Dealing with dumb and dumber: The continuing mission of citizen environmentalism

Journal of Environmental Law and Litigation

Volumn 20, Issue 1, 2005, Pages 9-69

  Plater, Zygmunt J B ^a  

^a BOSTON COLLEGE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL POLICY; ENVIRONMENTAL POLITICS; ENVIRONMENTAL PROTECTION; ENVIRONMENTALISM; KYOTO PROTOCOL;

EID: 33745094159     PISSN: 10490280     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (217)

1. For the best general resource on the Bush Administration's ongoing initiatives in this field see Natural Resources Defense Council, The Bush Record, http://www.nrdc.org/bushrecord/;
2. Environmental Law & Policy, available at http://www2.bc.edu/ %7Eplater/Newpublicsite05/02.7.pdf (last visited Jan. 16, 2006).
3. See Press Release, United Nations, In Message to Kyoto Protocol Ceremony, Secretary-General Calls on World Community to 'Be Bold', Quickly Take Next Steps Against Climate Change, U.N. Doc. SG/SM/9721 (Feb. 16, 2005), available at http://www.un.org/News/Press/docs/2005/ sgsm9721.doc.htm.
4. Michael Shellenberger & Ted Nordhaus, The Death of Environmentalism (2004), available at http://www2.bc.edu/%7Eplater/Newpublicsite05/ 02.9.pdf.
5. A number of PowerPoint slide illustrations accompanied the original presentation; some of them are reflected in this article and are available at http://www2.bc.edu/%7Eplater/Newpublicsite05/02.10.pdf (last visited Jan. 16, 2006).
6. The Darwin Awards are a mock-serious annual compilation of anecdotes of hapless individual humans hurting themselves foolishly, usually fatally, in settings demonstrating that humanity's gene stock may well be improved by their departure. Survival of the fittest; extinction of the unfit. Examples include a trucker who used a lighter to help him see inside the dark tank of a gasoline tanker truck to determine how full it was. The resulting explosion hurled him more than 100 yards through the air to his demise. Darwin Awards, http://darwinawards.com (last visited Jan. 16, 2006) (type "gas tanker" into the search box and follow the "Workin' at the Car Wash" link).
7. See Zygmunt J. B. Plater, Multilateral Development Banks, Environmental Diseconomies, and International Reform Pressures on the Lending Process: The Example of Third World Dam-Building Projects, 9 B.C. Third World Law L.J. 169 (1989).
8. See Marian E. Sullivan, Note: The Three Gorges Dam Project. The Need for a Comprehensive Assessment, 8 Geo. Int'l Envtl. L. Rev. 109 (1995).
9. See e.g., Jean Cutler Prior, Waterforms, available at http:// www.igsb.uiowa.edu/Portrait/7WATER/Water.htm.
10. See Edward Goldsmith, Sedimentation: The Way of all Dams, available at http://www.edwardgoldsmith.com/page160.html;
11. see also Philip Williams, Damming the World, Not Man Apart, October 1983, at 11. About 230 dams in China have a significant problem of sediment deposition, leading to a combined loss of fourteen percent of the total storage capacity. The Three Gate Dam on the Yellow River produces less than one-third of the power that was promised due to heavy sedimentation. Some dams have lost more than fifty percent of the storage capacity. The Sanmenxia Reservoir was decommissioned because of sedimentation in 1964, just four years after completion.
12. See Trout Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir. 1974).
13. According to a study by the Duke University Nicholas School of the Environment and Earth Sciences, the Teton Dam disaster can be attributed to an extended series of dumb elements: Medial causes of failure: (1) Incomplete understanding of geological and hydrological system; (2) Lack of a total systems perspective uniting the engineered and natural parts of the system; (3) Lack of an integrated "defense-in-depth" strategy, e.g., multiple independent barriers against failure. Distal (institutional) causes of failure: (1) Poor integration and communication; (2) Arbitrary decision points (e.g., when to stop pouring concrete); (3) Unwillingness to question authority; (4) Absence of a learning culture; (5) Institutional hubris .... Norm Christensen, Causes of Failure: Getting to the Bottom of Murphy's Law; Dealing with Disasters, 2002 Duke Environmental Leadership Forum (Nov. 20, 2002), available at http://www.env.duke.edu/forum02/christensen.pdf (last visited Jan. 22, 2006).
14. See Environmental Law & Policy, available at http://www2.bc.edu/ %7Eplater/Newpublicsite05/02.10.pdf (last visited Jan. 16, 2006).
15. See Environmental Law & Policy: Nature, Law, and Society 500 (Robert H. Abrams et al. eds., 3d edition, 2004) (hereinafter Environmental Law & Policy)
16. (quoting Natural Resources Defense Council, Inc. v. Grant, 355 F. Supp. 280, 288 (D.C.N.C., 1973): "One can frequently see kudzu along roads and highways ... growing on banks, stretching over shrubs and underbrush, engulfing trees, small and large, short and tall, slowly destroying and snuffing out the life of its unwilling host.") It has been estimated to extend its coverage by more than 320,000 acres every year.
17. See U.S. Dept of Interior, National Park Service, Great Smoky Mountains National Park, Non-Native Plants, http://www.nps.gov/grsm/pphtml/ subplants29.html (last visited Feb. 20, 2006).
18. From Commission hearings in the Exxon Valdez case it appeared that Captain Joseph Hazelwood probably had several drinks in the hours before the Exxon Valdez left port. According to several reports, however, he appeared very much in control of his senses, and was off the bridge, doing the vessel's paperwork, when the ship hit Bligh Reef.
19. See State of Alaska Oil Spill Commission, Spill: The Wreck of the Exxon Valdez: Implications for Safe Transportation of Oil, Final Report, iv (1990);
20. Zygmunt J. B. Plater, Facing a Time of Counter-Revolution - The Kepone Incident and a Review of First Principles, 29 U. Rich. Law Rev. 657, 672-73 (1995).
21. "The vigilance over tanker traffic that was established in the early days of pipeline flow had given way to complacency and neglect...." State of Alaska Oil Spill Commission, Spill: The Wreck of the Exxon Valdez: Implications for Safe Transportation of Oil, Final Report, at iii (1990).
22. State of Alaska Oil Spill Commission, supra note 16, at 9;
23. Zygmunt J. B. Plater et al., Environmental Law & Policy: Nature, Law and Society 495 (1st ed. 1992).
24. State of Alaska Oil Spill Commission, supra note 16, at 38-51.
25. See Zygmunt J. B. Plater, Facing a Time of Counter-Revolution: The Kepone Incident and a Review of First Principles, 29 U. Rich. L. Rev. 657, 672-73 (1995).
26. State of Alaska Oil Spill Commission, supra note 16, at 10.
27. For an in-depth, eye-opening review of the Exxon-Valdez spill and a cumulative synthesis of the scientific evidence of the spill's extraordinary unforeseen long-term damages upon personnel who had sprayed oiled beaches with solvents and high-pressure steam, as well as upon fish and other wildlife exposed to the spilled oil's polycyclic aromatic hydrocarbons [PAHs], see Dr. Frederika Ott, Sound Truths & Corporate Myths: The Legacy of the Exxon-Valdez Oil Spill (2005). The book is directly relevant to an upcoming political fight over whether the 1991 Exxon settlement's "Re-opener Clause" will be invoked to force Exxon to pay an additional $100 million in damages due to "unforeseen human and wildlife damages." The clause states: Reopener For Unknown Injury Notwithstanding any other provision of this Agreement, between September 1, 2002, and September 1, 2006, Exxon shall pay to the Governments such additional sums as are required for the performance of restoration projects in Prince William Sound and other areas affected by the Oil Spill to restore one or more populations, habitats, or species which, as a result of the Oil Spill, have suffered a substantial loss or substantial decline in the areas affected by the Oil Spill; provided, however, that for a restoration project to qualify for payment under this paragraph the project must meet the following requirements: (a) the cost of a restoration project must not be grossly disproportionate to the magnitude of the benefits anticipated from the remediation; and (b) the injury to the affected population, habitat, or species could not reasonably have been known nor could it reasonably have been anticipated by any Trustee from any information in the possession of or reasonably available to any Trustee on the Effective Date. [Consolidated] Agreement and Consent Decree, United States v. Exxon Corp., Nos. A91-081-083 ¶¶ 6, 8 (D. Alaska, Oct. 9, 1991). If the Alaska and federal governments strive to deny the scientific evidence of dangerous unforeseen damages, as currently seems probable, this book and citizen pressure will be significantly important in pressuring them to invoke the re-opener clause by its deadline of September 1, 2006.
