by Karl Boyd Brooks. Lawrence, Kansas: University Press of Kansas, 2009. 288pp. Cloth $34.95. ISBN: 9780700616275.
Reviewed by Wesley T. Milner, Department of Law, Politics and Society, University of Evansville, wm23 [at] evansville.edu.
As we quickly move toward the pivotal United Nations Climate Change Conference in Copenhagen this December, there is increasing debate over environmental degradation and the law that is emerging to combat it. In most environmental law classes, the opening bell usually sounds around the first Earth Day in 1970, if not a couple of years before. School children around the country know that this special day comes every spring and cajoles us to focus on mother earth and how to protect the fragile ecosystem. Since that rallying call, most of the well-known (or notorious, depending on your position) legislation has been forged in Washington and state capitals around the country. In their popular text, Kubasek and Silverman (2007) point out that over two dozen federal laws were indeed implemented in the decade from 1969 to 1979. These include the National Environmental Policy Act, Federal Clean Air Act, Federal Water Pollution Control Act, Clean Water Act, Federal Safe Drinking Water Act, and Superfund (CERCLA). Even the venerated National Resources Defense Council still argues on their website that environmental law “. . . has only been around since about the time of the first Earth Day.”
In a work that proudly admits it is swimming against the current, Karl Boyd Brooks argues that the twenty-five year period before 1970 is a pivotal era of legal wrangling that has previously not been fully examined. Following the early work of William Hurst (1964) who studied the lumber industry in 19th century Wisconsin, Brooks attempts to expose just how, when and where this American environmental law was created immediately after WWII. He proposes to accomplish this not by focusing on Washington and the federal register, but rather by looking at individual actions of local and state players, such as lawyers, judges, clients/interests and elected officials. Further, he contends that an environmental history of environmental law needs to explain how the field links people and nature since both have affected the outcome.
Brooks is very straightforward from the start in laying out a number of key questions that he will spend the next 200 pages answering. Though he is an historian, lawyer, and former state legislator, the author approaches the subject like a social scientist. He argues that the primary changes in legal thinking and action came long before elected officials weaved them into statutory fabric. This is in keeping with John Adams’ assessment of the American fight for independence and revolution where citizens changed their hearts and minds even before the war commenced. [*828]
Much of the first chapter is spent recounting (and setting up the straw man for) all the numerous scholars and texts that stubbornly hold on to the notion that virtually all environmental law commenced after 1970. Chapter Two painstakingly goes back to the early days after World War II to seek the real origins of the seed planting for environmental law. In Missouri, the transition to peace from the protracted depression and then years of war provided prosperity and opportunities for creative environmental lawmaking. These included the Fish and Wildlife Coordination Act (FWCA) and the new procedures crafted by the Administrative Procedure Act (APA), both enacted in 1946. The progress in legal principles and political practices in the first five years of the postwar era would propel the country through the early years of the turbulent Cold War and toward securing these victories in the mid to late 1960s. Here, Brooks reverts to his historical roots and highlights a number of pioneers from the trenches in state conservation departments to the halls of Congress and U.S. Fish and Wildlife offices. Key to the success of this early experiment was the emergence of a fledgling coalition consisting of returning veterans and civilians affluent enough to enjoy pastimes such as hunting and fishing. Representatives, such as Willis Robertson from Virginia, played a pivotal role in promoting the environment and adeptly fought President Truman’s development strategy of placing federal dams throughout the Missouri, Columbia and Mississippi watersheds.
Chapter Three delves into the weeds of environmental lawmaking by focusing on the minutia of the administrative state. Brooks notes that the administrative state had expanded from necessity and design in order to address the aftermath of depression and world war. Administrative critics pushed for more open procedures on agencies and judicial review of agency policies to protect constitutional rights (especially concerning property, due process, equal protection, and liberty). Brooks provides numerous examples of how lawmakers empowered administrators to regulate the environment across the country. The intense and increasing interactions of the various players (e.g., state administrators and politicians, Congress, federal judges, citizens, and federal natural resource agencies) forged the basic building blocks for environmental law making. Further, the judicial review stemming from APA “. . . empowered a wide range of citizens to use administrative law to make some of America’s most important environmental law during the Cold War era” (p.58).
Chapter Four illustrates how rising pressure on natural resources, coupled with increased concerns for public health, empowered local and state governments to regulate private behavior. This new federalism ushered in dramatic laws especially focused on air and water quality. Brooks further argues that federal and state statutes during this period actually (if not unintentionally) altered the judicial branch. Judges from state benches to the Supreme Court found that guarding constitutional rights resulted in their playing a more salient role in environmental lawmaking. Here, the author paints an informative and entertaining picture of the epic battle between Justices William O. Douglas and Felix Frankfurter concerning the [*829] proper relationship between federal courts and executive agencies.
