Boston College

Department of History

The Historical Development of American Legal, Political, and

Cultural Conceptualizations of Environment

By

Cameron Cox

Honors Thesis

May 2016

Adviser: Professor Ling Zhang

Table of Contents

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Chapter 1- Varying Evolutions of American Environmental Thought . . . . . . . . . . . . . . . 12

1.1- The Cultural Evolution of Environmental Thought . . . . . . . . . . . . . . . . . . 15

1.2- The Political Evolution of Environmental Thought . . . . . . . . . . . . . . . . . . 30

1.3- The Legal Evolution of Environmental Thought . . . . . . . . . . . . . . . . . . . 36

Chapter 2- The Prioritization of Tangible Environmental Factors in the Environmental Decade. 43

2.1- The Fourth Strand of Environmental Thought: Environmentalism . . . . . . . . . . 46

2.2- The Political Push Towards the Environmental Decade . . . . . . . . . . . . . . . .52

2.3- The Law of the Environmental Decade . . . . . . . . . . . . . . . . . . . . . . . . 55

Chapter 3- The Divergence of Cultural and Legal Environmental Thought . . . . . . . . . . . . 81

3.1- The Fifth Strand of Environmental Thought: Climate Change . . . . . . . . . . . . 85

3.2- Carter, Reagan, and the Conservative War on the Environment . . . . . . . . . . . . 98

3.3- The Legal Environmental Conceptualization and 1970s Language Issues . . . . . . 106

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

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Introduction

By 2012, only two recognized states in the world hadn’t ratified the Kyoto Protocol.1 The

Protocol was one of the United Nations first major international efforts to combat climate

change, and as such, participation from world leaders was crucial. Of the two countries who

refused to ratify the accord, one was particularly concerning for the international community.

The United States refused to sign or ratify the Protocol despite producing a large share of

the world’s total carbon dioxide emissions.2 America’s singular decision to not sign the Kyoto

Protocol was part of a greater systemic inability of the country to adequately respond to climate

change.3 This thesis will seek to argue, that this inability to adequately address climate change

was linked to a flawed, narrow, and outdated domestic legal conceptualization of environment.

From 1997-2012, 82 countries signed, and 193 countries ratified the Kyoto Protocol that

pledged, among other things, to lower the rate of fossil fuel emissions by 2020 in an effort to

combat climate change.4 The Protocol was by no means a final solution to the international

problem; in fact the Protocol was quite flawed.5 Nevertheless, over the course of 15 years, the

vast majority of the world’s approximately 195 nations ratified the Accord. The overwhelming

support indicated that most nations of the world were ready to combat climate change, if not

substantively, then at least symbolically. In other words, many countries that signed the

agreement didn’t do so with the belief that they would solve the climate change problem, but

1 United Nations, “Status of Ratification of the Kyoto Protocol,” United Nations Framework Convention on Climate Change, http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php (accessed April 29, 2016).2 The World Bank Group, "CO2 Emissions (metric tons per capita),” The World Bank, http://data.worldbank.org/indicator/EN.ATM.CO2E.PC?page=3 (accessed April 26, 2016).3 United Nations, “Status of Ratification of the Kyoto Protocol,” United Nations Framework Convention on Climate Change, http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php (accessed April 29, 2016).4 ibid. 5 James Hansen, Storms of My Grandchildren (New York, Bloomsbury, 2009), 182-183.

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rather, to show they were eager to address it. That 193 of the world’s 195 nations exhibited a

willingness to address climate change was reassuring, but it was one of the two nations in the

world, the United States, that happened to be the main culprit of carbon dioxide emissions.

In 1997, the year the Kyoto Protocol was initially adopted by the United Nations, the

average Afghan citizen (Afghanistan being one of the two non-ratifying nations pre-2012)

produced 0.1 metric tons of carbon dioxide.6 In comparison, the average citizens’ carbon dioxide

emission in the United States was 19.7 metrics tons, some 200 times higher.7 Countries like

Qatar, Luxemburg, and Bahrain were some of the few who exceeded this per capita production,

but the populations of these countries paled in comparison to the approximately 266 million

people living in America on January 1, 1997.8 No highly populated, developed country in the

world, not Russia, Japan, or Germany even came close to the per capita emission rate of the

United States.

For all intents and purposes, when the Kyoto Protocol was proposed, the United States

was one of the single worst carbon dioxide emitters in the world, and for a self-declared

hegemony, and the leader of the world economy, it was troublesome that the United States did

not at least ratify the Accord. Why didn’t other developed countries, who also had highly

developed economies refuse to ratify the Protocol? Though there is no one conclusive answer to

this question, it will be the aim of this thesis to offer a possible historical explanation, at least in

part, for the failure of the United States to not only sign the Kyoto Protocol, but also it’s failure

to garner any substantive legal or international action to address climate change.9 This thesis will

6 The World Bank Group, "CO2 Emissions (metric tons per capita),” The World Bank, http://data.worldbank.org/indicator/EN.ATM.CO2E.PC?page=3 (accessed April 26, 2016).7 Ibid.8 U.S. Bureau of the Census, “Population Profile of the United States: 1997,” https://www.census.gov/prod/3/98pubs/p23-194.pdf (accessed April 21, 2016). 9 David Ismay (Staff Attorney at Conservation Law Foundation), interview by author, Chestnut Hill, Massachusetts, October 28, 2015.

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argue that an inadequate American legal conceptualization of environment in the 1970s made it

difficult for American law to adjust to climate change in the 1980s and beyond.

Before going further, it is necessary to address the abstract nature of the historical topic at

hand. The main focus of this thesis will be on differing concepts of environment across three

sectors of American life; cultural, legal, and political. All three of these sectors understood the

concept of “environment” differently, and between the mid-19th century and the late 20th century,

these three sector’s conceptualizations of environment constantly shifted and evolved due to

varying socio-political forces such as demographic change, industrialization, and scientific

research. This thesis will seek to observe and articulate the historical interrelationship of the

cultural, legal, and political conceptualizations of American environment, in an effort to better

understand the shortcomings of the American legal conceptualization that eventually triggered

the stagnation of American domestic and international environmental law in the 1970s.

As concerns over the natural world steadily rose in the American political mind during

the 1960s, the term “environment” was readily applied to cover a whole assortment of problems,

new and old, which plagued the natural world. The choice of the term “environment” was in

large part due to the words connection with Rachel Carson and the Environmentalist movement

of the early 1960s. In 1969, the cultural popularity of Carson’s concept of environment pushed

lawmakers to comprehensively respond to the public’s call for environmental legislation.

Lawmakers in the 1970s sought to systematically transfer the cultural concept of environment

into law during what lawmakers called “The Environmental Decade”.10 With the best of

intentions, lawmakers worked to incorporate the vague cultural understanding of the term

10 House Subcommittee of the Committee on Government Operations, The Environmental Decade (Action Proposals for the 1970), 91st Cong., 2d sess.,1970 (Statement of Henry Reuss, Chair, Conservation and Natural Resources Sub-Committee, Washington D.C.).

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“environment” into statutory law, blissfully unaware in many cases, of the full complexity of the

concept, and its deep roots in American cultural history.

In American cultural history there existed four distinct strands of American cultural

environmental thought before 1969; Transcendentalist, Preservationist, Conservationist, and

Environmentalist. All four strands sought to articulate a different understanding of the natural

world. Though they differed, all four strands contributed to a greater understanding of

environment in American culture. For all their best efforts, by decades end, it became clear that

1970s lawmakers did not properly account for Transcendentalist and Preservationist intangible

understandings of environment in their greater environmental conceptualization. Rather,

lawmakers conceived of the environment only as an observable or quantifiable physical thing,

centered on Conservationist and Environmentalist thought.

The failure of law to properly account for the intangible strands of cultural environmental

thought during the Environmental Decade would be costly when global climate change reached

cultural prominence in the 1980s. Furthermore, since virtually all major environmental laws were

passed between 1968-1978, modern American environmental law today still does not allow for

intangible conceptualizations of environment. By not allowing for intangibility in American law,

lawmakers of the 1970s inadvertently damaged the United States ability to adjust to the largely

intangible, global ecosystem based environmental problem of climate change. Thus the failure of

law to properly conceptualize the cultural understanding of environment in the 1970s, set the

course for a narrow, misled political environmental conceptualization in the 1980s that still

carries implications today.

To understand the relationship between the evolutions of the political, legal, and cultural

conceptualizations of environment, this thesis will seek to historically reconstruct the

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development of these three conceptualizations. In the 19th and early 20th centuries, the political,

legal, and cultural conceptualizations of environment grew parallel to one another, but by the end

of the 1980s, the legal conceptualization failed to evolve alongside the cultural

conceptualization, and as a result, the political conceptualization, drawing largely from the legal,

began to diverge away from the cultural understanding of environment as well. In the end, this

thesis by reconstructing the parallel, then diverging evolutions of legal, political, and cultural

conceptualizations of environment from the mid-19th-late 20th century will aim to show how the

law’s failure to properly conceive of the environment in the Environmental Decade has damaged

United States domestic and international efforts to combat climate change. To achieve this end,

this thesis will be broken up into three chronological chapters.

Chapter One will seek to examine the historical development of and the relationship

between three unique strands of cultural environmental thought. The chapter will begin with the

Transcendentalists of the mid-19th century who prioritized a spiritual understanding of the natural

world. The Transcendental spirituality eventually evolved into the Preservationist’s recreational

prioritization of the late 19th, early 20th century. This evolution from Transcendentalist thought

into Preservationist thought was subsequently followed by an evolution of Preservationist

thought into Conservationist thought in the early-20th century. These three strands of

environmental thought collectively represented spiritual, recreational, and economic

understandings of the natural world. Though each one strand chronologically evolved into the

next, this did not mean any one strand was alienated or left out of a greater understanding of

environment. In reality, all three strands collectively composed the greater American cultural

understanding of environment.

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As the cultural understanding of environment grew, so too did the legal and political

understandings. Theodore Roosevelt and Gifford Pinchot, while serving to represent the third

cultural strand of environmental thought, also incorporated the natural world into the American

political consciousness by focusing on natural resource use and economic growth. Subsequently,

though environmental laws were not unified before 1969, they still reacted to certain societal

demands deriving from the cultural understanding of environment. Laws like the Wilderness Act

of 1964 responded to the intangible strands of environmental thought, and laws like the Air

Pollution Control Bill of 1955 responded to the tangible strands of environmental thought. As

such, law evolved alongside the new political consciousness of the environment as the 20th

century wore on, and both law and politics grew parallel to culture.

Beginning with Rachel Carson, Chapter Two will first look at a fourth strand of

environmental thought, Environmentalism. Environmentalism represented the last strand of

environmental thought in the greater cultural environmental conceptualization that would carry

over into the Environmental Decade in 1969. Chapter Two will then turn to the political

byproducts of Environmentalism’s popularity, highlighting Lynton Caldwell’s Environment: A

New Focus For Public Policy that introduced the idea of a comprehensive legal approach. From

the political build up the chapter will turn to the Environmental Decade itself, dealing with

specific laws and policies of the Decade. Lawmakers of the 1970s strove for a comprehensive,

fluid understanding of environment as Caldwell suggested, but in the law’s substance and in

lawmakers’ rhetoric, they unintentionally prioritized health and economy, and largely

disregarded intangible conceptualizations of environment.

Finally, Chapter Three will aim to observe how the law and a changing political reality

prevented America from adequately combatting global climate change despite another cultural

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evolution of environmental thought. In effect, the law, by improperly conceptualizing

environment as something primarily economic and health oriented, diverged away from a deeper

cultural conceptualization comprised not only of economy and health, but spirituality and

recreation as well. In the 1980s, this cultural conceptualization grew to include global climate

change, which drew from both tangible and intangible strands of the cultural conceptualization.

Scientists could conceive of climate change numerically and as it pertained to people’s long term

health, but when it came to immediately observable every day effects, climate change offered

very few. As a result, the law could not account for or address an environmental problem like

climate change because it only protected against tangible, quantifiable, and observable

environmental disturbances. If the law in the 1970s had properly conceptualized the

environment, it would have allowed for intangible environmental thought that largely sought to

protect the environment for it’s inherent value to the human spirit. To borrow from Ralph Waldo

Emerson, this would have forced lawmakers to protect elements of the natural world “in and for

themselves”, which would have set a more flexible legal precedent that wasn’t so reliant on

tangible understandings of environment. But since the law allowed for only tangible

environmental understandings during the Environmental Decade, and neglected flexible, value

based intangible environmental thinking, American law was not flexible enough to adjust to

climate change research, and as such, when the cultural conceptualization of environment grew,

the legal conceptualization did not. Chapter Three will seek to exhibit the ramifications of this

split in environmental thought, first by laying out the fifth strand of environmental thought, the

global ecosystem understanding, before exhibiting how the legal system failed to respond to the

new cultural conceptualization. Then the chapter will turn to the 1980s political climate, in effort

to show the separation of the cultural, and political understandings of environment, as a result of

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this improper legal conceptualization. Chapter Three will conclude by articulating specific

examples of how the rhetoric of law damaged the legal environmental understanding, and by

looking at the natural resource coal as a case study.

This thesis seeks to observe the historical evolution of American environmental thought,

and its subsequent evolutions in politics and law. Until the 1970s, these three evolutions grew

parallel to one another, that was, until the law failed to adequately conceptualize the intangible

aspects of environment, focusing on economy and health. This sent the tangible political and

legal understandings of environment diverging away from the tangible and intangible cultural

understanding of environment during the Reagan administration in the 1980s. In essence,

America’s failure to effectively participate in the international fight against global climate

change was partially due to a prioritization of tangible strands of environmental thought in

domestic American law, which did not properly account for an issue like climate change. When

an intangible fifth strand of environmental thought emerged in 1980, the cultural

conceptualization evolved, but the legal conceptualization, largely void of intangibility, could not

evolve alongside it. This in turn allowed politicians in the 1980s to use the tangible legal

conceptualization, to justify the prioritization of economy in the climate change era. The Bush

Administration’s decision not to sign the Kyoto Protocol was due in large part to economic

concerns.11 If law’s 1970s environmental conceptualization hadn’t allowed for economic

prioritization, perhaps the United States would have been one of the first countries to sign the

Kyoto Protocol, not the very last.

11 James Hansen, Storms of My Grandchildren, 182-183.

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Chapter 1

Varying Evolutions of American Environmental Thought

Primary forms, as the sky, the mountain, the tree, the animal, give us a delight in and for

themselves.” Ralph Waldo Emerson, “Nature”, 1836. 12

Introduction

The cultural evolution of environmental thought can be traced back some almost 200

years to the time of the New England Transcendentalists, and two leading figures, Ralph Waldo

Emerson and Henry David Thoreau. Growing from Unitarian traditions of 19th century New

England, Transcendentalist thinkers held spirituality in high regard. Though the intellectual and

philosophical movement covered a wide array of societal topics, spiritual tones almost always

dominated Transcendentalist works, and Emerson and Thoreau’s nature writings were no

different. Both thinkers were among the first Americans to articulate a relationship between man

and nature. Inspired by the simplicity of rural New England life in the mid-19th century, Emerson

and Thoreau were allowed to freely explore ideas of nature and it’s worth for the individual,

without threat from industry or the disruption of urban life. From this freedom, Emerson and

Thoreau found that nature’s greatest worth was for the human spirit. From this finding, the two

Transcendentalist thinkers contributed a spiritual understanding of the natural world, to the

12 Ralph Waldo Emerson, "Nature,” (1836), in The American Transcendentalist: Essential Writings, ed. Lawrence (New York: The Modern Library, 2006), 38.

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evolution of American environmental thought. Their successor, John Muir, enjoyed the same

spiritual connection to nature as Emerson and Thoreau, and from it, evolved American

environmental thought to accommodate a changing demographic reality.

By the time Muir began to write heavily in the last two decades of the 19th century,

America was rapidly expanding West, and it was becoming clear that the natural world was for

the first time, seriously threatened. John Muir was a nature writer and policy-advocate who

fought much of his life to ensure that nature’s spiritual beauty remained in pristine condition,

even if that meant opening the gates of the natural world to the awe-seeking American public.

Muir realized that a veil of recreational worth was necessary in preserving the natural beauty that

he cherished. Muir fought for a National Park system and encouraged nature’s recreational use

because he understood that recreation and tourism would ensure federal spending and protection

of the natural world. Towards the end of his life, Muir positively influenced the father of the

third strand of environmental thought, Theodore Roosevelt.

While Muir advocated for the preservation of the natural world for spiritual and

recreational reasons, Theodore Roosevelt saw another value in the natural world worth

protecting; it’s economic potential. The economic focus of Roosevelt and the Conservationists

grew primarily from their concern with the sustainable and efficient use of natural resources.

Roosevelt possessed a genuine spiritual connection with nature (Transcendentalist), and he

manifested it through his recreational activities as Muir intended (Preservationist). From his

close connection to the natural world, Roosevelt sought to incorporate nature into the political

realm. Much like Muir, Roosevelt understood that in order for nature to be protected, yet another

evolution in environmental thought was necessary. As a result, Roosevelt and his National Forest

Director, Gifford Pinchot, championed the Conservation movement during his presidency from

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1901-1909. Conservation was a utilitarian approach, “the most good for the most people for the

longest period of time.”13 For early 20th century Americans the “good” was most often monetary,

and Roosevelt sought to ensure nature was protected alongside, and in harmony with, the

economic demands of the country. This testament to sustainability was central to the Roosevelt

administration, and from it emerged the concepts of efficiency and waste elimination. The

Roosevelt administration effectively shifted public awareness and recreational appreciation for

nature into a new political age dedicated to conservation and economic growth. The production

boom of the 1920s exemplified this shift, and sustainable management of resources allowed

industry to flourish throughout the century. Roosevelt believed that a protected, productive us of

the natural world, could drastically improve public life, by creating a sustainable, enriched

economy.

