American natures: The shape of conflict in environmental law

Harvard Environmental Law Review

Volumn 36, Issue 1, 2012, Pages 169-228

  Purdy, Jedediah ^a  

^a DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ADVOCACY; CLIMATE CHANGE; ENVIRONMENTAL ISSUE; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLITICS; GOVERNANCE APPROACH; POLICY ANALYSIS; POLICY APPROACH;

UNITED STATES;

EID: 84864061146     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (245)

1. See Dan M. Kahan et al., Second National Risk and Culture Study: Making Sense of - and Progress in - the American Culture War of Fact, 1-2 (Yale Law Sch. Publ. Law Working Paper No. 154, 2007), available at http://www. culturalcognition. net/projects/second-nationalrisk-culture-study.html;
2. see also EDWARD MAIBACH ET AL., 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://envi ronment.yale.edu/climate/files/climatechange-6americas;
3. Dan M. Kahan & Donald Braman, Cultural Cognition and Public Policy, 24 YALE L. & POL'Y REV. 149 (2006) (setting out theory of "cultural cognition" of policy-relevant facts).
4. See Montana House Votes to Nullify Endangered Species Act, BOZEMAN DAILY CHRON., Feb. 19, 2011, available at http://www.bozemandailychronicle.com/news/ article-85f9f742-3c64-11e0-a5ec-001cc4c002e0.html (reporting that Tea Party legislators regard the Endangered Species Act as invalid);
5. Ben McGrath, The Movement: The Rise of Tea Party Activism, THE NEW YORKER, Feb. 1, 2010 at 40;
6. Diane Roberts, The EPA: the Tea Party's next target, THE GUARDIAN, Aug. 3, 2011, available at http://www.guardian. co.uk/commentisfree/cifameri ca/2011/aug/03/epa-republicans-tea-party.
7. See Phil Taylor, U. S. Not 'Sovereign' Over Federal Lands, Utah GOP Senate Candidate Says, N. Y. TIMES, July 2, 2010 (describing constitutional views of now-Senator Mike Lee).
8. See John M. Broder, Climate Change Doubt Is Tea Party Article of Faith, N. Y. TIMES, Oct. 20, 2010, at A1.
9. See generally AL GORE, THE ASSAULT ON REASON (2007);
10. CHRIS MOONEY, THE REPUBLICAN WAR ON SCIENCE (2005).
11. See, e.g., RICHARD B. STEWART & JONATHAN B. WIENER, RECONSTRUCTING CLIMATE POLICY: BEYOND KYOTO (2003) (sketching an interest-mediating structure for future global climate-change policy architecture). Examples are almost quite literally innumerable and impossible to avoid in any glance at the environmental law and policy literature. The most important sub-genre is the interest-based account of collective-action failure that seeks to give a rational-actor explanation of the failure of enlightened policy-makers to emerge or to regulate in an enlightened way.
12. See, e.g., Cass R. Sunstein, Of Montreal and Kyoto: A Tale of Two Protocols, 31 HARV. ENVTL. L. REV. 1 (2007) (analyzing the failure of the Kyoto Protocol as a matter of national-interest calculations).
13. See, e.g., John M. Broder, Researcher on Climate Is Cleared in Inquiry, N. Y. TIMES, Feb. 3, 2010, at A10 (noting climate change skepticism and political denunciation in background of inquiry into IPCC climate-change researchers' methods);
14. Editorial, Harassing Climate-Change Researchers, WASH. POST, May 29, 2011 (detailing suits and investigations by private organizations and Virginia Attorney General Ken Cuccinelli seeking records of climate researchers);
15. Press Release, Sen. James Inhofe, Climate Change Update (Jan. 4, 2005), available at http://inhofe.senate.gov/pressreleases/climateupdate.htm (calling into question IPCC methodology and linking Kyoto Protocol to French government's ambition to "global governance").
16. See, e.g., Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements, 154 U. PA. L. REV. 927 (2006) (setting out an account of the role of social movements in contesting and contributing to the meaning of basic but underspecified public values).
17. GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, 357 (2009).
18. See DOUGLAS BRINKLEY, THE WILDERNESS WARRIOR: THEODORE ROOSEVELT AND THE CRUSADE FOR AMERICA 396-430 (2009) (discussing the development of Roosevelt's conservation policy and his relationship with Pinchot).
19. See GEORGE CAMERON COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 24 (6th ed. 2007).
20. See M. Jimmie Killingsworth & Jacqueline S. Palmer, Millennial Ecology: The Apocalyptic Narrative from Silent Spring to Global Warming, in GREEN CULTURE: ENVIRONMENTAL RHETORIC IN CONTEMPORARY AMERICA 21, 27-32 (Carl G. Herndl & Stuart C. Brown eds., 1996) (discussing Carson's rhetorical style and origins);
21. DONALD WORSTER, NATURE'S ECONOMY: A HISTORY OF ECOLOGICAL IDEAS 284-90 (1994) (describing Leopold's development of his mature view on the human relationship to nature and characterizing that view).
22. See generally National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852
23. (codified as amended at 42 U. S. C. §§ 4321-4347 (2006));
24. Clean Air Act Amendments of 1970, Pub. L. No. 91-64, 84 Stat. 1676
25. (codified as amended in scattered sections of 42 U. S. C. (2006));
26. Federal Water Pollution and Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816
27. (codified as amended in scattered sections of 33 U. S. C. (2006));
28. Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884
29. (codified as amended at 16 U. S. C. §§ 1531-1544 (2006)).
