
were just a few of the most prominent factors influencing the American psyche.224 By the time
Carter took office, inflation and unemployment already looked dire, and when running in 1976
Carter tried to reassure the American people of better days saying, “We want to have faith again!
We want to be proud again!”225 Carter ran on a platform of making things better, but the “misery
index” (a combination of inflation and unemployment) sored during Carter’s presidency from
12.5 in 1976, to over 20 in 1980, which was nearly double.226 There is no doubt that the morale
of the nation suffered during Carter’s administration, and as hard as Carter tried to address the
reeling nation, forces far more powerful than him were at work. No matter what he did, Carter
was the face of a struggling country, and undoubtedly shouldered the blame. Perhaps the greatest
of the obstacles that plagued the Carter administration during his four years in office was the
energy crisis. Carter, understanding the global impacts of the energy problem, advocated
strongly for renewable energy as a means of combating the energy crisis.
Starting in 1973, the United States struggled with a foreign dependence on oil.227
Throughout the 1970s an oil embargo by OPEC (Organization of Petroleum Exporting
223 Gifford Pinchot, The Fight For Conservation, 43. 224 Gil Troy, “1980 Cleveland “There You Go Again!,” Defeating Defeatism-and Jimmy Carter,” in Morning in America, (Princeton: Princeton University Press, 1997), 27. 225 Ibid.226 Ibid.227 Ian Ostrander, and William R. Lowry, “Oil Crises and Policy Continuity: A History of Failure to Change,” 384-404.
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Countries) to the United States tightened consumer pockets, and contributed heavily to a
mounting inflation problem.228 To combat this, Carter promised to seek alternative fuel sources,
and decrease foreign dependence on oil. The years between 1976 (the start of Carter’s
presidential term) and 1980 saw the energy crisis dominate the American political consciousness.
The topic of energy was front and center in 1979, even over the Iran hostage crisis, and Carter
almost exclusively referred to energy in his pleadings with the American public to overcome
their confidence issues. In other words, energy embodied the misery and mounting despair of the
American people in 1979. To become energy self-sufficient became a key talking point for
Carter going into the election of 1980.
In a November 1980 debate, Jimmy Carter, just a week before the presidential election,
came up against the formidable Republican candidate, Ronald Reagan. From the onset of the
debate, Reagan appeared calm, confident and determined, while Carter seemed tired, overrun,
and redundant. Reagan talked far longer than Carter in the debate, despite being asked the same
questions, and he countered every one of Carter’s points two-fold. Visually, the debate was
indicative of the reality of the political situation.229 Jimmy Carter seemed worn down by his term
in office and his inability to spur the American people into action. Ronald Reagan prayed on
Carter’s fatigue, and went after the environment with full force.
During the debate, Reagan made it clear, that the environmental agenda set forth in the
Environmental Decade needed to be stopped. He said that 70% of oil is hidden under
government protected multi-use land, suggesting that the oil industry should go and get it.230 The
government protected land he referred too was most likely the newly protected land in the
228 Gil Troy, “1980 Cleveland “There You Go Again!,” Defeating Defeatism-and Jimmy Carter” Morning in America, 27.229 Ibid.230 Ibid.
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Alaska Land Bills Act, and Reagan vowed that if he were to take office, “governmental
interference” like the Alaska Land Bills Act would cease to exist.231 For Reagan, environmental
protection came hand in hand with governmental interference, and governmental interference
meant regulation, and regulation hurt the economy.
Reagan by no means hid his anti-environmental tendencies, infamously suggesting to a
group of environmentalists that trees generate more air pollution than cars.232 Reagan was no less
abrasive in his blatant disregard for the environment at the debate. The debate took place in
Cleveland, Ohio, a city who’s Cuyahoga River literally burst into flames in 1969 as a result of
flammable chemical river pollution.233 Bills like the Clean Water Act were passed during the
Environmental Decade to regulate harmful river pollution like this, and protect the health of
Cleveland’s citizens. Undoubtedly cognizant of the Cuyahoga’s late 1960s environmental
trouble, Reagan nevertheless continued to emphasize the deregulation of environmental agencies
like the EPA, who oversaw the cleaning of rivers like the Cuyahoga.