What ultimately differentiated the Transcendentalists, Preservationists, and

Conservationists was how they conceived of, appreciated, and placed worth on the environment.

In this sense, the Transcendentalists believed the environment bore spiritual worth, the

Preservationists recreational worth, and the Conservationists economic worth. Each strand chose

to focus on a particular element of environmental thought, emphasizing it importance, but not at

the expense of other conceptualizations. In reality, the three environmental strands of thought

grew into one another chronologically, bringing to light different American appreciations of the

natural world at different historical times, to create a collective understanding of “environment”.

For this reason, the term environment was partially complicated and abstract (Transcendentalist

and Preservationist), while simultaneously tangible and finite (Conservationist). Over the course

of approximately a century, the three strands articulated in this chapter shared the mutual belief

that protection of the natural world was of the utmost importance. From this advocation for

13 Gifford Pinchot, The Fight For Conservation (New York: Doubleday, Page & Company, 1910), 47.

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natural world protection both politicians, and lawmakers before 1962 sought to incorporate both

the tangible, and intangible cultural understandings of environment into the political/legal realm.

It will be the aim of this chapter to illustrate the evolution of cultural environmental thought in

American history preceding the Environmentalist movement, alongside this parallel, non-

conflicting political/legal understanding.

1.1- The Cultural Evolution of Environmental Thought

The First Strand: Transcendentalism

One of the first relationships articulated in the United States between man and the

environment grew out of European Romanticism and enlightened, religious zeal. The

unobservable, intangible, abstraction that is spirituality, is the exact opposite of what law strives

to be. Nevertheless, the Transcendentalists thinkers of the mid-19th century bore little concern for

legal implications. For them, nature possessed an awe-inspiring power that connected every

individual man and woman who opened up to it, with the universe. The Transcendental spiritual

understanding of the environment though abstract, inspired centuries of American environmental

thought, and set a precedent for future American environmental thinkers.

“Nature satisfies the soul purely by its loveliness, and without any mixture of corporeal

belief.”14 These were the words of Ralph Waldo Emerson in his famous Nature essay (1836). To

his dismay, Emerson was often identified by literature scholars and the general public as the

14 Ralph Waldo Emerson, "Nature,” in The American Transcendentalist: Essential Writings, 38.

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father of the Transcendentalist movement.15 The movement originated out of Unitarian traditions

of the 1830s, and comprised principally of religious ferment and intellectual, philosophical, and

often-existential exploration.16 As the Transcendentalist movement grew and broadened to cover

topics ranging from religion to resistance of civil government, the first distinguishable

articulation of the relationship between society and the environment emerged. Emerson’s Nature

essay was amongst the first to articulate this relationship, and Henry David Thoreau’s essays

Walden, Walking, and Two Proposals for Land Preservation further expanded upon Emerson’s

declaration of environmental worth.

The heart of the Transcendental ethos can best be described as “the idea of a divinity

latent within each person, whose ordinarily underactivated potential is not to be reasoned into

being so much as ignited.”17 Charles Dickens seemed to agree with this interpretation of ethos

when he wrote in 1842, “whatever was unintelligible would be certainly transcendental.” 18 The

noticeable lack of reason, or intelligibility, was intentional by Transcendentalists thinkers. They

were primarily concerned with spiritual philosophy, and found great worth in questions of the

spirit, as opposed to well-reasoned, analytical understandings. For the Transcendentalists, nature

was a gateway and nurturer of existential thought and individual growth. Their relationship with

nature was perhaps best articulated by Emerson when he wrote, “It is the great organ through

which the universal spirit speaks to the individual, and strives to lead back the individual to it.”19

Both Emerson and Thoreau believed that there was an innate, unintelligible attraction between

15 Lawrence Buell, introduction to The Transcendentalist: Essential Writings, ed. Lawrence Buell (New York: The Modern Library, 2006), xxii. 16 Ibid., xx.17 Ibid., xxiii. 18 Charles Dickens, “On Boston Transcendentalism”, in The American Transcendentalist: Essential Writings, ed. Lawrence Buell (New York: The Modern Library, 2006), 123.19 Lawrence Buell, introduction to The Transcendentalist: Essential Writings, xxii.

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the individual spirit and the nature world. In his 1836 essay Nature, Emerson sought to articulate

this unintelligible spiritual truth to the American public.

Spiritual rhetoric was abundant within Nature. In subsection IV (Language), Emerson

wrote, “But this origin of all words that convey a spiritual import, so conspicuous a fact in the

history of language, is our least debt to nature.”20 Later in subsection VI (Idealism) he wrote,

“Nature is made to conspire with spirit to emancipate us”.21 And again in Beauty Emerson wrote,

“What angels invented these splendid ornaments, these rich conveniences, this ocean of air

above”.22 These several examples were indicative of Emerson’s spiritual focus, and helped to

highlight the intrinsic tie Emerson observed between man and the natural world.

Nature is “perhaps the most complex word in the [English] language.”23 Emerson in his

introduction to Nature supported this opinion. He defined both a strict and common definition to

try and grasp the complexity of the term. He articulated the strict definition of nature as, “all that

is separate from us,” further clarifying, “all which Philosophy distinguishes as the NOT ME, that

is, both nature and art, all other men and my own body, must be ranked under this name,

NATURE.”24 In contrast, he defined, “Nature, in the common sense” as “essences unchanged by

man; space, the air, the river, the leaf.”25 Emerson went on to iterate that he would use both of

these definitions interchangeably, believing “that in an impression so grand as that of the world

on the human mind, they do not vary the result”.26 Emerson’s broad and ambiguous definitions of

nature were indicative of the Transcendentalist abstract interpretation of man’s relationship with

20 Ralph Waldo Emerson, "Nature,” in The American Transcendentalist: Essential Writings, 43. 21 Ibid., 54.22 Ibid., 37.23 Daniel J. Philippon, Conserving Words: How American Nature Writers Shaped the Environmental Movement (Athens, GA: University of Georgia Press, 2004), 11. 24 Ralph Waldo Emerson, "Nature,” in The American Transcendentalist: Essential Writings, 34. 25 Ibid., 34.26 Ibid., 34.

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nature, and the inherent complexities of terms (nature, environment) intended to embody the

natural world.

Emerson’s work independently influenced Preservationist thought in the 20th century,

who had a particular interest in Emerson’s common definition of nature, and the idea of

“essences unchanged by man.” This intangible, abstract connection that both the

Transcendentalist and Preservationist shared with nature indicates evolution of one idea into

another, not strictly defined lines that separate the two conceptualizations. “essences unchanged

by man” represents and idea, an idea that American environmental thought was built upon.

Similarities like this that multiple strands share give insight into the complex, non-rigid,

evolutionary tendency of the environmental concept.

Perhaps the most convincing example of the link between Transcendentalists and later

Preservationist thought can be found within the subsection Beauty in Emerson’s Nature essay.

Emerson wrote, “that primary forms, as the sky, the mountain, the tree, the animal, give us a

delight in and for themselves.”27 This line not only exemplified the spiritual rhetoric of Emerson,

but also represented the essence of later Preservationist interpretations and desire for wilderness

preservation. The passing of the Wilderness Act of 1964, which sought to preserve wilderness in

and for itself, is proof that Emerson’s 1838 thought influenced environmental thought over a

century later. This is indicative of an evolving, interrelated understanding of environment, as

opposed to a strictly defined, tangible understanding.

The spiritual relationship with nature articulated by Emerson in Nature inspired his

younger contemporary Henry David Thoreau. Thoreau molded Emerson’s relationship with

nature to make it more accessible, and ultimately more workable for later environmental thinkers

and policy-makers.

27 Ibid., 38.

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Scholars generally believe that, “Henry Thoreau drew heavily on Emerson’s theory of

the “correspondence” between the realms of nature and spirit even as he took Emerson’s poetic-

philosophical view of nature in a more empirical, proto-environmentalist direction.”28 There are

also scholars who argue that Thoreau was more influential than Emerson in the evolution of the

American environmental conception. “One could not understand the emergence of

environmentalist thought in American culture without identifying its origins in the radically new

conceptions of nature presented in Thoreau’s literature and journals.”29 Though scholars are not

wrong in their assertion that Thoreau further defined the American environmental concept, it is

overzealous to argue that Thoreau was the “originator” of radically new conceptions of nature.

To do so, is to take credibility away from Emerson, who served as a greater influence on Muir

than did Thoreau. As one major Transcendental scholar wrote, “Thoreau was hardly the first

American to envision park preservation”, and to label him as such, is to disregard other

important figures, mainly Emerson, in an incredibly complicated evolution of the American

environmental conception.30

“Thoreau must have imbibed Transcendentalism through almost every pore during his

two years living with Emerson, though he would modify it to suit his own temperament by

granting nature more reality than Emerson did.”31 Walden was noticeably less intellectual than

Nature, but what it sacrificed in sophistication it made up for in accessibility. Though Thoreau

shared Emerson’s poetic, spiritual tendencies, his material came across a bit more flowery than

Emerson’s. In Walden and later in his essay Walking, Thoreau approached nature simply,

28 Ibid., 32. 29 Kent Curtis, “The Virtue of Thoreau: Biography, Geography, and History in Walden Woods,” Environmental History 15, no. 1 (2010), http://www.jstor.org.proxy.bc.edu/stable/20749642 (accessed October 29, 2015), 34. 30 Lawrence Buell, introduction to “Two Proposals for Land Preservation” in The Transcendentalist: Essential Writings, 336. 31 Richard J. Schneider, “Thoreau’s Life,” The Thoreau Society, http://www.thoreausociety.org/life-legacy (accessed October, 29, 2015).

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discussing daily occurrences on the pond, and the simple pleasures of a walk in the woods.

Simple lines like, “I go and come with a strange liberty in Nature, a part of herself,” 32 or “what

sweet and tender, the most innocent and divinely encouraging society there is in every natural

object” are examples of Thoreau’s simple and accessible material.33 Furthering his accessibility

was his use of journal entries as his means of conveyance. His work was more relatable to people

who were more often to open a journal than they were to entrench themselves in a formal

scholarly paper. Furthermore, Thoreau’s use of a single pond in his work (Walden Pond) allowed

readers to more easily visualize nature in his works. A pond is a natural landscape that most

people could identify with. Thus, anyone could go to a pond and ponder “every natural object” as

Thoreau did. His work brought the environment into the public eye in a way that Emerson’s

more scholarly Nature could not. Thoreau and Walden shouldn’t be credited with the origination

of Preservationist thought, but should be credited with improving environmental accessibility,

and bringing Emerson’s influences and beliefs to a wider audience.34

Thoreau symbolized an evolution in the cultural concept of the environment. Building off

Emerson’s intellectual understanding, Thoreau began to think more clearly about society’s

relationship with nature. This gave way to Thoreau’s essay Two Proposals for Land Preservation

(1858,1859). In his first proposal, Thoreau argued that nature should not be reserved for the elite,

but for all members of society and community.35 He followed this point with the iteration that

nature should be preserved “not for idle sport or food, but for inspiration, and our own true

32 Henry David Thoreau, Walden (New York: Oxford University Press, 1997), 97.33 Henry David Thoreau, "First Days at Walden,” in The American Transcendentalist: Essential Writings, ed. Lawrence Buell (New York: The Modern Library, 2006), 437.34 Nina Baym, “The New England Quarterly Region and Environment in American Literature,” New England Quarterly 77, no.2 (2004): 301-307. 35 Lawrence Buell, introduction to “Two Proposals for Land Preservation” in The Transcendentalist: Essential Writings, 337.

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recreation.”36 In his second proposal, he more or less echoed the reasoning of the first proposal,

ensuring the reader understood the spiritual worth of nature when he said, “we are all

schoolmasters, and our school-house is the universe.”37 Ultimately, Thoreau proposed that

communities set aside “five hundred or a thousand acres” to remain untouched and in their

natural state.38

Thoreau’s proposals were not impractical in their own time, but in the years to come,

they would become less feasible. Nevertheless, his essay Two Proposals for Land Preservation

carried with it lasting implications. Thoreau’s references to recreation and keeping the

environment in its “natural state” would be primary concerns of the Preservationists in the next

stage of environmental thought.

The Transcendentalist movement, embodied by Emerson and Thoreau, represented the

first major strand of environmental thought, and it was among the first American movements to

articulate a distinct relationship between man and the natural world. The Transcendentalists

permanently engrained spirituality into the American environmental conscious, though its

influences would largely be hidden from the public eye, as future strands of environmental

thought layered on top of it.

36 Ibid., 337.37 Ibid., 337.38 Ibid., 337.

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The Second Strand: Preservationism

While Emerson and Thoreau pondered existential questions, 3,000 miles west of New

England, John Muir was getting his fill of “the blessed woods about Yosemite Valley.”39

Enthralled with the spiritual teachings of Emerson, an eager and motivated Muir invited his

predecessor to California for a month-long camping excursion into his beloved Sierra Nevada.40

In May 1871, Ralph Waldo Emerson, then in his later years, went to visit a young and

relatively unknown naturalist from California, John Muir. Muir showed Emerson around

Yosemite with gleeful pride, and hoped that the aged naturalist writer from New England would

accompany him on a trip into the wilderness. Instead, Emerson’s visit with Muir turned out to be

one of Muir’s greatest disappointments.41 He found that Emerson had fallen victim to an “indoor

philosophy”, and Muir wrote of the traveling party that accompanied Emerson, they “failed to

see the natural beauty and fullness of promise of my wild plan, and laughed at it in good-natured

ignorance.”42 The plan that Muir referred to was his plan to protect and preserve the Yosemite

Valley, a concept not shunned by Emerson, but one that in his age he may have drifted away

from. For the most part, it was Emerson’s traveling party that insulted Muir. It was on their

suggestion that Emerson regretfully declined to adventure into the Sierras. Regardless, Muir left

Emerson’s company disappointed with the outcome of the visit. Emerson, the father of spiritual

American environmental thought, failed to meet Muir’s enthusiasm adequately.43 There could be

39 John Muir, "Alaska, July 1879,” in John Muir: Spiritual Writings, ed. Tim Flinders (Maryknoll: Orbis Books, 2013), 103. 40 Daniel J. Philippon, Conserving Words: How American Nature Writers Shaped the Environmental Movement, 107. 41 Ibid., 107. 42 Ibid., 107. 43 Ibid., 107-108.

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no greater symbol for the evolution of cultural environmental thought, than Muir’s unfulfilling

visit with Emerson in 1871.

Social forces Emerson did not have to consider in his own historical time inspired Muir's

"wild plan" These power forces were rapid industrialization, and population growth in the late-

19th century. In the years between Thoreau’s Two Proposals for Land Preservation (1859) and

John Muir’s meeting with Ralph Waldo Emerson in 1871, the United States was changing

rapidly. The Transcendentalists developed a relationship with nature based largely on the belief

that nature was relatively unthreatened, as evidenced by Thoreau’s belief that each community

could set aside a thousand acres of preserved land. However, rapid industrialization and

westward expansion were quickly necessitating an evolution in American environmental

thought. As such, much of the Preservationists work was a reaction to the changing demographic

landscape of America. Preservationists like Muir understood that in order to mitigate

demographic harm, they would have to evolve and adapt mans relationship with nature, to allow

for new and powerful forces that threatened the natural world, without sacrificing the spiritual

connection both the Transcendentalist and Preservationist shared with nature.

In the 1860 census, the “northwestern states” were Indiana, Illinois, Michigan,

Wisconsin, Iowa and Minnesota, better known today as the Midwest. Texas and California were

the only two states established more westerly at the time, and fell within no geographical

grouping in the Census. Around the time Thoreau wrote Two Proposals for Land Preservation in

1859, California (John Muir’s home state) had a population of about 165,000 people.44. By 1890,

railroads facilitated the means for massive population expansion to every corner of the United

States, and as a result, the population of San Francisco by 1890 was around 300,000. This figure

44 United States Bureau of the Census, “Population of the United States in 1860,” under “Census of Population and Housing 1860,” https://www.census.gov/prod/www/decennial.html (accessed October 25, 2015).

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was almost two times greater than the entire state’s population just three decades prior.45 Muir,

who was writing in California throughout this transformation, understood the necessity to

anticipate and adapt his spiritual relationship with nature in order to defend the natural world

against the rapidly growing American population. When Emerson came to visit in 1871, the

“ignorance” that Muir accused him of was very likely Emerson’s ignorance of the changes

occurring in California and America at the time.

Understanding that the natural and pristine landscapes of the American West were under

threat from population growth, Muir developed an intense devotion for the protection of nature.46

As much as he rebelled against what Emerson and his accompanying party had become in 1871,

later in his life he began to understand, as Emerson wrote him in 1872, that “solitude… is a

sublime mistress, but an intolerable wife.47 By 1903, Muir took to the idea that, “the fate of his

beloved Sierra Nevada rested as much on the domesticating influence of civilization as it did on

wilderness devotees like himself.”48 Muir’s recognition of the changing tides in American

demographics allowed him to shape and mold Thoreau’s somewhat impractical Two Land

Proposals to fit the industrializing powers of his time. The Preservationist desire for national

parks and wilderness areas grew out of Transcendental spirituality, but Preservationists preached

recreational use with the understanding that all of society would intrinsically become connected

to the natural world in the years to come.