30. See JEFFREY K. TULIS, THE RHETORICAL PRESIDENCY 14 (1987) ("Political rhetoric is, simultaneously, a practical result of basic doctrines of governance, and an avenue to the meaning of alternative constitutional understandings."). The second is the careful study of the specific uses to which general terms are put in the context of time and place. Associated with the "Cambridge School" of intellectual historians, this approach is nicely captured in
31. James Tully, The Pen Is a Mighty Sword: Quentin Skinner's Analysis of Politics, in MEANING & CONTEXT: QUENTIN SKINNER AND HIS CRITICS 7, 7-25 (James Tully ed., 1988).
32. See LAWRENCE BUELL, THE ENVIRONMENTAL IMAGINATION: THOREAU, NATURE WRITING, AND THE FORMATION OF AMERICAN CULTURE 2-3, 6-8 (1995) (explaining his investigation of literature as an exercise in interpreting the human relation to the natural world). Where Buell is interested in the view of nature expressed in literary texts, I am concerned with ways of experiencing nature in everyday life that are presupposed by public language. In this respect, my formulation owes a lot to Charles Taylor's discussion of "social imaginaries."
33. See CHARLES TAYLOR, A SECULAR AGE 171-76 (2007);
34. CHARLES TAYLOR, MODERN SOCIAL IMAGINARIES 23-30 (2004). I use a similar idea in discussing implicit social visions in the development of property law:
35. JEDEDIAH PURDY, THE MEANING OF PROPERTY: FREEDOM, COMMUNITY, AND THE LEGAL IMAGINATION 9-12 (2010).
36. As these examples suggest, what counts as public language varies with the context and the problem at hand. I use the same term to organize a companion piece that overlaps with this Article: Jedediah Purdy, The Politics of Nature: Climate Change, Democracy, and Environmental Law, 119 YALE L. J. 1122 (2010).
37. This approach to ideas, treating them as tools for organizing and engaging experience, is generally called pragmatic, and is fairly well captured in RICHARD RORTY, CONSEQUENCES OF PRAGMATISM 160-75 (1982) (setting out the pragmatist approach).
38. See JONATHAN GLOVER, HUMANITY: A MORAL HISTORY OF THE TWENTIETH CENTURY 22-30 (1999) (characterizing human motives rooted in the need for moral meaning and order);
39. ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY 204-25 (1984) (characterizing the need for a coherent sense of narrative in one's life);
40. CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY 25-52 (1989) (arguing for the inescapable relevance of meaning and moral considerations to humans' capacity to make sense of their lives and act and choose as agents);
41. H. H. Gerth & C. Wright Mills, Introduction to FROM MAX WEBER: ESSAYS IN SOCIOLOGY 3, 61-65 (1948) (setting out the interplay of ideas and interests in the thought of pioneering sociologist Max Weber).
42. See, e.g., William Cronon, The Trouble with Wilderness, or, Getting Back to the Wrong Nature, in THE GREAT NEW WILDERNESS DEBATE 471, 489-90 (J. Baird Callicott & Michael P. Nelson eds., 1998) (discussing the race-and class-specific origins of environmental policy and imagination and their exclusionary effects);
43. Arturo Gomez-Pompa & Andrea Kaus, Taming the Wilderness Myth, in THE GREAT NEW WILDERNESS DEBATE 293, 293-309 (J. Baird Callicott & Michael P. Nelson eds., 1998) (discussing the exclusion of rural and especially non-white users of land from the development of wilderness concepts).
44. JAMES KENT, COMMENTARIES ON AMERICAN LAW VOL. 3 (1828).
45. 21 U. S. 543 (1823).
46. See RICHARD TUCK, NATURAL RIGHTS THEORIES: THEIR ORIGIN AND DEVELOPMENT 58-81 (1979) (describing Grotius's theory of the origin and character of property rights);
47. JAMES TULLY, AN APPROACH TO POLITICAL PHILOSOPHY: LOCKE IN CONTEXTS 137-76 (1993) (describing the reception and use of Locke's natural-rights theory in relation to aboriginal land claims);
48. David Armitage, John Locke, Carolina, and the Two Treatises of Government, 32 POL. THEORY 602 (2004) (describing the interaction between Locke's involvement in colonial settlement and administration and his writing the Two Treatises).
49. See STUART BANNER, HOW THE INDIANS LOST THEIR LAND: LAW AND POWER ON THE FRONTIER 10-48, 121-60 (2005) (on the early belief that Native Americans enjoyed certain claims and the later erosion of this belief);
50. LISA FORD, SETTLER SOVEREIGNTY: JURISDICTION AND INDIGENOUS PEOPLE IN AMERICA AND AUSTRALIA, 1788-1836 13-29, 183-203 (2010) (describing parallel growth of natural-rights claims to settlement in two settler colonies).
51. But see ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST 233-286 (1990) (arguing that the natural-rights theory had a more continuous influence).
52. See Johnson v. M'Intosh, 21 U. S. 543, 574 (1823).
53. See JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES VOL. 1, 7 (1891) (rejecting the natural-rights theory but characterizing the European view of Native Americans as "a savage race, sunk in the depths of ignorance and heathenism⋯ [and] bound to yield to the superior genius of Europe⋯.");
54. John Quincy Adams, President, An Oration, Delivered at Plymouth 23-24 (Dec. 22, 1802).
55. See Green v. Biddle, 21 U. S. 1, 43 (1823)
56. State v. Foreman, 16 Tenn. 256, 266 (1935). The court continued, "[t]he earth was created for the general benefit of its inhabitants⋯. In order to sustain its vast population the earth must be cultivated; and it is manifestly unjust, that a comparatively small number of its inhabitants should claim an exclusive right to a large portion of its surface⋯."
