The politics of nature: Climate change, environmental law, and democracy

Yale Law Journal

Volumn 119, Issue 6, 2010, Pages 1122-1209

  Purdy, Jedediah ^a  

^a Duke Law School ^*

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EID: 77953083774     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (267)

1. For a discussion of moral identity as a source of motivation, see JONATHAN GLOVER, HUMANITY: A MORAL HISTORY OF THE TWENTIETH CENTURY 26-30 (Yale Univ. Press 2000) (1999). For a particularly rich account of its action in an episode long assumed to be governed by conventional economic self-interest, see DAVID BRION DAVIS, INHUMAN BONDAGE: THE RISE AND FALL OF SLAVERY IN THE NEW WORLD 231-49 (2006), which argues that free-labor ideology and an attendant conception of civic dignity motivated laboring and middle classes to demand abolition of slavery at recognized and substantial economic cost to the British Empire. For a partisan but careful account of the character of motives inseparable from membership in a political or other community, see CHARLES TAYLOR, PHILOSOPHICAL ARGUMENTS 127-45 (1995). For rich considerations of how citizens actually use one class of such arguments, see Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements, 154 U. PA. L. REV. 927 (2006), which describes the role of social movements in opening up settled points of interpretation in constitutional culture and bringing new commitments to previously closed debates; and Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CAL. L. REV. 1323, 1350-66 (2006), which sets out an account of the role of social movements in contesting and contributing to the meaning of basic but underspecified public values. See also Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373, 427 (2007) ("So long as groups continue to argue about the meaning of our common Constitution, so long do they remain committed to a common constitutional enterprise. [O]ur constitutional system consists of 'an historically
2. See RICHARD B. STEWART & JONATHAN B. WIENER, RECONSTRUCTING CLIMATE POLICY: BEYOND KYOTO (2003) (concentrating on an interest-mediating structure of prospective global climate architecture); Kirsten H. Engel & Barak Y. Orbach, Micro-Motives and State and Local Climate Change Initiatives, 2 HARV. L. & POL'Y REV. 119, 129-30 (2008) (lumping moral and otherwise other-regarding motives into a residual category); Eric A. Posner & Cass R. Sunstein, Should Greenhouse Gas Permits Be Allocated on a Per Capita Basis?, 97 CAL. L. REV. 51, 86-92 (2009) [hereinafter Posner & Sunstein, Should Greenhouse Gas] (arguing that the incentives of self-interested nation-states should be regarded as an intractable constraint on distributive policies of any global climate agreement but not discussing domestic politics); Cass R. Sunstein, Of Montreal and Kyoto: A Tale of Two Protocols, 31 HARV. ENVTL. L. REV. 1, 44-46 (2007) [hereinafter Sunstein, A Tale of Two Protocols] (acknowledging the possibility that public opinion is not fixed and might respond to leadership, but analyzing the failure of Kyoto as overwhelmingly a matter of national- interest calculations relative to the Montreal Protocol); Cass R. Sunstein, On the Divergent American Reactions to Terrorism and Climate Change, 107 COLUM. L. REV. 503 (2007) [hereinafter Sunstein, On the Divergent Reactions] (discussing rational, boundedly rational, and extrarational motives for assessing the two threats, but not engaging the development of normative culture as other than an explanandum); Cass R. Sunstein, The World vs. the United States and China? The Complex Climate Change Incentives of the Leading Greenhouse Gas Emitters, 55 UCLA L. REV. 1675 (2008) [hereinafter Sunstein, Complex Climate Change Incentives] (concentrating analysis on respective national self-interests, then arguing that political action depends on a combination of diffuse moral sentiment and confusion about the inefficacy of local action, which might together push along a norms cascade); Jonathan B. Wiener, Climate Change Policy and Policy Change in China, 55 UCLA L. REV. 1805, 1812-16 (2008) [hereinafter Wiener, Climate Change Policy] (setting aside "constructivist persuasion" in international climate negotiations as fraught with threats of "moralizing," too weak to overcome economic interests, carrying the potential to backfire or cause unintended consequences, and too slow); Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Policies, 155 U. PA. L. REV. 1961 (2007) (using interest-based analysis to argue that state and local climate initiatives are likely to be ineffective at best and counterproductive at worst); Steven Pinker, The Moral Instinct, N.Y. TIMES, Jan. 13, 2008, § 6 (Magazine), at 32, 58 ("[N]owhere is moralization more of a hazard than in our greatest global challenge. Our habit of moralizing problems, merging them with intuitions of purity and contamination, and resting content when we feel the right feelings, can get in the way of doing the right thing."). These scholars are not ethical nihilists: indeed, they conduct normative analysis in the manner of normative realists, that is, those who believe moral assertions are unproblematic. See Eric A. Posner & Cass R. Sunstein, Climate Change Justice, 96 GEO. L.J. 1565 (2008) (conducting a normative analysis of distributive considerations in climate change remedies); Posner & Sunstein, Should Greenhouse Gas, supra, at 71-86 (conducting "welfarist" and "fairness" analyses of the per capita principle). What they do not do is connect their political and normative analyses to an understanding of values as political motives, potentially in more than a weak and secondary role, and as products of political and cultural contest. It is worth noting that divisions of individual scholars, rather than arguments, into camps is inevitably somewhat artificial. Jonathan Wiener, in particular, has written thoughtfully on the role of changing ideas of the natural world in informing (or failing to inform) the goals and methods of environmental regulation. See Jonathan Baert Wiener, Beyond the Balance of Nature, 7 DUKE ENVTL. L. & POL'Y F. 1 (1996); Jonathan Baert Wiener, Law and the New Ecology: Evolution, Categories, and Consequences, 22 ECOLOGY L.Q. 325 (1995). My focus here is not on what important scholars know or find interesting in general, but on the tools they adopt in the face of large and emergent issues such as climate change.
3. See GREGG EASTERBROOK, A MOMENT ON THE EARTH: THE COMING AGE OF ENVIRONMENTAL OPTIMISM (1995) (arguing that environmentalism has been defined by pessimism about human agency, technology, and their effects on nature); LUC FERRY, THE NEW ECOLOGICAL ORDER 57-126 (Carol Volk trans., Univ. of Chi. Press 1995) (1992) (arguing that both European and American environmentalism are characterized by nostalgic hostility to the Enlightenment projects of humanism and reason); TED NORDHAUS & MICHAEL SHELLENBERGER, BREAK THROUGH: FROM THE DEATH OF ENVIRONMENTALISM TO THE POLITICS OF POSSIBILITY 5-6 (2007) (arguing that environmentalism as presently constituted is narrow and elitist, indifferent to progress and justice, and hostile to the human appetite for hope); id. at 120 ("[E]nvironmentalists have long defined their politics in the negative."); id. at 154 (characterizing environmentalism as "the ethics born of... living in a fallen world pervaded by fears of the eco-apocalypse to come"); William Cronon, The Trouble with Wilderness; or, Getting Back to the Wrong Nature, in UNCOMMON GROUND: RETHINKING THE HUMAN PLACE IN NATURE 69 (William Cronon ed., 1995) (arguing that a fixation on wilderness values has made environmentalists indifferent to the justice and grace, or otherwise, of most of the human environment); Wiener, Climate Change Policy, supra note 2, at 1813 (warning against "moralizing" as counterproductive); Pinker, supra note 2 (characterizing environmentalist attitudes to climate change as "moralizing" about allegedly excessive consumption and calling for a "post-moralism era" to address climate issues).
4. See FERRY, supra note 3; NORDHAUS & SHELLENBERGER, supra note 3; Cronon, supra note 3.
5. See EASTERBROOK, supra note 3 (stating that progress in relation to the natural world will mean reengineering it to satisfy human aims, including such humanitarian considerations as averting predation among wild animals, all in opposition to environmentalists' static conception of nature); BILL MCKIBBEN, THE END OF NATURE 47-55 (2d ed. 2006) (claiming that environmentalism depends on an idea of undisturbed and permanent nature, which climate change renders infeasible); NORDHAUS & SHELLENBERGER, supra note 3, at 105-29 (arguing that environmentalism is defined by a "pollution paradigm" in which unspoiled nature is invaded by harmful human activity); id. at 216-40 (arguing that environmentalism is committed to a philosophically discredited and practically counterproductive "essentialist" divide between humanity and nature); Cronon, supra note 3, at 69-70, 80-88 (maintaining that environmentalism has been defined by the idealization of a "wilderness" radically opposed to and unsullied by human activity).
6. Those who make this claim usually offer to cure the defect with a more "positive" agenda, such as Nordhaus and Shellenberger's "politics of possibility" or McKibben's remark that "[i]f [the effort to address climate change has] success, it won't be environmentalism anymore. It will be something much more important." Bill McKibben, An Atom of Difference: Just Give Us That Old-Time Pollution, ORION, July-Aug. 2005, at 14-15. Near the heart of this Article's argument is that the offer of radical remedial breaks with a caricatured "environmentalism" mistakes the situation almost entirely: environmental public language has always been connected with ideas of progress, civic dignity, and national purpose.
7. See NORDHAUS & SHELLENBERGER, supra note 3; Cronon, supra note 3. For an application of this idea to legal scholarship, see Julia D. Mahoney, The Illusion of Perpetuity and the Preservation of Privately Owned Lands, 44 NAT. RESOURCES J. 573 (2004), which argues that a favorite legal tool of environmentalists, the perpetual conservation easement, is based on a naïve conception of nature as static.
8. See supra note 2.
9. See generally CHARLES TAYLOR, MODERN SOCIAL IMAGINARIES (2004) (outlining and recounting the rise of distinctively modern ways of understanding the legitimate interests of individuals and states in political and social relations).
10. See RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 47-50 (2004) (noting diverse ideas in the early 1970s of the directions in which environmental law might develop); JAMES GUSTAVE SPETH, THE BRIDGE AT THE EDGE OF THE WORLD: CAPITALISM, THE ENVIRONMENT, AND CROSSING FROM CRISIS TO SUSTAINABILITY (2008) (arguing that the only prospect for successfully engaging the current panoply of global environmental problems is to engage basic questions about human purposes, sources of satisfaction, and moral obligations); Cronon, supra note 3, at 88-90 (using criticism of the wilderness idea to urge a broader engagement with cultural and moral sources, in the hope of correcting the defects Cronon ascribes to wilderness-focused environmentalism); Daniel C. Esty, The World Trade Organization's Legitimacy Crisis, 1 WORLD TRADE REV. 7 (2002) (engaging normative questions at the intersection of environmental and economic governance); Douglas A. Kysar, Climate Change, Cultural Transformation, and Comprehensive Rationality, 31 B.C. ENVTL. AFF. L. REV. 555 (2004) (arguing that moral reflection about environmental values may be engaged through cultural transformation, which necessarily draws on the existing normative resources of the culture); Douglas A. Kysar, Discounting... on Stilts, 74 U. CHI. L. REV. 119 (2007) [hereinafter Kysar, Discounting] (claiming that a direct engagement with substantive normative issues is unavoidable in assessing intergenerational allocation of climate change burdens); Douglas A. Kysar, The Consultants' Republic, 121 HARV. L. REV. 2041 (2008) (reviewing NORDHAUS & SHELLENBERGER, supra note 3) (arguing that the book's characterization of environmentalism, among other defects, overlooks the diversity of environmentalists' institutional strategies and normative conceptions in the early 1970s).
11. Each of the figures just invoked sets the stage in some way for this project. Doug Kysar's work makes the case that an inquiry like the one this Article undertakes is analytically unavoidable and culturally promising, but he has not so far undertaken it himself. Gus Speth makes a similar case, but his treatment of the issues he raises includes very little engagement with developments before roughly 1970. Lazarus gestures at a connection between the environmentalism of the 1970s, public health, and other reformist movements of earlier decades, but does not develop it or engage the other themes of this Article. Cronon's landmark essay on wilderness is closest in scope to what this Article attempts, but its manner is very much that of the impressionistic and associative essay; Cronon does not engage issues such as democratic self-interpretation, the contested question of national purpose, or the complex interaction between wilderness and managerial conservationism. What one wants is to see the historical and interpretive richness of his earlier work on environmental history brought to bear on the themes he beautifully paints in his essay. His essay, which I have long admired, is thus a kind of cue for this project.
12. By invoking "tradition," I do not mean something that befalls us from the past, but instead
13. what the living make of the materials available in the world they find. One of the suppositions of this Article is that awareness of those inherited materials can enrich the forward-looking repertoire of a public, so recollection can stand in support of innovation.
