Making Law Environmental: Legal Thought at the New Deal Order's End, 1964–1974

Abstract

This is an intellectual history of environmental law in the United States. In the early 1960s, scientists, politicians, and the public embraced a new concept: “the environment.” Many appealed to this concept to express fears that postwar affluence was ecologically unsustainable, that Earth was in crisis. Lawyers responded by creating a new field: environmental law. Contrary to common scholarly presumptions, I show that environmental law initially held no single meaning. Rather, making law environmental meant experimenting. Lawyers drew upon prominent judicial precedents, common intellectual moves, and open-ended statutory language in service of multifarious projects. Some sought answers in administrative agencies, transforming the sector-by-sector “economic regulation” of the New Deal into a new, comprehensive “social regulation.” Others tried forging new constitutional rights, finding doctrinal possibilities in decisions that protected personal privacy and scrutinized public planning. Still others envisioned a “societal antitrust,” leveraging worries about big business into briefs for consumer sovereignty. Yet for all its dynamism, environmental law was also tightly bounded from the start. Environmental lawyers were largely legal liberals. Inspired by the Warren Court, they thought the legal system instantiated a distinctive form of reason, capable of safeguarding individuals against politics’ vicissitudes. This position was “essentially conservative.” Environmental lawyers rarely scrutinized the political-economic foundations of the ecological crisis. When they did, they sought little more than to perfect the market through taxing externalities, protecting property rights, or promoting competition. These approaches proved limiting: legal thinkers proposed modest remedies incongruous with their own grave diagnoses. Just a decade after the first “environmental” law class, some were already calling for the field to seek “new foundations.” In uncovering this history, I cast new light on the shift from the New Deal order of the postwar decades to the neoliberal order that followed. Environmental lawyers were mostly not neoliberals, but they unwittingly created concepts and institutions congenial to their putative opponents. From the mid-1970s onward, social regulation, rather than social transformation, became environmental law’s core. Confronting today’s climate crisis and escaping neoliberalism’s fetters will require making another environmental law.