57. John Tyler, President, Third Annual Message to Congress (Dec. 5, 1843).
58. James Buchanan, President, Second Annual Message to Congress (Dec. 6, 1858).
59. Thus to remove Indians from lands where they had been settled as cultivators was to "thrust [them] into the wilderness again. " Rutherford B. Hayes, President, First Annual Message to Congress (Dec. 3, 1877);
60. see also Benjamin Harrison, President, First Annual Message to Congress (Dec. 3, 1889) ("We can no longer push the Indian back into the wilderness⋯.").
61. See Thomas Jefferson, President, Fifth Annual Message to Congress (Dec. 3, 1805) (stating that settled Indian tribes "find it their interest⋯ to dispose of parts of their surplus and waste lands" to white settlers); Andrew Jackson, President, Fourth Annual Message to Congress (Dec. 4, 1832) ("[A] portion of the waste lands owned by the States should be ceded to the United States for the purposes of general harmony and as a fund to meet the expenses of the war.");
62. Martin van Buren, President, First Annual Message to Congress (Dec. 5, 1837) (stating that settlers moving westward in rapid and opportunistic fashion left "immense wastes behind them and enlarge[d] the frontier beyond the means of the Government to afford it adequate protection⋯.").
63. See generally PERRY MILLER, ERRAND INTO THE WILDERNESS (1956) (discussing the early New England sense of mission).
64. See JOHN MUIR, OUR NATIONAL PARKS 1 (1901) (arguing "wildness is a necessity");
65. ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR 9-38 (1970) (describing the interlaced premises of free-labor thought and the program of frontier settlement).
66. See also DREW R. MCCOY, THE ELUSIVE REPUBLIC: POLITICAL ECONOMY IN JEFFERSONIAN AMERICA 48-100, 185-208 (1980) (describing "republican" conception of proprietor-based freedom and virtue, and the role of frontier settlement in promoting it);.
67. James Wilson, Oration Delivered on the Fourth of July 1788, at the Procession Formed at Philadelphia to Celebrate the Adoption of the Constitution of the United States (Jul. 4, 1788), in 1 COLLECTED WORKS OF JAMES WILSON, at 288 (Kermit L. Hall & Mark David Hall eds., 2007). Double tyranny referred to the combination of political despotism and Catholicism, a formulation that persisted in these quasi-ecological polemics well into the nineteenth century.
68. GEORGE PERKINS MARSH, MAN AND NATURE 11 (David Lowenthal ed., 2003) (1864). With American land use his main concern, Marsh argued, "[m]an cannot struggle at once against crushing oppression and the destructive forces of inorganic nature", and when those burdens are joined, "the fields he has won from the primeval wood relapse into their original state of⋯ unprofitable forest growth, or fall into that of a dry and barren wilderness."
69. see Steven Stoll, Farm against Forest, in AMERICAN WILDERNESS: A NEW HISTORY 55, 65-67 (Michael Lewis ed., 2007).
70. See Gary D. Libecap & Zeynep Kocabiyik Hansen, "Rain Follows the Plow" and Dryfarming Doctrine: The Climate Information Problem and Homestead Failure in the Upper Great Plains, 1890-1925, 62 J. ECON. HIST. 86, 93-94 (2002).
71. U. S. DEP'T OF AGRIC., REPORT OF THE COMMISSIONER OF AGRICULTURE 608 (1869).
72. WILLIAM GILPIN, MISSION OF THE NORTH AMERICAN PEOPLE, GEOGRAPHICAL, SOCIAL, AND POLITICAL 69-70 (2d ed. 1874).
73. For an example of the mutual support of free-labor ideas and abolitionism, see generally RICHARD HILDRETH, DESPOTISM IN AMERICA: AN INQUIRY INTO THE NATURE, RESULTS, AND LEGAL BASIS OF THE SLAVE-HOLDING SYSTEM IN THE UNITED STATES (1854). By contrast, prominent defenders of slavery were often scornful critics of labor markets as disguised forms of coercion.
74. See GEORGE FITZHUGH, CANNIBALS ALL! OR SLAVES WITHOUT MASTERS 218-19 (C. Van. Woodward ed., 1960) (1857).
75. For the best account of this history, see generally PAUL W. GATES, HISTORY OF PUBLIC LAND LAW DEVELOPMENT (1968).
76. WILLARD HURST, LAW AND THE CONDITIONS OF FREEDOM IN THE NINETEENTH-CENTURY UNITED STATES (1956) (arguing that the federal design of settlement carried out a policy of unleashing human energy and initiative).
77. GARY LIBECAP, CONTRACTING FOR PROPERTY RIGHTS 29-50 (1989) (providing historical and theoretical bottom-up account of Western mineral regimes employing rational-actor model).
78. 7 CONG. REC. 1722 (1878) (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.'").
79. CONG. GLOBE, 38TH CONG., 1ST SESS. 2300 (1864).
80. 14 CONG. REC. 3453, 3488 (1883).
81. CONG. GLOBE, 38TH CONG., 1ST SESS. 2300 (1864) (statement of Sen. Conness).
82. 14 CONG. REC. 3487 (1883) (statement of Sen. Vest).
83. 14 CONG. REC. 3488 (1883).
84. CONG. GLOBE, 38th Cong., 1st Sess. 2300 (1864).
85. 14 CONG. REC. 3488 (1883) (statement of Sen. Vest).