14. This is the basic strategy of many proposals to address climate change, notably the cap-and-trade mechanisms of most climate legislation introduced last year in Congress, as well as deliberately simpler devices such as the partial Pigouvian tax that Thomas Merrill and David Schizer have devised to avoid some of the public choice hazards of the more complex instruments. See Thomas Merrill & David Schizer, Energy Policy for an Economic Downturn: A Proposed Petroleum Fuel Price Stabilization Plan, 26 YALE J. ON REG. (forthcoming 2010).
15. This ratio is purely demographic; it would be lower if it assumed that residents of wealthy countries have "more to lose" from climate change; but of course, that s not at all clear, as vulnerable populations in poor countries may live close to survival or very basic quality-of- life thresholds vulnerable to climatic disruption, such as exposure to malaria. See U.S. Census Bureau, U.S. & World Population Clocks, http://www.census.gov/main/www/ popclock.html (last visited Nov. 16, 2009) (offering up-to-the-minute tracking of estimated world and United States human populations).
16. See CASS R. SUNSTEIN, WORST-CASE SCENARIOS 71-117 (2007).
17. See Jonathan Baert Wiener, Designing Global Climate Regulation, in CLIMATE CHANGE POLICY: A SURVEY 151, 160 (Stephen H. Schneider, Armin Rosencranz & John O. Niles eds., 2002).
18. See Posner & Sunstein, Should Greenhouse Gas, supra note 2 (discussing the political barriers to redistributing wealth through a global climate regime).
19. See Sunstein, A Tale of Two Protocols, supra note 2 (discussing the American reluctance to pay for climate mitigation with benefits abroad). These worries are not hypothetical: one has only to consider the projections of national costs and arguments about fairness that powered the Senate's 1997 discussion of the Byrd-Hagel resolution denouncing Kyoto for its release of poor countries from emissions-reduction obligations and compare this idea of a fair distribution of climate burdens (each country must do its part) to that developing in the public conversation of countries such as India (each human being should benefit from an equal share of the atmosphere's absorptive capacity). See 143 CONG. REC. 15,785 (1997) (statement of Sen. Byrd) ("I do not think the Senate should support a treaty that requires only half the world-in other words, the developed countries-to endure the economic costs of reducing emissions while developing countries are left free to pollute the atmosphere and, in so doing, siphon off American industries."). For an account of developing-country perspectives on the question, see LAVANYA RAJAMANI, DIFFERENTIAL TREATMENT IN INTERNATIONAL ENVIRONMENTAL LAW 216-36 (2006) (describing conflicting ideas of fairness among developing and developed countries).
20. See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE: CONTRIBUTION OF WORKING GROUP II TO THE FOURTH ASSESSMENT REPORT OF THE INTERNATIONAL PANEL ON CLIMATE CHANGE: SUMMARY FOR POLICYMAKERS (Martin Parry et al. eds., 2007), http://www.ipcc.ch/pdf/assessment-report/ar4/wg2/ar4/ar4-wg2-wg1-spm.pdf (forecasting hard-to-predict and mutually reinforcing changes including rising global temperatures and sea levels, increased frequency of droughts and severe storms, changing regional weather and rainfall patterns, and increased desertification, among other effects).
21. This entire point supposes a conventional discount rate and relative indifference to the fate of future generations. I do not mean to endorse this approach as the right view of climate change, and the whole thrust of my argument is that we should not regard these constraints as fixed.
22. See SUNSTEIN, supra note 15, at 65-70 (discussing psychological barriers to climate politics); Jon Gertner, Why Isn't the Brain Green?, N.Y. TIMES, Apr. 19, 2009, § 6 (Magazine), at 36.
23. See Sunstein, On the Divergent Reactions, supra note 2 (contrasting terrorism with climate change). On the role of salient events in spurring earlier episodes of environmental lawmaking, see, for example, NORDHAUS & SHELLENBERGER, supra note 3, at 22-24, which discusses the impact of the Cuyahoga River Fire.
24. See Gertner, supra note 21. See generally Paul Slovic, "If I Look at the Mass, I Will Never Act": Psychic Numbing and Genocide (Oct. 16, 2006) (unpublished manuscript, on file with author).
25. See Gertner, supra note 21.
26. See id.
27. See 1 CHARLES TAYLOR, Self-Interpreting Animals [hereinafter TAYLOR, Self-Interpreting Animals], in PHILOSOPHICAL PAPERS: HUMAN AGENCY AND LANGUAGE 45, 45-76 (1985); 1 CHARLES TAYLOR, What Is Human Agency?, in PHILOSOPHICAL PAPERS: HUMAN AGENCY AND LANGUAGE 15, 15-44 (1985).
28. See CHARLES TAYLOR, SOURCES OF THE SELF 25-52 (1989) (theorizing relations between self-conscious and self-interpreting agents and the questions of value that they confront).
29. See 2 CHARLES TAYLOR, Interpretation and the Sciences of Man, in PHILOSOPHICAL PAPERS: PHILOSOPHY AND THE HUMAN SCIENCES 15, 37 (1985).
30. This discussion falls mainly in Section III.A., infra.
31. I discuss some of these developments in JEDEDIAH PURDY, A TOLERABLE ANARCHY 97-160 (2009). For a particularly illuminating discussion of this issue in connection with slavery, see DAVIS, supra note 1, at 231-49.
32. See DAVIS, supra note 1, at 231-49; TAYLOR, Self-Interpreting Animals, supra note 26, at 45-76.
33. See TAYLOR, Self-Interpreting Animals, supra note 26, at 45-76.
34. See LEO MARX, THE MACHINE IN THE GARDEN: TECHNOLOGY AND THE PASTORAL IDEAL IN AMERICA (1964) (tracing the ambivalent American relationship to nature and technology); CAROLYN MERCHANT, THE DEATH OF NATURE: WOMEN, ECOLOGY, AND THE SCIENTIFIC REVOLUTION (1980) (arguing that the rise of an instrumentalizing idea of nature arose with, and in mutual support of, a male-centered and oppressive version of subjecthood); 3 RODERICK NASH, WILDERNESS AND THE AMERICAN MIND (1982) (tracing the idea of wilderness through American history); DONALD WORSTER, NATURE'S ECONOMY: A HISTORY OF ECOLOGICAL IDEAS (2d ed. 2000) (setting a history of scientific conceptions of nature alongside an account of changing practices of use and habitation of the natural world); Cronon, supra note 3 (using cultural history to track the idea of wilderness through American history, with particular attention to the various human motives it has been imagined to serve).
35. See CRAIG W. ALLIN, THE POLITICS OF WILDERNESS PRESERVATION (1982) (tracing primarily the legislative and other political processes eventuating in the 1964 Wilderness Act); PHILLIP O. FOSS, POLITICS AND GRASS: THE ADMINISTRATION OF GRAZING ON THE PUBLIC DOMAIN (1960) (setting out the history of grazing policy development); PAUL W. GATES, HISTORY OF PUBLIC LAND LAW DEVELOPMENT (1968) (providing an extraordinarily rich and informed history of the political processes and interests at work in the development and disbursement of the United States public domain); JAMES WILLARD HURST, LAW AND ECONOMIC GROWTH: THE LEGAL HISTORY OF THE LUMBER INDUSTRY IN WISCONSIN, 1836-1915 (1964) (setting out in detail the massive, often illegal lumbering of the nineteenth and early twentieth centuries); ROY M. ROBBINS, OUR LANDED HERITAGE: THE PUBLIC DOMAIN 1776- 1936 (1950) (providing a history of the development from disbursement to retention and regulation of the public domain as a story of rationality and progress, albeit fraught with politics); DONALD WORSTER, RIVERS OF EMPIRE: WATER, ARIDITY, AND THE GROWTH OF THE AMERICAN WEST (1985) (providing a history of Western water policy joined with a Marxian-informed account of the power relations attendant on irrigation systems).
36. The most impressive of this work is William Cronon's. See WILLIAM CRONON, CHANGES IN THE LAND: INDIANS, COLONISTS, AND THE ECOLOGY OF NEW ENGLAND (Hill & Wang rev. ed. 2003) (1983) (describing as ecological practices the Anglo settler and Native American forms of life that coexisted in early New England); WILLIAM CRONON, NATURE'S METROPOLIS: CHICAGO AND THE GREAT WEST (1991) (setting out the development of a commodity economy in the Midwest, with Chicago as its epicenter, as a history of economic systems, interests, and ideas). What I do not find in Cronon is a focus on the self-interpretation of democratic communities in relation to nature. In that respect, my interests are complementary to and, I hope, in the spirit of his. Some more popular but very interesting and influential work has taken its cue from Cronon in combining systems theory with accounts of culture. See, e.g., JARED DIAMOND, COLLAPSE: HOW SOCIETIES CHOOSE TO FAIL OR SUCCEED (2005) (providing an account of ecological catastrophe and the conditions for averting it in light of both natural systems and cultural judgments); MICHAEL POLLAN, THE OMNIVORE'S DILEMMA: A NATURAL HISTORY OF FOUR MEALS (2006) (describing food- production systems and the relation to ideas of food's purpose and cultural role). Other environmental histories have adopted a subaltern concern with the experiences and perspectives of those omitted from "traditional" history and often the objects, rather than the authors, of environmental management schemes. See, e.g., RAMACHANDRA GUHA, THE UNQUIET WOODS: ECOLOGICAL CHANGE AND PEASANT RESISTANCE IN THE HIMALAYA (Univ. of Cal. Press expanded ed. 2000) (1989) (describing the political lives and activity of local dwellers in the face of harvesting from outside their communities); KARL JACOBY, CRIMES AGAINST NATURE: SQUATTERS, POACHERS, THIEVES, AND THE HIDDEN HISTORY OF AMERICAN CONSERVATION (2001) (describing the experiences and perspectives of local populations in the Adirondack State Park, Yellowstone National Park, and the Grand Canyon). A final class of work treats subaltern environmental history in connection with a critique of modernity as characterized by an imperializing form of instrumental reason and hyper-rational technocracy. See, e.g., CAROLYN MERCHANT, ECOLOGICAL REVOLUTIONS: NATURE, GENDER, AND SCIENCE IN NEW ENGLAND (1989) (arguing that early New England settlers enjoyed a relatively ecologically minded, precapitalist relation to the natural world, which gave way in time to a market-driven instrumental attitude); JAMES C. SCOTT, SEEING LIKE A STATE: HOW CERTAIN SCHEMES TO IMPROVE THE HUMAN CONDITION HAVE FAILED 11-24 (1998) (describing nineteenth-century "scientific forestry" as an instance of "high modern" aesthetics and management).
37. The discussion that immediately follows is by no means a comprehensive history of environmental attitudes before the middle and later decades of the nineteenth century. It is most importantly bounded by its exclusive treatment of American and public environmental language. Outside the United States, considerable national forest conservation had developed in Europe and imperial government in the Caribbean and regions of India had produced policies that resembled later domestic conservation legislation. See RICHARD H. GROVE, GREEN IMPERIALISM: COLONIAL EXPANSION, TROPICAL ISLAND EDENS AND THE ORIGINS OF ENVIRONMENTALISM, 1600-1860, at 168-216 (1995) (describing French colonial conservation ideologies and policies in the Caribbean); id. at 380-473 (describing British colonial conservation ideologies and policies in India); JOHN MUIR, OUR NATIONAL PARKS 337-40 (1901) (surveying national forest regulation in Europe, Japan, and colonial India). Outside the political and legal core of public language, Americans took part in the Romantic culture of their time, embracing literary declarations of admiration for wild forests and sublime landscapes, which often had a fraught connection with the dominant public commitment to exploitation and material progress. See HANS HUTH, NATURE AND THE AMERICAN: THREE CENTURIES OF CHANGING ATTITUDES 14-29 (1957) (describing the Romantic appreciation of nature that some scientists and explorers brought to the American landscape in the early nineteenth century); id. at 30-53 (discussing the development of Romantic imagery in American landscape art); Angela Miller, The Fate of Wilderness in American Landscape Art: The Dilemmas of "Nature's Nation," in AMERICAN WILDERNESS: A NEW HISTORY 91 (Michael Lewis ed., 2007) (discussing the development of American images of wild sublimity). The domestic cultural developments, in particular, belong in any thorough history of the backdrop on which Romantic conservationism eventually drew: my discussion of the literary and theoretical sources of Romantic nature aesthetics is, I think, accurate, but partial. Tocqueville's frontier anecdote is, of course, not strictly an account of public language in the sense this Article addresses. It is here because it was too entertaining to exclude.
38. ALEXIS DE TOCQUEVILLE, JOURNEY TO AMERICA 335 (J.P. Mayer ed., George Lawrence trans., 1962) (1959).
39. Id.
40. See GATES, supra note 34, at 531-61.
41. 7 CONG. REC. 1719-23, 1861-69 (1878).
