Coming of Age in the Environment
Cudahy, Richard D., Environmental Law
In this Essay, Judge Richard Cudahy traces the history of the environmental movement in the United States. Starting with several examples of environmental disasters during the 1950s, he then moves on to discuss the budding awareness of environmental problems in the 1960s. The Sixties gave way to an explosion of environmental laws and literature during the 1970s. Pushed by the energy crisis and a fear of nuclear power, the Seventies witnessed the birth of a plethora of environmental laws and writings concerned with energy conservation and clean energy production. Judge Cudahy recounts how the 1980s saw a political backlash against the environmental movement and how popular opinion tempered the backlash, not only during the 1980s, but during the mid-1990s as well. Judge Cudahy concludes with a peek into the future of environmental issues and law.
Very best wishes to Environmental Law on its thirtieth birthday. You were the first of your kind, and you have been contributing to the development of environmental law during all those years when it has been a work in progress.
It doesn't seem possible that before 1960 there was no "environment"--or at least no environmentalism. I can even remember the Thirties, when we all heedlessly threw our trash out of car windows, burned coal in the home furnace (if we could afford to buy any), and used a lot of lead for everything from fishing sinkers and paint to no-knock gasoline. Those were the days when belching black smoke meant a welcome end to the Depression and little else.
In the war years, a healthy environment was one free of five hundred pound bombs and long-range artillery fire. There was a flickering of concern about radioactivity when A-bombs and H-bombs began exploding.(1) In fact, I think in principle nuclear explosions raised the basic environmental question. Here was an awesome source of primal energy released by sophisticated human calculation, but spreading a whole battery of mysterious and severe health hazards in its wake.
In the Fifties, the rapidly proliferating automobile culture, with mounting air pollution and suburban sprawl, became an increasing burden on the environment. Cars caused smog to hang over Los Angeles,(2) and a prosperous smokestack industry in the Midwest produced such notable environmental disasters as the death of Lake Erie(3) (and later the fire on the Cuyahoga River in Cleveland(4)). In fact, the failure of the widely anticipated post-war depression(5) to appear on schedule may have been an unexpected blow to the environment.
The Sixties, of course, brought Rachel Carson(6) and the first real wave of environmental legislation with an assault on pesticides,(7) the strengthened Clean Air Act,(8) and the astonishing reversal of beliefs that had seemed sacred for decades. For example, the plunge of DDT from miracle pesticide to executioner of birds was awesome(9)--at the moment a small bounce in DDT's fortunes may result from its value in malaria control. (l0) The enactment in 1969 of the National Environmental Policy Act(11) was a revolutionary development, requiring an analysis of the impact on the environment of actions by the federal government and thrusting the environment into the forefront whenever significant federal activities were undertaken. It incorporates the most important concept in the entire field of environmental law.
Even before the Sixties, there had been enclaves of environmentalism in the nation--as in my home state of Wisconsin.(12) These tendencies developed under the banner of "couservationism"--a long-honored tradition focusing on the protection and nurturing of wildlife and creation of natural preserves. The conservation tradition at the national level was fostered by famous advocates like Theodore Roosevelt and Gifford Pinchot.(13) This was a political tradition that broadened and later gained force under the new banner of environmentalism. Despite setbacks, the commitment of the public to environmental preservation and conservation had enduring power that fortified those ideals even in hostile political eras.
The early Seventies, under the unlikely aegis of the Nixon Administration, marked the high-water mark of this early ecological wave. The first notable step was the establishment of Earth Day under the leadership of Senator Gaylord Nelson (D-Wis.).(14) Gaylord Nelson had made conservation and environmental protection a major part of his program as Governor of Wisconsin in the late Fifties and early Sixties.(15) Earth Day was a very important idea in popularizing environmental issues with young people. Over the years, school children have been adamant in their defense of the environmental point of view. They have rarely been swayed by the political cross-currents that have influenced their elders on these issues.