86. CONG. GLOBE, 38TH CONG., 1ST SESS. 2301 (1864).
87. Rutherford B. Hayes, President, First Annual Message to Congress (Dec. 3, 1877).
88. See Chester A. Arthur, President, Second Annual Message to Congress (Dec. 4, 1882) ("The condition of the forests of the country and the wasteful manner in which their destruction is taking place give cause for serious apprehension⋯. [T]heir total extinction can not [sic] be long delayed unless better methods than now prevail shall be adopted for their protection and cultivation. ").
89. See Frederick Law Olmsted, The Yosemite Valley and Mariposa Big Tree Grove, in AMERICA'S NATIONAL PARKS SYSTEM: THE CRITICAL DOCUMENTS 12, 20-22 (Larry M. Dilsaver ed., 1994) (1865).
90. See Sundry Civil Appropriations Act of 1897, 30 Stat. 35
91. (codified as amended at 16 U. S. C. § 551 (2006));
92. An Act to Establish a Natural Park Service, Pub. L. No. 64-238, 39 Stat. 535
93. (codified as amended at 16 U. S. C. § 1 (2006)).
94. See 16 U. S. C. § 475 (2006).
95. See, e.g., RODERICK NASH, WILDERNESS AND THE AMERICAN MIND 161-81 (3d ed. 1982) (describing the Hetch Hetchy dispute as a signal battle between wilderness-oriented "preservationists" and development-minded "conservationists").
96. See GIFFORD PINCHOT, THE FIGHT FOR CONSERVATION 48-49 (1910). Pinchot explained: The conservation idea covers a wider range than the field of natural resources alone. Conservation means the greatest good to the greatest number for the longest time⋯. Conservation advocates the use of foresight, thrift, and intelligence in dealing with public matters⋯. It proclaims the right and duty of the people to act for the benefit of the people. Conservation demands the application of commonsense to the common problems for the common good.
97. Woodrow Wilson, President, First Inaugural Address (March 4, 1913)
98. discussed infra Part II. B, and IRVING FISHER, REPORT ON NATIONAL VITALITY: ITS WASTES AND CONSERVATION 2(1909), which was prepared for the National Conservation Commission.
99. See 21 CONG. REC. 2537 (1890).
100. DEP'T OF THE INTERIOR, REPORT OF THE SECRETARY OF THE INTERIOR 14 (1891).
101. Theodore Roosevelt, The New Nationalism, Speech at Osawatomie (Aug. 31, 1910), reprinted in Theodore Roosevelt, THE NEW NATIONALISM 22 (1910).
102. See Van Hise & Loomis Havemeyer, Conservation of Our National Resources 514-23 (2d ed. 1930).
103. See RICHARD HOFSTADTER, THE AGE OF REFORM FROM BRYAN TO FDR 196-212 (1955) (describing contemporary journalists' focus on pervasive selfishness, corruption, and indifference to ideals and the public interest);
104. ROBERT H. WIEBE, THE SEARCH FOR ORDER 1877-1920, at 56-66 (1967) (describing anxiety over loss of imagined "purity" and "unity" and wish to reclaim them).
105. See THEODORE ROOSEVELT, Fellow-Feeling as a Political Factor, in THE STRENUOUS LIFE 58, 66-68 (1901) (portraying class and occupational segregation as a source of civic division).
106. THEODORE ROOSEVELT, The Strenuous Life, in THE STRENUOUS LIFE, supra note 106, at 3, 7.
107. See generally WILLIAM JAMES, The Moral Equivalent of War, in WRITINGS, 1902-1910, at 1281, 1281-93 (1987).
108. Chauncy Hamlin, Introduction, in REPORT OF THE NATIONAL CONFERENCE ON OUTDOOR RECREATION 1, 1 (1928).
109. See Theodore Roosevelt, President, Message Communicated to the Two Houses of Congress at the Beginning of the First Session of the Fifty-Seventh Congress (Dec. 3, 1901), in ADDRESSES AND PRESIDENTIAL MESSAGES OF THEODORE ROOSEVELT, 1902-1904, at 284, 310 (1904).
110. WALTER E. WEYL, THE NEW DEMOCRACY: AN ESSAY ON CERTAIN POLITICAL AND ECONOMIC TENDENCIES IN THE UNITED STATES 320 (1912).
111. ERIC FONER, THE STORY OF AMERICAN FREEDOM 146-47 (1998).
112. Theodore Roosevelt, Special Message of the President, in 1 REPORT OF THE NATIONAL CONSERVATION COMMISSION 1, 4 (1909). In the same message, Roosevelt explained that "[n]ational efficiency is the result of natural resources well handled, of freedom of opportunity for every man, and of the inherent capacity, trained ability, knowledge, and will, collectively and individually, to use that opportunity."
113. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION 1863-1877 469-80 (1989) (discussing role of the idea of public interest among progressive reformers);
114. SAMUEL P. HAYS, CONSERVATION AND THE GOSPEL OF EFFICIENCY: THE PROGRESSIVE CONSERVATION MOVEMENT 1890-1920, at 261-76 (1959) (discussing the role of natural resources in the progressive ideal of public interest).
115. See, e.g., MORTON KELLER, REGULATING A NEW ECONOMY: PUBLIC POLICY AND ECONOMIC CHANGE IN AMERICA, 1900-1933, at 7-11 (1990) (discussing competing ideas of the nature of the industrial economy and the appropriate role of government in its management);
116. ROBERT J. STEINFELD, COERCION, CONTRACT, AND FREE LABOR IN THE NINETEENTH CENTURY 290-314 (2001) (surveying the persistent normative complexity and ambiguity in legal regulation of labor contracts in the northern United States).
117. See MUIR, OUR NATIONAL PARKS, supra note 45, at 3-5 (describing the parks' beneficiaries as "tired, nerve-shaken, over-civilized", suffering from "the stupefying effects of the vice of over-industry", and "choked with care like clocks full of dust").