42. Id. at 1722 (statement of Sen. Blaine) ("I know nothing in the world to parallel it except that great assertion in our immortal Declaration of Independence that the King of England 'has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.'").
43. Id. (statement of Sen. Teller) ("I claim that nothing is demanded by the people in the Territories now that has not been conceded to all settlers in the new Territories.").
44. See id. at 1721 (statement of Sen. Blaine) ("[I]t is a thing which has been conceded by the Government, that the hardy pioneer who goes forth and bears the flag of civilization onward against difficulties and through dangers that appal stout hearts... shall have the air and the water and the wood....").
45. See id. at 1861 (statement of Sen. Blaine).
46. Id. at 1865 (statement of Sen. Eustis).
47. Id. at 1867 (statement of Sen. Sargent).
48. Id.
49. See GATES, supra note 34, at 531-61 (setting out the history of unauthorized timbering on public lands).
50. See generally AZIZ RANA, FREEDOM WITHOUT EMPIRE: THE PARADOX OF AMERICA'S SETTLER LEGACY (forthcoming 2010) (arguing that the Revolutionary American polity rested on an ideal of the equality of each male citizen that implied brutal exclusion of racial and religious outsiders and exploitation of natural resources).
51. See ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR 11-18, 27-29 (1970) (setting forth these ideas).
52. See 7 CONG. REC. at 1869 (statement of Sen. Teller) (denying that "there is any law... that authorizes the Secretary of the Interior to turn himself into a wood-peddler and to peddle out the timber from the public domain").
53. The narrow exception was that class of semipublic goods traditionally governed by the public trust doctrine. That the doctrine in some instances became a principle of environmental management in the twentieth century is an ironic development. For an introduction to this issue, see DAVID C. SLADE, R. KERRY KEHOE & JANE K. STAHL, PUTTING THE PUBLIC TRUST DOCTRINE TO WORK (2d ed. 1997).
54. CONG. GLOBE, 38th Cong., 1st Sess. 2300 (1864).
55. In its early years, Yellowstone was the scene of poaching massacres and general lawlessness, and federal troops oversaw the park for some time. See JACOBY, supra note 35, at 121-46.
56. CONG. REC. 3488 (1883).
57. Id.
58. Id. at 3487 (internal quotation marks omitted). According to casual Internet research, prunella provides an herbal cure for syphilis-an interesting glimpse into the mind of a nineteenth-century senator.
59. Id. at 3484.
60. Id. at 3488 (emphasis added).
61. CONG. GLOBE, 38th Cong., 1st Sess. 2300 (1864).
62. Id. at 2301.
63. Id.
64. 14 CONG. REC. 3488 (1883).
65. William Bradford, A Hideous and Desolate Wilderness, in ENVIRONMENT: AN INTERDISCIPLINARY ANTHOLOGY 282, 283 (Glenn Adelson et al. eds., 2008). It would be a mistake to understand Bradford's view as simple abhorrence of wilderness, as some, notably Roderick Nash, have done. See NASH, supra note 33, at 23-25. Much more helpful is William Cronon's recognition that wild nature was associated with biblical ideas of spiritual testing and sojourn, which tied into the idea of the settling of North American as a covenantal project. See Cronon, supra note 3, at 69-71. This Article essentially begins in the nineteenth century and does not engage these themes.
66. WILLIAM CULLEN BRYANT, Thanatopsis, in POETICAL WORKS OF WILLIAM CULLEN BRYANT 24, 24 (1891).
67. WILLIAM CULLEN BRYANT, A Forest Hymn, in POETICAL WORKS OF WILLIAM CULLEN BRYANT, supra note 65, at 87, 87.
68. As noted in an earlier footnote, a more complete account of the cultural background in which the concept of sublimity arose and became associated with particular American landscapes would treat the growth of landscape art in the same decades in which Thoreau and Emerson were active. See, e.g., HUTH, supra note 36, at 87-104 (describing this development); Miller, supra note 36 (same).
69. See EDMUND BURKE, A PHILOSOPHICAL ENQUIRY INTO THE ORIGIN OF OUR IDEAS OF THE SUBLIME AND BEAUTIFUL 70 (J. T. Boulton ed., Notre Dame Press 1968) (1757).
70. Burke described sublimity as "productive of the strongest emotion which the mind is capable of feeling," the terror of death. Id. at 39-40.
71. Id. at 40 ("When danger or pain press too nearly, they are incapable of giving any delight, and are simply terrible; but at certain distances, and with certain modifications, they may be, and they are delightful.").
72. IMMANUEL KANT, THE CRITIQUE OF JUDGMENT 109-14 (James Creed Meredith trans., Oxford, Clarendon Press 1952) (1790).
73. See WILLIAM WORDSWORTH, Book Thirteenth: Imagination and Taste, How Impaired and Restored-(Concluded), in THE PRELUDE 484, 504 (Jonathan Wordsworth ed., Penguin Books 1995) (1850) ("[T]he forms/Of Nature have a passion in themselves/That intermingles with the works of man/To which she summons him."). In the philosophical summation of his early poetry, he drew particular attention to the Welsh peak Snowdon: "A deep and gloomy breathing-place through which/Mounted the roar of waters, torrents, streams/ Innumerable, roaring with one voice!" WILLIAM WORDSWORTH, Book Fourteenth: Conclusion [hereinafter WORDSWORTH, Book Fourteenth], in THE PRELUDE, supra, at 511, 512. In that sublime setting, "I beheld the emblem of a mind/That feeds upon infinity, that broods/ Over the dark abyss, intent to hear... a mind sustained/By recognitions of transcendent power...." Id. at 515.
74. WORDSWORTH, Book Fourteenth, supra note 72, at 517.
75. See RALPH WALDO EMERSON, Nature, in THE ESSENTIAL WRITINGS OF RALPH WALDO EMERSON 3, 33 (Brooks Atkinson ed., Modern Library 2000) ("[S]pirit creates... behind nature, throughout nature, spirit is present; one and not compound it does not act on us from without... but spiritually, or through ourselves. The world proceeds from the same spirit as the body of man. We are as much strangers in nature as we are aliens from God.").
76. See RALPH WALDO EMERSON, The American Scholar [hereinafter EMERSON, The American Scholar], in THE ESSENTIAL WRITINGS OF RALPH WALDO EMERSON, supra note 74, at 43, 45 ("[T]o this schoolboy under the bending dome of day, is suggested that he and it proceed from one root; one is leaf and one is flower; relation, sympathy, stirring in every vein. And what is that root? Is it not the soul of his soul?"); EMERSON, supra note 74, at 33. ("[M]an has access to the entire mind of the Creator, is himself the creator in the finite.").
77. See EMERSON, The American Scholar, supra note 75, at 54 ("[T]he definition of freedom, 'without any hindrance that does not arise out of his own constitution.'"); EMERSON, supra note 74, at 37-38 ("Man is the dwarf of himself. Once he was permeated and dissolved by spirit. He filled nature with his overflowing currents.... The problem of restoring to the world original and eternal beauty is solved by the redemption of the soul. The reason why the world lacks unity, and lies broken and in heaps, is because man is disunited with himself. He cannot be a naturalist until he satisfies all the demands of the spirit.").
78. See HENRY DAVID THOREAU, Walden, in WALDEN AND OTHER WRITINGS 149 (Brooks Atkinson ed., Modern Library 2000) (1854) ("When my hoe tinkled against the stones, that music echoed to the woods and the sky, and was an accompaniment to my labor which yielded an instant and immeasurable crop. It was no longer beans that I hoed, nor I that hoed beans."); id. at 176 ("A lake is the landscape's most beautiful and expressive feature. It is the earth's eye; looking into which the beholder measures the depth of his own nature."); id. at 290 (concluding upon careful examination of a bank of thawing soil that "[t]he earth is not a mere fragment of dead history ... but living poetry"); id. at 300-12 (arguing that all knowledge of the world is only knowledge of one's self, which is the great goal).
79. Muir often referred to animals as "animal people" to emphasize their equal standing with his own species, but he also accepted the near-extermination of the American bison as progress. See MUIR, supra note 36, at 16-17 (describing "animal people"); id. at 361-62.
80. See DONALD WORSTER, A PASSION FOR NATURE: THE LIFE OF JOHN MUIR 160-61, 336-37 (2008).
81. See MUIR, supra note 36, at 131-36 (setting out Muir's disappointment that the aged Emerson could not join him in the high mountains, suggesting that this represented the exhaustion of New England transcendentalism as a cultural force, and concluding with a recollection of his own visit to Emerson's grave).
82. See WORSTER, supra note 79, at 276-332.
83. See, e.g., MUIR, supra note 36, at 1 (proposing outdoor recreation as a tonic for "tired, nerve- shaken, over-civilized people ... [a]wakening from the stupefying effects of the vice of over-industry and the deadly apathy of luxury").
84. See id. at 74, 98-99 (promising readers "a multitude of still, small voices ... directing you to look through all this transient, shifting show ... into the truly substantial spiritual world" and "everything ... hospitable and kind, as if planned for your pleasure, ministering to every want of body and soul"). For a summary of Muir's thought, see WORSTER, supra note 79, at 5-10, 99-102, 366-431.
85. In 1851, L.H. Bunnell, a member of a federal military mission to punish California Indians who had resisted the incursions of gold miners, reported of entering Yosemite Valley: "As I looked, a peculiar exalted sensation seemed to fill my whole being, and I found myself in tears with emotion." ALLIN, supra note 34, at 25.
86. William Frederic Badè, To Higher Sierras, 10 SIERRA CLUB BULL. 38, 40 (1916-1919).
87. Notable Books in Brief Review: John Muir's Account of His Historic Thousand-Mile Walk to the Gulf and Other Recent Publications, N.Y. TIMES, Jan. 21, 1917, at BR 4.
88. John Muir, Doctor of Laws, University of California, 10 SIERRA CLUB BULL. 24 (1916-1919).
89. Marion Randall, Some Aspects of a Sierra Club Outing, 5 SIERRA CLUB BULL. 221, 227-28 (1904-1905).
90. Helen M. Gompertz, A Tramp to Mt. Lyell, 1 SIERRA CLUB BULL. 136, 141 (1893-1896).
91. John R. Glascock, A California Outing, 1 SIERRA CLUB BULL. 147, 161 (1893-1896).
92. See Oliver Wendell Holmes, Jr., A Soldier's Faith, Address at Harvard University Graduation (May 30, 1895), reprinted in SPEECHES BY OLIVER WENDELL HOLMES 56 (1934) (lamenting the rise of materialism over heroic values); William James, The Moral Equivalent of War, in MEMORIES AND STUDIES 265 (1924) (praising heroic and warrior-like forms of motivation and declaring mere comfort and convenience intolerable as social goals); Theodore Roosevelt, The New Nationalism, Speech at Osawatomie (Aug. 31, 1910) [hereinafter Roosevelt, The New Nationalism], reprinted in THE NEW NATIONALISM 3 (1910) (arguing that the country needed a new civic spirit); Theodore Roosevelt, The Strenuous Life, Speech before the Hamilton Club (Apr. 10, 1899) [hereinafter Roosevelt, The Strenuous Life], reprinted in THE STRENUOUS LIFE: ESSAYS AND ADDRESSES 1 (1902) (warning that selfishness and lassitude threatened to sink the country into severe decline). It seems clear that at least some of this criticism reflected the reformist constituencies' decline in civic and economic status and their wish to create a culture in which their values and cultural characteristics, their "refinement," would attract respect. That is not to say, of course, that their reformist program was insincere, only that it expressed a complex interplay of interests and ideas, in which distinctions between the classes of motivation could only be approximate, as status-based interests made certain principles attractive, and those principles in turn helped constitute and reinforce status-based interests by articulating and justifying them. See RICHARD HOFSTADTER, THE AGE OF REFORM: FROM BRYANT TO F.D.R. 131-72 (1955) (on status politics and the origins of progressive ideas).
93. See GIFFORD PINCHOT, THE FIGHT FOR CONSERVATION (1910); Roosevelt, The New Nationalism, supra note 91. For more general introductions to the development, see SAMUEL P. HAYS, CONSERVATION AND THE GOSPEL OF EFFICIENCY: THE PROGRESSIVE CONSERVATION MOVEMENT 1890-1920 (1979), which connects an account of Progressive commitments to natural resource regulation; HOFSTADTER, supra note 91, which argues in particular for the importance of status anxiety among the motives of Progressives; MORTON KELLER, REGULATING A NEW ECONOMY: PUBLIC POLICY AND ECONOMIC CHANGE IN AMERICA, 1900- 1933 (1990) [hereinafter KELLER, REGULATING A NEW ECONOMY], which surveys the motives and programmatic agendas of Progressives, with an emphasis on economic regulation; MORTON KELLER, REGULATING A NEW SOCIETY: PUBLIC POLICY AND SOCIAL CHANGE IN AMERICA, 1900-1933 (1994) [hereinafter KELLER, REGULATING A NEW SOCIETY], which does the same; THOMAS K. MCCRAW, PROPHETS OF REGULATION (1984), which uses portraits of Charles Francis Adams, Louis Brandeis, James Landis, and Alfred Kahn as touchstones in portraying the diversity and uniting concerns of Progressivism; and DANIEL T. RODGERS, ATLANTIC CROSSINGS: SOCIAL POLITICS IN A PROGRESSIVE AGE (1998), which details the rise of Progressive thought with an emphasis on themes uniting British, Continental, and American reformers.
94. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION 1863-1877, at 469- 99 (1988) (describing the rise of reformism in the face of massive perceived and actual corruption).
95. See id. at 469-80 (discussing the rising idea of public interest); HAYS, supra note 92, at 261- 76 (discussing the role of conservation in the Progressive agenda of a regulatory national state); KELLER, REGULATING A NEW ECONOMY, supra note 92, at 7-19 (discussing competing ideas of the nature of the industrial economy and the appropriate role of government in its management).
96. See, e.g., HAYS, supra note 92, at 261-76.
97. See RICHARD N.L. ANDREWS, MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY 109-35 (2d ed. 2006) (discussing the role of public health activists in the development of the conservation movement); HAYS, supra note 92, at 176 (noting that a conservation "committee of 100" composed of prominent individuals in 1908 proposed a federal public health program as part of its agenda, and that the National Conservation Congress in 1909 adopted as its purpose "to seek to overcome waste in all natural, human, or moral forces" (internal quotation marks omitted)); CHARLES R. VAN HISE, THE CONSERVATION OF NATURAL RESOURCES IN THE UNITED STATES 359-79 (1910) (arguing for public-health measures, protective labor law, and eugenics as aspects of "the conservation of man"); Declaration of Principles, North American Conservation Congress (Feb. 23, 1909), reprinted in VAN HISE, supra, app. 2, at 385-93 (presenting Gifford Pinchot's organization's "public health" first among its priorities, ahead of forests, waters, and "lands").
98. See ANDREWS, supra note 96, at 136-38 (2d ed. 2006) (discussing conceptions of the public interest in the Progressive approach to conservation); HAYS, supra note 92, at 3-4, 122-27 (noting the centrality of the idea of the public interest in Progressive reformers' self- understanding and criticizing historians for adopting the idea uncritically); MCCRAW, supra note 92, at 302-05 (describing reformers' ideas of the goals of regulation and of the condition of an unregulated economy); RODGERS, supra note 92, at 1-93 (setting out the worldview of reformers); Gifford Pinchot, Prosperity, in AMERICAN EARTH: ENVIRONMENTAL WRITING SINCE THOREAU 173, 173-80 (Bill McKibben ed., 2008) (arguing that appropriate regulation and management of natural resources is essential to stopping destructive exploitation by individual users and instead serving long-term national interest); Theodore Roosevelt, First Annual Message to Congress (Dec. 3, 1901) [hereinafter Roosevelt, First Annual Message], available at http://www.presidency.ucsb.edu/ws/index.php?pid=29542 (stressing throughout the mutual consistency of all legitimate interests in a properly regulated economy); Roosevelt, The New Nationalism, supra note 91 (arguing that both economic regulation and management of natural resources must favor the public interest, not special interests, to secure progress and avert social conflict).
99. See GATES, supra note 34, at 548-49 (discussing early American ecologist George Perkins Marsh's influence); HAYS, supra note 92, at 5-26 (noting growing understanding of the relation between forest conservation and flood control); GEORGE PERKINS MARSH, MAN AND NATURE (David Lowenthal ed., Harvard Univ. Press 1965) (1864) (setting out complex effects of ecological interdependence).
100. See VAN HISE, supra note 96, at 378-79 (arguing that conservationism implies, and requires, putting the long-term success of humanity over one's own interests); James, supra note 91 (arguing for the importance of a view to long-term shared interests as necessary to both conservation and national success); Pinchot, supra note 97, at 179-80 (same); Roosevelt, The New Nationalism, supra note 91 (arguing for the importance and value of civic spirit); Roosevelt, The Strenuous Life, supra note 91 (same).
101. See HAYS, supra note 92, at 122-25 (arguing that by 1908, "the threads of resource policy had become interwoven in a single coherent approach," an ideal "new world which conscious purpose, science, and human reason could create out of the chaos of a laissez-faire economy," ushering in "[t]he Millennium ... when humanity shall have learned to eliminate all useless waste... . to apply the common sense and scientific rules of efficiency to the care of body and mind and the labors of body and mind" as well as to the natural world (internal quotations omitted)); Pinchot, supra note 97, at 173-75 (arguing that "the real future of the Nation" depends on overcoming "waste in use" of all resources, natural and human).
102. William E. Colby, John Muir-President of the Sierra Club, 10 SIERRA CLUB BULL. 2, 2-3 (1916).
103. Robert Underwood Johnson, John Muir as I Knew Him, 10 SIERRA CLUB BULL. 9, 9 (1916).
104. Joseph Le Conte, The National Parks and Forest Reservations, Address Before the Sierra Club (Nov. 23, 1895), in 1 SIERRA CLUB BULL. 270 (1896).
105. Id.
106. Id.
107. Id.
108. Id.
109. Pinchot and other utilitarian reformers of the time also emphasized that conservationist public policy stood or fell with citizens' commitment to the health and prosperity of future generations in the same polity. See Pinchot, supra note 97, at 173 ("This [marvelous] hopefulness of the American is, however, as short-sighted as it is intense."); id. at 179-80 ("The vast possibilities of our great future will become realities only if we make ourselves, in a sense, responsible for that future."); see also VAN HISE, supra note 96, at 379 ("Conservation means the greatest good to the greatest number-and that for the longest time." (internal quotations omitted)).
110. Holmes, supra note 91 (arguing that spiritual poverty was the result of a world of self- interest and prudence, without heroic acts of devotion and sacrifice); James, supra note 91 (arguing both versions-that a lack of heroic commitment is spiritually impoverishing and bad for the polity as a practical matter, while seeking to make the arguments compatible with pacifist reformism); Roosevelt, The Strenuous Life, supra note 91 (arguing that the country would decline, not least in the virility of its men and fertility of its women, if its self-interested citizens put their own concerns over national well-being and greatness).
111. Roosevelt, The Strenuous Life, supra note 91, at 6.
112. See Theodore Roosevelt, Fellow-Feeling as a Political Factor, CENTURY, Jan. 1900, reprinted in THE STRENUOUS LIFE: ESSAYS AND ADDRESSES, supra note 91, at 65, 74-75 ("[M]en are pitted against one another in accordance with the blind and selfish interests of the moment. Each is thus placed over against his neighbor in an attitude of greedy class hostility, which becomes the mainspring of his conduct, instead of each basing his political action upon ... his own disinterested sense of devotion to the interests of the whole community as he sees them.").
113. Id. at 75.
114. Id. at 66 ("The war with Spain was the most absolutely righteous foreign war in which any nation has engaged during the nineteenth century, and not the least of its many good features was the unity it brought about between the sons of the men who wore the blue and of those who wore the gray.").
115. Roosevelt praised "the mighty lift that thrills 'stern men with empires in their brains'" and scorned those who "shrink from seeing us do our share of the world's work, by bringing order out of chaos in the great, fair tropic islands from which the valor of our soldiers and sailors has driven the Spanish flag." Roosevelt, The Strenuous Life, supra note 91, at 7.
116. See HAYS, supra note 92, at 122-27 (setting out conservationists' view that their program promoted a national interest in contrast to factional interests, such as those of capital and labor).
117. Roosevelt, The New Nationalism, supra note 91, at 21, 26.
118. Roosevelt, First Annual Message, supra note 97.
119. Roosevelt, The New Nationalism, supra note 91, at 22.
120. Roosevelt said, The only way to avoid the growth of these evils is, so far as may be, to help in the creation of conditions which will permit mutual understanding and fellow-feeling between the members of the different classes... . if the men can be mixed together in some way that will loosen the class or caste bonds and put each on his merits as an individual man, there is certain to be a regrouping independent of caste lines. Roosevelt, supra note 111, at 79-80. Even more important, men who work together for the achievement of a common result in which they are intensely interested are very soon certain to disregard, and, indeed, to forget, the creed or race origin or antecedent social standing or class occupation of the man who is either their friend or their foe. They get down to the naked bed-rock of character and capacity. Id. at 81.
121. [In] the larger cities ... the conditions of life are so complicated that there has been an extreme differentiation and specialization in every species of occupation, whether of business or pleasure. The people of a certain degree of wealth and of a certain occupation may never come into any real contact with the people of another occupation, of another social standing... . This produces the thoroughly unhealthy belief that it is for the interest of one class as against another to have its class representatives dominant in public life. Id. at 78.
122. Id.
123. In public writing and addresses, Roosevelt urged American parents to raise rugged and virtuous men. "If you are rich and are worth your salt, you will teach your sons that though they may have leisure, it is not to be spent in idleness ... ." Roosevelt, The Strenuous Life, supra note 91. Of course, what we have a right to expect of the American boy is that he shall turn out to be a good American man... . He must not be a coward or a weakling, a bully, a shirk, or a prig. He must work hard and play hard. He must be cleanminded and clean-lived, and able to hold his own under all circumstances and against all comers. It is only on these conditions that he will grow into the kind of American man of whom America can be really proud. Theodore Roosevelt, What We Can Expect of the American Boy, ST. NICHOLAS: AN ILLUSTRATED MAGAZINE FOR YOUNG FOLKS, May 1900, at 571, 571 [hereinafter Roosevelt, What We Can Expect].
124. Roosevelt, What We Can Expect, supra note 122, at 572.
125. See WORSTER, supra note 79, at 276-331.
126. See ANDREWS, supra note 96, at 201-26 (discussing "the rise of modern environmentalism" in the 1960s and 1970s, in contrast to earlier modes of conservation); SAMUEL P. HAYS, BEAUTY, HEALTH, AND PERMANENCE: ENVIRONMENTAL POLITICS IN THE UNITED STATES, 1955-1985, at 13-39 (1987) (detailing a transition "from conservation to environment"); cf. RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 47-54 (2004) (noting the conventional contrast and arguing that the role of public-health activists in both movements forms a continuity that somewhat confounds the distinction).
127. See ROBERT GOTTLIEB, FORCING THE SPRING: THE TRANSFORMATION OF THE AMERICAN ENVIRONMENTAL MOVEMENT 81-114 (1993) (locating the roots of modern political environmentalism in "the search for a new politics" of awareness and interconnection); HAYS, supra note 125, at 527-43 (discussing the transformation of new environmental values); SPETH, supra note 10, at 199-216 (arguing that this change represents the beginning of an unfinished revolution in human values).
128. GOTTLIEB, supra note 126, at 113 ("Ultimately, the environmental issue and the newly defined environmental movement was [sic] afforded instant recognition by a media suddenly discovering the issue for the first time. Environmentalism became a movement without a history, with an amorphous social base ... ."). But see LAZARUS, supra note 125, at 49 (contesting the claim, but on thinner grounds than argued for in this Article).
129. See LAZARUS, supra note 125, at 49-52. On the League of Women Voters in particular, see LOUISE M. YOUNG, IN THE PUBLIC INTEREST: THE LEAGUE OF WOMEN VOTERS, 1920-1970, at 174-77 (1989) (detailing the League's involvement in clean-water advocacy).
130. Olmsted was of course well aware of the distinction and described Yosemite as representing a "union of the deepest sublimity with the deepest beauty of nature," a claim he supported with descriptions of soaring cliffs and plunging waterfalls alongside gentle streams and meadows. See FREDERICK LAW OLMSTED, THE YOSEMITE VALLEY AND THE MARIPOSA BIG TREE GROVE (1865), reprinted in AMERICA'S NATIONAL PARK SYSTEM: THE CRITICAL DOCUMENTS, at 12 (Larry M. Dilsaver ed., 1994). It is less clear whether Muir was in firm control of the theoretical distinction, but he made just the same sort of claims as Olmsted, writing of Yosemite that "[n]owhere will you see the majestic operations of nature more clearly revealed beside the frailest, most gentle and peaceful things," MUIR, supra note 36, at 78, and that, while "[n]early all the park is a profound solitude," it was also "full of charming company ... a place of peace and safety," id. The radically benign and reassuring character of the aesthetic and emotional experience that Muir associated with nature makes it fair to say, I think, that he drew the sting of fear from sublimity. That spur of feeling was so essential to the founding accounts of the sublime that, if there is any integrity to those accounts, one might wonder whether Muir's concern to divinize nature in a thoroughly human-friendly form did not leave it a feeble God. Perhaps it was this-the power of a wild experience to induce disruption, novelty, and fear-that wilderness advocates sought in their wild places, which Muir's casual pilgrims could not enter.