Carter did his best in the debate to warn Americans about Reagan’s anti-environmental
stance. He accused Reagan of opposing the Clean Air Act in 1970, as well as the Occupational
Health and Safety Act in 1972.234 This didn’t faze Reagan, and he understood the people of the
United States were concerned primarily with their economic well-being, and as such he didn’t
even pretend to dispute Carter’s claims against him. He played up the continued growth of coal,
and avoided talking of alternative fuels, preferring to redirect his attention to oil exploration and
231 Bill Christofferson, The Man From Clear Lake: Earth Day Founder Senator Gaylord Nelson, 337.232 Gil Troy, “1980 Cleveland “There You Go Again!,” Defeating Defeatism-and Jimmy Carter” Morning in America, 25.233 Ibid.234 Jimmy Carter and Ronald Reagan, “Ronald Reagan and Jimmy Carter Debate,” US Presidential Election Debates, Boston College Films on Demand (originally aired October 28, 1980) http://fod.infobase.com.proxy.bc.edu/p_ViewVideo.aspx?xtid=94916 (accessed April 23, 2016).
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offshore drilling.235 Just a week after the debate, Reagan was elected to office, and Jimmy Carter,
perhaps the best hope for the politicization of the fifth strand of environmental thought, sadly
could not save the legal/political conceptualization of environment. Instead, Reagan used the
environmental conceptualization of law in the 1970s to justify a narrowing of the political
conceptualization of environment even further. For Reagan, the environment was viewed strictly
through an economic lens, and a key tool for viewing the environment economically was cost-
benefit analysis.
“During President Ronald Reagan’s tenure, environmental policy was characterized by
budget cuts for administrative agencies, lax enforcement, and administrative incompetence
among other things.236 His introduction of cost-benefit analysis provided him with the economic
justification to carry out these detrimental environmental policies. Cost-benefit analysis
“provides that, to the extent the law permits, ''regulatory action shall not be undertaken unless the
potential benefits to society from the regulation outweigh the potential costs to society.''”237 The
deregulatory power of cost-benefit analysis was so great, that even environmental health often
times was put at jeopardy. Henry A. Waxman, a California Democrat in 1981 said, “it is very
dangerous to think we can quantify the way we make policy judgments. We don't know how to
measure the true cost of health or disease.''238 The Environmental Decade understood the
environment as a strictly tangible thing; Reagan took this flawed conceptualization a step further,
understanding the environment as strictly a numerical, economic thing. In this way, the Reagan
administration was actively devolving the political conceptualization of environment.
235 Ibid. 236 Cinnamon Piñon Carlarne, Climate Change Law and Policy: EU and US Approaches, 34.237 Philip Shabecoff, “Reagan Order on Cost-Benefit Analysis Stirs Economic and Political Debate,” The New York Times, November 7, 1981, under “US,” http://www.nytimes.com/1981/11/07/us/reagan-order-on-cost-benefit-analysis-stirs-economic-and-political-debate.html?pagewanted=all (accessed May 1, 2016). 238 Ibid.
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With cost-benefit analysis as powerful tool, the Reagan administration conducted a
multitude of intentional political moves aimed at dismantling the environmental gains of the last
20 years.239 Two of these moves were especially revealing of Reagan’s anti-environmental
agenda. The first, and perhaps most devastating, was Reagan’s appointment of James Watt as the
new Secretary of the Interior. Watt came from the Mountain States Legal Foundation, an
environmental entity that worked closely with economically minded businesses, often advocating
legally on their behalf.240 Watt came in determined to change hundreds of regulations to such an
extent, that his successors wouldn’t have the determination to change them back.241 He attempted
to fight financing of National Park expansion, ousted environmentalists from the Executive
Branch, and advocated for development whenever his power allowed.242 Luckily, Congress often
fought him on such things, blocking his efforts to cut off funding for National Park expansion
among other things.243
To accompany Watt, Reagan named Anne Gorsuch, a leader of the Republican right in
the Colorado legislature, as the administrator of the EPA.244 Placing Gorsuch in charge of the
EPA was just another effort by the Reagan administration to systematically deregulate the
Environmental Protection Agency.245 What ultimately saved the EPA from being dismantled was
its connection with small daily environmental regulations. For example, when the Reagan
administration sought to abolish the EPA noise program, citizens revolted against the idea that
private businesses would not be subjected to even the most basic noise regulation.246 The basic
239 Samuel P. Hays, Beauty, Health and Permanence (Cambridge, Cambridge University Press, 1989).240 Ibid.241 Ibid.242 Ibid., 498-505.243 Ibid. 244 Ibid., 494.245 Ibid., 502.246 Ibid., 502.