The Seventies also brought a blizzard of legislative initiatives covering the various fields of environmental concern. The amended Clean Water Act(16) was, of course, one of the most noteworthy of these efforts. In addition, the Environmental Protection Agency was created to administer the environmental laws,(17) and the Council on Environmental Quality was established in the Executive Office of the President to oversee and evaluate environmental programs in the government.(18)
The decade of the Seventies brought a dramatic energy crisis bottomed on an oil embargo by Arab petroleum producers and immensely strengthened by a worldwide oil shortage reflected in skyrocketing prices of oil and other fuels. The escalation of fuel prices helped to generate severe inflation, which in turn drove up construction costs of facilities for energy production. (19) The acute shortage of energy interacted in multiple ways with various environmental issues, and these interactions manifested the iron links between energy and the environment.
First, the energy crisis inspired a broad-gauge program for energy conservation.(20) Since energy production notoriously burdens the environment, energy conservation not only saves resources but helps the environment in other ways. For every kilowatt of electric power that does not have to be generated there are a few calories less of rejected heat from power stations and a few bits less of stack gases containing sulfur dioxide and other pollutants.
Second, the shortage of fossil fuels intensified the nuclear power debate. The strongest argument in favor of nuclear development was that it would replace pollution-laden coal capacity.(21) The strongest arguments against nuclear plants emphasized the plant's negative impacts, such as the possibility of nuclear accidents (e.g., Three Mile Island) and the nagging problem of nuclear waste disposal.(22)
The Seventies also brought the famous report of the Club of Rome, which forecast acute shortages of natural resources if the world continued in its patterns of gluttonous consumption.(23) This was also the decade when E. F. Schumacher published his influential book of essays, Small is Beautiful.(24) Dr. Barry Commoner, regarded as a radical environmentalist, was another prolific writer of the period.(25) Another important contributor to energy and environmental thinking in the Seventies was Amory Lovins, the author of Soft Energy Paths.(26) Lovins advocated decentralization of the energy production system with emphasis on nonpolluting sources like wind, sun, geothermal, small hydro, and the like, as well as on cogeneration.(27) He also looked to energy conservation to reduce the need for huge, centralized energy facilities.(28) He was particularly a foe of nuclear power, which was to him the epitome of costly centralization and a prime instance of failure to match the scale of production to end uses.(29) Lovins was an engineer, and he could talk the language of engineers in a most persuasive way. His message was the very antithesis of the concept of the gargantuan energy projects planned in the Seventies to address the energy crisis.
Besides the environmental statutes as such, the Seventies saw the enactment of a great deal of energy legislation aimed both at increasing supplies and at conserving resources where shortages were most acute. Natural gas was thought to be in very short supply, and the Natural Gas Policy Act of 1978(30) raised statutory price ceilings(31) and brought intrastate pipelines under federal regulation,(32) A part of this statute instituted a program for substituting coal for scarce natural gas--a conversion not necessarily helpful to the environment.(33) In addition, Congress enacted federal regulatory standards for electrical ratemaking for the edification of state regulators.(34) These standards were aimed at promoting conservation.(35) Another environmentally driven facet of the 1978 legislation mandated the development of alternative, nonpolluting energy sources by requiring utilities to buy and use this alternative power at prices approved by the state commissions.(36) This legislation, called PURPA (Public Utility Regulatory Policies Act), in addition to promoting nonpolluting energy sources, was the first effort at introducing a form of competition into the electricity generating system.(37)
The prominence accorded environmental considerations in the Seventies was certain to provoke a reaction in the Eighties. Sure enough, the incoming Reagan Administration sought in various ways to limit environmental regulation, which it perceived as a drag on the economy.(38) Secretary of the Interior James Watt became the eye of political storms that centered on the role of environmental law.(39) EPA Administrator Anne Gorsuch also figured as a political villain in the environmental wars.(40) As environmental law matured, questions continued to arise about the role of the courts in relation to administrative agencies in developing the law. The Chevron decision(41) of the United States Supreme Court in 1984 was an attempt to clarify this relationship by giving agencies the lead in construing ambiguous regulatory statutes. The Chevron case itself involved construction of environmental statutes(42) and presumably made it more difficult for courts to overrule agency interpretations.