131. See ALDO LEOPOLD, A SAND COUNTY ALMANAC 246 (Ballantine Books 1970) (1949) ("No important change in ethics was ever accomplished without an internal change in our intellectual emphasis, loyalties, affections, and convictions."); id. at 251 ("[A] system of conservation based solely on economic self-interest ... tends to ignore, and thus eventually to eliminate, many elements in the land community that lack commercial value, but that are (as far as we know) essential to its healthy functioning.").
132. MUIR, supra note 36, at 78.
133. Id. at 17. Accessibility was a major theme of the book. Muir wrote, "All the Western mountains are still rich in wildness, and by means of good roads are being brought nearer civilization every year." Id. at 2. He promised that the best destinations were "easily and quickly reached by the Great Northern Railroad," id. at 17, and noted of Yosemite's appeal that "it is ... the most accessible portion" of the Sierra, connected to San Francisco by railways and roads that Muir listed for the tourist's convenience, id. at 79.
134. HENRY DAVID THOREAU, Walking, reprinted in WALDEN AND OTHER WRITINGS, supra note 77, at 627, 644.
135. See id. at 644-63, in which Thoreau presents "the wild" as a literary principle associated with Shakespeare and Homer, id. at 649; as the pathos of mythology, id. at 649-51; as a principle of virtue ("all good things are wild and free"), id. at 652; as childlike playfulness, id. at 656; and as an epistemic principle connected with the revelation of one's true nature by intuition and symbol rather than proposition claim, id. at 657. It seems unavoidable that in these passages, we are in the same terrain as the closing passages of Walden, HENRY DAVID THOREAU, Walden, reprinted in WALDEN AND OTHER WRITING, supra note 77, at 3, 300-12, in which Thoreau makes clear his allegiance to the Transcendentalist principle that exploring the world is a way of exploring one's self, and nature a master metaphor for consciousness, while both nature and conscious body put forth a universal design. On this principle, see the discussion of EMERSON, supra note 74. All this being said, Thoreau did call for the conservation of primitive forests in each New England town, a proposal that does not seem to have been metaphoric. See Henry David Thoreau, Huckleberries, in AMERICAN EARTH 26, 35 (Bill McKibbon ed., 2008) ("I think that each town should have a park, or rather a primitive forest, of five hundred or a thousand acres, either in one body or several- where a stick should never be cut for fuel-nor for the navy, nor to make wagons, but stand and decay for higher uses-a common possession forever, for instruction and recreation."). Thoreau wanted to preserve access to the symbol of a "wild" quality of mind that he believed inhered in relatively undisturbed natural areas.
136. WORSTER, supra note 79, at 319.
137. MUIR, supra note 36, at 1.
138. Suggesting a capacity for subtler thought than his writings usually expressed, Muir paused to note, To the sane and free it will hardly seem necessary to cross the continent in search of wild beauty, however easy the way, for they find it in abundance wherever they chance to be. Like Thoreau they see forests in orchards and patches of huckleberry brush, and oceans in ponds and drops of dew. Few in these hot, dim, strenuous times are quite sane or free ... Id. at 2-3.
139. See ALLIN, supra note 34, at 60-68 (describing both growing tourist pressure on parks and interservice rivalry for funds and land); David Gerard, The Origins of the Federal Wilderness System, in POLITICAL ENVIRONMENTALISM: GOING BEHIND THE GREEN CURTAIN 211 (Terry L. Anderson ed., 2000) (tracing the competition for funding between the National Parks Service and the Forest Service through the early and middle decades of the twentieth century).
140. As Bob Marshall, a founder and icon of the Wilderness Society, put it in 1930: I shall use the word wilderness to denote a region which contains no permanent inhabitants, possesses no possibility of conveyance by any mechanical means and is sufficiently spacious that a person in crossing it must have the experience of sleeping out. The dominant attributes of such an area are: first, that it requires any one who exists in it to depend exclusively on his own effort for survival; and second, that it preserves as nearly as possible the primitive environment. This means that all roads, power transportation and settlements are barred. But trails and temporary shelters, which were common long before the advent of the white race, are entirely permissible. Robert Marshall, The Problem of the Wilderness, 30 SCI. MONTHLY 141, 141 (1930).
141. The organization described itself as responding to "an emergency in conservation." A Summons To Save the Wilderness, LIVING WILDERNESS, Sept. 1935, at 1.
142. Id. at 2.
143. Id.
144. Id.
145. Aldo Leopold, Wilderness Values, LIVING WILDERNESS, Mar. 1942, at 24-25. Leopold went on to call the "value inherent in contrasting environments ... too obvious to need discussion" and to praise "the rich contrasts between wilderness and city life" in passages showing a basic embrace of the transient encounter with nature as especially valuable and restorative. Id. at 24. Leopold also noted that awareness of scarcity had increased appreciation of wilderness and argued that deepened scientific understanding of nature had the same effect: "we can (if we take the pains) perceive a little of its inner workings." Id.
146. Marshall, supra note 139.
147. Id. at 142.
148. Id.
149. The purely esthetic observer has for the moment forgotten his own soul; he has only one sensation left and that is exquisiteness. In the wilderness, with its entire freedom from the manifestations of human will, that perfect objectivity which is essential for pure esthetic rapture can probably be achieved more readily than among any other forms of beauty. Id. at 145.
150. See id. at 146.
151. "Such are the differences among human beings in their sources of pleasure, that unless there is a corresponding diversity in their modes of life, they neither obtain their fair share of happiness, nor grow up to the mental, moral and esthetic stature of which their nature is capable. Why then should tolerance extend only to tastes and modes of life which extort acquiescence by the multitude of their adherents?" It is of the utmost importance to concede the right of happiness also to people who find their delight in unaccustomed ways. Id. at 147 (quoting JOHN STUART MILL, ON LIBERTY 40 (Longman's, Green, & Co. 1921) (1859)).
152. The journal published as an essay a letter from a reader who warned, We can not afford to risk destroying our wilderness by encouraging a flocking thereto of a multitude, only a small portion of whom would really enjoy it because it is a wilderness. These would be just as happy in more accessible recreation places... . Were the multitudes turned loose in primitive areas ... we would find many of them failing to receive what the wilderness has to offer, though they would undoubtedly enjoy themselves well enough... . We do not with special emphasis urge people to visit our art galleries, our libraries or similar places. Olaus Maurie, Letter, Wilderness Is for Those Who Appreciate, LIVING WILDERNESS, July 1940, at 5, 5.
153. Frederick S. Baker & Howard Zahniser, We Certainly Need a Sound Philosophy: An Exchange of Letters, LIVING WILDERNESS, Winter 1947-1948, at 1, 1.
154. Id. at 2.
155. Id. at 3.
156. Id. at 4.
157. LEOPOLD, supra note 130, at 295.
158. See id. at 158-59 (describing feeling a sense of wonder at a partly unknowable world); id. at 188-98 (arguing for ecology as a new way of thinking and seeing); id. at 201-02 (urging a combination of curiosity and affection as the emotional basis of a land ethic).
159. One exemplary passage, in a book full of praise for knowledge, curiosity, and abiding mystery, is Leopold's recommendation to the reader to "sit quietly and listen for a wolf to howl, and think hard of everything you have seen and tried to understand ... . [as a way to] hear it-a vast pulsing harmony ... ." Id. at 158.
160. The statute sets out the following purposes: "to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas ..., leaving no lands designated for preservation and protection in their natural condition ... ." 16 U.S.C. § 1131(a) (2006). Designated public lands shall be "administered for the use and enjoyment of the American people ... as wilderness, and so as to provide for ... the preservation of their wilderness character ... ." Id. It defines a wilderness as being, in contrast with those areas where man and his own works dominate the landscape, ... an area where the earth and its community of life are untrammeled by man, ... . an area of underdeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, . which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. Id. § 1131(c). Note particularly the emphasis on "solitude," which the Wilderness Society from the beginning had identified as a key value, see The Wilderness Society Platform, LIVING WILDERNESS, Sept. 1935, at 2, 2, and the emphasis on the integrity, or apparent integrity, of natural systems "untrammeled" by human activity.
161. 16 U.S.C. § 1131(a).
162. Id. § 1131(c).
163. See ALLIN, supra note 34, at 104-06. Zahniser's writing, The Need for Wilderness Areas, directly inspired Humphrey's decision to introduce wilderness legislation in 1956, following the lines of Zahniser's proposal, which was roughly that of the Society's program. Humphrey brought other organizations into the process, including the Sierra Club, the National Wildlife Federation, the National Parks Association, and the Council of Conservationists, among others. See id. at 105.
164. 107 CONG. REC. 18,356 (1961).
165. See id. ("In ... unmodified wilderness ... . we not only can seek relief from the stress and strain of our civilized living but can seek also that true understanding of our past, ourselves, and our world, which will enable us to enjoy the conveniences and liberties of our urbanized, industrialized, mechanized civilization-and yet not sacrifice an awareness of our human existence as spiritual creatures nurtured and sustained by and from the great community of life on this earth.").
166. Id.
167. In this spirit, Zahniser quoted Thoreau's assertion that "we require that all things be mysterious and unexplorable, that land and sea be infinitely wild, unsurveyed, and unfathomed by us because unfathomable... . We need to witness our own limits transgressed, and some life pasturing freely where we never wander." Id. (quoting HENRY D. THOREAU, WALDEN OR LIFE IN THE WOODS 333 (1899)) (internal quotation marks omitted).
168. Id. Zahniser continued, From the wilderness we truly gain this sense and thus in wilderness preservation we see a key to all our conservation problems. From our contact with it and its continuing influence, comes the understanding to deal wisely with all the resources of the earth which we share now, but which will also be the need of those who come after us. Id.
169. Id. at 18,353 (statement of Sen. Morse).
170. Id.
171. If I had ever had any doubts-I have never had any, but if I had ever had any-as to whether I should do all I could to preserve that kind of an area for the spiritual benefit of future generations of American boys and girls, those doubts would have been resolved on that occasion. Id. Would that Members of the Senate could have been with me on the occasion to which I have just referred. I am satisfied that if they had been there and had experienced the thrill I experienced, standing on the platform in the midst of that natural cathedral of primeval trees, the vote in some instances would be different ... Id.
172. Id. at 18,382 (statement of Sen. Church). More nearly continuing Theodore Roosevelt's rhetoric, William Proxmire of Wisconsin, known as a fitness fanatic, praised wilderness adventure as a "test" of "spiritual attitude ... in a nation in danger of going soft." Id. at 18,365 (statement of Sen. Proxmire).
173. Id. at 18,382 (statement of Sen. Douglas).
174. Id. at 18,365 (statement of Sen. Church).
175. These strains of argument persisted, though. Senator Church acknowledged that "only a minority of our people are interested in the spiritual values [of the wilderness]" and responded, as Marshall had, that the majority should not "be entitled to trample upon the rights of the minority." Id. at 18,365 (statement of Sen. Church). Church characterized development as "deny[ing] those people [the minority] their right" to "seek the sanctuary of the wilderness." Id. It is probably most accurate to say that the earlier arguments persisted in a cumulative body of environmental public language.
176. See, e.g., id. at 18,356 (crediting appreciation of wilderness values to "the influence of such men as Henry Thoreau, Verplanck Colvin [a cartographer and poetic publicist of the Adirondacks], John Muir, Stephen Mather [first head of the National Park Service], Aldo Leopold, and Robert Marshall" (quoting Howard Zahniser, Our World and Its Wilderness, LIVING WILDERNESS, Summer 1954, at 36, 37)). This text devoted particular attention to Thoreau and Muir, combining their tropes in the claim that, in wilderness, "We ... propose to maintain our access to wildness [Thoreau's term], to what John Muir called 'fountains of life.'" Id.; see also Harold C. Anderson, The Unknown Genesis of the Wilderness Idea, LIVING WILDERNESS, July 1940, at 15, 15 (tracing the idea to a passage of Thoreau's in The Maine Woods); Benton MacKaye, A Wilderness Philosophy, LIVING WILDERNESS, Mar. 1946, at 1, 4 (urging readers to "emulate Thoreau" and "[i]magine 'Henry David' as a member of The Wilderness Society").
177. RACHEL CARSON, SILENT SPRING (1962).
178. See STEWART L. UDALL, THE QUIET CRISIS (1963). For a consideration of this family's role in the environmental politics of the period, see HENRY B. SIRGO, ESTABLISHMENT OF ENVIRONMENTALISM ON THE U.S. POLITICAL AGENDA IN THE SECOND HALF OF THE TWENTIETH CENTURY-THE BROTHERS UDALL (2004).