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function of many commonsensical EPA administered institutions helped keep the EPA afloat
through drastic budget cuts, direct scrutiny, and unprecedented disregard for environmental
concerns.247
In the eight years that Reagan held office (1980-1988), “partisan politics defined
environmental law.”248 As a result, by 1989 “the federal government no longer possessed a strong
political mandate to deal with issues of environmental law.”249 How could such a systematic
deregulation occur just one decade after a massive lawmaking spree comprehensively sought to
protect the natural world? Part of the answer lies within the Acts of the Environmental Decade
itself. Lawmakers of the 1970s in seeking a comprehensive understanding of environment,
inadvertently prioritized economy and health, and made the political conceptualization of
environment malleable and exploitable. The Reagan administration, and their cost-benefit
analysis used certain rhetoric of the Environmental Decade to justify their economic stance on
environment, primarily drawing justification from the Conservationists of the early 20th century.
In seeking comprehensiveness, law rhetorically allowed itself to be manipulated by the Reagan
administration to mean what they wanted it to mean.
247 Ibid., 502.248 Cinnamon Piñon Carlarne, Climate Change Law and Policy: EU and US Approaches, 30.249 Ibid.
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3.3- The Legal Environmental Conceptualization and 1970s Language Issues
In it’s opening statement, the National Environmental Policy Act of 1969 read as follows:
“The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the
natural environment, particularly the profound influences of population growth, high density urbanization, industrial
expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical
importance of restoring and maintaining environmental quality to the overall welfare and development of man,
declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments,
and other concerned public and private organizations, to use all practical means and measures, including financial
and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain
conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other
requirements of present and future generations.”250
At first glance the purpose of the law seems comprehensive and prepared to approach a
topic like global climate change. Rhetorically, terms like “all”, “profound”, “overall”, and
“general welfare” all indicated an intention of comprehensiveness. As rhetoric pertained to
global climate change and an ecosystem approach to law, the term “interconnectedness”
accounted well for this type of thinking. It is clear by the use of comprehensive rhetoric, that at
least conceptually, Caldwell’s policy ideas were driving the NEPA, and politicians accepted the
broad concept of environment as necessary. The comprehensiveness of this language in law
could be helpful, but it could hurt just as easily. Such an inclusive definition of the environment
allowed for a massive broadening of what constituted as “environment,” and opened the
250 National Environmental Policy Act of 1969, 42 U.S.C.§ 4331 (1969).
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environmental concept up to the prominence and prioritization of economy. Certain troublesome
words in the opening statement were indicative of this danger.
The terms “general welfare,” “productive harmony,” and “economic requirements” were
all examples of harmful legal terms. All three of these terms could be legally molded to support
and justify economic prioritization. The terms help to bypass strictness of environmental law,
essentially confusing the legal definition of environment. In terms of word meaning, “welfare”
has three definitions as defined by the dictionary.251 The first definition is the most broad, “ the
good fortune, health, happiness, prosperity, etc., of a person, group, or organization; well-being.”
However, the subsequent definition “financial or other assistance to an individual or family from
a city, state, or national government” clearly prioritizes the economy, and the very nature of the
American political institution devoted to “welfare” is of an economic nature. So while in the first
definition, an argument could be made for happiness falling in line with Preservationist
recreation, or transcendental spiritualism, the deeper reality was that welfare, in a capitalist
society, is and was inherently economic by nature. Health subsequently would be the second
most pressing issue, considering in the United States, again, a strictly capitalist country, one must
pay for their healthcare, and in order to be paid one must be healthy or capable of working. In
summary, health and economy are intrinsically more important in the notion of welfare in a
capitalist society, and their presence in the intent stated purpose of the National Environment
Policy Act indicated flexibility that allowed politicians to justify moving away from primary
concern for the natural world.