The same spiritual tendencies exhibited by the Transcendentalists were also found in

Preservationists writings, especially in the earlier years (1860s-1890s). Muir’s spirituality and

45 United States Bureau of the Census, “Report on the Population of the United States at the Eleventh Census,” under “Census of Population and Housing 1890: Final Reports,” https://www.census.gov/prod/www/decennial.html (accessed October 25, 2015). 46 Daniel J. Philippon, Conserving Words: How American Nature Writers Shaped the Environmental Movement, 109. 47 Ibid., 109. 48 Ibid., 109.

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devotion to nature grew from a rebellion against his strict Calvinist upbringing.49 His father,

Daniel Muir, believed that nature served a strictly utilitarian function, and that humans were put

on this Earth to “subdue it” as they had in the book of Genesis.50 His son John, who would later

be referred to as “the Taoist of the West,” preferred to look for divine love in Nature, rather than

the divine wrath his strict and violent father observed.51 Dozens of excerpts from Muir’s writings

were representative of his search for divine love in nature. One such example came in April

1875, when Muir wrote from Mt. Shasta in California, “spiritual life filled every pore of rock and

cloud; and we reveled in the marvelous abundance and beauty of the landscapes by which we

were encircled.52 This type of spiritual rhetoric was especially abundant in Muir’s earlier years,

before his pure naturalist love for nature gave way to more rational and practical recreational

sentiments.

Muir was not the only spiritual Preservationist thinker, although he was by far the most

prominent figure. Aldo Leopard was another influential Preservationist thinker representative of

the strand’s underlying spiritual tendencies. Leopold, like Muir, played a critical part in

advocating for park protection and recreational uses of nature, understanding as Muir did, the

reality social forces of his own time.

Leopold’s spiritual relationship with nature came by way of a conversion experience. He

wrote in his essay “Thinking Like a Mountain” of the spiritual power he experienced in watching

the “fierce green fire” die in the eyes of a wolf he shot.53 His conversion experience in the

mountains, and even his essay titles (“The River of the Mother of God”) were indicative of

49 Ibid., 118. 50 Ibid., 118.51 Ibid., 119.52 John Muir, "Mount Shasta, April 1875,” in John Muir: Spiritual Writings, ed. Tim Flinders (Maryknoll: Orbis Books, 2013), 101.53 Daniel J. Philippon, Conserving Words: How American Nature Writers Shaped the Environmental Movement, 160.

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Leopold’s spiritual roots, although his legacy is primarily political (he was a major force behind

the Wilderness Act in 1964). Leopold represented a bridge between Muir’s spiritual tendencies

and Roosevelt’s political aims, exemplifying further, the constructive, evolutionary tendencies of

cultural environmental thought.

The importance of recreational value was a realization of Muir’s later in his life. He

understood that a touristic counterpart was essential to the preservation of nature.54 The Yosemite

Park Act of 1864 established Yosemite as one of the first major state parks in the United States.

The Act opened the natural world to tourists coming from the rapidly expanding San Francisco

area.55 By opening the park to the public, Preservationists and nature lovers gained political

justification for the preservation of parks, namely, the recreational and aesthetic pleasure

afforded to the public. For a strict spiritualist, masses of people using the natural world for

recreation wasn’t ideal, but for Muir and the Preservationist, it was a necessary and sought after

occurrence. Muir played a large part in making Yosemite the consummate American National

Park in 1890, and also helped draft legislation in 1881 to try and have Mount Shasta recognized

as a national park. Muir eventually set up the Sierra Club, one of the leading environmental non-

for-profits in America. The Sierra Club was built on the understanding “that wilderness

protection could not occur without “park” status, and that “park” status could not occur without

tourism.”56 Thus, to preserve the spiritual worth of nature, Muir allowed for the recreational use

of parks for those who were less pure in their spiritual inclinations.

Eventually Muir and the Preservationists provided the first layering of the cultural

environmental concept. Motivating almost all preservation was a spiritual desire to protect and

sustain nature. When Preservationist leaders perceived that the vector for their spiritual interests

54 Ibid., 110. 55 Ibid., 126.56 Ibid., 136.

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was threatened by westward expansion, Muir and the Preservationists opened the gates of

pristine beauty to the public, in hope that the public may find something worth protecting as

well. The chief accomplishment of the Preservationists was the establishment of the National

Park system in 1916, a federally run system which allowed all Americans access to protected

land for spiritual, aesthetic, and recreational purposes. In essence, the creation of the National

Park System was the physical representation of intangible American environmental spirituality.

Sadly, after submitting his plans for a National Park system to President Taft in 1911, Muir

would pass away before he could see his work come into fruition. Nonetheless, Muir represented

a major shift in American environmental thought, a shift that protected spirituality, and brought

to the American public a recreational and aesthetic appreciation for the natural world.57

In the early 20th century, the “cathedral” of nature that Emerson and Thoreau held so dear

came up against the industrial and demographic forces of a changing America. It was the father

of Preservationism, John Muir that rose to the challenge and layered the spiritual understanding

of environment with a new recreational understanding. By doing so, John Muir made sure that

pristine natural areas were preserved, even thought that meant allowing masses of tourists with

more recreational interests into his beloved Yosemite Valley.

The Preservationists’ advocacy for recreation helped to build a substantial appreciation of

the natural world within the American public. As a result, cultural environmental thought began

to push for political/legal action. One President of the early 20th century, with his own cultural

understanding of environment, was eager to incorporate environment into the American political

consciousness as the public desired.

57 Michael McCloskey, National Leaders of American Conservation, ed. Richard R. Stroud (Washington D.C.: Smithsonian Institute Press, 1985), 274.

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The Third Strand: Conservationism

On the heels of a spirited loss for the presidency in 1913, Theodore Roosevelt set off to

chart a river in the Amazon jungle. Roosevelt was a rugged outdoorsman. He loved to hunt, hike,

and explore, three skills he utilized during his Amazonian adventure. The timing of his adventure

was no coincidence. Roosevelt often times escaped to the natural world after heartbreak or

disappointment that left him feeling vulnerable. For example, after his mother’s death in 1884,

Roosevelt moved to the remote hills of South Dakota to ranch cattle as a form of mourning. He

was never quite satisfied with a simple hike or peaceful afternoon spent on the porch, rather

Roosevelt sought to pit himself against nature in increasingly intense manners throughout his

life. In 1913, both Roosevelt and his son Kermit nearly lost their life in the Amazon because of

Teddy’s intense desire to challenge nature.

Roosevelt’s attraction to nature in times of deep personal grief certainly bore spiritual

undertones, but his relationship to nature was mainly recreational (hunting, fishing, hiking).

Roosevelt in many ways hid his spiritual love for nature behind his recreational activity, and it’s

doubtful he knew the difference between the two strands of thought. It was Muir’s intention to

preserve spirituality behind the veil of recreation, and Roosevelt’s relationship to nature was a

living example of the veil’s success. From Roosevelt’s intimate relationship with nature, he too,

like his processors, came to appreciate nature for its inherent personal worth, but unlike his

predecessors, he also came to appreciation the natural world for it’s more practical economic

potential.58

Roosevelt published three nature-oriented books in his life. The titles of these books

spoke especially well to Roosevelt’s recreational tendencies. They were Hunting Trips of a

58 Candice Millard, The River of Doubt (New York: Broadway Books, 2006).

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Ranchman (1885), Ranch Life and the Hunting Trail (1888) and The Wilderness Hunter (1893).59

Roosevelt’s establishment of the Boone Crockett Club alongside George Grinnell in 1887 further

indicated his love for outdoor sport. The Boone Crocket Club aimed to protect hunting, fishing,

and the natural areas necessary for these recreational activities to continue. His writing, lifestyle,

and business ventures preceding his presidency were all indicative of a man versus nature,

recreational appreciation for the natural world. This sentiment was noticeably different from the

man with nature approach of Emerson and Muir. This occurrence is worth further consideration,

as this very concept of nature as an observable, conquerable thing was what allowed Roosevelt to

bring economic thought to the intangible conceptualization his predecessor established.

Roosevelt’s conquerable understanding of nature established a new tone in understanding

humans’ relationship with the natural world. He believed as Muir and Emerson did that the

natural world needed to be protected, but he also came to understand that Americans could use

the natural world for other means, while simultaneously protecting it. In this way, Roosevelt set

out to conquer and regulate the natural world, an innovative and necessary step, but in doing so,

he moved away from peaceful coexistence, and into sustainable development.

In 1903, during Theodore Roosevelt’s first term in office, he went to visit the aging John

Muir in his beloved Yosemite Valley as Emerson did some 30 years prior. Unlike Emerson

however, Roosevelt was a bit more enthused about going on a camping trip with Muir.60

Theodore Roosevelt wrote to John Muir before his trip to Yosemite in 1903, “I do not want

anyone with me but you, and I want to drop politics absolutely for four days, and just be out in

the open with you.”61 These were surely welcome words to John Muir after his experience with

Emerson. Roosevelt’s trip to visit Muir in 1903, as Emerson’s trip in 1871 had been, represented

59 Daniel J. Philippon, Conserving Words: How American Nature Writers Shaped the Environmental Movement, 43. 60 Ibid., 108. 61 Ibid.

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a symbolic transference of leadership in the quest for nature’s protection. In the first decade of

the 20th century, the cultural evolution of environmental thought finally inspired serious political

action. As such, Roosevelt represented the third strand of cultural environmental thought and the

beginnings of an American political approach to the natural world.

1.2- The Political Evolution of Environmental Thought

In February 1909 the 60th Congress of the United States met to hear a report written by

the National Conservation Commission. This report featured a special message from the

President. Roosevelt wasted no time emphasizing the importance of the report. He said of the

report, “it is one of the most fundamentally important documents ever laid before the American

people.”62 The report was essentially the first ever inventory of a nation’s natural resources.63 For

Roosevelt, the report signified the first major recognition of conservation principles, which were

largely engaged in approaching the utilitarian idea of public good. The use of the term “public

good” was indicative of Roosevelt’s utilitarian desires. Roosevelt’s utilitarian ideology was not

reserved for nature, but his affinity for the natural world made the topic of natural resource

conservation an important topic during his presidency. The lengthy three-volume report entitled

Use and Abuse of America’s Natural Resources sought to show the American public that natural

resources were being used at an unsustainable pace, and an expanding population meant that

preemptive action had to be taken to avoid unnecessary waste.

62 Senate, Report of the National Conservation Commission: Use and Abuse of America’s Natural Resources, 60th Cong., 2d sess., 1909, (Statement of Theodore Roosevelt, President of the United States), 1. 63 Ibid., 1.

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The avoidance of unnecessary waste that Roosevelt referred to meant largely the wasting

of natural resources without any tangible economic gain. In an age that Roosevelt himself called

a consumerist age, money was the creator and physical representation of well-being.64 Roosevelt

understood that by eliminating waste, and conserving resources, the American economy could

flourish, and in this sense, the environment was a valuable economic tool that needed only to be

properly regulated, to produce the desired public good.

The Use and Abuse of America’s Natural Resources report included an abundance of

different resources like water, forests, fish, game, public lands, and minerals. All of these

resources had sub-sections devoted to their economic impacts. Roosevelt in the introduction

cited that “needless waste costs {Americans} hundreds of human lives and nearly $300,000,000

a year.”65 Under the sub-section “Mineral-Resources” the report cited that $159 million dollars of

clay products were produced in the United States in 1907, $53 million in natural gas, $71 million

in stone, and so on through several more minerals.66 The economic losses due to inefficiency

were a primary concern of the Conservationists, who understood that 1900s well-being primarily

depended on a healthy economy that put money in consumers’ pockets. Conservation was not

just an environmental philosophy, but a political, economic, and social policy aimed at the

elimination of waste.

In his introduction to the 1909 report he saw population growth and consumerism as a

great threat. He said “the steady growth in population and the still more rapid increase in

consumption” would “make greater and not less demands per capita upon all the natural

resources”.67 Thus, Roosevelt was tasked as Muir was, with adapting environmental thought to

64 Ibid., 2.65 Ibid., 2.66 Ibid., 95.67 Ibid., 2.

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his rapidly changing times. No longer would it be considered practical to preserve large areas of

land just for people to enjoy recreationally. One had to think about the economy (well-being of

people) and how to incorporate it in order to protect the environment effectively. By prioritizing

natural resource protection, Roosevelt found a way to regulate the inevitable damage to the

environment caused by the economic wants of industry. So it was that the third environmental

strand of thought emerged alongside the Preservationists, and represented yet another evolution

by environmental thinkers, in response to the rapid demographic and industrial expansion of their

era.

On the political end, the public need for recreation was present, but not influential enough

to sustain large-scale environmental support and policy-making. In his presidential tenure (1901-

1909) Roosevelt set aside 234 million acres of public domain for national forests.68 The motive

for this massive preservation of land was partially to prioritize environmental protection, but

more so to federalize natural resources, and strengthen the American economy. Mineral and coal

reserves were part of the 234 million acres of protected land, and Roosevelt was a heavy

advocate of multi-purpose resource development projects. 69 Roosevelt maintained a vested

interest in the expansion of natural resource harvesting. Natural resources such as coal, minerals,

timber, and oil offered immense economic potential. Though he preferred to minimize the

harvesting of these precious resources, Roosevelt also readily encouraged their regulated

harvesting for the public good.

Adding to the Conservation movement was Gifford Pinchot, Director of the United States

Forest Service under Roosevelt. In 1910, a year after Roosevelt left office, Pinchot published The

Fight For Conservation. His book was an articulation of what conservation meant, and how it

68 Elwood R. Maunder, National Leaders of American Conservation, ed. Richard R. Stroud (Washington D.C,: Smithsonian Institute Press, 1985), 332.69 Ibid.

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understood the environment. Pinchot wrote, “conservation demands the welfare of this

generation first, and afterward the welfare of the generations that follow.” 70 This simple idea

was the beginning of sustainability, or the belief that we needed to conserve our resources, to

maximize their use. Pinchot proceeded to encourage the use and preservation of coal, emphasize

the importance of development, and advocate for the prevention of waste. Pinchot’s work helped

Roosevelt bring to the public mind the notion that resources were under threat from the

expansion of industry. Pinchot concluded that conservation should be a societal goal, and applied

not only to forest conservation, but also to politics and industry.71 Thus, Pinchot argued that the

economy and utilization of our natural resources needed to be held in high regard, just as

Roosevelt did at the end of his presidency in 1909.

70 Gifford Pinchot, The Fight For Conservation, 43. 71 Ibid., 48.

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The famous photo of John Muir and Teddy Roosevelt standing on a mountain with

Yosemite Valley in the background was a visual representation of a changing tide. In the photo

John Muir with his long beard looks the older and wiser man, and Teddy the strapping youthful

predecessor. In a broad sense this was true. As Muir’s time came to a close, his spiritual battle to

preserve nature by way of recreational preservation was left to his contemporary (Roosevelt) and

the coming generations. Politically, it would be Roosevelt’s task to preserve the precious natural

world the Preservationists and Transcendentalists so admired. Though he admired and

internalized his spiritual connection to nature, the America Roosevelt governed was drastically

different from the one Emerson and Thoreau knew. For this reason, the Transcendentalist

relationship with nature was becoming ever more foreign to Americans as recreation and

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resource conservation took center stage in the American cultural environmental concept. The

time of vast areas of untouched, unthreatened land was gone during Roosevelt’s presidency. The

environmental concept was continuing to layer, and each new strand strived to adjust and adapt

the cultural environmental conceptualization to a changing America. In 1909, the economy could

no longer be ignored, and the Conservationists battled to ensure that the exploitation of natural

resources was regulated. As harmless, and as necessary as the Conservationist actions and

arguments were in their time, the addition of an economic strand of thought to the pre-1970s

environmental concept, would carry with it unforeseen consequences some half-century later in

the Environmental Decade. Justified by the work of Roosevelt and Pinchot, the economy would

forever become part of the American cultural, political and legal understandings of environment,

and unintentionally eat away at the American intangible understanding of nature. The law of pre-

1970s America, though valuing economy and other tangible aspects, did not neglect intangible

appreciations of nature. In effect, before 1970, much like the political conceptualization of

environment, the legal conceptualization of environment grew alongside, and not away from, the

cultural conceptualization.

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1.3- The Legal Evolution of Environmental Thought

American legal consciousness of environment emerged gradually.72 Environmental policy

followed a theory of policymaking that political scientists call “Incrementlism.” This

policymaking theory proposes that policies, if they change, change very slowly over time.73

Much in the same way that the American environmental concept evolved slowly overtime in

light of changes in society, environmental laws changed incrementally and mainly in response to

the same societal changes. One such societal change that called for immediate consideration was

clean air. In the years following World War II, America entered into a period of unparalleled

economic growth. Subsequently, American industry grew at an outstanding rate, and with it,

pollution. Accompanying the growth in industry post World War II was newly acquired

affluence. With necessities taken care of, it was inevitable that matters like air pollution were

going to become a concern for those who could afford to make it one. With scientific data in the

1950s suggesting, “that extremely high levels of particulate-based smog could produce large

increases in the daily mortality rate,” American citizens began to demand legal action.74 The

result was the Air Pollution and Control Act of 1955.