28. See generally Rachel Carson, Silent Spring (1962). Regarding that book's fundamental contributions to modern environmentalism,
29. Regarding that book's fundamental contributions to modern environmentalism, see Peter M. Manus, Natural Resource Damages from Rachel Carson's Perspective: A Rite of Spring in American Environmentalism, 37 Wm. & Mary L. Rev. 381, 387-88 (1996) ("Rachel Carson's philosophy is the prototype against which trends in environmental law and politics should be measured to assess our progress along the evolutionary continuum toward a true environmentalist perspective.").
30. On the Precautionary Principle, see Environmental Law & Policy, supra note 13, at 14.
31. See Plater, supra note 16, at 670-74.
32. Jonathan Harr, A Civil Action 191 (1995).
33. See 16 U.S.C. 1536 (1973, as amended);
34. Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978).
35. For a lengthier account of the snail darter case, see Zygmunt J. B. Plater, In the Wake of the Snail Darter. An Environmental Law Paradigm and Its Consequences, 19 J. Law Reform 805 (1986), reprinted in 19 Land Use & Envtl. L. Rev. 389 (1988).
36. The dam, because it was in such a flat valley, had been identified as a marginal site from the beginning of the agency's dam-building program. It could impound less than 70 feet of depth even though its back-flooding extended back 33 miles of river channel. The small dam itself cost less than five million dollars to build, with an additional $29 million for levees. The majority of the project's $150 million costs were in land condemnation and road and bridge construction. General Accounting Office, The Tennessee Valley Authority's Tellico Dam Project - Costs, Alternatives, and Benefits 7 (1977).
37. Under the terms of § 22 of the TVA Act of 1933, which empowers the Authority to undertake "studies, experiments, or demonstrations" to "aid further the... development of the natural resources of the Tennessee River drainage basin." 16 U.S.C. § 831u (1982). TVA moved into a new era of dam building in the mid-1960s under the direction of Chairman Aubrey Wagner. Section 22 was used to justify a wide range of projects not directly relating to agriculture, flood control, power, or navigation. The post-1960 dam projects were generally justified in terms of recreational enhancement and land development.
38. See Tennessee Valley Authority, Tellico Dam Project EIS I-1-49 (1972).
39. The two classes of claimed benefits that gave the Tellico Dam project a positive benefit-cost ratio were land development profits and increased recreation, neither of which were then, nor since have proved to be, economically credible. There were no generators in the dam, though a small amount of power could be generated by diverted flows into a neighboring dam. Flood control benefits of a small impoundment in the middle of a network of more than 60 dams were trivial. The desperate internal agency pressures to coerce positive economic forecasts for the project are chronicled in William Bruce Wheeler & Michael J. McDonald, TVA and the Tellico Dam: A Bureaucratic Crisis in Post-Industrial America 186-88 (1986).
40. See Zygmunt J. B. Plater, Those Who Care about Laws and Sausages Shouldn't Watch Them Being Made, L.A. Times Sept. 2, 1979, at A23.
41. Pursuant to Senate Document No. 97, every federal agency, when spending taxpayer dollars, had to show a theoretically profitable benefit-cost ratio - for every taxpayer dollar spent, the proposed project has to be able to claim to earn at least $1.01 over 100 years. S. Doc. No. 87-97, at 7 (1964). Beyond hyperbolic benefit projections, agency planners were helped in projecting their positive ratios by the fact that due to hyper-low official discount rates they could treat the cost of taxpayer dollars as interest-free, or nearly so. For the claimed official Benefit-Cost ration as of the 1972 Tellico Dam environmental impact statement, see Comptroller-General of the United States, Report to the Congress: The TVA's Tellico Dam Project - Costs, Alternatives, and Benefits, EMD-77-58 (Oct. 14, 1977): DIRECT ANNUAL BENEFITS: DIRECT ANNUAL COSTS: Recreation: $1,440,000 Interest and amortization: $2,045,000 Shoreline development: $714,000 Operation & maintenance: $205,000 Fish & wildlife: $220,000 Total Annual Costs: $2,250,000 Water supply: $70,000 Flood control: $505,000 Navigation: $400,000 Power: $400,000 Redevelopment: $15,000 Total Direct Annual Benefits: $3,760,000 BENEFIT-COST RATIO (later [From TVA, Tellico Dam Project downgraded): 1. 7:1 EIS at I-1-49 (1972)]
42. The historians' study analyzes TVA's drive to build Tellico Dam as an instrument to reinvigorate its institutional malaise with "a new mission." The agency had lost its image as a dam building innovator, and was becoming just another torpid electric utility company generating power mostly by burning coal in huge steam plants. "The agency that had begun as a planning beacon for millions of Americans [had] lapsed into a kind of mediocre commercialism." Wheeler & McDonald, supra note 26, at 3. "The changing national mood, outside criticism, and internal divisions" drove the leadership to search for something "dramatic ... in order for TVA to survive." Id. at 6-7. Finding new ways to justify a dam with an experimental city became TVA's institutional motivation driving the project. See id. at 3-6, 218.
43. See Theo Colborn et al., Our Stolen Future: How We Are Threatening Our Fertility, Intelligence, and Survival 87-109 (Penguin Books 1997).
44. Voluntary, non-mandatory, altruistic self-control mechanisms have repeatedly proved to be an oxymoron.
45. Significant federal statutes were indeed passed prior to the late '60s, including most notably the Wilderness Act of 1964, 16 U.S.C.A. §1131 et seq.,
46. the Parklands Act §4(f) clause in the highway acts, 46 U.S.C.A. §1653(f),
47. and the Wild and Scenic Rivers Act of 1968, 16 U.S.C.A. §1271 et seq. Each of these, however, was relatively adjectival and circumscribed in effective scope, and less the product of wide popular appeal than the back chamber pressure from the mid-century remnants of the early conservation movement, motivated by a rarefied noblesse. This is not to take away from those important and dramatic accomplishments, but rather to note that they were less a function of the new post-Silent Spring paradigm shifts.
48. 42 U.S.C. § 4321 (2000).
49. 42 U.S.C. § 7401 (2000).
50. 29 U.S.C. § 651 (2000).
51. 42 U.S.C. § 4901 (2000).
52. 33 U.S.C. § 1251 (2000) (also known as the Federal Water Pollution Control Act).
53. 16 U.S.C. § 1451 (2000).
54. Di-polar is used here to describe a societal governance system that has two primary sectors: the dynamic "marketplace" sector of commerce and industry, and the structure of official governmental agencies created to correct "market failures" when the marketplace economy, left on its own, causes and cannot adequately resolve major problematic external considerations that a civil society must address. Government intervention was then seen to be necessary in order to impose certain non-market values upon the market, through laws on child labor, antitrust, worker safety, consumer fraud, and so on. Only later, with the appearance of citizen and nongovernmental organizations' active role in governance in the 1960s, did the legal system become pluralistically "multi-polar" or "polycentric." The "di-polar/multi-polar" distinction draws upon Professor Lon Fuller's analysis of "bi-polar" judicial roles in his report to the Joint Conference on Professional Responsibility. ABA Joint Conference of Professional Responsibility, Professional Responsibility: Report of the Joint Conference 44 A.B.A.J. 1159 (1958), reprinted in Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 383 (1978);
55. see also John H. Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823 (1985).