The term “productive harmony” once again proved troublesome, specifically the term
“productive”. Like “welfare,” the term seemed innocent to lawmakers, and in accordance with
251Dictionary.com, s.v. “welfare,” http://www.dictionary.com/browse/welfare (accessed April 21, 2016).
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Conservationist principles. To the lawmakers’ credit, both the term “welfare” and the term
“productive” were used by Conservationists. But just like the paradox of environmental
comprehensiveness, the term “production” falls victim to both serving, and contradicting an
environmental idea. In the first two decades of the 20th century the idea of conservation was
innovative, however, by the 1970s the “talk of importance of coal preservation” meant
something entirely different than in 1910 when Gifford wrote Fight for Conservation.252 Science
in particular evolved, and the harm of pollution from coal and the emerging research on the
damage of CO2 were not variables that Pinchot took into account. In 1910, Conservationists
advocated for the most basic principles of conservation, simply, Conservationists understood
natural resources were finite, and America should keep this in mind when expanding production.
By 1970, science revealed that not only were natural resources finite, but our use of nature’s
resources could be detrimental to the global climate. Furthermore, in 1910, America still needed
to grow its production capacity in order to innovate, and sustain a growing American economy.
By 1970, America maximized their production capacity and no longer needed to advocate on
behalf of the expansion of industry. Thus, the inclusion of a term like “productive”, though in
accordance with Conservationism, inadvertently opened an avenue for priorities other than
environment, namely interests economic by nature.
Perhaps most immediately apparent as an economic concern from the NEPA opening
statement was the use of the phrase “economic requirements.” Here again Conservationist
thought can be used to justify economic prioritization. “Conservation demands the welfare of this
generation first, and afterward the welfare of the generations that follow.”253Again, as was the
case in the last use of Conservationism, the historical context of the given phrase was important.
252 Gifford Pinchot, The Fight For Conservation, 44. 253 Gifford Pinchot, The Fight For Conservation, 43.
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By 1970, America was affluent, hugely productive, and a global hegemony that could afford to
care for things like the environment. In 1910, this wasn’t quite the case. The economic well-
being of the average American improved, and although there were times of recession or
difficulty, the overall well-being of the average American in 1970 materially and substantively
increased. For this reason, the inclusion of the phraseology “economic requirements,” good
intentioned and commonsensical as it may have been, was malleable from a legal standpoint.
What are economic requirements? Who determines this? The easy answer was the political party
in charge determined this. Thus, the phrase “economic requirements,” in and for itself (to borrow
Emerson’s phraseology), represented the malleability of the legal environmental understanding.
Lawmakers needed to make a stance on the environment in the 1970s, and their choice of
comprehensiveness, not strict prioritization of the protection of certain environmental values was
damaging in confronting climate change.
A case study on American coal can help to exhibit how economic prioritization in
environmental law hindered American climate change efforts. Coal was and is a primary
contributor to rising global carbon dioxide levels. Before climate change research gained
significant traction in 1980, coal was viewed like any other resource, and treated with no special
considerations for its broader impacts. As such, when climate change research implicated coal as
a heavy contributor to carbon dioxide emissions in the 1980s, outdated 1970s law couldn’t
properly regulate coals emissions based on the new information. Since environmental law has
gone largely unchanged in America since 1978, laws pertaining to coal regulation have gone
largely unchanged. Thus, coal is representative of how an outdated legal conceptualization of
environment has hurt climate change efforts.
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Case Study: Coal
In 1910, Gifford Pinchot and Theodore Roosevelt sought to preserve coal, and rightly so.
As one of America’s most abundant resources, coal was readily accessible and a great source of
energy. The positive outlook on coal would persist all the way through the Environmental
Decade and into the 1980s. There was no reason to think negatively of coal so long as it was
regulated at the pollution source like any other polluting substance. That was until global climate
change research suggested otherwise. Coal helps to show how the legal conceptualization of
environment and the cultural conceptualization of environment diverged in the 1980s. For
culture, coal was viewed as an increasingly negative thing that should be regulated heavily. For
law that failed to conceptually evolve however, coal was viewed as it always had been, polluting,
but not of particular concern.