The Air Pollution Control Act was a rare example of environmental legislation at the

federal level before 1969, and was among the first major environmental laws passed in American

history. In it’s intent written purpose, the Air Pollution Control Act was drastically different in

72 Paul S. Weiland, “Amending the National Environmental Policy Act; Federal Environmental Protection in the 21st

Century,” Journal of Land Use and Environmental Law 12, no. 2 (Spring, 1997): 275-297, http://archive.law.fsu.edu/journals/landuse/vol122/weiland.pdf (accessed October 15, 2015). 73 Ian Ostrander and William R. Lowry, “Oil Crises and Policy Continuity: A History of Failure to Change,” The Journal of Policy History 24, no. 3 (2012): 384-404.74 Joel Schwartz, “ What Are People Dying of on High Air Pollution Days,” Environmental Research 64, no. 1 (January 1994), under “Abstract,” http://www.sciencedirect.com/science/article/pii/S0013935184710048 (accessed October 1, 2015).

36

its approach than later Environmental Decade clean air laws. The 1955 Act dealt directly with a

short-term overabundance of pollution, and was not as “forward thinking” as the health oriented

policies of the 1970s. The stated purpose of the Air Pollution Control Act of 1955 was not so

much determined to stop pollution, or mitigate its effects by way of law, but rather the Act was

exploratory, stating its purpose as an Act “to provide research and technical assistance relating to

air pollution control”.75 In contrast the Clean Air Act of 1963, which marked a gradual evolution

in legal approach, contained a stated purpose, “ to improve, strengthen, and accelerate programs

for the prevention and abatement of air pollution.”76 In effect, over the course of 8 years, law

went from advocating for research, to taking positive action. This example of the evolution of air

pollution control legislation was exemplary of the “incremental” evolution in approach to

environmental problems as a whole.

As America moved towards the 1970s, environmental law grew incrementally closer to a

comprehensive, legislative understanding of environment. But in the years leading up to 1969,

environmental policy continued to only incrementally grow as it pertained to public health.

Accompanying health-oriented policy in this slow legal process were also, Preservationist based

environmental policies that bore no tangible economic or health minded results. The presence of

bills that sought to protect the environment for it’s inherent value, provided a link between older

spiritually based strands of American environmental thought and mode modern law. Politicians

in the first half of the 20th century were slow to move on environmental concerns. Nevertheless

politicians did Act, some more than others, and when they did, they acted comprehensively,

accounting for all values of the natural world

75 Air Pollution Control Act of 1955, Pub. L. No. 159-360, 69 Stat. 322. 76 Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392.

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A key figure behind the gradual growth of American environmental policy was Senator

Gaylord Nelson of Wisconsin, best known for his sponsoring of Earth Day in 1970, a mass grass

roots movement of environmentally minded college students celebrating the natural world and

advocating for its protection. Well before 1970 and the scientific work of Carson in 1962, Nelson

was one of the few politicians that showed a genuine concern towards the protection of

recreational and spiritual aspects of environment. As a Senator in Wisconsin, Nelson had a

positive track record in environmental affairs. He was Rooseveltian in that he found great worth

in hunting, fishing, and outdoor sport. He thought it was important to leave some wild areas

untouched as Muir, Emerson and Thoreau advocated for. In this sense, Nelson embodied exactly

what one would look for in a wholesome environmental thinker. He carried with him an

appreciation for the Preservationist and Conservationist agenda by seeking to use the natural

world economically as a politician, while simultaneously setting aside land to be enjoyed in its

natural state as a nature enthusiast.

In August 1961, Nelson proposed and passed the Outdoor Recreation Act Program,

which Secretary of the Interior Stewart Udall called, “The boldest conservation step ever taken

on a state level in the history of the United States”.77 Despite it’s boldness, and in light of the

rapid change and technological advancement of Nelson’s time period, “the bill was popular as

hell.”78 For the state of Wisconsin, 1961 marked a watershed moment in the state’s approach to

the environment, and this before Carson wrote Silent Spring in 1962. This positive response

suggests that at least at the state level, intangible aspects environmental thought placed in both

the 1960s cultural, and political understandings of nature. The passing of the Outdoor Recreation

77 Bill Christofferson, The Man From Clear Lake: Earth Day Founder Senator Gaylord Nelson (Madison, University of Wisconsin Press, 2009), 144. 78 Ibid., 144.

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Act Program into law showed that environmental protection measures with no health

implications were still of concern to newly affluent Americans in the 1960s.

The public’s desire to preserve nature temporarily increased after the publishing of Silent

Spring in 1962. The Wilderness Act, the brainchild of Aldo Leopard, had both the spiritual and

preservation strands of environmental thought at its core. In the Act it was written that its

purpose was to set aside, “an area where the earth and its community of life are untrammeled by

man, where man himself is a visitor who does not remain.”79 This was the essence and

overlapping sentiment shared by Preservationism and Transcendentalism. The bills language and

mission was directed at protecting the spiritual beauty man found in nature, as Leopold found in

the “fierce green fire” in a wolf’s eyes.80 While the Wilderness Act was pending in 1964, Senator

Gaylord Nelson was trying his hand at federal policymaking, advocating for the protection of the

Appalachian Trail in a similar Preservationist minded proposal. The Wilderness Act of 1964,

Nelson’s Outdoor Recreation Act of 1961, and Nelson’s proposed Act to save the Appalachian

Trail in 1964 were all indicative of the prevalence of the spiritual/preservation strands in early

1960s environmental law.

Before 1969, environmental law at the federal level distinguished between issues

pertaining to health, and issues pertaining to the natural world, it did not combine them. The law

that pertained to the natural world was preservation based, spiritually rooted, and sought to

protect the natural world in and of itself, while separately, issues of pollution control were being

challenged for their clearly negative effects on human health. This separation of health and

79 The National Park Service, "What Is Wilderness? FAQ,” Wilderness: Gateway to National Park Service Wilderness, http://wilderness.nps.gov/faqnew.cfm (accessed April 23, 2016). 80 Daniel J. Philippon, Conserving Words: How American Nature Writers Shaped the Environmental Movement, 160.

39

environment in law, allowed for each to be treated without regard for the other. The result was a

wider array of intangible preservation based environmental laws.

After Silent Spring, the majority of environmental legislation would begin to increasingly

shift towards health-oriented concerns. The Wilderness Act and Nelson’s attempted Appalachian

Trail legislation in 1964 were some of the last predominately preservation based bills on the

floor of Congress. As the Environmental Decade approached, health became the primary

concern, and although certain major laws like the Endangered Species Act in 1972 were

preservation based, health was prioritized, and it’s inclusion in environmental law, complicated

and confused the American understanding of environment for years to come.

From the Transcendentalists through the Conservationists the cultural concept of

environment evolved and adapted to changing social forces between the mid-19th and mid 20th

centuries. Politically at the end of the 1950s and into the early 1960s, Senators like Gaylord

Nelson proposed bills that were predominately concerned with preservation and recreation,

among other health oriented bills. In the 1970s, a legal shift would occur away from preservation

and towards health in reaction to Rachel Carson’s work. The result was an overemphasis on

health during the Environmental Decade, which prioritized point source pollution control and

tangible aspects of environmental understanding. The legal shift towards health was not a

negative thing, it was a necessary thing, but while carrying out this necessary action, lawmakers

unintentionally neglected other strands of environmental thought.

40

Conclusion

Three distinct yet related strands of environmental thought and conception emerged in

American society in the century or so before the Environmental Decade. The three strands

Transcendentalism, Preservationism, and Conservationism all evolved naturally from one

another, simultaneously advocating for different areas of environmental protection. By 1969,

these three strands were well represented in the infantile environmental law, and with the rapid

popularization of Rachel Carson’s Environmentalism, it seemed hopeful that a fourth evolution

of American environmental thought was about to take its place in a long and natural process. An

article published in 1969, in hopeful optimism, observed the interrelatedness of the four 1970s

strands of environmental thought. The article read, “the importance of the conservation

objectives of the fish and wildlife program which began with efforts to preserve wildlife which

now leads directly to concern for the whole environment.”81 Just months before the

Environmental Decade, the idea of preservation, conservation and environment all coexisted in

one journalists understanding of environmental efforts.

The use of the term “environment” in the article signaled a cultural evolution in rhetoric.

“Environment” was selected to speak for Transcendentalism, Preservationism, and

Conservationism due to Environmentalism’s more recent popularity. This simple rhetorical

occurrence in American cultural, law and politics to refer to all things in the natural world as

“environment” carried with it a hindrance in properly conceptualizing the environment. As time

moved on, and historical strands of environmental thought became more antiquated, the

American cultural consciousness and lawmakers understandably began to lose touch with past

81 Irston R. Barnes, “Rachel Carson Refuge: The Naturalist,” Washington Post, Times Herald, December 28, 1969, http://search.proquest.com.proxy.bc.edu/docview/143603090/fulltextPDF/F4354DAAB0D54A66PQ/1?accountid=9673 (accessed October 25, 2015).

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terminology. As a result the term “environment” was culturally understood to represent all four

strands of environmental thought, but for lawmakers, they more readily looked to the movement

from whom the name derived, Environmentalism. The result would be an overreliance on

Environmentalist concerns in the Environmental Decade.

In the 1970s, the Transcendentalist, Preservationist and Conservationist relationships

with nature were shaded from the public eye by the Environmentalism of the 1960s. One single

term, “environment”, came to embody all three of the distinct environmental movements

approached in this chapter. They chronologically grew from one another, and when Rachel

Carson wrote Silent Spring in 1962, her work symbolized yet another natural evolution of the

environment. Culturally, all was in order. However, politically, the decision to seek a

comprehensive legal approach to federal environmental law, for all of its good intentions would

inadvertently prioritize health and economy during the Environmental Decade. By aiming to

comprehensively protect the environment, but failing to do so by only passing largely point

source pollution control based laws focused on human health, lawmakers opened up the

environment to manipulation and eventual stagnation.

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Chapter 2

The Prioritization of Tangible Environmental Factors in the Environmental Decade

“The question of the seventies is shall we surrender to our surroundings, or shall we make peace

with nature and begin to make reparations for the damage we have done to our air, our land and

our water? Restoring nature to its natural state is a cause beyond party and beyond factions. It

has become a common cause of all the people of America.” –President Richard M. Nixon, State

of the Union Message, 1970 82

Introduction

Fifty or so years passed between Conservationism and the next major evolution of

environmental thought. In a country so rapidly changing as the United States in the first half of

the 20th century, this was a significant period time. Before environmental thought evolved away

from Conservationism, America experienced the Roaring 20’s, the Great Depression, and two

World Wars. On the other side of those monumental events, America emerged victorious,

quickly moving to the suburbs and starting families in the affluence that followed World War II.

A culture of consumption emerged, in large part thanks to the expanded limits of production

from the 1920s, World War II, and federal subsided programs like the GI Bill that allowed for

middle-class Americans to rise to economic well-being with relative ease. Cars, radios,

82 Richard N.L. Andrews, Managing the Environment, Managing Ourselves: A History of American Environmental Policy, 2nd edition (New Haven, Yale University Press, 2006), 227.

43

televisions, and new kitchen appliances were just a few of the inventions that found their way

into most American homes, indicating the new wealth and well being of the country as a whole.83

The growth of marketing only furthered the countries infatuation with an endlessly growing

supply of consumer goods. Thanks in large part to the environmental principle of conservation,

an age of scientific achievement and exponential growth of production flourished with little

resistance well into the 1960s. That was until 1962, when a concerned naturalist named Rachel

Carson turned the ripe, newly affluent American middle class’s attention towards an issue that

threatened to rob them of their newly found ease. When Carson published her findings of the

effects of DDT on the environment, a new strand of environmental thought emerged. For the first

time in American cultural history, Carson convincingly demonstrated that humanity was capable

of causing serious harm to the natural world, and in a way that could drastically affect the

welfare of the American people. In effect, Carson was the harbinger of the fourth major strand of

American environmental thought, and the movement best known to the modern day historical

observer as Environmentalism.

Chapter Two will begin with the cultural evolution of environmental thought embodied

by Rachel Carson and the Environmentalist movement. The goal will be to show that Carson’s

strand of thinking, though unique and evolutionary, did not claim to be more important than

preceding strands, but rather added to the evolutionary growth of the environmental

conceptualization as a whole in American culture. Her worked introduced a health strand of

thought, and emphasized the clean up of pollution, and the mitigation thereof. Though Carson

understood the part she played in a greater understanding of environment, lawmakers, many new

to environmental affairs and separate from the natural world, came to view the Environmentalist

interpretation of environment as an end, not an addition, to the greater environmental

83 David Halberstam, The Fifties (New York, Ballantine Books, 1994).

44

conceptualization. It would be with this mindset that lawmakers at the end of the 1960s would

attempt to approach environmental law, although one of the key figures in advocating for

environmental law, warned against prioritizing any one aspect of environment.

Lynton Caldwell was a key political figure in the process of legalizing the environment.

His paper Environment: A New Focus For Public Policy introduced the idea of a comprehensive

legal understanding of environment, warning against a focus on any one area of understanding.84

His work was groundbreaking, and lawmakers adapted his suggestion of comprehensiveness into

many Acts’ “Purposes” throughout the Environmental Decade. This did not mean the

comprehensive understanding Caldwell advocated for was achieved however. Lawmakers,

beginning in 1969 with the National Environmental Policy Act, systematically neglected past

strands of environmental thought when approaching environmental legislation, simultaneously

shutting out intangible strands (Preservationist and Transcendentalist) and broadening the

definition of the natural world to prioritize health and economy in conceptualizing the

environment. An indicator of this tangible lean was point source pollution control, a legal

mechanism that sought to stop pollution at its source. The shutting out of intangible strands from

the legal conceptualization of environment, the prioritization of health and economy, and the

dominance of point source pollution control can be evidenced across seven Acts passed during

the Environmental Decade.

Chapter Two will conclude with a close inspection of the rhetoric in seven major

environmental Acts passed between 1969-1978. The environmental conceptualization of

lawmakers, for all it’s good intentions, gradually narrowed as the Environmental Decade wore

on, first focusing mainly on health and point source pollution control, and then shifting to

84 Lynton K. Caldwell “Environment: A New Focus for Public Policy?,” Public Administration Review 23, no. 3 (September 1963), 135.

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prioritize more economic aspects of environment by decade’s end. The gradual narrowing of the

legal environmental conceptualization slowly separated the legal understanding of environment

from the cultural understanding. By looking closely at certain Acts across the duration of the

Decade, this chapter will aim to illuminate this process.

2.1 The Fourth Strand of Cultural Environmental Thought: Environmentalism

Rachel Carson was born on May 27, 1907 in Springdale, Pennsylvania. She grew up with

a “special affinity for nature,” not unlike Emerson, Thoreau, Muir and Roosevelt.85 Unlike her

predecessors, Carson’s attraction to the natural world was primarily scientific. Though her

scientific focus suggests a more empirical connection to nature, Carson enjoyed a spiritual

connection with nature as well. She grew up with a special affinity for the Pennsylvanian

wilderness, a love that would inspire much of her work, as well as influence her collegiate

interests. She graduated with a degree in Biology from the Pennsylvania College for Women in

1928, choosing Biology over English due to her passion for the natural world.86 Upon graduating,

Carson returned to her home in Springdale, Pennsylvania only to find that the farms she had

adored growing up were turned to smokestacks. “The river had been polluted by industrial waste,

and the smell of sulfur, a by-product of the coal industry, rose in the air”.87 These powerful

forces of economic expansion, urbanization, suburbanization and industrialization were rapidly

accelerating in Carson’s life, and what she witnessed in her adulthood was a far greater

85 Arlene R. Quaratiello, Rachel Carson: A Biography (Westport: Greenwood Press, 2004), 1. 86 Ibid. 87 Ibid., 12.

46

acceleration of change than Roosevelt or any prior environmental thinker experienced. For

Carson the concept of the environment started, as it had for her predecessors, as a genuine quasi-

spiritual connection, but as her life and circumstances shifted, she gradually came to understand

the environment in an entirely new, and necessary way.

In defining the environment, Carson echoed Emerson’s strict definition of nature, which

was, “all that is separate from us.”88 Carson varied this definition only slightly, defining

environment as “all that surrounds us.”89 Emerson’s strict definition of nature was his less-

spiritual interpretation. It was indicative of the changing relationship between man and nature,

that Carson understood the environment most similarly to Emerson’s less spiritual definition.

This less spiritual definition was not the only difference between Carson and her predecessors.

She also believed that “only within the moment of time represented by the present century has

one species---man--- acquired significant power to alter the nature of his world.”90 The concept

that mankind could have profound influence on the environment was definitely radical, though

not previously unheard of. During the Roosevelt Conservationist years, the realization that

resources were not infinite was groundbreaking. However, there had not been much thought

given to the effects of resource use on public health. With such large-scale resource use in 1960s

America, Carson was forced to expand the perception of environment; in order to make her

argument that mankind was adversely affecting the natural environment.

Although Rachel Carson was born with the same love of the natural world as the

Transcendentalists and Preservationists, and shared the same naturalist perspective as the

Conservationists, what truly distinguished Carson and the Environmentalist strand of thought

was it’s vast expansion of environmental understanding to be “all things natural.” This broadly

88 Ralph Waldo Emerson, "Nature,” in The American Transcendentalist: Essential Writings, 34.89 Rachel Carson, Silent Spring (Greenwich: Crest Books, 1962), 12. 90 Ibid.