56. On the classic political science phenomenon of "agency capture," see Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1684-1687 (1975);
57. Environmental Law & Policy, supra note 13, at 401-02. As a prescient example, Attorney General Olney wrote to the president of a railroad in 1892 in response to the latter's plea for abolition of the federal Interstate Commerce Commission: The Commission ... is, or can be made, of great use to the railroads. It satisfies the popular clamor for government supervision of railroads, at the same time that the supervision is almost entirely nominal. Further, the older such a commission gets to be, the more inclined it will be found to take the railroad view of things. It thus becomes a sort of barrier between the railroad corporations and the people and a sort of protection against hasty and crude legislation hostile to railroad interests.... The part of wisdom is not to destroy the Commission, but to utilize it.
58. Letter from Richard Olney to Charles Perkins, in Louis Jaffe, The Effective Limits of the Administrative Process, 67 Harv. L. Rev. 1105, 1109 (1954).
59. "We don't want to be a regulatory agency. We want to be a development agency on our national lands," said former Secretary of the Interior Manuel Lujan, during a trip where he delivered a speech to coal industry executives and held a press conference, while explaining why his department would continue to refrain from strict enforcement of strip-mining regulations. Keith Schneider, U.S. Mine Inspectors Charge Interference by Agency Director, N. Y. Times, Nov. 22, 1992, at 1.
60. See Zygmunt J. B. Plater, Environmental Law as a Mirror of the Future: Civic Values Confronting Market Force Dynamics in a Time of Counter-Revolution, 23 B.C. Envtl. Aff. L. Rev. 733, 774 (1996): Like water flowing downhill, market forces, and the Coasian natural laws that drive them, inherently resist any artificial barriers that curtail their profit-maximizing externalizations of social costs. To place a single sandbag into the current is difficult and not likely to have significant effect. As others are added with great effort, the natural forces still pour around them. When finally a working accumulation of sandbags is secured, the waters may mostly turn to the path of less resistance, but do not stop trying to infiltrate and undercut the obstacles blocking their maximum satisfaction. Across the entire face of the environmental law dike the pressures are felt. Lobbyists, lawyers, media managers, and political action committees applying insistent and comprehensive pressures, to obtain specialized subsidies and to suborn the public programs created for broader societal interests. Agencies are blunted or captured by the classic double-pronged tactics of the marketplace - strident resistance and seduction - and when citizens attempt to get around the phenomenon of agency capture by going to the courts, the forces of the marketplace try to undercut citizen standing and judicial remedies.
61. Id.
62. See Richard Lazarus, The Making of Environmental Law (2004).
63. One cannot understand the legal development of major command and control regulatory systems like the Clean Air Act without knowing the role played by NGOs and their attorneys, like Natural Resources Defense Council's David Doniger and Rick Ayres. The primary exception to the primacy of citizen litigation is probably the field of toxics regulation, in which agency initiative has built most of the doctrine not so much in response to citizen litigation as to the astonishing and somewhat anomalous popular political revulsion against toxic contamination.
64. Robert Costanza and his colleagues have analyzed the multi-trillion dollar values of "natural capital," the resources and services provided free or far below their true value, without which the marketplace and human life would be impossible. Costanza and Daly have come up with very impressive "natural capital" numbers: We have estimated the current economic value of 17 ecosystem services for 16 biomes, based on published studies and a few original calculations. For the entire biosphere, the value (most of which is outside the market) is estimated to be in the range of US$16-54 trillion per year.... Because of the nature of the uncertainties, this must be considered a minimum estimate. Global gross national product total is around $18 trillion per year. R. Costanza et al., The Value of the World's Ecosystem Services, 387 Nature 253 (1997).
65. See also P. Hawken et al., Natural Capitalism: The Coming Efficiency Revolution (1998);
66. R. Costanza & H.E. Daly, Natural Capital and Sustainable Development, 6 Conservation Biology 37 (1992);
67. Paul Hawken et al., Natural Capitalism: Creating the Next Industrial Revolution (1999).
68. See James R. May, Now More than Ever: Trends in Environmental. Citizen Suits, 10 Widener L. Symp. J. 1 (2003).
69. For examples of provocative books by Mr. Nader showing the misdeeds of American industry, see Ralph Nader, Unsafe at Any Speed (1965);
70. Corporate Power in America (Ralph Nader & Mark J. Green eds., 1973). There are two 1966 acts that are considered to have arisen from Unsafe at Any Speed.
71. See Highway Safety Act of 1966, Pub. L. No. 89-564, 80 Stat. 731 (codified at 23 U.S.C. §§ 401-404 (2000));
72. National Traffic and Motor Vehicle Safety Act of 1966, Pub. L. No. 89-563, 80 Stat. 718 (codified at 49 U.S.C. §§ 30101-30170 (2000)).
73. Nader's work also provided the impetus for passing the Consumer Product Safety Act of 1972, Pub. L. No. 92-573, 86 Stat. 1207 (1972) (codified at 15 U.S.C. §§ 2051-2058, 2060-2061, 2063-2085).
74. Committee to Re-elect the President, Richard M. Nixon Campaign Poster (1973) (on file with author). Richard Nixon was impressed enough with the political pollsters' reports of environmentalism's popular appeal that he even tentatively proposed a Clean Air Act amendment setting a moratorium deadline on the production of internal combustion engine cars by 1984!
75. Robert Frost, Mending Wall, in North of Boston Poems 7, 7 (1977).
76. Industry's initial reaction to environmentalism reminds me of Virginia's former senator, Harry F. Byrd, Jr., who the members of the Washington press corps voted, by a lopsided margin, in the late 1970s, to be the dumbest legislator in Congress. So how did he try to refute that verdict? He called a press conference and formally denied it.
77. Memorandum from Lewis Powell to Eugene B. Snyder, Jr., Chairman, Education Committee, U.S. Chamber of Commerce, Attack On American Free Enterprise System: Confidential Memorandum 4-5, 12 (1971), available at http://www2.bc.edu/%7Eplater/Newpublicsite05/02.5.pdf (last visited Jan. 16, 2006).
78. Id. at 4.
79. Id. at 12.
80. John Micklethwait & Adrian Wooldridge, The Right Nation, 78-80 (2004).
81. It can even be argued that the radical right-wing created its own university. George Mason University in suburban Washington was transformed from a minor satellite campus of the University of Virginia into a freestanding institution with more than 40 right-wing "study centers" and a special mission to support the marketplace. The University has reportedly received over $45 million from an array of Far Right foundations. See Media Transparency, George Mason University Aggregated Grants, http://www.mediatransparency.org/ georgemasonaggregate.php (last visited Jan. 29, 2006) (546 grants between 1985 and 2003, for a total of $46,098,814);
82. see also Center for Media and Democracy, George Mason University - Source Watch, http://www.sourcewatch.org/ index.php?title=George_Mason_University (Aug. 22, 2005).
83. Powell's memorandum also foreshadowed business's court-centered political strategies: Other organizations ... ranging in political orientation from "liberal" to the far left ... have been far more astute in exploiting judicial action than American business .... Labor unions, civil rights groups and now the public interest law firms are extremely active in the judicial arena. Their success, often at business expense, has not been inconsequential....[Business should copy the legal strategies of the American Civil Liberties Union.] It initiates or intervenes in scores of cases each year, and it files briefs amicus curiae in the Supreme Court in a number of cases during each term of that court .... As with respect to scholars and speakers, the Chamber would need a highly competent staff of lawyers. In special situations it should be authorized to engage, to appear as counsel amicus in the Supreme Court, lawyers of national standing and reputation. The greatest care should be exercised in selecting the cases in which to participate or the suits to institute. But the opportunity merits the necessary effort. Powell, supra note 54, at 10;
84. see also Oliver A. Houck, With Charity for All, 93 Yale L.J. 1415 (1984) (a study of the so-called "public interest law firms").