As I have indicated, the Eighties proved to be a reactionary period against the astonishing dominance of environmentalism in the Seventies. By the same token, the Eighties were the first test of the political staying power of measures aimed at environmental protection. In the early Eighties, the political attack on environmental values inspired an outpouring of financial support for conservation organizations, which were primed for political action, litigation, or both.(43) This phenomenon indicated the steadfast commitment of many higher-income environmentalists. In addition, public opinion polls and election results showed, throughout this period, that the broader public was not ready for a significant retreat on the environmental front.(44) Of course, there were many adjustments and compromises, but significant reversals of policy in this area had high political costs.
This was also the paramount lesson of the Nineties. The 104th Congress, elected on the "Contract with America," arrived in Washington apparently committed to a major reversal of environmental policy. There was even talk of repealing the Clean Air Act and industry lobbyists sitting in on committee legislative drafting sessions.(45) But all this proved to be mainly talk. Barry Commoner's point of view may not have been dominant, but with a few exceptions, no one who valued his or her political scalp discounted the public support for environmental protection.
The Nineties also brought a new phase in the international dimension of environmental consciousness. Global warming, resulting from an accumulation of greenhouse gases, was the focus here. By definition, this was an international problem that brought to the fore the clash in interests between the developed and the developing world. A proposed treaty agreed upon at the conference in Kyoto, Japan convened to address global warming placed the burden of limitation on the developed world without imposing restrictions on the nations still intent on development.(46) The proposed treaty received very mixed reviews and inspired a political clash in the United States--generally along the lines of tension addressing other environmental issues.(47) In general, business interests were aligned against the Kyoto Treaty, and this promises to become a sharply defined issue in the presidential campaign of the year 2000.
Where will the environmental movement and its adversaries be headed in the twenty-first century? Two dimensions seem readily identifiable. The first is the movement toward a global scale of environmental consciousness. On the issue of global warming we are, of course, launched on an international approach. One of the questions already raised is whether industries in the developed world can meet their obligations by buying improvements in parts of the world where a given expenditure can bring about a greater antipollution effect than the same money spent in the United States.(48) After all, the same level of greenhouse gases released anywhere on the globe will have the same impact on warming. But, that is logic, and it does not salve the ethical unease associated with arguably "passing the buck" to the underdeveloped world.
Another issue that is thought of as international--although not in the same way as global warming--is overpopulation. This is conceived as a problem primarily of the underdeveloped world. However, it is an "international" problem because programs funded by advanced industrial nations may be applied primarily in less developed countries. In international organizations the debate seems to be between those who favor population restriction for environmental reasons and those who oppose population control because of ethical questions about the means to accomplish it.(49) At present, only a few countries, most notably China, have enforced legal measures to restrict births.(50) The adoption of such laws in the United States is currently unthinkable and will probably remain so for the foreseeable future. Nonetheless, population has been, and will continue to be, a fundamental environmental issue.
Obviously, at least in theory, almost all problems of the environment would be exacerbated by geometric growth in population. This is not, however, a good enough argument to convince those who question the means of achieving population control. Then there are cynics who expect that, just when population growth threatens to overwhelm the world, a disaster of some sort will wipe out so many people that world opinion may switch to fearing extinction rather than congestion.(51) If dire forecasts of population growth prove correct, these issues are sure to command ever-heightened attention.
Besides being in a sense international, population is what I will call a systemic environmental problem. That is another category that will probably characterize the twenty-first century. Instead of efforts to regulate environmental "details," there will be designs to promote ways of life that will evince ecological harmony. These efforts do not lend themselves to legal controls in quite as neat a way as the environmental protection measures of the present and past.
What I refer to may bear some resemblance to the concept that EDF's Fred Krupp calls the Third Wave.(52) But the implications of the Third Wave are for a less litigious future--an outcome not necessarily in my crystal ball.
A systemic matter that has so far evaded efforts at legal control is the culture of the automobile and the urban sprawl that it spawns. Urban sprawl with its traffic jams, air pollution, and other unattractive incidents is a culminating disease of our century. It has involved a humiliating surrender to the automobile, with which America has a well-advertised love affair. The ascendancy of the automobile could represent the triumph of the market over regulation. Only in a few places have there been successful regulatory efforts to bring the automobile under control, like the fuel consumption targets of the Seventies.(53) But the rise of sport utility vehicles puts even this approach in question. At some point in the future, historians may wonder at a society that sits for hours in traffic jams generating air pollution to patronize a mall located in what was recently a cornfield.