179. See ROBERT G. DYCK, EVOLUTION OF FEDERAL AIR POLLUTION CONTROL POLICY 1948-1967 (1971) (setting out legislative developments of the 1950s and 1960s).
180. See YOUNG, supra note 128, at 174-77 (setting out the League's involvement in the press for comprehensive national clean water legislation, which had become a consensus priority of the organization by the late 1950s).
181. Thus, one finds liberal establishment voices such as Time, The New York Times, and columnist Flora Lewis assessing the crisis of "technological man" and forecasting a basic change in modern values and identity. See The Age of Effluence, TIME, May 10, 1968, at 52, 52 ("[T]echnological man, master of the atom and soon the moon, is so aware of his strength that he is unaware of his weakness-the fact that his pressure on nature may provoke revenge."); Fighting To Save the Earth from Man, TIME, Feb. 2, 1970, at 56, 62 (invoking an account of "technological man as the personification of Faust, endlessly pursuing the unattainable").
182. The Age of Effluence, supra note 180, at 53.
183. A Fable for Our Times, 55 SIERRA CLUB BULL. 16, 16 (1970).
184. Id. at 16-18.
185. The crisis and legislative response partook of deeply inconsistent perceptions of the same theme: Americans' technological mastery. On one hand, from the Vietnam fable to attacks on instrumental reason and "technological man," the environmental master narrative, particularly the portent of apocalypse, expressed a mood of discontent, even despair of rational, technological human mastery over nature. On the other, the major antipollution statutes of the 1970s reflected confidence in the capacity of government and industry to solve complex problems through technological innovation. Contemporary observers were not blind to the paradox. See Issue of the Year: The Environment, TIME, Jan. 4, 1971, at 21, 21 ("The relatively sudden passion about the environment seemed to spring from two different sources. On the one hand, it represented the response to a problem which American skills, including technology, might actually solve, unlike the immensely more elusive problems of race prejudice or the war in Viet Nam. On the other hand, it represented a creeping disillusionment with technology, an attempt by individuals to reassert control over machine civilization."). That confidence found voice in media discussions, congressional debate, and the structure of the legislation itself. In hindsight, the legislation of the period seems to have arisen from a very specific, and probably paradoxical, conjunction of self-doubt and self- confidence: on the one hand, a potentially apocalyptic crisis brought on by technological hubris; on the other, a rational, technological program to cleanse the country's air and water within the decade.
186. See The Age of Effluence, supra note 180, at 52 ("[M]any scholars of the biosphere are now seriously concerned that human pollution may trigger some ecological disaster."); Americans Rally To Make It Again Beautiful Land, CHI. TRIB., Apr. 23, 1970, at 3 (referring to "pollution which, according to the warnings of some scientists, threatens the very existence of life on this planet"); Earth Day and Space Day, N.Y. TIMES, Apr. 19, 1970, at 174 ("[T]his flowering home planet ... may become as devoid of life as are now the mountains of the moon and the polar regions of Mars."); Earth Week, WASH. POST, Apr. 20, 1970, at A20 ("American air, land, and water ... has become ... the world's most expensive monument to pollution ... a monument that threatens to topple of its own weight... . [M]an is running out of soons faster than he runs out of issues."); Gladwin Hill, Activity Ranges from Oratory to Legislation, N.Y. TIMES, Apr. 23, 1970, at 1 (referring to "ecological problems, which many scientists [sic] say urgently require action if the earth is to remain habitable").
187. Of course, the conjoined themes of eschatological history and excoriating prophecy formed an old tradition in American public life. See HARRY S. STOUT, THE NEW ENGLAND SOUL: PREACHING AND RELIGIOUS CULTURE IN COLONIAL NEW ENGLAND 3-12, 67-85 (1986) (describing the genre of the election or fast-day sermon, which called a strayed people back to their covenant). See generally SACVAN BERCOVITCH, THE AMERICAN JEREMIAD (1978) (setting out the history of this genre more generally). Their arrival in environmentalism marked an important rhetorical confluence. It also contributed to a curious symmetry of cultural dissent. Two inheritors of this tradition, evangelical Protestants and environmentalists, set themselves against what they see as the materialism and human- centered excesses of the culture, but (1) in favor of sharply different alternatives, one traditional theism, and the other, a blend of pantheism, paganism, and Romantic humanism; and (2) with quite different cultural profiles, marked for the past four decades by opposite responses to the efflorescence of the 1960s. Earlier activists had warned against the extinction of wilderness, and Howard Zahniser's essay on untouched lands as synecdoche for life itself anticipated this development. Declensionist arguments had been a trope at least since George Perkins Marsh, and even the most pessimistic work of post- World War II environmental writing, Fairfield Osborne's Our Plundered Planet, did not go much beyond Marsh. See FAIRFIELD OSBORN, OUR PLUNDERED PLANET (1948) (arguing on prudential grounds that human beings must adopt rational recognition of ecological constraints or face shortages of critical resources). If my initial research is accurate, Osborn seems to have been a wealthy and prominent white supremacist and anti-Semite who reinvented himself as a prophet of environmental decline after World War II. The affinity of environmental sentiment with various forms of misanthropy, antiliberalism, and antimodernity presents important and difficult questions to be taken up in another setting.
188. See Fighting To Save the Earth from Man, supra note 180, at 56 ("What most Americans now breathe is closer to ambient filth than to air."); Menace in the Skies, TIME, Jan. 27, 1967, at 48, 52 (noting warnings that "'all of civilization will pass away... . from gradual suffocation by its own effluents'"); "Now or Never," N.Y. TIMES, Jan. 21, 1970, at 46 ("[C]ommunities and campuses across the nation will observe 'Earth Day' by committing themselves to reclaim an already dangerously poisoned world."); To Clean the Nation's Air ..., N.Y. TIMES, Jan. 31, 1967, at 30 ("The United States is in serious danger of running out of its most important natural resource-the air that supports life.").
189. See Gladwin Hill, Environmental Movement Registers Gains in 3 Years, N.Y. TIMES, Apr. 9, 1973, at 1, 28 ("[T]he whole idea of growth, social and economic, an American shibboleth, has undergone skeptical scrutiny and recurrent repudiation."); ... In an Urban Wasteland?, N.Y. TIMES, Apr. 22, 1970, at 44 ("The end toward which this is all dangerously tending is a technological monstrosity, a sterile monument of concrete and steel unfit for human habitation. Earth Day offers an opportunity for that embattled minority ... who are willing to stand up for human values against the dehumanizing demands of development for development's sake.").
190. Fighting To Save the Earth from Man, supra note 180, at 62-63.
191. Editorial, The Environment: Clean Up or Patch Up?, WASH. POST, Feb. 11, 1970, at A20.
192. See The Age of Effluence, supra note 180, at 53 ("The biggest need is for ordinary people to learn something about ecology, a humbling as well as fascinating way of viewing reality ... [M]odern man ... could do with some of the humility toward animals that St. Francis tried to graft onto Christianity."); Irving S. Bengelsdorf, Dear Students: Our Spaceship Earth's in Trouble; So Are We, L.A. TIMES, Apr. 16, 1970, at B7 ("[T]o survive on our spaceship, we must learn to do as nature does ... ."); Flora Lewis, Instant Mass-Movement, L.A. TIMES, Apr. 29, 1970, at B7 ("The ideas themselves are so fundamentally new, so drastically opposed to the heritage of many centuries, they are painful to absorb... . Environmental harmony requires a much deeper review of western thought, now challenged on almost every level. It is becoming evident that, to begin, a new measure must be made of affluence ."); Issue of the Year: The Environment, supra note 184, at 22 ("By changing national values, [concern for the environment] may well spur a profound advance in U.S. maturity and harmony with nature ... .").
193. Fighting To Save the Earth from Man, supra note 180, at 63.
194. Id.
195. Compare Howard Latin, Ideal Versus Real Regulatory Efficiency: Implementation of Uniform Standards and "Fine-Tuning" Regulatory Reforms, 37 STAN. L. REV. 1267 (1985) (arguing that departures from uniform technology standards impose excessive information burdens on administrators), with Bruce A. Ackerman & Richard B. Stewart, Comment, Reforming Environmental Law, 37 STAN. L. REV. 1333 (1985) (rebutting Latin's claims). See generally BRUCE ACKERMAN ET AL., THE UNCERTAIN SEARCH FOR ENVIRONMENTAL QUALITY (1974) (setting out the technocratic goal of maximizing net social benefit from environmental regulation and considering the capacity of alternative regulatory regimes to approximate this goal, in light of political and other constraints); WILLIAM F. BAXTER, PEOPLE OR PENGUINS: THE CASE FOR OPTIMAL POLLUTION (1974) (setting out the basic economic argument that choices under constraints imply tradeoffs, and a decisionmaker must thus consider all goals, including environmental quality, in terms of their opportunity costs); Bruce A. Ackerman & William T. Hassler, Beyond the New Deal: Coal and the Clean Air Act, 89 YALE L.J. 1466 (1980) (surveying in detail the efficiency costs of congressional selection of regulatory instruments and failure to direct an independent agency to engage in comprehensive cost- benefit analysis; examining the special susceptibility of this strategy to review-proof legislative exacerbation by political dealmaking; engaging in a model of comprehensive cost- benefit accounting in the manner of an ideal independent agency; and identifying the efficiency failure of the CAA as the fruit of a congressional decision to select instruments rather than goals in the course of a departure from the New Deal model of independent agency); Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law: The Democratic Case for Market Incentives, 13 COLUM. J. ENVTL. L. 171, 171 (1988) (arguing that market-based incentives would improve in both economic efficiency and political accountability and transparency); Richard B. Stewart, Regulation, Innovation, and Administrative Law: A Conceptual Framework, 69 CAL. L. REV. 1256 (1981) (setting out an approach to identifying and avoiding innovation costs of overly directive regulatory strategies).
196. See, e.g., ACKERMAN ET AL., supra note 194, at 165-207 (considering inefficiencies arising from absolutist or at least underspecified statutory valuation of environmental quality).
197. See 33 U.S.C. § 1251(a)(1)-(2) (2006).
198. See Mary Rose Kornreich, Setting National Ambient Air Quality Standards, in THE CLEAN AIR ACT HANDBOOK 11, 11-32 (Robert J. Martineau, Jr. & David P. Novello eds., 1998) (setting out the basic regulatory strategy of the CAA). For the "public health" language, see 42 U.S.C. § 7408(a)(1)(A), directing regulation of pollutants that "may reasonably be anticipated to endanger public health"; and 42 U.S.C. § 7409(b)(1), stating that air quality standards shall be designed "to protect the public health." 198. See, e.g., Ackerman & Hassler, supra note 194, at 1478-88 (surveying the context-insensitivity of uniform technology standards under the CAA); Ackerman & Stewart, supra note 194, at 178-84 (surveying the benefits to efficiency and innovation of proposed market-based CAA regulation).
199. See, e.g., JAMES SALZMAN & BARTON H. THOMPSON, JR., ENVIRONMENTAL LAW AND POLICY 127-28 (2003) (noting unrealistic goals and the complaints and confusion they have occasioned).
200. The interpretative peregrinations of the Clean Air Act's section 112, directing the EPA to set emission standards at a level "provid[ing] an ample margin of safety to protect the public health" exemplify this difficulty. Confronting a facially cost-insensitive statutory instruction, the EPA read into the language the authority to consider the costs of emission control technology. The D.C. Circuit upheld the EPA's interpretation, reasoning that such cost-benefit considerations were necessary to avert the possibility of absolutist regulation inducing economic disaster. See Natural Res. Def. Council v. EPA, 804 F.2d 710 (D.C. Cir. 1986). The D.C. Circuit then reversed the ruling en banc and imposed its own interpretation, directing the EPA to set a level of emissions resulting in an "acceptable" level of risk to public health, then enforce limits no less strict than that level. See Natural Res. Def. Council v. EPA, 824 F.2d 1146 (D.C. Cir. 1987) (en banc). That decision forced the EPA to revisit the foundations of its regulatory strategy for toxic pollutants. See 53 Fed. Reg. 28,496 (1988) (rulemaking). Before the EPA could complete a new rule, Congress revised section 112 substantially, establishing a technology-based standard.