85. The first millionaire businessman to heed Powell's call, putting up the funding for the PLF, was John Simon Fluor, Jr., the scion of a transnational engineering firm with close ties to the oil and gas industry. See Jeffery Rosen, The Unregulated Offensive, N.Y. Times, April 17, 2005, at 46
86. (citing Lee Edwards, Bringing Justice to the People: The Story of Freedom-Based Public Law Movement (2004).
87. For an analysis of Richard Viguerie's direct mail political advertising empire, including many of the sources for his mailing lists, as well as other communications techniques used by the new right to propagate its message, see Philip Bishop et al., The New Right and Media, Social Text, Winter 1979, at 169.
88. See generally, Michael Lienesch, Right Wing Religion: Christian Conservatism as a Political Movement, 97 Political Sci. Quarterly 408 (1982).
89. Richard J. Lazarus, The Making of Environmental Law 78 (2004);
90. see also J. Brooks Flippen, Nixon and the Environment (2000).
91. The New Federalism is ironically turning out to offer powerful opportunities for progressive state attorneys general to launch environmental protection efforts that the right wing currently reigning in Washington desperately opposes - a turning of tables much to the dismay of right-wing "Federalists" who now find themselves supporting federal preemption arguments to insulate business from regulation. See, e.g., Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005) (Nos. 03-1361 - 03-1368, D.C. Cir., filed 2003) (lawsuit based on the Clean Air Act filed by 12 state attorneys general, and others, seeking to force the federal agency to list CO2 as a regulated criteria pollutant);
92. Connecticut v. Am. Elec. Power Co., 2005 U.S. Dist. LEXIS 19964 (S.D.N.Y. Sept. 19, 2005) (a CO2 lawsuit based on public nuisance, brought by eight states - California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin, and the City of New York - against a number of large utility companies - American Electric Power, the Southern Company, Tennessee Valley Authority, Xcel Energy Inc., and Cinergy Corporation). Michael Greve, of the American Enterprise Institute is similarly angered by the lawsuit that 46 states successfully brought against the tobacco companies, and wants to reverse the settlement.
93. See Rosen, supra note 59, at 43 (reinforcing the impression that these issues are being fought for pro-business motivations rather than consistent political principle).
94. The signatories of the Statement of Principles for the Project for the New American Century, founded to promote neoconservative policy ideals, reads like a who's who of the Bush administration. The document, codified on June 3, 1997, urges the United States to increase military spending, challenge regimes hostile to our "interests and values," promote the cause of political and economic freedom abroad, and accept the unique role of the United States in preserving an order friendly to our principles. Signers include Dick Cheney, Donald Rumsfeld, Paul Wolfowitz, and Jeb Bush, to name of few. Project for New American Century, Statement of Principles (June 3, 1997), available at http://www.newamericancentury.org/statementofprinciples.htm.
95. Micklethwait & Wooldridge, supra note 57, at 76-80.
96. De Tocqueville had noted a lively interplay between individual and community that characterized the American society's form of democracy on the frontier as well as in urban settings. De Tocqueville labeled those who left the east coast to head west adventurers "without traditions, family feeling, not the force of example to check their excesses." Alexis de Tocqueville, 1 Democracy in America 376 (Vintage Classics 1990) (1838). He theorizes that strong communitarian norms developed, however, because the settlers found themselves in a position of individual weakness and were thus dependent on one another for survival.
97. See id.
98. See Frank Ackerman & Lisa Heinzerling, Priceless: On Knowing the Price of Everything and the Value of Nothing (2004).
99. See Environmental Law & Policy, supra note 13, at 140.
100. See Jean Stefancic & Richard Delgado, No Mercy: How Conservative Think Tanks and Foundations Change America's Social Agenda (1996).
101. See Ackerman & Heinzerling, supra note 67, at Ch. 9.
102. Thomas Frank, What's The Matter with Kansas: How Conservatives Won The Heart of America 176-77 (2004).
103. As noted, Richard Viguerie, the genius of direct-mail political solicitation, built the New Right's huge mailing lists upon George Wallace's anti-integrationist mailing lists. Wallace's candidacy had shown that resentment against African-Americans was not restricted to the South, giving him a strong showing in a tier of blue collar northern states as well. For example, in his 1972 campaign, Wallace won primaries in Michigan and Maryland on May 16, 1972, one day after being shot in Maryland by former busboy Arthur Bremer. Wallace had previously finished second in primaries in Wisconsin, Pennsylvania, and Indiana on May 6. See Bob Jansen, A Campaign Moment, At This time in 1972, Star Trib. (Minneapolis), May 18, 2000, at 22A.
104. As Thomas Frank argues in What's the Matter with Kansas?, Republicans were able to combine Democratic ties to big government, mindless bureaucracy, and "God, gays, and guns" social wedge issues to convince the heartland that Democrats did not represent their values. Frank, supra note 71, at 119-24, 132-37.
105. "The fight against adequate government control and supervision of ... corporate wealth engaged in interstate business is chiefly done under cover, and especially under the cover of an appeal to state's rights." Arthur M. Schlesinger, Jr., The Cycles OF America History 243 (1986) (quoting President Theodore Roosevelt).
106. A subtle change has recently characterized the New Right stance on federalism, however. Whereas until the millennium the regressive coalition was firmly against federal authority and in favor of state autonomy, in the new century, given their recent ascendancy in the nation's capitol, its members now are often strongly in favor of pre-emptive federal authority which can be used to lessen environmental regulatory standards, and strongly oppose state efforts to apply stricter regulatory levels. This change deserves wry monitoring. John Heilprin, States Ask Court to Force EPA Action on Greenhouse Gases, Associated Press State & Local Wire, Aril 8, 2005.
107. For a detailed explanation of Rachel Carson's environmental philosophy and its applications to environmental law, see Peter Manus, Natural Resource Damages from Rachel Carson's Perspective: A Rite of Spring in American Environmentalism, 37 Wm. & Mary L. Rev. 381 (1996).
108. The author, for instance, was once astonished to hear an eminent biologist testifying about how loss of critical habitat did not endanger a species, until a scientist colleague leaned over and said, "We call those guys 'biostitutes.' That one there is the only icthyologist ever to become a millionaire doing ichthyology." Interview with Dr. David Etnier, (Feb. 1976). Or, as Garrett Hardin once said, such people are personifications of the mantra: "Whose bread I eat, his song I sing." Garrett Hardin, Exploring New Ethics For Survival; The Voyage of the Spaceship Beagle 71-77 (1972).
109. See Sound Science for Endangered Species Planning Act of 2002 H.R. 4840, 107th Cong. (2002);
110. see also James K. Hein, The Sound Science Amendment to the Endangered Species Act: Why It Fails to Resolve the Klamath Basin Conflict, 32 B.C. Envtl. Aff. L. Rev. 207 (2005) (analyzing the Sound Science Amendment).
111. Thus various cost-benefit analysis bills have been accused of cynically seeking paralysis by analysis. See, e.g., Exec. Order No. 12,291, 3 C.F.R. § 127 (1982), reprinted in 5 U.S.C. § 601 app. at 431-34 (1982);
112. Thomas O. McGarity, Regulatory Analysis and Regulatory Reform, 65 Tex. L. Rev. 1243 (1987);
113. Zygmunt J. B. Plater et al., Environmental Law & Policy: Nature, Law & Society 110-13 (2d edition 1998).
114. The Data Quality Act was enacted in December 2000 as part of the Treasury and General Government Appropriation Act for Fiscal Year 2001. See Consolidated Appropriations for Fiscal Year 2001, Pub. L. No. 106-554, §515 Appendix C, 114 Stat. 2763A-153 (2000). Although defenders of the data amendments claim they merely require agencies such as the EPA to look only to "good science" in promulgating standards, experience has shown that backers have shifted what good science is if it fails to benefit industry.