47

defined environment, Carson argued, was being threated by the resource use that Roosevelt’s

Conservation principles had encouraged. Though Environmentalists prioritization of health

challenged Roosevelt’s economic worth of nature in some ways, Carson’s work was also in

accordance with the principles of Conservation in that her primary concern was public health, a

faction of Roosevelt’s “public good.”

“The most alarming of all man’s assaults upon the environment is the contamination of

air, earth, rivers, and sea with dangerous and even lethal materials.”91 The term lethal was key to

understanding the implications of this quote from Silent Spring. The term was used 33 more

times in the book to describe pollutions affect on the environment. Silent Spring was famous for

its exposition of DDT’s adverse affect on local bird species, but its message was deeper than just

one case study. Carson studied how DDT affected entire ecosystems, even if it was just a single

species in an entire ecosystem that suffered. One such example she cited was of a study carried

out by Montana Fish and Game, the Federal Fish and Wildlife Service, and the National Forest

Service in 1956.92 The biologists of the various services set out to study the effects of DDT on

900,000 acres of state land. Their findings were indisputable. Death always surfaced, and the

animals that died always contained traces of DDT in their system. Native trout were one such

common causality, and “all fish analyzed, whether taken alive or dead, had stored DDT in their

tissues.”93 The studies often found that the trout became contaminated from the insects that they

ate, meaning the chemical was working its way through the food chain. Through it’s studies

between 1956-1957, “The Montana Fish and Game Department registered strong opposition to

further spraying, saying it was ‘not willing to compromise the sport fishery resource for

91 Ibid.92 Ibid., 75.93 Ibid., 75.

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programs of questionable necessity and doubtful success.”94 Not only does this quote from Silent

Spring speak to the general consensus of Carson’s piers with her work, but it also offers an

example of an intermingling of strands. The Montana Fish and Game did not want to

compromise it’s “sport fishery resource”, which was a recreational resource. In this instance, the

trout, which were fished recreationally, were dying of DDT that was adversely affecting the

environment’s health. If recreational and health strands of environmental thought could find

common ground for concern, why couldn’t economy and health, or economy and recreation? In

this instance, the common ground found between recreation and health strands suggests that the

health worth articulated by Carson, was in accordance, and grew off of past American cultural

environmental conceptualizations.

The health worth articulated by Carson more often than not worked alongside the

Transcendentalist spiritual worth, and the Preservationists recreational worth. Keeping the

environment healthy allowed it to be preserved and kept pristine, and seldom did the two strands

conflict in anyway. What would most often become the conflicting strand in the 1970s was the

economic strand of environmental thought that prioritized the maximization of resources.

Pinchot encouraged, albeit with little knowledge of the true effects, for the expanded use of coal

in 1910, and Roosevelt himself seemed in some sense to view resources as a valuable economic

tool.95 The environment to Conservationists was a resource that when regulated correctly, could

maximize public good, or in other words, maximize profit. Though conflictions happened

between strands, the Environmentalists and Conservationists conceptualizations of environment

shared one very important thing in common, a tangible understanding of environment. Both

Roosevelt and Carson actively pursued a quantifiable understanding of nature.

94 Ibid., 75. 95 Gifford Pinchot, The Fight For Conservation.

49

While concluding her discussion on the adverse affects of DDT on Montana trout, Carson

wrote, “invasion of streams, ponds, rivers, and bays by pesticides is now a threat to both

recreational and commercial fishing.” 96 She wrote that $3 billion dollars annually were spent by

the approximately 25 million who looked at fishing as “a major source of recreation” and the

approximately 15 million others who at least were “casual anglers”.97 She concluded, “anything

that deprives them of their sport will also reach out and affect a large number of economic

interests.”98 The economic interests she referred to were garnered from recreational interests, and

those $3 billion dollars were made from recreation. In this case, fish were both recreational and

economical in worth, and as such found themselves as recipients of three separate stands of

environmental protection; conservationist, preservationist, and environmentalist. Examples like

the Montana trout in Carson’s work show that Environmentalism worked in equal complex

harmony with previous environmental strands. Though Conservationists and Environmentalists

focused on tangible aspects of environment, their close care for recreation and spiritual

connections ensured that the environmental understanding protected intangible areas as well, and

treated them with equal importance. This complex, natural evolution of cultural environmental

thought was performing its function in the late 1960s, with each strand learning from the prior,

and offering something new to the greater environmental concept.

Another example of the complex intermingling of the environmental strands in Carson’s

work can be found later in Silent Spring. When discussing a decrease of chickadees as a result of

DDT, she cites that “the feeding habits of all these birds not only make them especially

vulnerable to insect sprays but also make their loss a deplorable one for economic as well as less

96 Rachel Carson, Silent Spring, 78. 97 Ibid., 78. 98 Ibid., 78.

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tangible reasons.”99 The feeding habits Carson referenced were the predation of spruce beetles

and cankerworms, two bugs that adversely affect apple orchards, by various birds like the

woodpecker, chickadee and other winter-resistant birds spruce beetles and cankerworms.100

When the chickadees died due to DDT, the spruce beetles grew unchecked, and the adverse

affects spruce beetles had on apple orchards in turn adversely affected local crops and local

economies. The economic loss that resulted from DDT’s negative effects on chickadees showed

that even economy benefited from a healthy environment. For Carson, viewing the environment

for its health worth was just as important as viewing the environment for its worth to the

economy, recreation, or spirituality. Carson understood that a healthy environment helped push

forward the aims of the other environmental strands of thought. In short, Carson understood the

place of Environmentalism in the broader evolutionary picture of the American cultural

understanding of environment.

Carson’s broad definition of the environment encompassed and built upon her

predecessors conceptions, and brought them to the forefront of the American consciousness. The

death of birds, trout and other relatable creatures whose loss often affected local communities,

made the natural world more relatable and identifiable than ever. Carson’s strand of

environmental thought was most unlike the ones that came before her. Her approach was

scientific, tangible, and empirical. Perhaps this helped politicians and lawmakers to try their hand

at integrating a mass of environmental laws in the 1970s. One thing is for sure, Carson and Silent

Spring brought the concept of the environment to American popular culture in a decade oozing

with liberal, provocative, youthful activity. For most people of the 1960s, the concept of the

environment was new and foreign. Rachel Carson brought it to the public, and she chose to

99 Ibid., 64. 100 Ibid., 64.

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define the environment as “all that is separate from us,” in an effort to evolve the American

understanding of the environment as an interconnected entity. Despite no intention on the part of

Carson, American lawmakers heard Carson’s definition of environment, and saw here scientific

approach as the culmination of, not a part of, a greater evolutionary process. The

Environmentalist, Conservationist, Preservationist, and Transcendentalist strands of thought

were all accounted for in the 1970s cultural conceptualization of environment, but legally, the

environmental conceptualization was narrowed largely to only the Environmentalist and

Conservationist strands of thought.

2.2 - The Political Push Towards the Environmental Decade

One of the key contributors, if not the key contributor, to beckoning in the Environmental

Decade was Lynton K. Caldwell.101 Caldwell was a professor of Government at the University of

Indiana in 1963 when he wrote Environment: A New Focus for Public Policy?102 Born in Iowa in

1913, a nature enthusiast just like all great environmental thinkers mentioned prior, and a

prominent political scientist, Caldwell was custom built to formulate a cohesive approach to

environmental policy. Caldwell shared a connection with past environmental thinkers, as was

often the case with environmental thinkers of the past. Caldwell drew inspiration from his fellow

Iowan Aldo Leopard, who was a primary contributor to the Wilderness Act of 1964, and a man

whom Caldwell spent “a memorable evening” in the company of in 1946. Perhaps his closeness

101 Wendy R. Wertz, Lynton Keith Caldwell: An Environmental Visionary and the National Environmental Policy Act (Bloomington: University of Indiana Press, 2014).102 Lynton K. Caldwell “Environment: A New Focus for Public Policy?,” 132.

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to an intangibly minded Preservationist inspired his advocation for a broad, inclusive legal

environmental conceptualization.

Understanding the complexities of the term “environment,” Caldwell compared the term

to the qualities of sound. He wrote, “in both concepts, the physical reality of the objective

universe is distinguishable from the interaction between that reality and the perceiving object.”

In other words, sound exists only when there are ears to hear it, and environment exists only if

there are people to be affected by it. He goes on to admit his limitations as a scholar,

understanding that “the human environment in its complex totality extends far beyond our

present comprehension and technology.”103 Perhaps his best articulated understanding of the

environment could be found in the introduction to his paper, where he equates the environment

to a picture of seemingly unrelated dots.104 When viewed closely, the dots seem random and

unrelated, but from afar, the dots compose a picture. In this way, he sought to show that “the

picture was there all the time, even though the viewer did not at first perceive it, and then saw it

only when distance lent the right perspective.”105 Caldwell in his paper tried his best to justify his

idea of comprehensive environmental policy. By accepting a broad definition of environment

and human’s inadequate understanding of its complexity, Caldwell sought to propose a holistic,

comprehensive, and flexible approach to public policy. He ultimately proposed a two-tier

approach. He wrote, “First the public must have begun to see the comprehensive environment as

a legitimate and necessary field for public action.”106 The first step was accomplished through the

Environmentalist movement. “Second, means must be found for more effectively interrelating or

103 Ibid., 133. 104 Ibid., 132.105 Ibid., 132. 106 Ibid., 139.

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integrating the tasks of the public agencies as they bear upon the environment.” (the aim of the

Environmental Decade lawmaking).107

Caldwell’s definition of environment was laughed at by his colleagues; he was even

ridiculed as an academic. His colleagues saw his idea as “too broad” and “too generalized”.108 In

such a strictly defined, and rigid community as the higher echelons of academia, Caldwell

understandably was required to play up the research oriented, tangible aspects of his broad

environmental concept. To make tangible his idea of environment, Caldwell played heavily on

scientific research, often citing the inadequacy of past environmental policies due to their

inability to address problems pertinent to public health such as water supply, industry and

sewage.109 He talked of urban renewal, public health, and development planning in his paper, and

though all of these things certainly were relevant to the environment as a whole, they noticeably

focus in on health.110 Urban renewal is the act of restoring polluted urban areas, public health is

in and of itself concerned with health, and development planning is instituted to mitigate harmful

health effects on the natural world as a result of industrialization or commercialization. Throw in

a sporadic mention of economic issues such as natural resource management in Caldwell’s paper,

and you have a strict adherence to tangible aspects of environment under the inadvertent veil of a

purpose stated otherwise. It would seem that Caldwell was aware of this heavy dependence on

science in his environmental conceptualization. He wrote, “The scientific base and content of

environment-focused decisions would (in the event of major environmental policy) no doubt be

increased beyond that employed in our characteristically segmental decisions.”111

107 Ibid., 139.108Wendy R. Wertz, Lynton Keith Caldwell: An Environmental Visionary and the National Environmental Policy Act, 13.109 Lynton K. Caldwell “Environment: A New Focus for Public Policy?,” Public Administration Review, 23, no. 3, 135. 110 Ibid., 136.111 Ibid., 138.

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Caldwell, aware of his proposal’s scientific dependence, remained optimistic that value

would play a prominent role in the political environmental understanding. He envisioned a

political understanding of environment with “value judgments, particularly with respect to ends,

ethics, and accountability in public action” that would influence laws alongside the scientific

research of environment.112 He intended for policies to ask such questions, as “what in a given

instance is a “good environment” 113 Or, “What kind of environment should, in a given instance

be sought?”114 Caldwell was fully aware he did not have all of the answers, and warned against a

hasty, ill-conceived, and strict definition of the natural world. He concluded by saying, as a sign

of caution for the day of policy making, “until we find answers to these questions, better than

those we now have, our environmental polices, although capable of great improvement, will still

leave much to be desired.”115 This statement was perhaps the most insightful of a reality soon to

come, in a paper filled with groundbreaking ideas.

2.3- The Law of the Environmental Decade

The 91st congress of the United States convened on January 3, 1969 and came to

completion two years later. Richard Nixon was in his first two years in office, and there were

Democratic majorities in both the Senate and the House of Representatives. This was the federal

112 Ibid., 138-139. 113 Ibid., 139.114 Ibid., 139. 115 Ibid., 139.

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political situation for the unprecedented emergence of American national environmental policy

in the 1970s.

In alignment with the scientific environmental perspective set forth by both Carson and

Caldwell, politicians sought to incorporate a comprehensive understanding of environment into

major national policy. The results of this action as they pertain to this thesis would be two fold.

First, a real and genuine scientific dependence emerged from the major policies of the

Environmental Decade, negating the comprehensive goals of Caldwell, and the intent written

purpose of the National Environmental Policy Act. This scientific dependence led to a heavy

emphasis on issues of “health” more so than ecology, and consequently, emphasis was also put

on economic rhetoric later in the Decade, as a result of the strict tangible health oriented

approach of earlier Decade law. The scientific, health, and economy prioritization of the

Environmental Decade dictated the legal mechanism used to address environmental problems.

The most prominent legal mechanism used was point source pollution control, which sought to

mitigate pollution at the source. The law’s focus on health, science, and economy can be

evidenced in the rhetoric of many of the major laws and policies passed between 1969-1978.

Despite Caldwell’s hopes that the concept of environment would not be pigeonholed politically

into a concentration on science and other tangible realms, the law knew no other way to

approach the topic. The result was a broad statements of purpose at the onset of the

Environmental Decade that was backed up not comprehensively, allowing for complexity and an

intermingling of strands, but with health oriented, point-source pollution based policy, that

neglected to adequately protect all previous strands of environmental thought, and hindered the

ability of the environmental concept to evolve successfully within the law.

56

Caldwell’s policy suggestion of intended comprehensiveness was immediately apparent

in both the stated purpose of the Environmental Policy Act of 1969 and the Action Proposals

Hearing of the 91st Congress in 1970. Considering that both of these documents were particularly

comprehensive, and aimed to set a path for the future of all other environmental policy, the

statement of purpose in both was necessarily broader. A closer look at the Congressional

declaration of national environmental policy at the forefront of NEPA (National Environmental

Policy Act) should suffice to show how lawmakers intended to approach environmental policy.

The use of terms like “all”, “profound”, and “welfare” were indicative of the inclusive

intentions of lawmakers.116 There was an understanding that the concept environment was broad,

and unique in its composition. All four strands of environmental thought were sought to be, in

theory, equally protected under the law. Through terminology, and specific rhetorical devices,

lawmakers kept the concept of environment broad and loosely defined, so as not to neglect any

part of “all that surrounds us,” from equal protection under the law.

The primary example of this in the Congressional declaration of national environmental

policy was at its conclusion, in subsection b. The subsection sought to articulate the method by

which the Federal Government would combat environmental challenges, laying out six duties.

The Conservation strand of environmental thought was represented in duty two with phrases like

“productive,” “beneficial uses of the environment,” and “high standards of living.”117 The

Environmentalist strand with phrases like “healthful,” without “risk to health and safety” in duty

three, and “healthful environment” in the short subsection c.118 The Preservation strand and

Transcendentalism strand being closely intertwined, were collectively accounted for in duty 2

under subsection b with phrases like “esthetically pleasing surroundings,” in duty four with

116 National Environmental Policy Act of 1969, 42 U.S.C.§ 4331 (1969). 117 Ibid.118 Ibid.

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“preserve important historic, cultural, and natural aspects of our national heritage,” and

“individual choice.”119 With rhetoric like this, the National Environmental Policy Act of 1969 in

its purpose articulated a desire to encompass all previous environmental strands of thought under

the umbrella term “environment” and treat the four strands collectively and equally under the

new, all inclusive system of law.120

Similarly, the Action Proposal Hearings in February 1970 just a month after NEPA was

passed showed a similar broad, optimistic environmental conceptualization that sought to

encompass all previous strands of environmental thought. The hearing was in the House of

Representatives and was a meeting of the Conservation and Natural Resources Subcommittee of

the Committee on Government Operations.121 On December 16, 1969 eighty members of the

House of Representatives collectively joined in “A Call for the Environmental Decade.122 The

members collectively emphasized a wide assortment of environmental ills and goals that needed

to be addressed in the next 10 years. Included in the list of these ills and goals were problems and

missions pertinent to each past environmental strand. The Preservation strand was represented by

the statement “preservation of our wildlife habitat and of our marine resources.”123 The

Environmentalist strand was represented by “standards for industrial and powerplants, to

eliminate pollutional discharges of sulfur oxides, hydrocarbons, and particulate matter.”124 The

Conservation strand was accounted for in “provision for better management of our mineral and

forest resources.”125 And finally, even Transcendentalism with its spiritual abstractness, as

119 Ibid. 120 Ibid.121 House Subcommittee of the Committee on Government Operations, The Environmental Decade (Action Proposals for the 1970), 91st Cong., 2d sess.,1970 (Statement of Henry Reuss, Chair, Conservation and Natural Resources Sub-Committee, Washington D.C.).122 Ibid., 1.123 Ibid., 2.124 Ibid., 2.125 Ibid., 2.