201. The work cited in note 194, supra, is the anchor here. For recent developments, see generally DANIEL C. ESTY & ANDREW S. WINSTON, GREEN TO GOLD: HOW SMART COMPANIES USE ENVIRONMENTAL STRATEGY TO INNOVATE, CREATE VALUE, AND BUILD COMPETITIVE ADVANTAGE (2006); CASS R. SUNSTEIN, WORST-CASE SCENARIOS (2007), which applies cost-benefit analysis to issues of high uncertainty and great potential cost, including climate change; Carol M. Rose, From H2O to CO2: Lessons of Water Rights for Carbon Trading, 50 ARIZ. L. REV. 91 (2008); and James Salzman & J.B. Ruhl, Currencies and the Commodification of Environmental Law, 53 STAN. L. REV. 607 (2000), which sets out working pieces of an attempt to integrate unpriced "ecosystem services" into a comprehensive market fully incorporating environmental benefits. On the power of interest group explanations in accounting for the political frustration of market-based reforms, see Thomas W. Merrill, Explaining Market Mechanisms, 2000 U. ILL. L. REV. 275, which argues ultimately for a synthesis of wealth-maximization and distributional versions of interest-based accounts.
202. See Frank Ackerman & Lisa Heinzerling, Pricing the Priceless: Cost-Benefit Analysis of Environmental Protection, 150 U. PA. L. REV. 1553 (2002) (arguing that conventional cost- benefit analysis depends on morally unacceptable premises, particularly the fungibility of human lives and the discounted value of the future); Kysar, Discounting, supra note 10 (arguing that cost-benefit analysis can encourage reckless indifference to the catastrophic potential of climate change and criticizing a "comprehensive rationality" that notionally forecloses the possibility of cultural change by seeking to account for all relevant values from the standpoint of the present). But see John J. Donohue III, Why We Should Discount the Views of Those Who Discount Discounting, 108 YALE L.J. 1901 (1999).
203. See Federal Water Pollution Control Amendments of 1972-Veto Message, 118 CONG. REC. 36,859 (1972). For a discussion of the CEQ cost estimate, issued under Russell Train, soon to be the head of EPA, see 117 CONG. REC. 38,801 (1971) (statement of Sen. Muskie).
204. See 118 CONG. REC. 36,874 (1971) (statement of Sen. Muskie) ("The common property resources-air and water-are not included in the market exchange. They are used as free 'dumps' for consumption and production residuals. But such dumping exacts social costs- in degraded air and water, impaired health, loss of fish and wildlife, loss of recreational opportunities and aesthetic values, and added costs of treatment necessary for downstream water users. Environmental problems stem largely from this fundamental failure of the economic system to take into account environmental costs.").
205. NAT'L WATER COMM'N, WATER POLICIES FOR THE FUTURE: FINAL REPORT TO THE PRESIDENT AND TO THE CONGRESS OF THE UNITED STATES 70 (1973).
206. See 118 CONG. REC. 10,261 (1972) (statement of Rep. Vanik) ("[I]f we continue to allow harmful discharges and the waste of resources-even small amounts-we will continue to rapidly disrupt, in ways which we do not now understand, the natural balance of the world-a balance that evolved over billions of years and which supports all living things, including ourselves... . If we can destroy Lake Erie, we can destroy the sea. Similarly, we can destroy the delicate balance of the world's atmosphere. That destruction is happening each hour of every day."); 117 CONG. REC. 38,801 (1971) (statement of Sen. Muskie) ("[W]hat we do not know, and what we cannot predict accurately, are the long-range effects upon man of prolonged exposure to bigger and bigger doses of pollution. Man, no less than the Peregrine Falcon and the Mountain Lion, is an endangered species.").
207. See 117 CONG. REC. 38,300 (1971) (statement of Sen. Muskie) ("The committee recognizes that there are technical limits to what can be done in order to achieve the no-discharge objective. More importantly, the committee is concerned that program administrators and enforcement officers do not know what these technical limits are.").
208. See id. at 38,801 ("[T]o apply a price tag ... to a 100-percent elimination of pollutants can serve no purpose other than to frighten the people and intimidate the Congress.").
209. See 116 CONG. REC. 32,904 (1970) (statement of Sen. Muskie) ("Here, in the case of a national objective more serious than either [World War II or the Space Race]-the national health, I think that we have an obligation to lay down the standards and requirements of this bill. I think that the industry has an obligation to try to meet them. If, in due course, it cannot, then it should come to Congress and share with the Congress ... the need to modify the policy. That is the philosophy of the bill.").
210. See 118 CONG. REC. 36,874 (1972) (statement of Sen. Muskie) ("Can we afford life itself? ... If we entertain any serious hopes of preserving life on this planet, the water pollution bill will have to be paid-soon."); id. at 33,693 ("These are not merely the pious declarations that Congress so often makes in passing its laws; on the contrary, this is literally a life or death proposition for the Nation."); 117 CONG. REC. 38,801 (1971) (statement of Sen. Muskie) ("Man ... is an endangered species.").
211. See 118 CONG. REC. 36,873 (1972) (statement of Sen. Muskie) ("These policies [of the bill] simply mean that streams and rivers are no longer to be considered part of the waste treatment process."); id. at 10,259 (statement of Rep. Vanik) ("The basic concept of the Senate bill is that: 'The use of any river, lake, stream, or ocean as a waste treatment system is unacceptable.' In other words, no one has the right to pollute."); 117 CONG. REC. 38,798 (1971) (statement of Sen. Muskie) ("[T]he use of any river, lake, stream, or ocean as a waste treatment system is unacceptable."); id. at 38,722 (statement of Sen. Cooper) ("[T]he bill declares that no one has the right to use the Nation's waters as a waste disposal mechanism; that there is no right to pollute, but rather an obligation to maintain the quality of those resources traditionally looked upon as free to all, but which we now wish to protect for all.").
212. See 117 CONG. REC. 38,819 (1971) (statement of Sen. Cooper) ("[T]he bill and its purpose goes even further than asserting that a public right resides in clean water. In a way, it recognizes an even more fundamental condition. It asserts the primacy of the natural order, on which all, including man, depends... . [I]t does have an underlying theme, one which seems to me to rely on the natural order."); id. at 38,800 (statement of Sen. Muskie) ("The stated objective of the act reflects the committee's decision to recognize fundamental principles of ecology.").
213. See 118 CONG. REC. 36,874 (1972) (statement of Sen. Muskie) ("The whole intent of this bill is to make a national commitment... . Can we afford clean water? ... Can we afford life itself? ... Those questions were never asked as we destroyed the waters of our Nation, and they deserve no answers as we finally move to restore and renew them. These questions answer themselves. And those who say that raising the amounts of money called for in this legislation may require higher taxes, or that spending this much money may contribute to inflation simply do not understand the language of this crisis."); 116 CONG. REC. 36,033 (1970) (statement of Sen. Muskie) ("One of the most troubling aspects of our national mood is the crisis in confidence which afflicts too many Americans in all walks of life. It is a crisis marked by self-doubt, by a fear that our problems may be greater than our capacity to solve them, that our public and private institutions may be inadequate at a time when we need them most."); id. at 32,900 ("This legislation will be a test of our commitment and a test of our faith: in our institutions, in our capacity to find answers to difficult economic and technological problems, and in the ability of American citizens to rise to the challenge of ending the threat of air pollution.").
214. See supra note 207.
215. See 116 CONG. REC. 42,394 (1970) (statement of Sen. Cooper) ("The bill will place great responsibilities on nearly every aspect in our society... . [I]t will place great burdens on the people generally for they will ultimately have to bear the expense and, for the first time, possibly experience inconvenience so that we might achieve clean and healthful air."); id. at 33,906 (statement of Sen. Muskie) ("This bill is going to require that the American motorist change his habits, his tastes, and his driving appetites... . The consumer must also make sacrifices in addition to those made by the manufacturer."); id. at 32,918 (statement of Sen. Cooper) ("The bill ... establishes a very high national priority for the goal of clean air. It will not succeed without a massive effort ... by industry and through the willingness of citizens throughout the country to make the sacrifices necessary and to pay the price of accomplishing the goals of clean air ... ."). On the background discussion, see Editorial, Clean Air and Autos, N.Y. TIMES, Feb. 12, 1973, at 26, stating that "New Yorkers are going to have to adjust to some possibly shocking changes in their way of life" to accommodate the goals of the Clean Air Act.
216. See 116 CONG. REC. 42,392 (1970) (statement of Sen. Randolph) ("The implementation of ... this measure will test the determination in this country to achieve a livable environment, not only for ourselves but for future generations. In turn, the legislation will test the willingness of the citizens-not just the various levels of government, but the citizens of this country-to abate and prevent, and abate environmental pollution. And I wish to compliment [Senator Muskie] that he has emphasized the personal obligation which must be recognized-a rebirth, I should say, of responsibility on the part of the individual citizen of this country."); id. (statement of Sen. Muskie) ("Completely... . There has to be a commitment to it by every citizen, not only with respect to the activities of others, but with respect to each citizen himself ... ."). On the broader background perception, see Editorial, Earth Week, N.Y. TIMES, Apr. 19, 1972, at 46, stating that "a far greater sense of urgency and effort is essential"; Editorial, supra note 190, arguing that "[t]o keep the politicians from stalling ... to get them to see pollution not as a 'social problem' but as a survival problem- that is the challenge the public must now take up ... . with democratic outrage"; Editorial, Every Day an 'Earth Day,' L.A. TIMES, Apr. 24, 1970, at C10, asserting that "[r]eclaiming the environment at this late date ... is a task so immense and costly that only the strongest and broadest support can assure its accomplishment"; Editorial, The Politics of Pollution, L.A. TIMES, Nov. 7, 1969, at C6, stating that "California ... can be saved-if the people will it. No pollution or politician can withstand the pressure of an aroused citizenry"; and Editorial, The State of the Environment, L.A. TIMES, Jan. 23, 1970, at C6, arguing that "what is also needed is the kind of mass understanding and commitment that is necessary to the success of any great enterprise." 217. 117 CONG. REC. 38,827 (1971) (statement of Sen. Proxmire) ("Give industry the incentive present law lacks ... to spend the money it should on water pollution control... [by] impos[ing] effluent charges on industrial water polluters, in proportion to the amount of waste discharged. This makes each polluter financially responsible for his own pollution. It says to industry, 'Pay or stop polluting.' This is a language industry understands.").
217. Id. at 38,828 ("It gives industry a chance to determine how best to abate its pollution.").
218. See id. ("My amendment, I stress, is a supplement ... . I am proposing today that effluent charges be used as an enforcement tool, in conjunction with the procedures [in the unamended bill] ... ."); id. at 38,833 ("The amendment I am proposing would not delete one section of that bill. It would simply add to it.").
219. Id. at 38,828-34 (transcript of debate and report of defeat of the amendment).
220. See id. at 38,829-30 (setting out the difficulty of quantifying the harm ascribable to any unit of pollution).
221. See id. at 38,833 (statement of Sen. Baker) ("I do not accept the implication by the Senator from Wisconsin that the people of the United States are more willing to abide by an Internal Revenue statute than by a categorical prohibition ... . [I]t seems to me ... that [Proxmire] is suggesting that the only laws the people of the United States really take seriously are the internal revenue laws, and that is not so.").
222. See id. at 38,829 (statement of Sen. Muskie) ("We cannot give anyone the option of polluting for a fee. We are saying that our aim is to have no discharge ... ."); id. at 38,829- 38,830 (statement of Sen. Proxmire) ("I am certainly not licensing the discharge of a pollutant.").
223. Rather than produce a movement president, environmental politics benefited from the opportunistic endorsement of Richard Nixon, who for a time seized on environmental issues in hopes of outflanking liberals and claiming a potential consensus issue in a fractious country. Early in his second term, however, he gave up on claiming the issue and vetoed the 1972 Clean Water Act, a veto which a self-confident Congress overrode. Both public discussion and legislative action on the issue ran somewhat ahead of any mobilized public, let alone a coherent movement able to produce nationally visible leaders with strong and widespread support. It was not until the 1980s, when public and congressional resistance stymied Ronald Reagan's efforts to repudiate the environmentalist turn of the 1970s and, particularly, open public lands to exploitation, that a popular test emerged, and that was more in the nature of ordinary-politics trench warfare than thematized struggles over national self-definition.