115. In Am. Trucking Assn. v. EPA, 283 F.3d 355 (D.C. Cir. 2002), the court upheld EPA NAAQ standards under the Clean Air Act partially because the EPA relied on peer-reviewed epidemiological studies showing 15,000 to 20,000 excess deaths occurred every year under existing standards.
116. Id. at 379. Advocates of "good science" now question the usefulness of peer review and have moved on to other delaying tactics.
117. See Donald T. Hornstein, Accounting for Science: The Independence of Public Research in the new Subterranean Administrative Law, 66 Law & Contemp. Probs. 227, 237-40 (2003).
118. As to global warming, note the tone and purpose of the right-wing "Luntz Memorandum," prepared for the administration and its congressional allies by Frank Luntz, the political operative who had invented the 1994 Contract With America: The most important principle in any discussion of global warming is [our] commitment to sound science .... The scientific debate is closing against us but not yet closed. There is still a window of opportunity to challenge the science [of global warming] .... [Tell voters that] scientists can extrapolate all kinds of things from today's data, but that doesn't tell us anything about tomorrow's world. You can't look back a million years and say that proves that we're heating the globe now hotter than it's ever been. After all, just 20 years ago scientists were worried about a new Ice Age. Press Release, Environmental Working Group, Briefing: Luntz Memorandum on the Environment (hereinafter Luntz Memorandum), available at http://www.ewg.org/briefings/luntzmemo/pdf/ LuntzResearch_environment.pdf (last visited Feb. 1, 2006).
119. See Editorial, A Creationist Lesson, Wash. Post, Aug. 4, 2000, at A28;
120. Sheryl Gay Stolberg, Bush's Science Advisers Drawing Criticism, N.Y. Times, Oct. 10, 2002, at A28;
121. Editorial, The President's Stem Cell Theology, N.Y. Times, May 26, 2005, at A28.
122. Powell, supra note 54, at 4, 9, 10.
123. See Eric Alterman, What Liberal Media?: The Truth About Bias and The News (2003).
124. Accuracy in Media is perhaps most notorious for lambasting a widely acclaimed PBS series chronicling the Vietnam War as "anti-American." See Arthur Unger, Media Watchdog Group Takes Aim at Vietnam Series: More Politicizing of PBS?, Christian Science Monitor, June 3,1985 at 33;
125. Into the Buzzsaw: Leading Journalists Expose the Myth of a Free Press (Kristina Borjesson, ed., 2002).
126. See George Lakoff, Don't Think of an Elephant! Know Your Values and Frame the Debate: The Essential Guide for Progressive (2004);
127. see also George Lakoff, Simple Framing, http:// www.rockridgeinstitute.org/projects/strategic/simple-framing.
128. A recent success from the progressive side was to brand Senator Ted Stevens' appropriations rider funding a quite-unnecessary Ketchikan bridge as a multimillion-dollar porkbarrel "Bridge to Nowhere." See Liz Ruskin, "Nowhere" Label was Winner for Bridge Foe, Anchorage Daily News, Jan. 8, 2006, at Al;
129. Editorial: What's More Helpful Than a Useless Bridge?, Chicago Sun Times, Jan. 11, 2006 at 41.
130. Luntz Memorandum, supra note 79, at 131, 134-138, 140-142.
131. See H.D.S. Greenway, The Return of "1984," Boston Globe, June 24,2005, at A18.
132. The anti-environmental private sector likewise has been learning its semantic lessons. The Chemical Manufacturers' Association, one of the most powerful industrial groups lobbying against environmental protection regulations, realized that its name was hampering its connection with the public. After focus-group polling [a]t their annual meeting at The Greenbrier resort, the CMA voted to change its name to the "American Chemistry Council" (ACC). The new name reflects ... the desire for a more positive reputation .... The public still reacts with fear and negative feelings to the word "chemical".... For some reason, the word "chemistry" generates milder, even favorable responses. Powell, supra note 54, at 10
133. (citing the Association of Consulting Chemists & Chemical Engineers, 12 Chemical Consultant Newsletter, Number 5-6, May-June 2000).
134. Powell, supra note 54, at 10.
135. Under the "Missouri Plan" format for judicial selections, which has been adopted in some form in 34 states, a state's governor is required to select and nominate judges from a list of candidates screened for their quality by a nonpartisan nominating commission composed of lawyers and citizens. See Robert L. Brown, From Whence Cometh Our State Appellate Judges: Popular Election Versus the Missouri Plan, 20 U. Ark. Little Rock L.J. 313 (1998).
136. The Nixon nomination of the lightly gifted Judge G. Harold Carswell to the Supreme Court drew such public criticism that the nomination was ultimately withdrawn. Actions taken in opposition to the nomination became a campaign issue used against mainly southern Democrats who opposed the nomination. For more on Carswell's failed nomination, see John Massaro, The Role of Ideology in Unsuccessful Supreme Court Nominations (1990).
137. See Herman Schwartz, Right Wing Justice: The Conservative Campaign to Take Over the Courts 52-53 (2004).
138. See Neil A. Lewis, White House Ends Bar Association's Role in Screening Federal Judges, N.Y. Times, March 23, 2001, at A13.
139. At the state level, the regressive trend has been to jettison the "Missouri Plan" process that ranked judicial candidates according to neutral principles of competency and unbiased judgment. On the Right's currentjudicial-appointment strategy, see Rosen, supra note 59, at 46-49, 66, 128-29.
140. "Vulcans" is the name a group of advisors gave themselves when they came together to teach George W. Bush enough about foreign affairs to cope with the 2000 presidential campaign, thereafter dominating the Bush Administration's foreign policy. The core Vulcans with government experience were Donald Rumsfeld, Dick Cheney, Paul Wolfowitz, Richard Armitage, Condoleezza Rice, and Colin Powell. They were backed by neo-con supporters outside government like William Kristol, Charles Krauthammer, and Robert Kagan. Virtually all the Vulcans, with the exception of Colin Powell, favored "a new American empire" through demonstrative application of America's preeminent military power, especially in the oilrich Middle East. None of them except Powell had served in the military. See James Mann, The Rise of the Vulcans: The History Bush's War Cabinet (2004).
141. John Micklethwait and Adrian Wooldridge, in The Right Nation, show how September 11, 2001, fully cemented the transformation of neoconservative foreign policy, advocating the use of military might to transform the global order according to American principles, into conservative foreign policy, which early in the Bush administration had focused on American national strength, relations amongst the great powers and withdrawal from international affairs. Evangelicals readily accepted the neoconservative agenda after September 11, in part because it was framed as a moral absolute, a battle of good and evil, in which you were either for justice or for terrorism. Micklethwait & Wooldridge, supra note 57, at 214-15;
142. see also Lewis H. Lapham, Tentacles of Rage: The Republican Propoganda Mill, a Brief History, Harpers's Mag., Sept. 1, 2004, at 31 (showing the brief history of the rise and financing of the anti-progressive movement).
143. See Michael Lienesch, Right Wing Religion: Christian Conservatism as a Political Movement, 97 Political Sci. Quarterly 408 (1982).
144. See Michael Northcott, An Angel Directs the Storm: Apocalyptic Religion and American Empire (2004).
145. Followers of the late Leo Strauss's philosophy find themselves in more positions of power in the current Bush administration than ever before. See Jeet Heer, The Mind of the Administration, Part 1 of a Series on the Thinkers Who Have Shaped the Bush Administration's View of the World, Boston Globe, May 11, 2003, at H1.