So, these are some thoughts on the past and future of the environmental cause. It is an effort to turn our endeavors from simply subduing nature to modifying it with prudence and foresight. Our efforts in this cause are not of really long standing, and we probably have much more to learn.
HONORABLE RICHARD D. CUDAHY(*)
(*) Richard D. Cudahy is the Senior Circuit Judge of the United States Court of Appeals for the Seventh Circuit. He is a member of the Wisconsin, Illinois, District of Columbia, and Connecticut bars, and prior to his appointment to the court, he was the resident partner in the Washington, D.C. office of the former Chicago firm of Isham, Lincoln, and Beale. Judge Cudahy received his J.D. from Yale University Law School and his B.S. from the United States Military Academy at West Point.
(1) PHILIP SHABECOFF, A FIERCE GREEN FIRE: THE AMERICAN ENVIRONMENTAL MOVEMENT 97-98 (1993) (discussing efforts by Barry Commoner to ban above-ground nuclear testing).
(2) BENJAMIN KLINE, FIRST ALONG THE RIVER: A HISTORY or THE U.S. ENVIRONMENTAL MOVEMENT 75 (1997).
(3) See SHABECOFF, supra note 1, at 111.
(4) See id.; see also KLINE, supra note 2, at 82.
(5) See SHABECOFF, supra note 1, at 90.
(6) See RACHEL CARSON, SILENT SPRING (1962).
(7) See Federal Insecticide, Fungicide, and Rodenticide Act Amendments of 1964, Pub. L. No. 88-305, 78 Stat. 190 (1964) (codified as amended at 7 U.S.C. [subsections] 136-136y (1994 & Supp. IV 1998)).
(8) Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392 (codified as amended at 42 U.S.C. [subsections] 7401-7671q (1994 & Supp. III 1997)).
(9) KLINE, supra note 2, at 77-78.
(10) Judy Mann, Leading the Effort Against Malaria, WASHINGTON POST, Oct. 15, 1999, at C10.
(11) National Environmental Policy Act of 1969, Pub. L No. 91-190, 83 Stat. 852 (codified as amended at 42 U.S.C. [subsections] 4321-4370d (1994 & Supp. III 1997)).
(12) See Tom Vanden Brook, Close Ties with Nature Breed Spirit of Activism, MILWAUKEE J. SENTINEL, Aug. 1, 1999, at 5.
(13) See SHABECOFF, supra note 1, at 64-76.
(14) Id. at 114; see also KLINE, supra note 2, at 84.
(15) Ron Larson, Wisconsin's Most Influential Politicians, WISC. STATE J., Nov. 19, 1999, at 4.
(16) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).
(17) Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (reprinted at 5 U.S.C. app. 1 (1994)).
(18) National Environmental Policy Act of 1969, Pub. L. No. 91-190, Title II, [sections] 202, 83 Stat 852, 854 (codified as amended at 42 U.S.C. [sections] 4342 (1994 & Supp. III 1997)).
(19) See Gary D. Allison, Energy Sectionalism: Economic Origins and Legal Responses, 38 SW L.J. 703, 718-20 (1984).
(20) See National Energy Conservation Policy Act, 42 U.S.C. [subsections] 8201-8287 (1994).
(21) See Charlotte R. Bell, At the Crossroads of the Plutonium Economy, 7 Envtl. L. Rep. (Envtl L. Inst.) 50,083 (Oct. 1977).
(22) See id.
(23) DONATELLA H. MEADOWS ET AL., THE LIMITS TO GROWTH 86 (8th ed. 1972).
(24) E. F. SCHUMACHER, SMALL IS BEAUTIFUL: ECONOMICS AS IF PEOPLE MATTERED (1973).