58

opposed to being buried under Preservation, seemed to be accounted for in a call for protection

of the more simple pleasures of the natural world, albeit mainly recreational ones. The

Transcendentalist statement reference was “Expansion of our programs for parks, playgrounds,

wilderness areas, wild rivers and seashores, and fish and wildlife areas.”126

The attempt by lawmakers to show inclusiveness in their goals was well met. They truly

took to heart the idea of a broad, comprehensive sense of environment as Caldwell advocated

for. However, it was only to the end of intent that lawmakers unequivocally succeeded. In the

policies of the Environmental Decade as a whole, the reality did not match the intention. The

scientific dependence that Caldwell feared took root over the nine years between 1969-1978, and

lawmakers held onto the tangible, observable, and research oriented appeal of the

Environmentalist strand of thought, while neglecting that which could not be easily quantified or

understood (Preservationist). Human health took precedence, and the notion of well-being

dominated. Closely tied to this well-being, or “welfare,” were economic interests, considering

the close relationship of money and happiness in a capitalist society. This health/economy

orientation directly used the legal approach of point source pollution control, or abatement

prioritization, as the tangible approach to confronting environmental ills. As necessary as these

steps were, they quietly ate away at a comprehensive, complex legal understanding of

environment.

To better understand the shift towards health and economy, and how point source

pollution control measures later narrowed law’s ability to protect the environment, the next

section will focus on different major environmental laws of the 1970s. The sections aim will be

to show the rhetoric and procedures that indicated the narrowing of the legal environmental

126 Ibid., 2.

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conceptualization to solely tangible aspects, which in turn failed to adequately allow for the

comprehensive understanding of environment lawmakers initially strove for.

The National Environmental Policy Act of 1969

After Subchapter I of the National Environmental Policy Act, which was designated for

policies and goals, followed Subchapter II- Council on Environmental Quality. The Council on

Environmental Quality was primarily designed to oversee, and prioritize environmental policy in

the years moving forward.127 Today, it’s primary duty is to issue and conduct Environmental

Impact Assessments, a commonly used legal tool in environmental law, that requires any

development to fulfill an assessment of the possible environmental damages of their project.128 In

Subchapter II, there are 8 duties explicitly laid out, with duty numbers 4 and 5 exhibiting specific

relevance to health.

Though Subchapter II doesn’t deviate much from the general, broad overtone of NEPA,

duties 4 and 5 offer insight into how the broad interpretation of environment could subtly be

neglected. Duty 4 states, “to develop and recommend to the President national policies to foster

and promote the improvement of environmental quality to meet the conservation, social,

economic, health, and other requirements and goals of the Nation.”129 In accordance with the

broad approach of Subchapter I, duty four seemed to fall right in line. However, duty five gives

the same impression of a broad, non-specific definition of environment, but in reality, perhaps

unintentionally, prioritized Environmentalist thought. Duty five reads, “to conduct

127 The White House, "The Council on Environmental Quality- About," Council on Environmental Quality, https://www.whitehouse.gov/administration/eop/ceq/about (accessed April 23, 2016).128 Ibid.129 National Environmental Policy Act of 1969, 42 U.S.C.§ 4344.

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investigations, studies, surveys, research, and analyses relating to ecological systems and

environmental quality.”130 Though hidden away in an obscure list of duties, within duty 5 there

existed a clear adherence to the scientific method. Transcendentalism, or a spiritual connection to

the natural world can hardly be “researched”, “studied”, or “analyzed”, nor can Preservation or

recreational worth to a large extent. It’s not to say its impossible, in fact sociology in many

respects strives to scientifically identify with such things, but in terms of priority, the scientific

method, undoubtedly, encouraged priority of that which we can measure or control. The science

based approach to environment was thus prioritized in duty five of the Environmental Quality

Council, and though subtle and non-worrisome on its own, small advocation for the advancement

of the scientific method in the greater legal environmental approach, signaled the beginnings of a

larger shift to be evidenced over the course of the Environmental Decade, namely the

prioritization of health and science over previous modes of environmental thought.

Less subtle, and more directly health oriented within NEPA was the emphasis on health

in Subchapter III. Among the first issues laid out in the first few pages of NEPA was the directly

health relevant, Interagency cooperation on prevention of environmental cancer and heart and

lung disease.131 In effect, directly following the purpose, and the establishment of the

environmental quality committee, in the Subchapter labeled Miscellaneous Provisions

lawmakers sought to combat “environmental cancer.” The provision called for the establishment

of a task force, no later than August 7, 1977 that would “recommend a comprehensive research

program to determine and quantify the relationship between environmental pollution and human

cancer and heart and lung disease.”132 A separate provision later in the bill was labeled Pollution

130 Ibid.131 Ibid.132 Ibid.

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control technologies demonstrations, which established a Science Advisory Board.133

Immediately following the call for a comprehensive environmental approach, the foundational

Act of the Environmental Decade laid out only provisions and subsections relevant to health,

nothing else.

The absence of any specific Preservationist based or Transcendentalist based provision

indicated a failure by lawmakers to achieve the comprehensiveness Caldwell advocated for. In

fact, overdependence on science was what Caldwell feared. Thus, the National Environmental

Policy Act of 1969, the harbinger of the Environmental Decade, brought with it a broad and

inclusive purpose and goal, but in substance, prioritized only health and science, accounting for

only the Environmentalism strand of environmental thought in the broad legal term environment.

For the remainder of the Environmental Decade, a wide array of different policies would

be passed, largely in accordance, at least in purpose, with the intent stated goals of the 1970s

House of Representatives hearing and NEPA. Each subsequent Act, either obviously health

oriented (Clean Air, Clean Water) or not, continued to prioritize and narrow down the concept of

“environment” to the Environmentalism health oriented, pollution control based understanding.

As the Decade progressed, this strict adherence to health evolved to economic concern as

lawmakers grew accustomed to a conceptualization of tangible environment, not a complex

conceptualization as was intended. The various Bill’s rhetoric and construction should serve to

exemplify this point.

An indicator of this tangible dependence in most, if not all of the Bills of the Decade, was

the prominence of point source pollution control measures. Essentially, law sought out the most

attainable solution to curing environmental ills, namely the stopping of pollution at its source.

This of course was a great and frankly necessary thing to do, but it’s prevalence in the 1970s

133 Ibid., § 4365.

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carried with it implications in the decades that followed, after the cultural environmental

conceptualization evolved away from health.

The Clean Air Act Amendments of 1970

The Clean Air Act Amendments of 1970’s purpose was based “solely on human health

risk without regard to cost.”134 In addition, the Bill sought, “to promote the public health and

welfare of the nation in the long term.”135 A large part of the 1970s amendments drew from legal

rhetoric already established in the 1963 Clean Air Act. The segment of the Bill that was “without

regard to cost,” was first established in 1963, and was substantive, as evidenced by the

proclamation that whenever there is a determination of a hazard to human health, the Federal

Government could cover up to two-thirds of the cost for the abatement of the polluting action in

question.136 Here was a clear and distinct example of the health-oriented strand of environmental

thought being prioritized over the economic strand. When human health was in question, cost

took a back seat in order for harmful environmental actions to be mitigated. To further

compliment this point it was written in Section 105 (a) of the 1970 amendments that the

Administrator should allow for grants for the “prevention and control of air pollution.”137 Not

only does this statement in Section 105 (a) exemplify health-oriented rhetoric, but also, overtly

refers to point source pollution control through the use of the word “prevention.”

134 Richard N.L. Andrews, Managing the Environment, Managing Ourselves: A History of American Environmental Policy, 2nd Edition, 233. 135 Clean Air Act of 1970, Pub. L. No. 91-604, 84 Stat. 1676. 136 Ibid., Stat. 1677. 137 Ibid., Stat. 1677.

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The process of legal “abatement” (term used instead of “prevention ”in the original Clean

Air Act of 1963) was the process by which a harmful action was unequivocally stopped.138 Point

source pollution control itself is a practice contained within one of the three major international

environmental policy principles, the Polluter Pays Principle, which demands that the polluter pay

for the cost of clean up.139 In the Clean Air Act, the Federal Government subsidized the Polluter

Pays Principle, with the covering of two-thirds the cost of clean up if changes were made by

industrial businesses to stop their pollution at it’s source. The aim of this principle, and the point

source pollution control that falls within it, was to stop pollution before it started. In the Clean

Air Act of 1963 the phrase “prevention and abatement” was used at the onset, and in Subsection

5A, with pollution of the air that endangered human life being “subject to abatement.”140 In short,

the word “prevention” summarized the two fold-mission of point source pollution control. Firstly

for, “the prevention and control of air pollution” at its source, and secondly for the prevention of

future sources of pollution.141

What the Clean Air Act of 1970 sought to amend was the shortsightedness of the

preceding Acts. Not shockingly, the 1970 amendments focused even more heavily on health and

welfare than did the 1955 Pollution Control Bill and 1963 Clean Air Act. A primary call of the

Act was for more research into air pollution and it’s harmful “behavioral, psychological,

toxicological, and biological” health effects.142 Particularly, lawmakers were interested in

calculating the short and long-term effects of air pollution as opposed to just the short term,

immediate effects.143 Though lawmakers expanded the scope of their legal thinking to include

138Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 396. 139 Kenneth Ross, “Environmental Law” (class lecture, Environmental Law, University of Glasgow, Glasgow, Spring 2015).140 Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 396. 141 Ibid. 142 Clean Air Act of 1970, Pub. L. No. 91-604, 84 Stat. 1676. 143 Ibid.

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future implications, they did not deviate from point source pollution control as the means of

abating harmful substances. With the expanded scope, the duty of air pollution control fell on

individual states that were grouped into “control regions.”144 Under these regions, the same

principles for addressing air pollution established in 1963, remained unchanged in 1970. The

Administrator still held final authority on if substances were harmful to “health and welfare,”

which was the case in earlier laws. If a substance killed people, the Administrator typically

would abate it’s discharge, if the substance hurt people’s health, typically the Administrator

would seek to control it, but if it did neither to an observable effect, the Clean Air Act had very

little cause for action.145

The Clean Air Act of 1970 was exemplary of the overarching health oriented

Environmentalist tones of the law, as well as the value placed on point source pollution control

in the Environmental Decade. The very nature of the name “Clean Air Act” indicated a health

dependence, and a necessary one at that. But other major bills, not as overtly related to health,

carried with them the same human health oriented rhetoric. The next example, from the same

introductory year (1970), shows once again the overt focus on health, but from a decidedly

different angle.

144 Ibid., Stat. 1678. 145 Ibid.

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The Occupational Safety and Health Act of 1970

In the Occupational Health and Safety Act it was the term “causal” that embodied the

idea of point source pollution.146 Both “source” and “causal” share a desire to find the beginning,

the cause, or the source of the pollution or creator of environmental harm.

In addition to the basic terminology relating this Act to other health oriented acts and

point source pollution, it also offers a unique perspective on the complexity, or intermingling of

the tangible strands of environmental thought in the law. To show how this complexity

manifested even in the most basic legal terminology, a close look can be taken at the lone phrase

“preserving human resources”.

This one phrase offers insight into how the term “preserve” was commonly used in

environmental legislation, but not necessarily to push forward the Preservationist agenda, rather,

it was used to validate Environmentalist and Conservationist agendas.147 For example, the term

“human” indicated a human-centric bill, or a bill that’s primary function was to benefit

humanity. Further, “resources” possessed a clear and distinct benefit to humans by way of

pushing forward the economy. Thus the terms “human” and “resource” represent

Environmentalist and Conservationist strands. “Preserving” represented the Preservationist

strand rhetorically, and the intangible, value based orientation of Preservationist environmental

thought. In this sense, a simple three-word statement speaks cleverly to all prior environmental

thought. Now, as clever and ideal as this type of efficient phraseology may be, it failed to

146 Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1590. 147 Ibid.

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account for the reality of the interpretation. The preservation of human resources preserved

humanity, but bore little relevance the natural environment.

Both human health and the economy, the tangible aspects of environmental thought,

were pushed forward in the Occupational Health and Safety Act. By dissecting simple legal

language, it becomes clear that the inclusion of the term “preservation” in the Act did not suffice

in equally treating for Preservationist principles. Rather, the term “preservation” only acted to

bolster tangible strands claims. So though the tangible and intangible continued to intermingle in

legal language as they had in the years before the Environmental Decade, laws interference only

protected Preservationist aims in language. Phrases like “preserving human resources” were

prevalent across an abundance of legislation in the Environmental Decade, and in their

simplicity, embodied a far more complex reality, and the inherent alienation of intangible

environmental thought in law, living on only through rhetoric, but not through action. By

preserving human resources, no Preservationist principle was being pushed forward, only human

centric Conservationist and Environmentalist goals.

As a final thought on the Occupational Health and Safety Act, the very name of the Act,

and it’s consideration as American environmental policy provides insight to the legal definition

of environment. The Act by title, and in composition, was clearly in the interest of human health,

and indicated a strict adherence to Carson’s definition of environment as “all that surrounds us.”

Lawmakers took this even more literally than Carson intended. Evidence of this can be seen in

the Act when reference was made to the “work environment,” similarly referred to as the

“environment where work is performed.”148 Though simple enough terminology, it undoubtedly

complicated the legal conceptualization of environment in that the environment in question in the

Act was strictly human. A human made warehouse where men and women worked could qualify

148 Ibid., Stat. 1597-1598.

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as environment in the Occupational Health and Safety Act. The purpose of the Environmental

Decade and all American environmental policy, as stated in NEPA was to recognize “the

profound impact of man’s activity on the interrelations of all components of the natural

environment.”149 This begs the question, why was the “environment where work is performed”

referred to in the substance of an Environmental Decade Bill, although the indoor work

conditions of employees’ bears little if any consequence on any component of the natural world?

The inclusion of strictly human environments in American environmental law expanded the

definition of “environment” well beyond the even the most broad of pre-Environmental Decade

scopes.150

The very existence of a Bill labeled “Occupational Health and Safety” under the umbrella

term environment complicated the idea of environment from that which was strictly concerned

with the interrelationship between man and the natural world, and that concerned with anything

that affects or damages a human beings health. This type of complexity would only continue to

build, as more and more laws and bills were passed in the Environmental Decade in accordance

with the Environmentalist definition of environment as “all that surrounds us.”

The Marine Protection, Research and Sanctuaries Act of 1972

The Marine Protection, Research and Sanctuaries Act of 1972 provided another example

of a bill whose health oriented; human-centric focus was veiled by preservation rhetoric. The

title suggested that Marine “protection” and the installment of “Sanctuaries” were to be the

149 National Environmental Policy Act of 1969, 42 U.S.C.§ 4331 (1969).150 Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1590.

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focus, and they certainly were a focus, but less so for preservation purposes and more so for how

they could better human health.

The stated purpose of the Act was, “to regulate the transportation for dumping and the

dumping of material into ocean waters and for other purposes.”151 Immediately proceeding this

purpose was a subsection entitled “Finding, Policy, and Purpose,” in which the health orientation

of the Act becomes clearer. The Congress wrote their goal was to prevent dumping of materials

that would “adversely affect human health, welfare, or amenities”.152 To be fair, this was

followed by “or the marine environment, ecological systems, or economic potentialities.”153

Marine environment and ecological systems both can be said to represent preservationist ideas,

but these came after an “or” statement. Human health was the priority; the well being of humans

took precedence. Again, this is not a “bad” thing to prioritize human health, in fact it was

incredibly important, but the extent to which human health was prioritized in “environmental”

law was significant. That health concerns were preceding ecological concerns seemed innocent,

but the language was radically out of line with the purpose of the Decade to recognize “the

profound impact of man’s activity on the interrelations of all components of the natural

environment as was stated as the purpose at the Decade’s onset. The Marine Protection, Research

and Sanctuaries Act was yet another example of how environmental law prioritized the

protection and welfare of man, over research or action pertaining to man’s impact, and how it

could be lessened on the natural world.

As if the human centric health focus didn’t detract enough away from the original

purpose of the Decade, the mention of human welfare, typically an economic concept, threatened

to divert even more focus away from the natural world. Not only did the Bill prioritize a singular

151 Marine Protection, Research, and Sanctuaries Act of 1972, Pub. L. No. 92-532, 86 Stat. 1052. 152 Ibid.153 Ibid.

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view of the environment (health strand), but also, the bill allowed economy to be prioritized over

marine well being. The bill was also a prime example of point source pollution control, in so

much that to mitigate health concerns, the act sought to “regulate the dumping” of hazardous

materials, at the source.154 In effect, the Marine Protection, Research and Sanctuaries Act of 1972

embodied all of the flaws of the Environmental Decade. The Bill was human health focused,

economically prioritizing, and point source pollution control abundant.

Within the Marine Protection, Research and Sanctuaries Act (MPRSA) there was a call

for both dump permitting, and cessation of hazardous waste dumping in oceans.155 Both of these

legal methods shared the goal of cutting off pollution at its source. The requirement of permitting

allowed both the Army Corp of Engineers and the Environmental Protection Agency to regulate,

at the source, and by requirement, the amount and type of substances dumped into marine

environments. Lawmakers’ belief was that if you cut off the pollutants, and oversee all pollutant

dumping, you effectively combat all negative environmental effects. Permitting and cessation

were and are two powerful tools for defending against pollution, and both were present in

MPRSA. This legal shift towards point source pollution control was necessary in protecting

marine ecosystems at the time, but became insufficient in later years.

In its totality, MPRSA represented a concrete example of the prioritization of health and

economy in understanding the “environment.” As lawmakers proceeded through the

Environmental Decade, they continuously focused in on that which they could control. The

result, once again evidenced in MPRSA, was prioritization of health, point source pollution

control methods, and the inclusion of economic concerns. Lawmakers continued to use rhetoric

like “protection,” or other such Preservationist terminology, but in doing so veiled the reality that

154 Ibid.155 Ibid., Stat. 1053-1055.

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though mentioned by name, the principles of past intangible environmental strands of thought

that prioritized protecting the natural world for it’s inherent value to society, were lacking

prioritization. If there was one Act in the Environmental Decade that attempted to combat this

shifting prioritization vehemently it was the Endangered Species Act of 1973.