146. "Strauss wanted a regime where the elite lived by a code of stoic fortitude while governing over a population that subscribes to superstitious religious beliefs. 'He agreed with Marx that religion was the opium of the masses,' says Shadia Drury. 'But he believed that the masses need their opium.'" Id.
147. Some Christian fundamentalists appear to believe that "environmental destruction is not only to be disregarded but actually welcomed - even hastened - as a sign of the coming apocalypse," in the same way that war with Islam in the Middle East is not something to be feared but welcomed: "Once Israel has occupied the rest of its 'biblical lands,' legions of the Antichrist will attack it, triggering a final showdown in the valley of Armageddon. True believers will be lifted out of their clothes and transported to heaven." To such believers, environmental degradation, like a war with Islam, "is not something to be feared but welcomed, an essential conflagration on the road to redemption. Bill Moyers, What the Religious Right Has to Do with the Environment, Evergreen News, Jan. 2005, available at http:// seattle.conscious choice.com/2005/em2101/news2101.html;
148. see also Glenn Scherer, The Godly Must Be Crazy: Christian-Right Views Are Swaying Politicians and Threatening the Environment, Grist Mag., Oct. 27, 2004, available at http://www.grist.org/news/maindish/2004/10/ 27/scherer-christian/.
149. Frank contrasts the populist awakening in Kansas with its present political complexion. In the old days, hard times brought on by the vicissitudes of the market led to a farmer's uprising under the directive of Elizabeth Lease to "raise less corn and more hell." William Cochrane, The Development of American Agriculture: A Historical Analysis 281 (1979).
150. These farmers went on to sweep the plutocracy out of the legislature and gain legitimate power. See Frank, supra note 71, at 32-34.
151. As Frank notes, in the Republican revolution of 1994, the same class of people, facing similar economic problems, swept through the legislature to enact an agenda calling for an end of progressive era reforms. Id.
152. For example, the Kansas Republican party platform of 1998 called for the abolition of the estate, capital gains, and sales taxes, social security privatization, deregulation across the board, and opposition to national health care and public financing of elections. See Id. at 76-85.
153. Micklethwait & Wooldridge, supra note 57, at 200-03, 214-15.
154. See Steven V. Roberts, Not a Slave to the Zodiac, Reagan Says, N.Y. Times, May 17, 1987, at A22. Although Reagan would never publicly admit to being an adherent of astrology, he did disclose in his autobiography that Mr. Righter was a "good friend" who provided advice he used in a business deal.
155. Id. Former Reagan Chief of Staff Donald Regan claimed in his memoirs that President Reagan would remind him that "certain days were not good days" for travel or other official business, and astrologist Carroll Righter took credit for convincing Governor-elect Reagan to schedule his 1967 inauguration in the midnight hours because heavenly signs favored it.
156. See Steven V. Roberts, Reverberations Felt as Regan Book Hits Market, N.Y. Times, May 9, 1987, at A24;
157. see also Chip Berlet & Matthew N. Lyons, Right-Wing Populism in America: Too Close For Comfort (2000).
158. See The World Commision on Environment and Development, Our Common Future (Gro Brundtland, ed. 1987);
159. Report of the United Nations Conference on the Human Environment, Stockholm, June 5-16, 1972, 27th Sess., U.N. Doc. A/Conf. 48/14 (1972).
160. In a brilliant piece of political theater, then-Vice President Bush Sr. cruised Boston Harbor on September 1, 1988, proclaiming that the volume of sewage dumped into the harbor in 1986 "would cover all of metropolitan Boston up to a depth of 17 feet." Robin Toner, Bush, in Enemy Waters, Says Rival Hindered Cleanup of Boston Harbor, N.Y. Times, Sept. 2, 1988 at A16.
161. For Bush, Mr. Dukakis' solution was to "delay, fight, anything but clean up." Id.
162. Although Dukakis allies pointed out that the Reagan/Bush administration twice vetoed the Clean Water Act and earmarked Waste Water Treatment Grants Program for termination, and claimed Governor Dukakis's administration was the first in Massachusetts to take affirmative steps to clean up the harbor, Bush's attacks undermined Dukakis's ability to take the administration to task for its environmental record. Id.
163. In the environmental field virtually no program has gone unscathed, with the possible exception of the federal environmental justice programs launched by the Clinton administration, an exception which demonstrates, as one advocate dourly noted, how toothless the EJ programs are. It used to be that the University of Oregon's annual Public Interest Environmental Law Conference would feature three or four regulatory programs under imminent assault in the Washington political process. Today a list here of the ongoing rollback initiatives would total in the dozens. See Naomi Melver, Welcome Speech to the Twenty-Second Annual Public Interest Environmental Law Conference, 19 J. Envtl. L. & Litig. 1 (2004).
164. The Natural Resources Defense Council (NRDC) estimates that the Bush administration took 150 actions that adversely affected the environment in 2004 alone. The NRDC provides a comprehensive analysis of the Bush environmental record in Gregory Wetstone et al., Rewriting the Rules, Special Edition: The Bush Administration's First-Term Environmental Record, available at http://www.nrdc.org/legislation/rollbacks/ rr2005.pdf.
165. See Richard W. Stevenson, For This President, Power Is There for the Taking, N.Y. Times, May 15, 2005, at A3.
166. One of the most obvious examples of definitional sleight-of-hand is the change in definition of the word "maintenance" to allow major air polluters to make substantial modifications in plants without having to comply with the best-technology requirements for new source construction. See Prevention of Significant Deterioration (PSD) and Non-Attainment New Source Review (NSR): Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion, 68 Fed. Reg. 61,248 (Oct. 27, 2003).
167. In Kootenai Tribe of Idaho v. Veneman, the Ninth Circuit Court of Appeals upheld federal roadless area wilderness protection rules against a timber industry challenge that the Forest Service had failed to prepare an environmental impact statement in promulgating the rule. 313 F.3d 1094 (9th Cir. 2002).
168. The Administration had refused to defend the regulation, so Professor Patrick Parenteau, for the citizen environmentalist interveners, had to take on the task, successfully, of defending the federal government. See id.
169. See, e.g., Michael C. Blumm, The Bush Administration's Sweetheart Settlement Policy, 34 Envtl. L. Rep. 10397 (2004), available at http:// papers.ssrn.com/so13/papers.cfm?abstract_id=539302.
170. See Jessica Clark & Tracy Van Slyke, Making Connections, Why is the News So Bad? What Can Progressives Do to Fix it?, In These Times, May 9, 2005, at 17, available at http://www.inthesetimes.com/site/main/article/ 2069/.
171. The Rehnquist Court has been notable for repeatedly cutting back on citizens' ability to go to court to enforce federal laws. See John Echeverria & Jon T. Zeidler, Barely Standing: The Erosion of Citizen "Standing" to Sue and Enforce Environmental Law (Envtl. Policy Project, Georgetown Univ. Law Ctr. June 1999).
172. Justice Scalia famously argued that citizens should be squeezed out of the regulatory enforcement process, leaving the field to regulated industries and their government agencies. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 897 (1983).
173. Only recently, with the Laidlaw case, has a bare majority begun to reassert some elements of citizen standing, halting the erosion of the pluralistic multi-centrist democracy that had arisen in the 1960s. See Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000);
174. John D. Echeverria, Standing and Mootness Decisions in the Wake of Laidlaw, 10 Widener L. Symp. J. 183 (2003);
175. Bruce J. Terris, Standing on Weak Ground, 10 Widener L. Symp. J. 173 (2003);
176. see also Hope Babcock, The Effect of the Supreme Court's Eleventh Amendment Jurisprudence on Environmental Citizen Suits: Gotcha! 10 Widener L. Symp. J. 205 (2003).
