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Contextualizing the Roots of Environmental Law

From: Reviews in American History
Volume 38, Number 1, March 2010
pp. 153-159 | 10.1353/rah.0.0165

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Occasionally, one can associate a new piece of literature with the reaction that singularly captures the gravity of the piece: Finally! In his new book, Before Earth Day: The Origins of American Environmental Law, 1945–1970, Karl Boyd Brooks justifiably seeks this association for his groundbreaking account of environmental law’s roots. Brooks sets upon the chaos and controversy of the quarter-century following World War II to explain this era as unappreciated but critically important to the development of environmental law. His treatment is thoughtful and poetic as he dives deep into the political, social, economic, and legal constructs of the environment and identifies events and decisions that influenced our contemporary regulatory scheme. Through Brooks’ caring attention to the legal developments arising in this time period, he convincingly illustrates the debt that environmental law owes to the persistence of early conservationist pioneers. Of course, with such an ambitious project, we have to question whether the author exceeds the charge: in some cases, an examination of a new account challenges the conventional wisdom on the matter because the evidence demands it; yet in others, the evidence fails to undermine our current understandings of the subject matter and might be better understood not as a new path, not as a new picture, and not as a new paradigm, but rather as exactly what we thought the examination would uncover. Whether Brooks’ research reinvents environmental legal history or merely confirms that environmental law has been a struggle throughout its evolution is a question that persists, not so much in his storytelling as in the framework he employs to draw his conclusions.

Most of the literature on environmental law focuses on the explosion of legal attention to environmental protection in the 1970s. Included in this analysis are the dogged insistence of environmental scientists, the creativity of lawyers, the hostility of economic growth, the vision of environmental activists, and the compromise of politicians. The dialogue is as robust as it is interdisciplinary, and the variety of perspectives leaves environmental law open to complexity in organization and pluralism in its foundations. Such is the grist of Brooks’ project. However, the main thrust of his research is that the common understanding of environmental law as a revolutionary moment of the convergence of science, policy, and ethics in (or around) 1970 is built upon a complacent account of environmental legal history, one that ritualistically leaves us with an incomplete, incoherent, and insincere understanding. Brooks’ project is to excavate the site of environmental law, to uncover the artifacts and symbols that have meaning to this discipline, not merely as a historical matter, but also (and more importantly) as they relate to the environmental consequences of an incremental approach to building a scheme of environmental law. Brooks’ project is intended to make us—those who have accepted the thesis that environmental law was essentially created in or around 1970—uncomfortable with the conventional understanding of environmental law.

The stories told in Before Earth Day illuminate the intertwined fates of humans and the environment as both causes and effects of the postwar development of environmental law. To drive the point, Brooks insists that the history of environmental law be told as a narrative to capture the perspective of the subject. He bids the reader to visit the human places where laws were negotiated and navigated to describe the dynamic—yet quite ordinary—process of emerging legal regimes.1 “The water tastes better,” invites Brooks, in part because of the economic circumstances, politics, and social pressures that shaped our understanding of the human place in nature (p. 1). Yet Brooks defies the notion that we can understand environmental law merely by reference to human action: environmental law begins as an appreciation for the environment itself. We need to look more closely at the “nonhuman environmental lawmakers,” the “not-so-silent partners in legal change” that have “exercised sovereignty’s prerogative by posing challenges to some humans and presenting opportunities to others” (p. 5). In this “more complete but more complex account” of the birth of environmental law, nature itself has played its own agent and, in the process, dictated our policies toward the environment (p. 11). “Earth’s own sovereignty has...



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