The Endangered Species Act of 1973

In the first three years of the Environmental Decade there were Acts pertaining to an

assortment of “environmental” issues passed. To lawmakers, the environment constituted work

environments, the air, the water, and the ocean. This was evidence of the lawmakers taking to

heart, perhaps a little too much, the intention of “comprehensiveness” Caldwell advocated for.

All of the Acts passed however, focused on stopping pollution, or hazards to human health. The

Endangered Species Act in theory prioritized neither of those things, and rather, sought to protect

nature, in particular endangered species, “in and for themselves”.156

The Endangered Species Act truly represented a Preservationist inspired bill, and acted in

accordance with their ideals, but only, to use lawmakers words, “to the extent practicable.”157

Regardless of the safe guard rhetoric of lawmakers, the Bill did represent hope for the

Preservationist appreciation of nature, and was revolutionary in this sense. The Endangered

Species Act succeeded legally in producing a strong example of Preservationist policy. That said,

lawmakers could not neglect including tangible value to the protection of endangered species,

which they did innocently and with little consequence, through the introduction of science.

156 Ralph Waldo Emerson, "Nature,” in The American Transcendentalist: Essential Writings, ed. Lawrence Buell, 38.157 Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat .884.

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In terms of a relentless Preservationist-oriented purpose, lawmakers hit virtually all

points in the Endangered Species Act. The purpose read, “to provide for the conservation of

endangered and threatened species of fish, wildlife, and plants, and for other purposes.”158 The

Bill went on later to state that, “these species of fish, wildlife, and plants are of esthetic,

ecological, education, historical, recreational, and scientific value to the Nation and it’s

people.”159 Terms like “esthetic,” “education,” “historical,” and “recreational” were all of the

intangible sort, in so much that none of them proportioned any quantifiable gain, but were rather

things of value. In addition though, lawmakers could not refuse adding ecological and scientific

justification to the Act. This was of no observable harm but exemplified a hindrance to

comprehensive legal conceptualizations of environment. One goal of preserving endangered

species for lawmakers was namely to preserve the ability for mankind to use nature to further its

technological ability, or for its own purposes (i.e. medicinal). In lawmakers’ efforts to put into

law an intangible approach to environmental protection, they inadvertently defined the

environment as human property, an object to be studied, used, and protected but only with

tangible reason. Thus, by 1973, despite the best efforts of the Endangered Species Act, law still

could not pass an Act solely with the purpose of protecting the natural world “in and for itself.”

Even reference to economy found it’s way into the Endangered Species Act.

The economy though actively combatted in the Endangered Species Act, was still

protected in the subtlest of ways. The term “conservation” inherently carried with it economic

undertones. The use of the word conservation therefore carried with it a distinctly different

understanding of the natural world than did preservation. Thus, when the law wrote in the

purpose to “provide for the conservation of endangered species,” there was an inherent economic

158 Ibid.159 Ibid.

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justification.160 This of course means that instead of preserving, which would be the allowing of

the natural world to be in it’s natural state as Nixon declared was his desire in his 1970

statement, there was an effort at conserving which as Roosevelt proposed, must take into account

human economic implications as well. A hypothetical example can help to exhibit the difference

between Conservationist and Preservationist approaches to endangered species protection.

Hypothetically if preservation was the sole purpose of the Endangered Species Act, certain fish

species would be deemed unfishable, forever protected from human interference. If conservation

was the purpose, the fishing of endangered fish populations would be stopped, but only until the

fish species recovered to “an extent practicable,” after which, the species could be fished again

under regulation. The later Conservationist approach, which was more practical for the American

economy, was what the Endangered Species Act truly chose to follow. In this sense, the

Endangered Species Act, though full of preservationist sentimentality and groundbreaking legal

work, acted in accordance with Conservationist thought, which was inherently economic. As a

result, tangibility dictated the one plausibly intangible law in the Environmental Decade.

Comprehensiveness was once again proven to only be in the language of the law, not the

substance.

160 Ibid., Stat. 885.

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The Resource Conservation and Recovery Act of 1976

As the Decade progressed, the non-comprehensive, veiling rhetoric continued. Human

health continued to be prioritized in law, and the economic understanding of environment only

grew in the greater legal conceptualization of environment. The Resource Conservation and

Recovery Act of 1976 provided another good example of the continuing reign of Conservation

over Preservation as a result of law’s focus on tangibility, a strict adherence to human health in

law, and point source pollution control methods.

Similar to the Marine Protection, Research and Sanctuaries Act, the Solid Waste Disposal

Act was primarily concerned with combatting hazardous waste. Health oriented phrases

included, “open dumping is particularly harmful to health,” “without careful planning and

management (hazardous waste) can present a danger to human health and the environment,” and

“solid waste (has) created greater amount of air and water pollution and other problems for the

environment and for health.”161 The Act further cited the Clean Air Act, the Water Pollution

Control Act and other “laws respecting public health and the environment.”162 The subsection

under which most of this health rhetoric fell was even entitled “Environment and Health,” and

immediately proceeded the opening statements and provisions of the Act.163 Viewing the

environment through its impact on health was second nature to lawmakers by 1976, and the

abundance of direct references to public health in this Act were indicative of the ever prevailing

health oriented legal environmental conceptualization.

As with previous health oriented acts like the Clean Air Act and the Marine Protection,

Research, and Sanctuaries Act, the Resource Conservation and Recovery Act used point source

161 Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat.2797. 162 Ibid.163 Ibid.

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pollution control, as it’s common method to combat the environmental problems. In the case of

the Resource Conservation and Recovery Act of 1976, the environmental problem was solid and

hazardous waste. Unique to the case of solid and hazardous waste was that the waste couldn’t

necessarily be stopped at the source considering the source was all trash in the United States, and

preventing the creation of trash would’ve been impossible. As a result, lawmakers went after the

next closest thing to a source of waste, the landfills used to hold this waste. These landfills were

the vector of pollution, and as such, the Bill set out to regulate, and decrease the ability of the

harmful substances to enter the surrounding soil. The primary angle lawmakers took in carrying

out the control of polluting substances was funding research into new management plans and

facilities for the proper discarding of waste.164 In addition, a groundbreaking practice found its

way into law, representing collaboration between Environmentalist and Conservationist thought.

This method was recycling.

The phrase lawmakers used for recycling was “recovery of energy and other resources

from discarded materials.”165 Unfortunately, the rhetoric used by lawmakers in defense of

recycling was primarily economic. The reason for instituting recycling as stated earlier was to

prevent health effects, but the justification was economic. Up until 1976, health was often

prioritized over economy without need for justification. By 1976, lawmakers were beginning to

economically justify even protection of the environment as it pertained to human health. Under

Section 1002 (c), the Act read in justification of recycling that “the recovery and conservation of

such (useable) materials can reduce the dependence of the United States on foreign resources and

reduce the deficit in its balance of payments.”166 The mention of deficit, and the balancing of

payments was often not present in past environmental legislation, but by 1976, Conservationist

164 Ibid. 165 Ibid., Stat. 2795.166 Ibid., Stat. 2797.

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thought, primarily with respect to natural resources and the economic capacity of the natural

world, accelerated its growth into the American legal environmental conceptualization.

Recycling was billed as an economically beneficial concept. In addition under Section 1008 (a),

within the heading labeled “Solid Waste Management Information and Guidelines,” the first

guideline listed held economic concerns. It read that suggested guidelines should, “provide a

technical and economic description of the level of performance that can be attained by various

available solid waste management practices”.167 These statements within the Act reaffirm the

economic interest and justification behind the environmentally friendly act of recycling.

Lawmakers’ adherence and appreciation for tangible strands of environmental thought

only got stronger as the Environmental Decade progressed. As health continued to be the

primary environmental concern, economic concerns, sometimes blatantly, other times under the

guise of the term conservation, continued to grow more and more prevalent in environmental

law. Point source pollution control continued to be the primary focus of lawmakers in addressing

environmental concerns, and a clear and distinct legal-political approach to environment was

forming around pollution control and reduction of environmental harm. These gains were

necessary, and in accordance with the goal of making the environment healthier, but were rapidly

narrowing in view. Lawmakers and politicians were making the environment something that

could be seen, touched, and controlled. They were actively neglecting the intangible,

comprehensive, and complicated reality of environment that existed before 1969. Against the

wishes of Caldwell, lawmakers were overly dependent on science and health, and perhaps worse

yet, monetary gain.

167 Ibid., Stat. 2803.

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The National Energy Conservation Policy Act of 1978

A final Act should suffice to exhibit the continuing evolution of health oriented,

economically concerned policy in environmental law. Throughout the Decade the law continued

to focus on health and economy, and as the social and cultural context surrounding lawmakers

changed the legal adherence to tangible environment only became more deeply embedded. One

of the primary catalysts for this law’s economic shift was the continuation of the OPEC crisis in

the late 70s, which spawned the National Energy Conservation Policy Act (NECPA). NEPCA

came fittingly at the end of the Environmental Decade. In response to the oil embargo and

growing concerns over energy, the National Energy Conservation Policy Act strove to encourage

the use of renewable resources and domestic non-renewables. In the Act’s rhetoric it became

clear that the economy was the countries primary concern, and the environment was just another

source of income, or a by which the economy could be stimulated. Environmental law by 1978

effectively shifted entirely to economic rhetoric, incorporating energy into the ever broadening

definition of what constituted environment, and completely neglecting prior environmental

concepts that carried with them no quantifiable gain.

The National Energy Conservation Policy Act, in title and in substance, was a

political/legal reaction to an economic problem. The purpose of the Act was almost exclusively

economic, which was particularly strange considering previous law’s purposes at least made a

concrete effort at articulating environmental aims. The reason lawmakers didn’t even attempt to

show a comprehensive environmental approach anymore was because the concept of

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conservation was so deeply engrained in the American conceptualization of environment by

1978, that there was almost no need to account for other environmental strands of thought. The

purpose read, “the purposes of this Act are to provide for the regulation of interstate commerce,

to reduce the growth in demand for energy in the United States, and to conserve nonrenewable

energy resources produced in this Nation and elsewhere, without inhibiting beneficial economic

growth.”168 The terms “commerce”, “demand”, “conserve”, “resources” and of course the phrase

“beneficial economic growth” were all indicative of the prevalence of economic thinking.169 The

term “conservation” became a tool for economic minded politicians and lawmakers to gain entry

into environmental issues, as did the inclusion of energy in the environmental understanding. In

addition to specific terminology, the call for renewable resources, perhaps the one salvageable

aim of the Bill that didn’t necessarily exist for the economy, was nevertheless, also deceptively

economically motivated.

The call for renewable resources wasn’t a reaction to an environmental problem, though

today we may recognize it as one, but rather, it was a simple question of economic benefit.

Lawmakers were using the terms “environment,” “resources,” and “conservation” strategically to

back their political and economic interests. This was the result of many years of gradual shifting

in the legal conceptualization of environment with strict adherence to tangible environmental

ideas. Phrases like “to meet future needs” which Roosevelt used in the early 1900s, were echoed

in the Act.170 The future needs in this case, were clearly, and distinguishably economic, not

environmental. The Bill did not call for renewable resources so that harmful gases that would

alter the entire climate of the Earth would cease to be emitted, but rather, renewable resources

were called for in an effort to give our children better economic futures. The Conservationist

168 National Energy Conservation Policy Act of 1978, Pub. L. No. 95-619, 92 Stat. 3209.169 Ibid.170 Ibid.

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strand of environmental thinking made a viscous comeback on the heels of Environmentalist

health rhetoric, largely due to its easy rhetorical accessibility for those who wished to save

money and prioritize the economic base of the country.

The National Energy Conservation Policy Act did not concern itself with point source

pollution control, or pollution at all for that matter. The energy issue was strictly economic, no

need to pinpoint a source and stop it from causing environmental harm. In fact, the Act seemed

wholly unbothered with environmental harm or any possible impact that the shifting to

renewable resources may have on the environment. There was no mention of health or the

benefits of preserving nature. By 1978, it was getting harder to see how Nixon’s goal to restore, “

nature to its natural state” was a “common cause of all the people of America.”171 More and more

at the end of the 1970s it seemed rather that nature and the environment were a tool to help

Americans pursue a different common cause, economic well-being.

Conclusion

The National Energy Conservation Policy represented the culmination of a long process

in environmental law. It was a process that started with intangible laws like the 1964 Wilderness

Act, where the natural world had inherent value to society, and gradually moved toward

tangibility, health, and science at the beginning of the Environmental Decade. Despite the father

of environmental law, Lynton Caldwell, wishing for a more comprehensive approach, law ended

the Decade with an economic, human-centric focus. NEPA’s stated purpose of better

understanding man’s impact on the natural world turned into man better understanding how it

171 Richard N.L. Andrews, Managing the Environment, Managing Ourselves: A History of American Environmental Policy, 2nd edition, 227.

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can use the natural world to its advantage. The neglection of lawmakers to adequately fulfill their

aims, and their gradual broadening of the environmental definition led slowly to the fading of

spiritual and recreational appreciations of nature. As the definition of environment broadened,

the focus of law narrowed in on human health and economic impacts, perhaps because law’s

broadly defined environment was too complex for lawmakers to approach. This broadening

definition, yet narrow legal focus built a feeble legal foundation that could easily be manipulated.

In effect, the law used the term “environment” as a broad umbrella term under which all strands

of American environmental thought could fit, but failed to actually protect half of the greater

cultural conceptualization of environment. With the environment understood by law as “all that

surrounds us,” and the legal conceptualization of environment as strictly tangible, observable and

quantifiable, the cultural understanding of environment approached another evolution.

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Chapter 3

The Divergence of Cultural and Legal Environmental Thought

“It is now generally accepted that most climatic changes are to be attributed to a

complex of causes” Hubert H. Lamb, English Climatologist, 1969. 172

Introduction

The tangible stands of environmental thought (economic and health oriented) came to

dominate the Environmental Decade. The consequences of this improper legal conceptualization

became evident in the 1980s, as the cultural conceptualization of environment evolved, and the

political/legal did not. Law’s conceptualization of environment relied too heavily on Carson’s

fourth strand of environmental thought, as well as certain dimensions of Roosevelt’s

Conservationism, as was evidenced in Chapter Two. By doing so, the legal conceptualization of

environment neglected the more intangible, value-based understandings of the natural world that

Preservationism and Transcendentalism offered. This error hopelessly diverged the cultural and

legal conceptualizations of the natural world when the next cultural evolution of thought called

upon past intangible strands of thought that sought to protect the environment without purely

tangible justification. This chapter will focus on how the Environmental Decade’s legal

conceptualization of environment, hurt American law’s ability to adjust to climate change in the

1980s, and diverged the political/legal conceptualization of environment, away from the cultural

conceptualization.

172 Spencer R. Weart, The Discovery of Global Warming (Cambridge, Harvard University Press, 2003), 64.

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To show the consequences of the flawed legal conceptualization, this chapter will first

articulate the fifth strand of environmental thought, global climate change, and large-scale

ecosystem based thought. The fifth strand of environmental thought was largely scientific,

building upon Carson’s initial scientific work with interconnected ecosystems. Climate change

researchers like James Hansen expanded the environmental conceptualization towards a more

complex understanding of environment that inherently called upon the first and second strands of

environmental thought, which did not so heavily rely on immediately tangible aspects of

environmental understanding. The scientific base of climate change research, which addressed a

staggeringly complex global ecosystem, was the culmination of almost 150 years of

environmental thought evolution. In other words, climate change drew upon both the tangible

and intangible aspects of cultural environmental thought. This shift back towards intangibility

and complexity was not prepared for, or defensible in the legal understanding of environment,

that viewed the environment only for it’s tangible aspects articulated by Roosevelt and Carson.

Scientists advocated relentlessly on behalf of climate change research, and the American public

was largely receptive, but law did not adapt in any meaningful way. America’s legal

understanding of environment did not allow for the complex concept of climate change. One of

the main actors that advocated, unsuccessfully, for an evolution in legal/political understanding

of environment to combat this was Jimmy Carter.

In 1980, as the United States suffered through the OPEC crisis and economic hardship,

Jimmy Carter pleaded with Americans to build up their confidence now, in hopes of making

America’s future better. In a speech infamously known as the “Malaise Speech,” Carter made

reference to the environment, and advocated for a shift away from foreign oil, and where

possible, towards renewable resources. He urged the country to think about future generations,

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and he wanted American citizens to individually sacrifice today, for the betterment of the

country tomorrow. In this way, Carter attempted to prepare Americans for a fight against an

intangible, unobservable opponent, and their own lack of self-confidence. His efforts to fight

against intangible ideas like confidence and “malaise” fell largely on deaf ears, as Carter lost to

the anti-regulatory Reagan administration in 1980. Carter’s appreciation and awareness of

intangible challenges would have made him a valuable ally of climate change scientists who

hoped to help politics and law properly conceive of climate change. Unfortunately, in 1980,

America chose to not reelect Carter, opting instead for a strict adherer to cost/benefit analysis

with a strong preference for economic gain, Ronald Reagan.