118. See JOHN MUIR, MY FIRST SUMMER IN THE SIERRA 153 (1911) ("Never before had I seen so glorious a landscape, so boundless an affluence of sublime mountain beauty⋯. I shouted and gesticulated in a wild burst of ecstasy⋯.");
119. See John Muir, A Wind Storm in the Forests, reprinted in AMERICAN EARTH: ENVIRONMENTAL WRITING SINCE THOREAU 93-95 (Bill McKibben ed., 2008) (reporting as the epiphany of a morning spent in a wind-lashed treetop that relations among all things in nature are "no struggle⋯ but rather an invincible gladness as remote from exultation as from fear");
120. DONALD WORSTER, PASSION FOR NATURE: THE LIFE OF JOHN MUIR 160-61, 336-37 (2008) (describing Muir's relation to Wordsworth, including a pilgrimage to the poet's grave at Grasmere).
121. See 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) (describing American landscape painters' treatments of wilderness in the nineteenth century);
122. see generally SIMON SCHAMA, LANDSCAPE AND MEMORY (1995) (discussing the European development of sublimity as a feature of landscape aesthetics);
123. see also EDMUND BURKE, A PHILOSOPHICAL INQUIRY INTO THE ORIGIN OF OUR IDEAS OF THE SUBLIME AND BEAUTIFUL 39-40, 64-70 (James T. Boulton ed., 1958) (1757) (discussing the visual characteristics tending to induce sublimity);
124. IMMANUEL KANT, THE CRITIQUE OF JUDGMENT 109-14 (James Creed Meredith trans., 1952) (1790) (describing sublimity as providing a glimpse of the rational will's freedom from physical determination).
125. WILLIAM CULLEN BRYANT, A Forest Hymn, in POEMS 39, 39 (1836).
126. See Marion Randall, Some Aspects of a Sierra Club Outing, 5 SIERRA CLUB BULL., 1905, at 221, 221-28 (describing the logistics of a Sierra Club expedition).
127. See William Frederic Bade, To Higher Sierras, 10 SIERRA CLUB BULL., 1916-1919, at 38, 40 (counting Muir among "prophets and interpreters of nature" and predicting that "[t]housands and thousands, hereafter, who go to the mountains, streams, and canons of California will choose to see them through the eyes of John Muir, and they will see more deeply because they see with his eyes");
128. 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 BR4 ("[M]any who have sought a vision of truth beneath the surface of nature have found it through the eyes of John Muir.");
129. Benjamin Ide Wheeler, John Muir, Doctor of Laws, University of California, (honorary degree), reprinted in 10 SIERRA CLUB BULL., 1916-1919, at 24, 24 (calling Muir "uniquely gifted to interpret unto other men [nature's] mind and ways").
130. See Helen M. Gompertz, A Tramp to Mt. Lyell, 1 SIERRA CLUB BULL., 1893-1896, at 136, 141 (referring to "[h]ours pass[ing] like moments" in "this sacred spot")
131. John R. Glascock, A California Outing, 1 SIERRA CLUB BULL., 1893-1896, at 147, 161 ("We⋯ learned to interpret and love the 'various language' in which nature speaks to the children of men⋯. We were acolytes in the grand temple of the eternal.").
132. ROBERT STERLING YARD, THE BOOK OF THE NATIONAL PARKS 20-21 (1919).
133. LORD ALFRED TENNYSON, IN MEMORIAM A. H. H. 60 (1900). The poet contrasts a view of nature as a chaotic and violent struggle for survival with one that finds divine meaning in it. The deceased friend to whom the poem is dedicated was one "Who trusted God was love indeed/And love Creation's final law/Tho' Nature, red in tooth and claw/With ravine/shriek'd against his creed."
134. See JOSEPH LE CONTE, RELIGION AND SCIENCE 269-81 (1875) (arguing that divinity expresses itself throughout nature, with increasing individuation, culminating in human consciousness).
135. JOSEPH LE CONTE, EVOLUTION AND ITS RELATION TO RELIGIOUS THOUGHT 282-83 (1888) (emphasis in original).
136. See, e.g., F. E. Olmsted, Fire and the Forest - The Theory of "Light Burning", 8 SIERRA CLUB BULL., 1911-1912, at 43, 43-47 (discussing methods of fire control on public lands);
137. J. Horace McFarland, Are National Parks Worth While? 8 SIERRA CLUB BULL., 1911-1912, at 236, 236-39 (praising the parks as balm for "times when the tired spirit seeks a wider space for change and rest" but lamenting the absence of any unified policy or federal body devoted to management of the parks).
138. See National Parks, 8 SIERRA CLUB BULL., 1911-1912, at 217-36 (collecting various updates on parks management, funding, and prospects for legislation establishing a unified management system).
139. See Editorials, 8 SIERRA CLUB BULL., 1911-1912, at 205-07.
140. Sierra Club statement submitted to Presidential Conference on the Conservation of Natural Resources, reprinted in 6 SIERRA CLUB BULL., 1906-1908, at 318.
141. Pub. L. No. 88-577, 78 Stat. 890
142. (codified as amended at 16 U. S. C. §§ 1131-1136 (2006)).
143. 42 U. S. C. § 4332 (2) (C) (2006).
144. See RACHEL CARSON, SILENT SPRING 39-83 (1962) (detailing ecological interactions that form channels for the passage of pesticides from organism to organism);
145. 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.");
146. see also Fighting to Save the Earth from Man, TIME, Feb. 2, 1970, at 56, 62 (portraying "technological man as the personification of Faust, endlessly pursuing the unattainable").