177. Environmental Law Institute, Judging Nepa: A "Hard Look" at Judicial Decision Making Under the National Environmental Policy Act (2004). The ELI made several findings. For example, federal district judges appointed by Democratic Presidents ruled in favor of environmental protection 60 percent of the time. Judges appointed by Republican Presidents ruled in favor of environmental protection 28 percent of the time. District judges appointed by President George W. Bush ruled in favor of environmental plaintiffs only 17 percent of the time. When industry or pro-development interests sue under NEPA, the results are almost completely reversed. Democratic appointees rule in favor of such plaintiffs 14 percent of the time, while Republican appointees rule in favor almost 60 percent of the time. At the three-judge circuit court level, panels with two or more judges appointed by a Democrat ruled in favor of environmental plaintiffs 58 percent of the time. Panels with a majority of Republican appointees ruled in favor of environmental plaintiffs in only ten percent of cases. When all three judges were Democratic appointees, the panel ruled in favor of environmental plaintiffs 75 percent of the time, compared to 11 percent for entirely Republican-appointed panels.
178. See Frank, supra note 71, at 76-85.
179. As Frank shows, the right-wing's talk radio, cable news, and Internet media network is adept at deflecting blame for the results of their own policies onto a "liberal elite" portrayed as completely out of touch with mainstream America. Frank cites Anne Coulter's assertion that media coverage of the Enron debacle, which for a brief moment was the largest corporate bankruptcy in history amidst clear evidence of fraud, proves that the media has a liberal bias. See id. at 128. Environmentalists are pervasively caricatured by Rush Limbaugh and his cohorts as "environmentalist wackos."
180. Micklethwait and Woodridge note how an evangelical creed antagonistic to secular humanism pervades the Bush White House. They note the experience of a Bush speech-writer, whose first words heard upon entering the White House were "Missed you at Bible Study." Bush has appointed members of the Christian Right to numerous important positions, most notoriously Attorney General John Ashcroft, who placed tarpaulins over the semi-nude statues of Justice in the Department of Justice hallways, held daily prayer sessions in his office, and banned staff members from having personal gay pride celebrations. See Micklethwait & Wooldridge, supra note 57, at 145-150.
181. The famous red-blue maps that followed the elections of 2000 and 2004 sharply exaggerate the spatial polarization of the United States. A more nuanced county electoral "cartogram" adjusted for actual voter density reveals a more realistic and less daunting profile. See Michael Gastner, Cosma Shalizi, & Mark Newman, Univ. of Mich., Maps and Cartograms of the 2004 U.S. Presidential Election Results (2004), http:// www-personal.umich.edu/~mejn/election/.
182. Over the years we have realized that the litigation efforts my students and I made to protect the snail darter and the valley of the Little Tennessee River played into the fabrication of this notion of environmental protection elitism because we were never successful in getting across the true merits of the case. As relentlessly characterized by the media, ours was never the case of a runaway pork-barrel agency eliminating public resources, an endangered species, and hundreds of family farms for an illogical land-sale scheme. Instead the story was widely disseminated as a tale of narrow-minded environmentalists trying to block human technological progress in defiance of common sense, the most extreme environmental case ever.
183. A University of Pennsylvania study during the 2004 election found that many adults in the U.S. did not know where the presidential candidates stood on important public policy issues. Press Release, Annenberg Public Policy Center, Voters Have Much to Learn from Debates, National Anneberg Election Survey Shows, available at http:// www.annenbergpublicpolicycenter.org/naes/ 2004_03_voter_have-much-to-learn_09_29_pr.pdf (Sept. 29, 2004). Likewise Americans lagged in the international realm.
184. See Nat'l Geographic Soc'y, Survey Results: U.S. Young Adults are Lagging (2003), available at http://geosurvey.nationalgeographic.com/ geosurvey/highlights.html ("Despite the daily bombardment of news from the Middle East, Central Asia, and other world trouble spots, roughly 85 percent of young Americans could not find Afghanistan, Iraq, or Israel on a map .... Americans ages 18 to 24 came in next to last among nine countries."). "More young U.S. citizens in the study knew that the island featured in last season's TV show "Survivor" is in the South Pacific than could find Israel."
185. Bijal P. Trived, Survey Reveals Geographic Illiteracy, Nat'l Geographic Today, Nov. 20, 2002, available at http://news.nationalgeographic.com/ news/2002/11/1120_021120_GeoRoperSurvey.html (interviewing more than 3,000 young adults in Canada, France, Germany, Great Britain, Italy, Japan, Mexico, Sweden, and the United States).
186. See, e.g., Luntz Memorandum, supra note 79. Not to mention many citizens' manifestly inaccurate premise of Iraqi terrorism striking the World Trade Center, and a child-like faith in the funding-starved "No Child Left Behind" policy and the civic and personal wisdom of a quite radical right wing.
187. During the 2004 election campaign, for example, a mindlessly effective, ostensibly nonpartisan advertisement ran repeatedly on prime-time television, showing an American bald eagle that previously had been choking on pollution in 1970, now flying high on crystal-clean air. "Thanks in part to clean coal technologies, our air quality has been improving," intones the corporate voice. "By 2015 emissions from coal-based power plants will be 75% less than they were in 1970." "Very nice," says the eagle. Produced by "Americans for Balanced Energy Choices," a trade group funded by the coal, rail, and power industries whose campaign contributions tilt heavily GOP, the ad implies that here in the Bush era, environmental protection enjoys sterling successes. The ad does not note that much of the Clean Air Act's regulatory successes have come over the bitter opposition of the ad's sponsors, many of whom have sought to keep old marginal energy units on line instead of shifting to new source upgrades and clean coal technologies, and strenuously oppose green-house gas restrictions. See Katherine Mieszkowski, Coal: Clean, Green Power Machine?, Salon.Com, Oct. 5, 2004, http://salon.com/tech/feature/2004/ 10/05/clean_coal/index_np.html.
188. Shellenberger & Nordhaus, supra note 3.
189. Global climate change is indeed the defining environmental problem of the current era, reflecting the complexity of natural systems, anthropogenic causes-and-effects, and political-economic resistance, as well as a broad scope of necessary societal responses far beyond the realm popularly perceived as "environmental." As Ross Gelbspan says, the public will inevitably come to realize, as the Pentagon, Business Week, and other non-progressives have started to see, that global warming raises serious issues of national security, public health, and economic survival as well. See generally Ross Gelbspan, The Heat Is On: The High Stakes Battle Over Earth's Threatened Climate (1997);
190. Ross Gelbspan, Boiling Point: How Politicians, Big Oil and Coal, Journalist and Activists Are Fuelling the Climate Crisis (2004).
191. Shellenberger and Nordhaus, "resisting the exhortations" of reviewers to propose some solutions, offered few suggestions for remedying environmentalism's political shortcomings other than a commitment to opinion research and targeted investment, plus alliances with labor unions, not exactly a formula for political and electoral strength. Shellenberger & Nordhaus, supra note 3.
192. See Christopher Mooney, Some Like It Hot, Mother Jones, May/June 2005, available at www.motherjones.com/news/feature/2005/05/some_like_ it_hot.html (detailing how just one oil company, ExxonMobil, has spent more than $8 million since 2000 on media and PR efforts to combat the contemporary science on global warming).
193. Shellenberger & Nordaus, supra note 3, at 23-24.
194. "In his biggest decision ever on the environment, President Bush has moved to open up one-third of all remote national forest lands to road building, logging, and other commercial adventures. This is part of the No Tree Left Behind program. In fact, if you'd like to see any one of our giant Redwoods they'll be at Home Depot next weekend." The Tonight Show with Jay Leno, (NBC television broadcast May 9, 2005).
195. Environmental law, for instance, is probably the only major area of civil governance that consistently bases its present prescriptive regulatory standards on the long-term requirements of the society as well as short-term contemporaneously felt needs.