Chapters Five and Six examine the nationwide spread of environmental concerns and the subsequent push for national regulations to address the increasing impact of post-World War II life in the U.S. Notwithstanding his acknowledgement of Rachel Carson’s seminal work in 1962, Brooks is consistent in his argument that the heavy lifting was actually performed by Carson’s predecessors (e.g., Aldo Leopold 1949) well before the early 1960s. While Carson may have jettisoned environmental concerns into popular culture, the transformation of American society was already well underway. Here, he raises three cultural shifts that occurred before 1962: the proliferation of outdoor recreation, the expansion of suburbs, and the flowing of prosperity to a wide swath of the population. This consumer frenzy slowly galvanized some citizens to question seriously post-war consumption and land use practices. Brooks chronicles a number of successful writers (from popular magazines to novels) who adeptly exposed the dilemma of this rampant and wasteful growth.
Because of the borderless nature of pollution, average citizens and lawmakers soon realized that even creative state approaches to regulation were not sufficient, and national rules would be needed to impact real change. Disputing noted scholars such as Richard Andrews (1999) and Richard Lazarus (2004) who argue that states and local players rightly ceded power to the nationalization of environmental law, Brooks maintains that this process of nationalization was well underway during the 1960s. Further, the 1962 Federal Water Pollution Control Act Amendments simply continued the national process that was started in 1948 and accelerated in 1956. The author continues in meticulous fashion to relay a number of convincing victories from California’s pacesetting statewide air quality regulation in 1959 to President Johnson’s signing of the 1963 Clean Air Act, which itself was modeled on the water quality act from two years before.
One such story undergirding Chapter Seven highlights a lone, crusading, environmental lawyer representing the Idaho Wildlife Federation. In unlocking the extensive files of Bruce Bowler, Brooks exposes a sixty-year career that helped forge American environmental law. Bowler and others like him from the Northwest in the 1950s and 1960s defined the new arena of law. This included, “citizen standing to participate in administrative and judicial proceedings; national pollution control standards enforced by state action; natural resource agency democratization; ‘public interest’ broadened to encompass environmental objectives; mass media scrutiny of environmental issues; and a political movement that crossed state lines, stretched partisan boundaries, and blurred older economic and ethnic divisions” (p,149).
In his penultimate section, Brooks turns his sights away from politicians and the rank and file citizenry to the existing legal profession and its training grounds. He draws upon a disparate group of well-known practicing attorneys and law professors from around the country to drive his point home once again that environmental law was not an immediate phenomenon in 1970, but rather an [*830] example of incremental and nuanced change that had emerged from a quarter century of hard work. In examining these scholars’ and practitioners’ writings, Brooks provides rather convincing evidence that the conventional wisdom was even being challenged 40 years ago.
Brooks finally closes not with a bang, but with a whimper. While his writing is cogent throughout, he concedes that environmental law (whether or not the reader is convinced that it developed long before 1970) is perhaps not up to the challenges of the twenty-first century. During this period of emerging environmental law and “awareness,” citizens continue to buy large vehicles, contribute to urban sprawl, consume large amounts of energy, patronize corporations that waste natural resources, and require a lifestyle of comfort and leisure that is simply unsustainable. Having said that, he does issue a call to arms to the next generation of environmental lawyers and concerned citizens. Overall, this substantial work will no doubt excite environmental historians and policy wonks, but is not necessarily applicable to undergraduate environmental studies students or freshmen law school attendees.
Andrews, Richard. 1999. MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY. New Haven, Connecticut: Yale University Press.
Carson, Rachel. 2002. SILENT SPRING. Boston: Houghton Mifflin.
Hurst, Willard. 1964. LAW AND ECONOMIC GROWTH: THE LEGAL HISTORY OF THE LUMBER INDUSTRY IN WISCONSIN, 1836-1915. Cambridge, Massachusetts: Belknap Press of Harvard University.
Kubasek, Nancy and Gary Silverman. 2007. ENVIRONMENTAL LAW, 6th ed. Upper Saddle River, N.J.: Pearson/Prentice Hall.
Lazarus, Richard. 2004. THE MAKING OF ENVIRONMENTAL LAW. Chicago: University of Chicago Press.
Leopold, Aldo. 1949. A SAND COUNTY ALMANAC. New York: Oxford University Press.
© Copyright 2009 by the author, Wesley T. Milner.