147. See DONALD WORSTER, NATURE'S ECONOMY, supra note 12 at 350-59 (explaining that earlier twentieth-century uses of "environment" referred to social influences in the natureversus-nurture debate; a use referring instead to the natural setting began to arise around and after World War Two, and the contemporary sense, linked to ecological crisis and the vulnerability of the planet, came into flower in the 1960s and 1970s).
148. The Age of Effluence, supra note 171, at 53.
149. See Fighting to Save the Earth from Man, supra note 171, at 56 ("What Americans now breathe is closer to ambient filth than to air.");
150. Menace in the Skies, TIME, Jan. 27, 1967, at 48, 52 (noting UCLA meteorologist Morris Neiburger's warnings that "all of civilization will pass away⋯ from gradual suffocation by its own effluents"); '
151. 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.").
152. Earth Day and Space Day, N. Y. TIMES, Apr. 19, 1970, at 174;
153. see also The Age of Effluence, supra note 171, at 53 ("[M]any scholars of the biosphere are now seriously concerned that human pollution may trigger some ecological disaster.");
154. 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");
155. Earth Week, WASH. POST, Apr. 20, 1970, at A20 ("American air, land, and water⋯ has become⋯ the world's most expensive monument to pollution⋯. [M]an is running out of soons faster than he runs out of issues.");
156. Gladwin Hill, Activity Ranges from Oratory to Legislation, N. Y. TIMES, Apr. 23, 1970, at 1 (referring to "ecological problems, which many scientists say urgently require action if the earth is to remain habitable").
157. See The Age of Effluence, supra note 171, at 53 ("The biggest need is for ordinary people to learn something about ecology, a humbling as well as fascinating way of viewing reality⋯.");
158. 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⋯.").
159. See, e.g., The Age of Effluence, supra note 171, at 53 (describing ecology as humbling);
160. Gordon Harrison Ford, An Ecological Primer, 54 SIERRA CLUB BULL., Oct.-Nov. 1969, at 18.
161. Elizabeth Rogers, Protest!, 54 SIERRA CLUB BULL., Dec. 1969, at 11, 20.
162. Connie Flateboe, Environmental Teach-In, 55 SIERRA CLUB BULL., Mar. 1970, at 14, 15.
163. Paul Shepard, Ecology and Man-A Viewpoint, in THE SUBVERSIVE SCIENCE (1969)
164. reprinted in THE ECOLOGICAL CONSCIENCE at 56, 59 (Robert Disch ed., 1970).
165. Alan Watts, The World Is Your Body, in THE ECOLOGICAL CONSCIENCE, supra note 181, at 181, 188.
166. Lewis Thomas, Are We Fit to Fit in? SIERRA, Mar.-Apr. 1982, at 49, 52. The Sierra Club Bulletin was renamed Sierra in 1977 and continued publishing without interruption.
167. The Age of Effluence, supra note 171, at 53.
168. Editorial, The Environment: Clean Up or Patch Up?, WASH. POST, Feb. 11, 1970, at A20.
169. A Fable for Our Times, 55 SIERRA CLUB BULL., Mar. 1970, at 16, 16-18.
170. Issue of the Year: The Environment, TIME, Jan. 21, 1971, at 21;
171. see also, e.g., Joseph Shapiro, Imperialism, Earth Day Address at Fordham University, New York, NY (Apr. 22, 1970)
172. in EARTH DAY-THE BEGINNING 86, 86 (Envtl. Action ed., 1970) ("The Vietnam war and the ecological crisis have the same roots. Both are products of a highly technological, mechanistic, dehumanized society⋯.").
173. Flora Lewis, Instant Mass-Movement, L. A. TIMES, Apr. 29, 1970, at B7.
174. See 118 CONG. REC. 33, 693 (1972) (statement of Sen. Muskie) ("[T]his is literally a life or death proposition for the Nation. ");
175. CONG. REC. 38, 801 (1971) (statement of Sen. Muskie) ("Man⋯ is an endangered species.").
176. 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.");
177. CONG. REC. 38, 798 (1971) (statement of Sen. Muskie) ("The use of any river, lake, stream, or ocean as a waste treatment system is unacceptable.");
178. See 117 CONG. REC. 38, 800 (1971) (statement of Sen. Muskie) ("The stated objective of the act reflects the committee's decision to recognize fundamental principles of ecology.");
179. The Age of Effluence, supra note 171, at 53.
180. See RICHARD N. L. ANDREWS, MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY 217-26 (2006) (connecting rise of environmentalism with discrediting of expert management, opposition to Vietnam War, and perception of both big business and big government as destructive);
181. A Fable for Our Times, supra note 186, at 16-18;
182. Issue of the Year, supra note 187, at 21 (tracing the sudden interest in the environment to two sources, "[o]n the one hand⋯ 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" and "[o]n the other hand⋯ a creeping disillusionment with technology, an attempt by individuals to reassert control over machine civilization").
183. Issue of the Year, supra note 187, at 21. Two scholars characterized environmental politics, from a radical perspective, as distinctively open to co-optation as an object of mainstream consensus: [A] new consensus⋯ consistent with the logic of technological society⋯ around which the hippies and the Hickels [Nixon's Secretary of the Interior] might unite⋯ in common cause with the power elite⋯. It is the kind of issue which is particularly appealing when the disappointments and abrasions of political encounters become too much, for it permits a full catharsis of moral indignation without seriously altering the structure of power or the logic of the system.