196. See Shellenberger & Nordaus, supra note 3, at 10.
197. CAFE standards are Corporate Average Fuel Economy standards for passenger cars and light trucks established by the Energy Policy and Conservation Act. Energy Policy and Conservation Act, Pub. L. No. 94-163, 89 Stat. 871 (1975) (fuel economy standards are codified as amended at 49 U.S.C. §§ 32,901-32,919).
198. "Based on information from a number of sources, the environmental justice movement continues to grow rapidly. Over 500 national and local organizations have been established within the past 25 years. 'These organizations represent a wide cross-section of the American public and deal with environmental concerns at the local, regional and national levels." Robert G. Stanton, Environmental Stewardship for the 21st Century: Opportunities and Actions for Improving Cultural Diversity in Conservation Organizations and Programs, A Report Prepared for the Natural Resources Council of America 32 (2002), available at www.naturalresourcescouncil.org/ewebeditpro/items/O89F3675.pdf;
199. see also Robert D. Bullard, Environmental Justice Resource Center 2000 Directory: People of Color Environmental Groups (2002) www.ejrc.cau.edu/ poc2000.htm;
200. African American Environmentalist Association, Environmental Group Diversity Report Card 2003-2004, http://www.aaenvironment.com/Enviro GroupReportCard.htm (showing a recent survey of major environmental organizations with respect to hiring, projects, etc. and also including the National Resources Defense Council survey response therein, at http:/ /www.aaenvironment.com/Green-Group/NRDCDiversityReport.htm).
201. It is important, I tell my students, to develop the fine art of anticipatory retrospective: We must always try to figure out exactly what - if we were to look back at the present moment from some future time - we should be seeing and doing right now. It's that simple.
202. And God, too, if He or She is part of your personal spiritual landscape, is surely on our side as well: It is unreasonable to believe that a God would reject the rich scientific knowledge and societal communal ethics developed by centuries of endeavors of some of His/Her finest thinking and feeling human creatures.
203. The paraphrase is an update to John Donne's Meditation XVII: All mankind is of one author, and is one volume; when one man dies, one chapter is not torn out of the book, but translated into a better language; and every chapter must be so translated .... As therefore the bell that rings to a sermon calls not upon the preacher only, but upon the congregation to come: so this bell calls us all: but how much more me, who am brought so near the door by this sickness .... No man is an island, entire of itself ... any man's death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.
204. John Donne, Meditation XVII: Devotions Upon Emergent Occasions, in Selection from Divine Poems, Sermons, Devotions, and Prayers (J. Booty ed., 1990). Of course, to an environmentalist, even an island isn't an island "entire of itself."
205. See John S. Dryzek, The Politics of the Earth: Environmental Discourses (1997).
206. Gro Harlem Brundtland, et al., Our Common Future: World Commission on Environment and Development (1987) (the Brundtland Report, with its call for an international conference on a sustainable environment, was the catalyst for the UN Conference on the Environment held at Rio in 1990).
207. Professor Alyson Flournoy has written thoughtfully on sustainability as a perceptive and unifying theme. "[S]ustainability, while not a coherent environmental ethic, shows promise as a stepping stone." Alyson C. Flournoy, Building an Environmental Ethic from the Ground Up, 37 U.C. Davis L. Rev. 53, 55 (2003). She describes six attributes of the sustainability concept, and explores their potential relevance in shaping law and policy.
208. Id. at 72-79.
209. As Chip Giller, a contemporary zeitgeist observer, notes: In cities nationwide, young professionals are giving environmentalism a new cultural cachet .... They're finding that many of the hippest products, clothes, accessories, home furnishings, appliances are made with environmental concerns in mind. Sustainability is the new bling .... In rural America, residents are recognizing the potential of wind power, solar energy, biodiesel, and other green industries to revitalize their communities. Farmers are discovering the advantages of precision agriculture. Communities are fighting the stench, pollution, and economic ravages of factory farms. Sustainability is the new self-reliance. In churches, mosques, and temples, religious leaders are taking seriously their responsibility as stewards of God's creation. They are retrofitting their places of worship for energy efficiency, spreading the word to their congregations, banding together to pressure politicians, and asking, "What would Jesus drive?" Sustainability is the new grace. In minority and low-income communities all over the country, civil rights activists are linking disparate struggles - poverty, criminal justice, transportation, climate change,
210. And it turns out that Homer Simpson may not be as close-minded as we had thought. Recent episodes of The Simpsons seem to indicate that Homer is slowly coming to recognize the validity of various characters who do not look and sound exactly like him. See generally, The Simpsons (Fox Entertainment Group).
211. Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820), in The Writings of Thomas Jefferson Vol. XV 278 (Andrew A. Lipscomb et al. eds., 1903).
212. It would be a significant innovation in modern democratic governance for a civic foundation to create a public interest Internet e-cyclopedia framing issues and providing straight credible scientific and statistical facts, with quotable experts and graphic archives, to counter the current flood of marketplace-dominated spin that obscures so many current political debates. See Zygmunt J. B. Plater, Law and the Fourth Estate: Endangered Nature, the Press, and the Dicey Game of Democratic Governance, 32 Envtl. L. 1, 35-36 (2002).
213. See Ackerman & Heinzerling, supra note 67.
214. See Environmental Law & Policy, supra note 13, at 58-59. In the three-circled image there presented, the inside circle represents the marketplace economy; the middle ring represents values and effects upon humans and civil society; the largest ring that holds us all represents the economy of Nature. Regulatory government resides in the band between the marketplace and the other two economies, attempting to mediate and control the excesses of the marketplace for the long term good of society.
215. See Adlai Stevenson's vivid 1965 call for stewardship of "Spaceship Earth," Environmental Law & Policy, supra note 13, at xxix. Edvard Shevarnadze, then Foreign Minister of the crumbling USSR, made an appeal for international environmental concern a central theme of his 1988 United Nations speech advocating cooperative global perestroika. Prime Minister Blair persistently tries, despite rebuffs, to awaken George Bush Jr. to the real threats of global warming.
216. Edvard Shevarnadze, then Foreign Minister of the crumbling USSR, made an appeal for international environmental concern a central theme of his 1988 United Nations speech advocating cooperative global perestroika. Prime Minister Blair persistently tries, despite rebuffs, to awaken George Bush Jr. to the real threats of global warming. See Reuters, Debate Over Global Warming May Heat Up, L.A. Times, June 20, 2005 at C-3.
217. President Chirac, for his part, despite his "conservative" label, has had his consciousness raised to such a point that he shocked the delegates to the Johannesburg summit by his implicit attack on their complacency: Ladies and Gentlemen: Our house is burning down and we're blind to it. Nature, mutilated and overexploited, can no longer regenerate and we refuse to admit it. Humanity is suffering. It is suffering from poor development, in both the North and the South, and we stand indifferent. The earth and humankind are in danger and we are all responsible. It is time to open our eyes .... Alarms are sounding across all the continents. Europe is beset by natural disasters and health crises. The American economy, with its often-ravenous appetite for natural resources, seems to be hit by a crisis of confidence in the way it is managed. Latin America is again shaken by a financial, and hence social, crisis. In Asia, rising pollution evidenced by a brown cloud is spreading and threatening to poison an entire continent. Africa is plagued by conflicts, AIDS, desertification and famine. Some island countries are seeing their very existence threatened by climate warming .... We cannot say that we did not know .... The time has come for humankind, in all its cultures and civilizations, to build a new relationship with nature, a relationship of respect and harmony, and hence to learn to control its power and appetite. His Excellency Jacques Chirac, President of The French Republic, Statement at the World Summit on Sustainable Development, Johannesburg, South Africa (September 2, 2002), available at www.un.org/events/wssd/statements/franceE.htm.