To this day, there is no substantive policy to protect against coal.254 There were
regulations on mining and limitations on pollution put in place, but there was never any policy
protecting specifically against the resources negative impact on air quality, let alone global
climate change. Before 1980, this was primarily because there was no prominent reason to move
away from coal. There was no denying that pollution from burning coal in abundance could be
detrimental to health. But in terms of environmental harm beyond basic pollution, there was
absolutely no sense in the 1970s that coal carried with it additional burdens. As such, coal made
it all the way through the Environmental Decade relatively unregulated and with the full support
of industry and business.255 By promising to change what were called “old coal” burning
procedures, the coal industry remained a powerful polluter all the way through the
254David Ismay (Staff Attorney at Conservation Law Foundation), interview by author, Chestnut Hill, Massachusetts, October 28, 2015.255 Ibid.
110
Environmental Decade under the veil of “new coal” procedures.256 Evidence that coal was not
detected as a serious threat to the environment in the 1970s can be found in the words of Jimmy
Carter.
In 1980, Carter, the embodiment of liberalism, in his pre-election debate with Reagan
said America should “produce more coal” and in coal there was an “exciting future.”257 This was
somehow taken even further by Reagan who said, “regulations that prevent mining and coal
burning are bad.”258 Carter, the liberal environmentalist of whom Reagan was the antithesis,
advocated for coal and the expansion of coal burning to decrease foreign oil dependency. It is
hard to believe that Jimmy Carter would ever have advocated for coal if he’d known the scale of
damage the resource did to the environment. Carter’s pro-coal stance in the 1980 election debate
evidenced the infancy of global climate change research, and was proof that coal as a harmful
substance was not part of the legal environmental conceptualization of the Environmental
Decade. Considering there would be no major change to American environmental law for the
next 30 years, coal, one of the leading carbon dioxide emitters in the world, in effect bypassed
serious environmental regulations.
The fact that a resource like coal made it through the Environmental Decade virtually
unscathed speaks for itself. Had the Decade been truly comprehensive and effective in its
protection of the environment, coal would have been on its way out the second global climate
change research implicated the resource as particularly damaging. Through economic usefulness,
coal use was allowed to not only continue, but also thrive in American society, especially after
the OPEC crisis. Instead of using the crisis to expand solar and wind power research, the crisis
256 Ibid.257 Jimmy Carter and Ronald Reagan, “Ronald Reagan and Jimmy Carter Debate,” http://fod.infobase.com.proxy.bc.edu/p_ViewVideo.aspx?xtid=94916 (accessed April 23, 2016).258 Ibid.
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was used to expand coal use. If law succeeded in its comprehensive approach and the
prioritization of environmental protection, the reaction may have been more renewable resource
oriented. In the end it was the timing of climate change research’s prominence that doomed the
effectiveness of American environmental law and policy to meaningfully address global climate
change, and allowed coal to grow unchecked for the next quarter century.
Conclusion
The American understanding of environment evolved into a fifth strand of thought in
1980 that understood the Earth as a complex, interrelated ecosystem. Unfortunately as scientists
worked to bring this massive conceptual shift to the American public, Reagan declared war on all
things related to any sense of environment in 1980. Jimmy Carter tried hopelessly to incorporate
climate change into the political conceptualization of environment. For all of his efforts not even
health was properly integrated into the political conceptualization under the Reagan
administration.
In further misfortune, though lawmakers tried, the Environmental Decade failed to
adequately protect against a solely economic interpretation of environment. Though it may not
have been possible to fully block political disruption, lawmakers to some extent could have
determined to what end politics disrupted environmental efforts. By choosing to view the
environment comprehensively, lawmakers allowed economic prioritization into the legal
environmental understanding. Further, the law by focusing in on the Environmentalist strand of
thought depended on extensive point source pollution control policies, which ultimately proved
ineffective in dealing with the global climate change problem. The focus of lawmakers on the
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tangible health and economic aspects of the environment in the 1970s helped to diverge the
American cultural, and American legal/political understandings of the natural world in the 1980s.