184. John H. Schaar & Sheldon S. Wolin, Where We Are Now, N. Y. REV. OF BOOKS, May 7, 1970.
185. Joseph Le Conte, Brief Address to the Sierra Club (Nov. 23, 1895) in 1 SIERRA CLUB BULL., 1896, at 270 (noting that "[i]f we compare the cultured man with the uncultured man⋯ the most striking difference" is that "the uncultured man is trying to live for the interests of the 'now', but the cultured man - and in proportion as he is cultured - looks to the future as well as to the present" and supports federal reservation and management of forests).
186. 107 CONG. REC. 18, 365 (1961) (statement of Sen. Church).
187. See R. MCGREGGOR CAWLEY, FEDERAL LAND, WESTERN ANGER: THE SAGEBRUSH REBELLION AND ENVIRONMENTAL POLITICS 71-91 (1993) (outlining sources and formulations of Western objections to federal policy around the Sagebrush Rebellion);
188. Tom Kenworthy, Blazing Utah Trails to Block a Washington Monument, WASH. POST, Nov. 30, 1996, at A1 (describing Western members of County Movement engaged in efforts to assert local control over federal land).
189. See, e.g., JAMES RASBAND ET AL., NATURAL RESOURCES LAW & POLICY 19-36 (2d ed. 2009) (setting out theoretical approaches to environmental and natural resource values).
190. See Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926) (establishing constitutionality of most ordinary zoning practice).
191. Compare Lucas v. S. C. Coastal Council, 505 U. S. 1003, 1031 (1992) (referring to "erection of⋯ habitable or productive improvements on⋯ land" as "the 'essential use' of land" and thus presumptively privileged under the common-law baseline established in this case as the reference point for takings claims under the U. S. Constitution)
192. Cf. Solid Waste Agency of N. Cook Cnty. v. U. S. Army Corps of Eng'rs, 531 U. S. 159, 174 (finding Army Corps of Engineers exceeded authority granted by Congress in Clean Water
193. Compare Rapanos v. United States, 547 U. S. 715, 721 (2006) (ascribing to the Army Corps of Engineers the "discretion of an enlightened despot" in ruling on "a broad range of ordinary industrial and commercial [land-use] activity")
194. See 30 U. S. C. § 22 (2006) ("[A]ll valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States⋯.").
195. R. S. 2477, which was recodified as 43 U. S. C. § 932 and repealed in 1976 with the passage of the Federal Lands Policy and Management Act, provided: "That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."
196. Stat. 253 (1866);
197. U. S. C. §§ 1701 (a), 1701 (h), 1769 (a) (2006) (protecting valid existing rights of access).
198. See CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND THE FUTURE OF THE WEST 33 (1992). In 2003, a pair of scholars reported that the State of Utah and its counties had claimed between 10, 000 and 20, 000 roads across federal land, and that Alaska and some California counties had begun making similar claims.
199. See Stephen H. M. Bloch & Heidi J. McIntosh, A View from the Front Lines: The Fate of Utah's Redrock Wilderness Under the George W. Bush Administration, 33 GOLDEN GATE U. L. REV. 473, 489-90 (2003).
200. See John M. Broder, Uranium Mine Moratorium Extended at Grand Canyon, N. Y. TIMES, Jun. 20, 2011 at A16 (noting that the Obama administration would continue an administrative moratorium after a Bush administration policy permitted thousands of new mining claims near the Grand Canyon in 2006 and 2007).
201. For a sample of the tone of exchange, see Phantom Roads, S. UTAH WILDERNESS ALLIANCE, http://www.suwa.org/issues/phantom-roads-r-s-2477 (last visited January 3, 2012) (on file with the Harvard Law School Library) (describing R. S. 2477 as "highway robbery", a scheme based on "bogus roads", and a "nightmare" for administrative agencies).
202. See S. Utah Wilderness Alliance v. BLM, 425 F.3d 735, 750-57 (10th Cir. 2005) (concluding that district court abused its discretion in concluding that primary jurisdiction over question of the validity of an R. S. 2477 claim lay with the BLM);
203. Pub. L. No. 94-579, 90 Stat. 2743
204. (codified as amended at 43 U. S. C. 1701-1782 (2006)).
205. See 43 U. S. C. § 1732 (a) (2006) (directing the BLM to manage public lands for "multiple use and sustained yield");
206. U. S. C. § 1702 (c) (2006) (defining "multiple use" to include "a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and non-renewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values");
207. U. S. C. § 1702 (h) (defining "sustained yield" as "achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use");
208. U. S. C. § 1604 (2006) (directing the Forest Service, inter alia, to "use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences" to assign forest areas for timber harvests "in a manner consistent with the protection of soil, watershed, fish, wildlife, recreation, and esthetic resources, and the regeneration of the timber resource").
209. See 16 U. S. C. § 1133 (2006);
210. Wilderness Soc'y v. U. S. Fish & Wildlife Serv., 353 F.3d 1051, 1062-67 (9th Cir. 2003) (en banc) (finding an agency-authorized salmon-stocking program in a wilderness area illegal as a violation of the Wilderness Act's prohibition of "commercial activity").
211. For a discussion of very similar challenges that climate change poses to management of endangered species, see J. B. Ruhl, Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future, 88 B. U. L. REV. 1 (2008).
212. See Natural Res. Def. Council v. Morton, 388 F. Supp. 829 (D. D. C. 1974)
213. aff'd per curiam, 527 F.2d 1386 (D. C. Cir.)
214. cert. denied, 427 U. S. 913 (1976);
215. See 16 U. S. C. § 1536 (a) (2006).
216. See, e.g., Sw. Ctr. for Biological Diversity v. U. S. Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998) (addressing a series of Endangered Species Act impediments to Bureau of Reclamation water-management decisions).