(25) See, e.g., BARRY COMMONER, THE POLITICS OF ENERGY (1979); BARRY COMMONER, THE POVERTY OF POWER: ENERGY AND THE ECONOMIC CRISIS (1976); BARRY COMMONER, THE CLOSING CIRCLE: NATURE, MAN, AND TECHNOLOGY (1971),
(26) AMORY B. LOVINS, SOFT ENERGY PATHS (1977).
(27) Id. at 38-46.
(28) Id. at 31-38.
(29) See AMORY B. LOVINS, NON-NUCLEAR FUTURES: THE CASE FOR AN ETHICAL ENERGY STRATEGY 42-45 (1975).
(30) Pub. L. No. 95-621, 92 Stat. 3351 (codified at 15 U.S.C. [subsections] 3301-3432 (1994)).
(31) 15 U.S.C. [sections] 3373(b) (1994).
(32) Id. [sections] 3371(2).
(33) See id. [subsections] 3391(b), 3392(b).
(34) See, e.g., Pacific Northwest Electric Power Planning and Conservation Act, Pub. L. No. 96501, 94 Stat. 2697 (codified at 16 U.S.C. [sections] 839 (1994)).
(35) See 16 U.S.C. [sections] 839(j) (1994).
(36) Public Utility Regulatory Policies Act of 1978, Pub. L. No. 95-617, 92 Stat. 3117 (codified at 16 U.S.C. [subsections] 2601-2645 (1994)).
(37) See Scott B. Finlinson, Comment, The Pains of Extinction: Stranded Costs in the Deregulation of the Utah Electric Industry, UTAH L. REV. 173, 184 n.95 (1998).
(38) SHABECOFF, supra note 1, at 205-30.
(39) Id. at 207-10.
(40) Id. at 210-13.
(41) Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
(42) Id. at 840.
(43) SHABECOFF, supra note 1, at 229-30; see also JACQUELINE VAUGHN SWITZER, GREEN BACKLASH: THE HISTORY AND POLITICS or ENVIRONMENTAL OPPOSITION IN THE U.S. 8 (1997).
(44) SHABECOFF, supra note 1, at 229-30.
(45) See H.R. 473, 104th Cong. (1995); H.R. 474, 104th Cong. (1995); H.R. 475, 104th Cong. (1995); H.R. 476, 104th Cong. (1995); H.R. 479, 104th Cong. (1995); H.R. 480, 104th Cong. (1995); DEMOCRATIC STUDY GROUP, HOW THE REPUBLICANS MAKE LAW: LET THE LOBBIEST DO IT (1995).
(46) Gwynne Wiatrowski Guzzeau, Indoor Air Pollution: Energy Problems in China's Residential Sector, 11 GEO. INTL. ENVTL. L. REV. 439, 456 (1999).[micro]!!! BEGIN AUTH-ABST
(47) John J. Fialka & Jackie Calmes, For Treaty's Backers, Delay in U.S. Vote Could Help, WALL ST. J., Dec. 12, 1997, at A20.
(48) See Glenn Wiser, Joint Implementation: Incentives for Private Sector Mitigation of Global Climate Change, 9 GEO. INTL. ENVTL. L REV. 747, 749-50 (1997).
(49) See generally Andrew D. Ringel, Note, The Population Policy Debate and the World Bank: Limits to Growth vs. Supply Side Demographics, 6 GEO. INTL. ENVTL. L. REV. 213, 214 (1993) (discussing the competing policy views of population control and their impact on the World Bank).
(50) See generally Ellen Keng, Note, Population Control Through the One-Child Policy in China; Its Effects on Women, 18 WOMEN'S RTS. L. REP. 205, 206 (1997) (discussing China's population control strategy and its effect on women).
(51) See, e.g., PAUL ERLICH, THE POPULATION BOMB (1968).
(52) See SHABECOFF, supra note 1, at 257-75.
(53) See JONATHAN ADLER, ENVIRONMENTALISM AT THE CROSSROADS 12 (Capital Research Center 1995).…
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Publication information: Article title: Coming of Age in the Environment. Contributors: Cudahy, Richard D. - Author. Journal title: Environmental Law. Volume: 30. Issue: 1 Publication date: Winter 2000. Page number: 15. © 1999 Lewis & Clark Northwestern School of Law. COPYRIGHT 2000 Gale Group.
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