In effect, the environment suffered because of the exact timing of the Environmental Decade,
with the fifth evolution of environmental thought coming too late for law to properly address it.
With no momentum to stimulate new lawmaking, American environmental law fell into
stagnation and deregulation during the reign of Ronald Reagan from 1980-1988. Reagan’s war
on regulation, and the regulatory agency of the EPA permanently hurt the American political
conceptualization of environment, which prevented any political momentum towards a
restructuring of American environmental law. As such, the legal conceptualization of
environment as it stood in 1978, remains largely unchanged today.
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Conclusion
This thesis sought to show the historical evolution of American cultural environmental
thought, and its subsequent evolutions in politics and law. The conceptualization of environment
did not first appear in 1962 with Rachel Carson, nor was Roosevelt the first to conceive of, and
articulate the environment. Rather, American thinkers like Ralph Waldo Emerson and John Muir
first articulated intangible relationships with the natural world as far back as the 1830s, seeking
to protect nature for its inherent value for the human spirit and for future generations, not just for
it’s present economic or health worth. From early environmental thinkers’ work and writings,
Roosevelt and Carson drew inspiration, and did not seek to alienate past strands of thought, but
rather saw themselves as part of a historical evolution, adding to, rather than subtracting away
from, a greater environmental understanding. This greater environmental understanding was
what Lynton Caldwell advocated for when he called for comprehensive environmental policy.
He saw the inherent value in making legislation that could protect the entire cultural
conceptualization of environment, intangible and tangible strands alike.
When lawmakers met during the Environmental Decade with hopes of formulating a
comprehensive legal understanding of environment, they inadvertently separated out intangible
understandings of environment from the greater cultural conceptualization. By doing so, law
only allowed for a conceptualization of environment characterized by its impact on human health
and the economy. The environment became strictly quantifiable in law as lawmakers continued
to view the environment in an ever-narrowing way as the 1970s wore on. Intangible
appreciations of the natural world like those the Transcendentalists and Preservationists valued
114
had no place in the new tangible legal conceptualization. When climate change research emerged
in the 1980s, a fifth strand of environmental thought, both tangible (based on science), and
intangible (future oriented, value based), called for the American legal conceptualization to once
gain evolve beside the cultural. This unfortunately did not occur, as the statutory laws of the
Environmental Decade failed to adjust to climate change, and continued to only prioritize point
source pollution control.
Had the law properly conceptualized the environment during the Environmental Decade,
the addressing of global climate change research most likely would have been immediate. Before
the Environmental Decade, as cultural environmental thought evolved, so too did legal and
political thought. The Environmental Decade was designed to enhance this process of parallel
growth between cultural, legal, and political environmental thought, but instead, it hindered it.
When climate change research reached the political/legal realms in 1980, the law wasn’t able to
conceptualize the problem, and since the law didn’t recognize the problem, politicians weren’t
expected to recognize the problem either. Reagan used the freedom granted to him by American
law to actively combat the gains of the Environmental Decade. His presidency in many ways
devolved the political understanding of environment in America. If the political
conceptualization of environment is to be fixed, the legal conceptualization must first be
changed. The very purposes, foundations, and missions of past environmental laws need be
adjusted to fit our current cultural conceptualization of environment, of which climate change is
an integral part.
In the years since the Kyoto Protocol, America has done significantly better in addressing
climate change, but there still exists a deep divide in cultural, legal, and political understandings
of environment, and this slows progress. So although the United States role in the Paris
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Agreement in 2016 can be considered a great achievement, there are still antiquated, conceptual
problems with domestic American environmental law that need to be addressed. If any real
substantive progress is to be made in time to properly address climate change, law needs to
quickly adjust to the fifth strand of American cultural environmental thought. Perhaps it is time
for a complete overhaul of previous laws, for a second Environmental Decade, a Decade that can
reunite the environmental conceptualizations of law and culture. The historical evolution of
American environmental thought was far more successful than the last 30 years suggests, and it
is time now to get that evolution back on track, so that America can rightfully take its place with
other world leaders in the fight against global climate change.
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