217. See U. S. CONST. art. III, § 2, cl.1.
218. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-61 (1992).
219. 549 U. S. 497 (2007).
220. See 16 U. S. C. § 1540 (g) (2006) (authorizing "any person" to bring suit to enforce the requirements of the Endangered Species Act).
221. See 42 U. S. C. § 7604 (2006) (authorizing "any person" to bring suit to enforce the requirements of the Clean Air Act).
222. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 561-62 (1992) (distinguishing between the unproblematic case in which plaintiff is "himself" the object of regulation and the much more vexed case where plaintiff complains of government's failure to regulate a third party);
223. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881 (1983) (arguing that the central judicial responsibility is to protect the rights of individuals against government, with assertion of property rights against regulation being paradigmatic).
224. See Sierra Club v. Morton, 405 U. S. 727, 734 (1972).
225. See Summers v. Earth Island Inst., 555 U. S. 488, 492-500 (2009).
226. See BRUCE ACKERMAN, 1 WE THE PEOPLE: FOUNDATIONS 140-62 (1991) (describing Supreme Court's activity of intergenerational synthesis, in which substantive principles and ideas of judicial role from multiple eras are adjusted and partly reconciled).
227. See generally Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432 (1988);
228. Cass R. Sunstein, What's Standing after Lujan? Of Citizen Suits, "Injuries", and Article III, 91 MICH. L. REV. 163 (1992).
229. see also ANTHONY LEISEROWITZ ET AL., YALE PROJECT ON CLIMATE CHANGE COMMC'N, GLOBAL WARMING: DEMOCRATS, REPUBLICANS, INDEPENDENTS, AND THE TEA PARTY 7(2011), available at www.environment.yale.edu/climate/files/ PoliticsGlobalWarming2011.pdf (finding that Democrats are most likely, Tea Party members least likely, to believe climate change is real, human-caused, and requires response and also finding that Tea Party members tend to be hierarchical individualists within the cultural-cognition scheme).
230. See Donald Braman & Dan M. Kahan, Overcoming the Fear of Guns, the Fear of Gun Control, and the Fear of Cultural Politics: Constructing a Better Gun Debate, 55 EMORY L. J. 569 (2006);
231. Dan M. Kahan & Paul Slovic, Cultural Evaluations of Risk: "Values" or "Blunders"? 119 HARV. L. REV. 166 (2006) (stating and applying the cultural cognition methodology);
232. Dan M. Kahan, Two Conceptions of Emotion in Risk Regulation, 156 U. PA. L. REV. 741 (2008) (same);
233. Dan M. Kahan et al., Who Fears the HPV Vaccine, Who Doesn't, And Why? An Experimental Study of the Mechanisms of Cultural Cognition, 34 LAW & HUM. BEHAV. 501 (2010) (same).
234. See, e.g., U. S. DEP'T OF AGRIC., CORONADO NATIONAL FOREST PLAN (2005), available at http://www.fs.fed.us/r3/coronado/plan-revision/plan-revision- documents.shtml.
235. Cf. HENRY DAVID THOREAU, WALDEN IN WALDEN AND OTHER WRITINGS 105, 220-21 (Joseph Wood Krutch ed., 1981) (describing his work in a bean field as "making the earth say beans instead of grass").
236. This term has a fair amount of traction in environmental conservation. See, e.g., Dave Foreman, Wilderness Areas for Real, in THE GREAT NEW WILDERNESS DEBATE, supra note 20, at 395, 397 (criticizing the dichotomous view in which natural places must be either preserved as wilderness or designated "sacrifice zones where industrialism can run rampant").
237. See generally JEDEDIAH PURDY, FOR COMMON THINGS 129-60 (1999) (describing the practice of mountaintop removal strip-mining).
238. The most important decisions on the environmental laws governing the practice are Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) (rejecting challenge to hydrological and biological methodology of Army Corps of Engineers' analysis of impacts of permitted surface mines);
239. Ohio Valley Envtl. Coalition v. Bulen, 429 F.3d 493 (4th Cir. 2005) (rejecting challenge to analysis supporting Army Corps of Engineers' nationwide permit for valley fills, where mining debris is deposited);
240. Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003) (rejecting a challenge to Army Corps of Engineers' issuance of valley-fill permits under section 404 of Clean Water Act);
241. Bragg v. W. Va. Coal Ass'n, 248 F.3d 275, 297-98 (4th Cir. 2001) (holding citizen-suit provision of Surface Mining Conservation and Reclamation Act inapplicable to state surface-mining program on federalism grounds).
242. See 2011 Gulf of Mexico 'Dead Zone' Could Be Biggest Ever, SCIENCE DAILY, Jul. 18, 2011, http://www.sciencedaily.com/releases/2011/07/110718141618.htm (reporting an average size of 5800 square miles, approaching 9400 square miles in severe years).
243. See Roger Highfield, Ocean Dead Zones Free of Oxygen Double Every Decade, THE TELEGRAPH (London), Aug. 14, 2008 (noting that scientists are presently aware of 405 hypoxic dead zones totaling 95, 000 square miles and estimate that the actual total may be much greater).
244. See JASON CLAY, WORLD AGRICULTURE AND THE ENVIRONMENT: A COMMODITY-BY-COMMODITY GUIDE TO IMPACTS AND PRACTICES 421 (2004) (linking United States corn production to Gulf of Mexico's hypoxic "dead zone");
245. MICHAEL POLLAN, THE OMNIVORE'S DILEMMA 35-79 (2006) (summarizing American agricultural policy and its effect on cropproduction decisions).