224. From the start, the environmental crisis was perceived as a unifying challenge, even the occasion of a unifying change in values, for a divided country. See Editorial, Earth Week-No Vogue, N.Y. TIMES, Apr. 19, 1971, at 36 ("[The environment] has become deeply imbedded in politics-not in a partisan way but almost as a qualification for office."); Issue of the Year, supra note 184, at 21 ("With remarkable rapidity [the environment] became a tenet in the American credo ... ."). This promise seemed vindicated in broadly expressed support for environmental protection in the early 1970s and thereafter, largely down to the present day. It also, perhaps, underlies a second conservative feature of the new environmental language: that people proved able to adopt its radical critique, at least nominally, without changing their behavior in serious ways. This would be compatible with the thought that the "environmental crisis" and "revolution" borrowed some of their felt urgency from authentically divisive struggles: Vietnam abroad, race at home, and the disconcerting eruption of youthful dissent from norms of respectability and success. In this view, second- generation environmental public language would be an example of the great American genre of cheap talk: frisson-inducing dissent that does not make itself too inconvenient in practice for the current arrangement of interests and ideas. See Editorial, The Good Earth, N.Y. TIMES, Apr. 23, 1970, at 36 ("Is the sudden concern for the environment merely another 'nice, good middle-class issue,' as one organizer put it, conveniently timed to divert the nation's attention from such pressing problems as the spreading war in Indochina and intractable social injustice at home?").
225. See supra notes 3-7 and accompanying text.
226. See supra note 2 and accompanying text.
227. See supra notes 92-108, 185-186 and accompanying text.
228. See supra notes 64-108 and accompanying text.
229. See supra notes 194-222 and accompanying text.
230. See supra notes 140-158 and accompanying text.
231. See supra notes 132-138 and accompanying text.
232. See supra notes 131-135 and accompanying text.
233. See, e.g., EMERSON, supra note 74, at 33.
234. See PINCHOT, supra note 92, at 79-88 (arguing for the necessity of a broadened moral vision of personal obligation to the nation to uphold conservation policies).
235. Mayors Climate Protection Center, List of Participating Mayors, http://www.usmayors.org/ climateprotection/list.asp (last visited Nov. 16, 2009).
236. See CITY OF SEATTLE, SEATTLE AND CLIMATE CHANGE: A GLOBAL CITY ACTING LOCALLY (2007), available at http://usmayors.org/climateprotection/climatesurvey07.pdf.
237. Nearly ninety percent reported requiring, or moving to require, energy efficiency in new city buildings; almost three-quarters using alternative fuels or hybrid-electric vehicles in city fleets; over eighty percent either including or moving to include renewable energy sources; more than three-quarters "undertaking efforts to encourage" energy efficiency in private construction; and nearly all switching to energy-efficient lighting. See U.S. CONFERENCE OF MAYORS, SURVEY ON MAYORAL LEADERSHIP ON CLIMATE PROTECTION 4 (2007).
238. CITY OF SEATTLE, supra note 237. I do not know how Seattle generated its reduction figure.
239. On Fort Collins, see GLEN BRAND & BRENDAN BELL, SIERRA CLUB, COOL CITIES: SOLVING GLOBAL WARMING ONE CITY AT A TIME 12 (2005), available at http://newjersey.sierraclub.org/concom/coolcities/coolcities.pdf, noting that the city has imposed a two percent surcharge on power bills to finance its renewable-energy effort; on Burlington, see ELIZABETH KOLBERT, FIELD NOTES FROM A CATASTROPHE: MAN, NATURE, AND CLIMATE CHANGE 171-80 (2006). On Austin, see CITY OF AUSTIN, STRATEGIC PLAN 17-24 (2003), available at http://www.austinenergy.com/about%20us/newsroom/reports/ strategicplan.pdf. For Austin's latest municipal goals, see CITY OF AUSTIN, AUSTIN CLIMATE PROTECTION PLAN (2009), available at http://www.ci.austin.tx.us/acpp/downloads/ ACPP_Annual_Report_5.20.09_FINAL.pdf, setting a goal of thirty percent renewable energy for municipal use.
240. See Kate Galbraith, A Clean Energy Uprising in California, Green, Inc. Blog, Oct. 29, 2008, http://greeninc.blogs.nytimes.com/2008/10/29/a-clean-energy-uprising-in-california/ #more-399; see also Heather Knight, In S.F., Voters Defeat Prop. for City Utility, S.F. CHRON., Nov. 5, 2008, at B1, available at http://www.sfgate.com/cgi-bin/ article.cgi?f=/c/a/2008/11/05/BATD13RC1Q.DTL. Defeat of the San Francisco measure involved a long-standing conflict between Pacific Gas and Electric and proponents of publicly owned power, which brought out Mayor Gavin Newsom and Senator Diane Feinstein against the proposition.
241. See Engel & Orbach, supra note 2, at 119-20 (expressing puzzlement).
242. See, e.g., id. at 129-30 (describing moral motives as producing a "warm glow" but not proposing to consider them further); Sunstein, Complex Climate Change Incentives, supra note 2, at 1696-1700 (briefly noting a hodgepodge of moral motive and empirical confusion).
243. See Telephone Interview with Steve Nicholas, Former Sustainability & Env't Dir., Seattle Mayor's Office (Nov. 14, 2008); Telephone Interview with Jeanie Boawn, Sustainability & Env't Admir., Seattle Mayor's Office (Nov. 7, 2008); Telephone Interview with Kevin McCarty, Dir., U.S. Conference of Mayors Climate Prot. Ctr. (Oct. 31, 2008). Nicholas was the lead strategist and organizer at the time the Mayors Climate Protection Agreement was being propagated.
244. See Telephone Interview with Steve Nicholas, supra note 244; Telephone Interview with Kevin McCarty, supra note 244.
245. See Telephone Interview with Steve Nicholas, supra note 244.
246. See sources cited supra note 244.
247. See Telephone Interview with Steve Nicholas, supra note 244.
248. See Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256 (2009) (arguing for the importance in public policy innovation of small-scale existence proofs of the viability of alternative models). Perhaps the most impressive American example of this strategy at the municipal level is that of Burlington, which has a well- established program of encouraging conservation and has seen its energy use drop by one percent since 1990, while statewide use has risen by fifteen percent. See KOLBERT, supra note 240, at 175. California, which has pursued an aggressive and successful energy-conservation policy over the last three decades, presents a similar example at a larger scale. California has held its per capita energy use essentially even since 1974, while nationwide per capita consumption has increased by fifty percent. California has also reduced its per capita carbon dioxide emissions by thirty percent since 1975, while national per capita emissions have changed little. See Steven Mufson, In Energy Conservation, California Sees Light: Progressive Policy Makes It a Model in Global Warming Fight, WASH. POST, Feb. 17, 2007, at A1.
249. See Dan M. Kahan & Donald Braman, Cultural Cognition and Public Policy, 24 YALE L. & POL'Y REV. 149 (2006) (setting out a theory of cultural cognition and evidence for its validity); Dan M. Kahan et al., Fear of Democracy: A Cultural Evaluation of Sunstein on Risk, 119 HARV. L. REV. 1071 (2006) (reviewing CASS R. SUNSTEIN, LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE (2005)) (arguing for the appropriateness of considering cultural meaning of risks in setting and justifying public policy).
250. EDWARD MAIBACH, CONNIE ROSER-RENOUF & ANTHONY LEISEROWITZ, YALE PROJECT ON CLIMATE CHANGE & GEORGE MASON UNIV. CTR. FOR CLIMATE CHANGE COMMC'N, GLOBAL WARMING'S SIX AMERICAS 2009: AN AUDIENCE SEGMENTATION ANALYSIS (2009), available at http://environment.yale.edu/uploads/6Americas2009.pdf.
251. See sources cited supra note 244.
252. See Jon Gertner, The Future Is Drying Up, N.Y. TIMES, Oct. 21, 2007, § 6 (Magazine), at 68 (describing increasingly dire forecasts for regional water shortages under current climate change models).
253. See Telephone Interview with Steve Nicholas, supra note 244.
254. See Dan M. Kahan, The Logic of Reciprocity: Trust, Collective Action, and the Law, 102 MICH. L. REV. 71 (2003) (setting out the motivational relevance of reciprocity and nonreciprocity for sustaining collective action). For accounts of neuroscience studies suggesting confirmation of the distinct motivational character of reciprocity, see Kevin McCabe et al., A Functional Imaging Study of Cooperation in Two-Person Reciprocal Exchange, 98 PNAS 11,832 (2001); and James K. Rilling et al., A Neural Basis for Social Cooperation, 35 NEURON 395 (2002). For a fascinating historical argument that social cooperation was long regarded as normatively rational and that by this canon individuals are correct to imagine their acts as directly efficacious when they contribute to a social practice, see RICHARD TUCK, FREE RIDING 119-55 (2008).
255. This idea has become familiar among at least some political progressives in the last decade or so and is crystallized in the slogan of the World Social Forum: "Another world is possible." See World Social Forum, http://www.forumsocialmundial.org.br/index.php?cd _language=2&id_menu= (last visited Nov. 16, 2009).
256. See Sarah Krakoff, Environmental Law, Tragedy, and Community (Aug. 29, 2009) (unpublished manuscript on file with author). 1198 PURDY_PRESS_V2WEB.DOC 4/27/2010 2:28:01 PM the politics of nature 258. See LEOPOLD, supra note 130, at 295.
257. See id. at 262.
258. See id. at 243-58 (discussing agriculture as a paradigm problem for a land ethic).
259. See DAVIS, supra note 1 (discussing the changes in values and imagination that accompanied abolition).
260. See Robert Kunzig, A Sunshade for Planet Earth, SCI. AM., Nov. 2008, at 46 (discussing these options); David G. Victor et al., The Geoengineering Option: A Last Resort Against Global Warming?, FOREIGN AFF., Mar.-Apr. 2009, at 64 (same).
261. For instance, two fairly short pieces discussed earlier, Time's The Age of Effluence, and the Sierra Club Bulletin's A Fable for Our Time, would frame the generation of post-1968 statutes in the organizing themes of the time: a new conception of "the environment" as uniting previously disparate issues, a perception of environmental crisis, and a moralized cultural interpretation in which environmental crisis arose from a crisis of values, and the two required a unified response. These articles are presented and discussed in Section IV.A., supra.
262. The Natural Resources textbook that is particularly sensitive to these issues nonetheless treats them mostly as clashes of value today, with competing positions exemplified by the arguments of law professors and moral philosophers-the trained professionals of normativity. See JAMES RASBAND, JAMES SALZMAN & MARK SQUILLACE, NATURAL RESOURCES LAW AND POLICY 11-28 (2004) (discussing philosophical rationales for conservation); cf. id. at 28-34 (summarizing some of the highlights in the development of wilderness values); 6 GEORGE CAMERON COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 30-33 (2007) (excerpting LEOPOLD, supra note 130). These textbooks are not blind to history, but they do not set the stage for teaching these areas of law as the products of a history of politically contested self-interpretation.
263. This is, of course, a daunting assignment, and few law professors would be qualified to undertake it from scratch. That said, the upshot of this argument is not that everyone teaching a course on climate change law and policy should develop ground-up mastery of Confucian approaches to nature, the importance of agrarian rural landscapes in French political culture, or the significance of the monsoon to Indian national identity. See, e.g., RAMACHANDRA GUHA, ENVIRONMENTALISM: A GLOBAL HISTORY 98-124 (2000) (discussing the distinctive sources and meanings of environmental politics in "the global south"); ARUNDHATI ROY, THE COST OF LIVING 21-48 (1999) (connecting a conservation agenda with small-scale and humanitarian features of Indian political culture, in contrast with a postcolonial attachment to grand-scale development projects); Wiener, Climate Change Policy, supra note 2, at 1819-20 (discussing the historical interweaving of natural disaster and the expectation of dynastic change in Chinese political culture). Qualified scholars would be doing all law teachers a service in engaging these questions together and producing a strong set of materials on comparative cultures of nature, suited for use by law teachers. Law teachers, in turn, would do well to call for such materials and adopt them if they became available.
264. See generally 1 ENVIRONMENT IN THE NEW GLOBAL ECONOMY: ANALYTIC APPROACHES TO THE IPE OF THE ENVIRONMENT (Peter M. Haas ed., 2003) (collecting essays on all the themes mentioned in the text accompanying this footnote); HANDBOOK OF GLOBAL ENVIRONMENTAL POLITICS (Peter Dauvergne ed., 2006) (same); MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS 121-63 (1998) (describing transnational environmental movements).
265. This note refers particularly to the discussion in Section I.C., supra.
266. This might mean inviting students to engage in an exercise like the one modeled in this Part: reflecting in an open-ended fashion on how existing themes in environmental public language might develop in the crucible of new problems. It might simply mean insisting, in addressing emerging problems, that the most realistic approach is not one that projects existing constraints indefinitely into the future. Instead, the most realistic approach would take history as evidence that today's constraints were yesterday's seemingly unrealistic proposals, and so that we should look among today's less obvious possibilities, even its wilder-eyed ideas, for hints of what the future might be. Teachers might develop this point in a mainly historical fashion, as this Article does. A case study on the development of Wilderness Society arguments, for instance, would convey the key role of imagination in making new kinds of arguments possible, without any need for more open-ended classroom exercises.
267. See Post & Siegel, supra note 1.