Reagan’s war on the environment was primarily a war on regulation. Since

environmental efforts, primarily point source pollution control, required federal funding, the

Reagan administration did not only fail to help evolve the political environmental concept to

meet the cultural demand, but if anything, actively devolved the political environmental

understanding. Administrators like James Watt actively sought to harm the EPA, and constantly

prioritized economic expansion at the environment’s expense. In effect, the political concept of

environment became fragmented, and Reagan used the law of the Environmental Decade, to

justify his economic understanding of the natural world.

From the abundance of economic and health-oriented rhetoric throughout the major Acts

of the Environmental Decade, politicians in the 1980s justified a conception of environment

primarily concerned with economic welfare and the daily health of American citizens. For 1980s

politicians, this “all that surrounds us” was interpreted to mean the area immediately surrounding

a citizen. This conceptualization of the environment was essentially antithetical to the emerging

large scale, complex cultural conceptualization of the environment. For climate scientists,

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Emerson’s justification of protecting the natural world in and for itself would have been a more

fitting legal approach to climate change in the 1980s considering the difficult in scientifically

quantifying the problem at hand. In other words, had the Environmental Decade chosen to

protect the environment at times for it’s inherent value to society, as Preservationists sough to

do, perhaps the difficult to approach topic of climate change would have been more easily

approachable for lawmakers and politicians in the 1980s. Instead, the legal/political

conceptualizations of environment diverged away from the cultural conceptualization around the

same time that climate change research emerged.

To exemplify the divergence of the cultural and political/legal understandings of

environment, this chapter will end with a case study of coal. The treatment of coal in American

environmental law perhaps offers the most prominent example of law’s failure to adequately

account for climate change research. The point source pollution control approach of the

Environmental Decade, allowed the coal industry to remain under regulated due to the little

known negative effects of the resource on the greater global ecosystem. As a result, coal to this

day is still largely under regulated because no major environmental laws have been passed since

1978. 1978 predated the emergence of substantive climate change research that implicated coal

as a primary emitter of carbon dioxide.173

At the beginning of the Environmental Decade, there existed three parallel

understandings of environment, the cultural, the legal, and the political. In 1980, the legal and

political understandings would separate from the cultural, and stagnate American environmental

policy for years to come. The cultural emergence of global climate change, and the simultaneous

political emergence of American conservatism exposed the differences of conceptualization

173 David Ismay (Staff Attorney at Conservation Law Foundation), interview by author, Chestnut Hill, Massachusetts, October 28, 2015.

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between the political/legal and cultural realms manifested during the 1970s. The flawed legal

understanding of environment allowed Reagan to declare war on intangible understandings of

environment, and prioritize the economy. Thus, the stagnation of American environmental law

was not due to a flawed cultural conceptualization, but rather, a flawed legal conceptualization of

environment that was formally defined some 45 years ago during in the Environmental Decade.

3.1- The Fifth Strand of Environmental Thought: Climate Change

On April 24, 1980 in Washington D.C., a group of highly respected scientists from

around the country gathered to discuss a rapidly evolving scientific debate.174 The conference

aimed to discuss carbon dioxide and the concept of global warming. The research the scientists

met over was already in the process of forever changing the American environmental

conceptualization. Much like previous strands of environmental thought, the concept of global

climate change did not emerge for the first time in 1980, rather, it grew in strength over the

course of several decades, before science and time finally brought it to American popular culture.

Climate research began during World War II in hope of helping American military forces

predict weather conditions for battle.175 Questions about long-term climate change were not of

concern at the time, as climate scientists were just beginning to uncover the most basic of

meteorological capabilities. Nevertheless, a man by the name of Gilbert Plass did not fall victim

174 United States Department of Energy Office Of Health And Environmental Research, Proceedings of the Carbon Dioxide and Climate Research Program Conference, Washington DC, April 24-25, 1980, ed. Lois E. Schmitt, 96th Cong., 2d sess., vii.175 Spencer R. Weart, The Discovery of Global Warming, 22.

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to small-scale weather meteorology, but rather, Plass fixed his attention on the little explored

topic of greenhouse warming, and global climate cycles.176

The history of greenhouse gas research spanned back to the 18th century. English

scientists first observed carbon dioxide’s interesting relationship with rising temperature when in

1859, John Tyndall first proved the existence of opaque gases, today known as greenhouse

gases.177 Tyndall’s interest did not lie in carbon dioxide but rather with water vapor, and its

relationship with past ice ages and its effect on English agriculture.178 As time wore on, other

scientists built off of Tyndall’s finding on opaque gases, and expanded his work into global

climate research. In 1896, Svante Arrhenius, who also shared a vested interest in understanding

ice ages, observed that quantities of volcanic CO2 raised temperature, and theorized that if this

were to occur on a massive scale, it could increase the temperature of the entire global climate.179

Despite the retrospective scientific correctness of this observation, at the time, there existed

inadequate computational ability to support Arrhenius’s claim, and as such, his claims were

largely dismissed. That was until Plass, aided by archaic yet functioning digital computation,

brought Arrhenius’ theory back to life.180

Plass announced in 1956 that the average global temperature was rising as a result of

human activity at a rate of 1.1° Celsius per century.181 Though his science wasn’t sound enough

to convince the entire scientific community of his findings, it was the first time that a scientist

made a substantive, numerically backed observation of global warming.182 A few years later, a

scientist named Charles Keeling furthered Plass’s work, also demonstrating in 1960, this time

176 Ibid., 24. 177 Ibid., 3. 178 Ibid., 4.179 Ibid., 5.180 Ibid., 6-7. 181 Ibid., 24.182 Ibid.

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with new variables considered, that CO2 levels were rising at a consistent rate.183 Despite their

scientific breakthroughs, and the soundness of Keeling’s science, funding still didn’t show up for

research pertaining to the global warming trend.184 Despite the lack of funding, Keeling’s

findings established global warming as a mathematical possibility. The scientific correlation

between human activity and rising CO2 levels that Keeling substantiated would become more

and more powerful as the century wore on.

In 1963, Keeling and his coworkers at the Conservation Foundation published a new

report that suggested the doubling of CO2 projected in the next century could raise the world

temperature by 4° C.185 Keeling’s report was sent to the American Federal Government, who did

not act on his research with much urgency. Still four years before the Environmental Decade,

and just after Rachel Carson’s expansion of the cultural environmental understanding, the

concept of global warming struggled to garner any national attention, let alone research funding,

largely due to the complexity of the science behind the research.186 Though the government did

not think the research was significant, the scientific community was starting to pay attention. By

1965, a sizeable interest accumulated in the academic and scientific community on the topic of

global warming.187

In 1970, the Environmental Decade pushed lawmakers to address the environment, as

was discussed in Chapter Two. At the time, lawmakers believed the environment, as Lynton

Caldwell suggested, was complex, but the complexity lawmakers observed was just a fraction of

complexity climate change research approached. As lawmakers went to work on legalizing the

American environment, scientists met at MIT, still without sufficient science or technology, to

183 Ibid., 37.184 Ibid., 38.185 Ibid., 44.186 Ibid., 45.187 Ibid., 66.

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try and figure out how to approach the incredibly complicated variable of CO2 and its global

upward trend.188 As a result of the growing scientific interest in the complicated phenomenon, 14

nations met to discuss man’s impact on the global climate in 1971. At the conference, scientists

determined that human emissions of greenhouse gases presented a real risk to the global

climate.189 Scientists at the conference agreed that this trend was a problem, and that humans

were involved, but still struggled without proper technology to measure and substantiate their

scientific claims.

As scientists continued to try and better understand climate change, the American public

started to be exposed to climate change research. The New York Times published an article on

October 18, 1970 (in its back pages) that warned air pollution could perhaps “bring a new ice

age”.190 This conclusion by the Times was indicative of the scientific uncertainty that still

surrounded climate change research. Scientists still did not know what the consequences of

global warming would be, or how humans were involved, they just understood the global climate

was changing rapidly. In an age when point source pollution control took center stage in

“protecting the environment,” a far more daunting, complex environmental problem threatened

the usefulness of point source pollution control. If what climate change scientists observed was

true, stopping pollution at it’s source wouldn’t sufficiently protect the environment anymore, the

very composition of pollution would have to be altered away from fossil fuels. Within the next

10 years, scientists’ research would become more and more accessible to the American public,

slowly evolving the cultural environmental conceptualization, and challenging the law to

respond.

188 Ibid., 70.189 Ibid., 71.190 Ibid., 83.

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By 1974, the topic of global warming had gained significant traction in the scientific

community, subsequently, accelerating its incursion into the American public’s eye as well. With

the stage set by the OPEC crisis, droughts, and an abundance of scholarly literature, the

possibility of a massive global climate problem hit a cord with the American public. Finally in

1978, to address this mounting concern, Congress passed a National Climate Act, which

established a National Climate Program Office to help research the global climate problem.191

The program was underfunded, and the scientists were not pleased with the instituted research

plan, but the funding was a critical step forward in the acknowledgment of the problem.192 The

American public was slowly becoming aware of the topic of global warming, and by 1980, the

topic moved largely out of the scientific community, and into the American public

consciousness. One survey found that in 1981, about one-third of American adults were aware of

the greenhouse effect.193 Though slow in its evolution, this finding from 1981indicated that

climate change research was slowly evolving the American cultural understanding of

environment.

By 1980 the greenhouse effect, the understanding of Earth as a complex ecosystem, and

the warming of the planet due to CO2 were commonly agreed upon ideas within the scientific

community. Evidence of this can be seen in proceedings held on climate change research in

Washington D.C. in 1980. For the U.S. Department of Energy, and the Assistant Secretary for

the Environment Ruth Clusen, climate change and CO2 research could no longer be cast aside.194

As a result, on April 24, a group of prominent scientists gathered to discuss carbon dioxide and

191 Ibid., 97.192 Ibid., 97.193 Ibid., 116.194 United States Department of Energy Office Of Health And Environmental Research, Proceedings of the Carbon Dioxide and Climate Research Program Conference, Washington DC, April 24-25, 1980, ed. Lois E. Schmidt, 96th Cong., 2d sess., vii.

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the future of climate change research. What they concluded at the proceedings was that there was

a serious need for rigorous research of carbon dioxide, and inclusion of the international

community in addressing the critical issue. Those present believed that climate change research

was as “nonthreatening a posture as one could advance” to their international allies.195 Scientists

genuinely believed the topic of global climate change was irrefutable and foresaw no hindrance

in their pursuit to combat the problem. As American scientists were soon to find out, some very

serious economic interests stood to challenge their research.

Climate change science implicating CO2 as a harmful greenhouse gas inevitably came up

against American oil and coal interests. After all, one of the main goals of the scientists present

at the April 24th proceedings was to “design fossil fuel use strategies that would permit us to

manage release rates of CO2.”196 This did not sit well with the industrial sector whose primary

interest was the production and maximization of economic well-being, not the management or

restriction of it. This was problematic because if the carbon dioxide proceedings in April 1980

established anything, it was the need for more funding, and further regulation of industry amidst

difficult economic times. For scientists, the CO2 problem could not be ignored, the research was

too daunting. They could visualize the large-scale effects their research suggested. America (and

the rest of the world for that matter) need to regulate the output of fossil fuels, or the Earth’s

temperature will continue to rise with potentially devastating consequences. One critical problem

was that the consequences scientists were afraid of were still hotly debated within the scientific

community.197 There were “pragmatic pessimists”, “informed skeptics”, “option optimists”, and

“option minimalists” within the scientific community, who all differed in their opinions on the

severity of global warming, the connection between CO2 and the warming trend, and what to do

195 Ibid., xii.196 Ibid., xiii. 197 Ibid., xi-xii.

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about the problem.198 The lack of scientific consensus regarding the repercussions of global

climate change, made it difficult for climate change to enter into the cultural environmental

conceptualization, let alone the legal conceptualization.

With the narrowing of law’s environmental understanding in the Environmental Decade,

scientific confusion or uncertainty all but disabled the validity of the scientific research to

tangibly minded lawmakers. Would too much CO2 make people sick? Would it disrupt every day

economic life? These were the variables of environment the law prioritized in the Environmental

Decade, and neither of these variables were of particular interest to climate change researchers

present at the Carbon Dioxide Proceedings in April 1980.199 They were far too busy trying to

understand the complexity and seriousness of the problem at hand. For all the uncertainty

however, all scientists present at the proceedings agreed there was a problem. Though many

scientists continued to debate characteristics of climate change within the scientific community,

others understood the importance of presenting the research to the American public.

One leading voice in defense of climate change research at the dawn of the 1980s was

James Hansen. In 1981, Hansen published a scientific article confirming the prevailing research

of the academic community. He and his colleagues found that in proceeding decades, the average

global temperature of the planet would rise as a result of human activity.200 In the paper, Hansen

articulated some of the consequences that would arise as a result of unhindered CO2 emissions.201

He wrote of the formation of desert zones, and the melting of the polar ice caps, both of which

would eventually affect human life on coastlines or in previously temperate climatic zones.

198 Ibid., xi.199 Ibid.200J. Hansen, D. Johnson, A. Lacis, S. Lebedeff, P, Lee, D. Rind, and G. Russell, “Climate Impact of Increasing Atmospheric Carbon Dioxide,” Science 213, no. 4511 (August 28, 1981): 957-966, http://pubs.giss.nasa.gov/abs/ha04600x.html (accessed April 23, 2016).201 Ibid.

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Hansen’s proposed consequences did not stay sheltered away in the scientific community, in

fact, they were heard, and of concern to the American public.

Before the publishing of Hansen’s article in 1980, my Uncle Douglas Vincent wrote in

his journal about how concerned he was with the threat climate change posed to the polar ice

caps. He was amazed that nothing was being done to combat the potential consequences of

climate change.202 In 1980, my Uncle Doug was only in his 20’s, and James Hansen in his early

40’s. Some 35 years later, both my Uncle Doug and James Hansen are still amazed at the rapid

advance of global climate change, and the overwhelming inability of the American government

to do much about it.

After Hansen published his 1981 article, he served as the head of the Bush

Administrations Climate Task Force in the early 2000s, wrote books on the seriousness of the

global climate change phenomenon, and conducted countless formal presentations and talks in a

continued effort to spawn some substantial legal and political change to combat the climate

change problem.203 Hansen has been a leading advocate for action since climate change research

got its first substantial backing at the onset of the 1980s. Yet, so little action has been taken to

combat global climate change, that Hansen felt compelled to title his popular 2009 book Storms

of My Grandchildren: The Truth About the Coming Climate Catastrophe And Our Last Chance

To Save Humanity.204 Hansen’s scientific research was for so long ignored, that by 2009 he felt

the only way people would listen to he and his colleagues scientific research was if he outright

labeled the problem as a threat to humanity’s existence. Hansen, like Carson or Muir before him,

was one of the many leading voices throughout the fifth strand of environmental thought. Other

actors like Al Gore come to mind when discussing global climate change advocates. But none of

202 Douglas Vincent in discussion with the author, March 27, 2016. 203 James Hansen, Storms of My Grandchildren (New York, Bloomsbury, 2009). 204 Ibid.

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these leading voices, not Hansen, nor Gore, have been able to manifest substantive legal or

political action for climate change efforts. Why was it, that Hansen felt compelled to scare the

American people into reading his research? Why is it, that my Uncle Doug, now almost 60, still

worries 35 years later about a problem that concerned him while he was still in his college years?

Why didn’t the American government or the legal system fail to respond for longer than any

other cultural strand of environmental thought? Before the 5th evolution of environmental thought

in 1980, each of its predecessors achieved political/legal success shortly after the cultural

conceptualization grew. That was mostly because the legal and political conceptualizations grew

in response to the cultural conceptualization. That was not the case with global climate change,

or for James Hansen, or Al Gore, or any of the myriad of actors that begged the American

government to take the problem seriously. Historical events occurred between 1970 and 1980

that sewed the seeds for political/legal inaction pertaining to climate change. One such event was

the narrowing of the legal conceptualization of environment during the Environmental Decade.

Though it wouldn’t be the laws intention to hurt environmental efforts, laws failure to

properly conceive of the environment became apparent when cultural environmental thought

evolved in the 1980s, and the law failed to due to it’s narrow, strictly tangible conceptualization

of environment rooted in 1960s Environmentalism. The reason for law’s inability to adapt and

evolve with climate change research was two fold. First, the gradual prioritization of economy

and health in environmental law forced the economy to be heavily accounted for in

understanding the environment. Considering the economic difficulties of the late 1970s and early

1980s, law’s heavy prioritization of economy took precedence over climate change, and complex

environmental problems.205 Secondly, the focus of law on point source pollution control and

205 Cinnamon Piñon Carlarne, Climate Change Law and Policy: EU and US Approaches (Oxford: Oxford University Press, 2010), 29.

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health during the Environmental Decade didn’t particularly help in combating a more complex

ecosystem based climatic problem. The law as it was written in the 1970s cared more about the

protection of human health from pollution at the local and state levels.206 There was no more

need to regulate emissions so long as human health was protected. If environmental law in the

Environmental Decade accurately viewed the environment as a complex ecosystem, and valued

the environment strictly over the economy in law, the United States would have been better

prepared to address the emerging climate change research. Instead, when the cultural

understanding of environment evolved and called for a subsequent evolution of law, the legal

system was unable to do so, and American law in the 1980s and beyond stagnated partially as a

result of this.

The Inability of American Law to Adjust to the Fifth Strand of Environmental Thought

The primary focus of 1970s environmental law was on eliminating environmental

problems at their point source. The Clean Air Act sought to mitigate pollution at the smoke

stack, the Clean Water Act sought to mitigate pollution at the drainage pipe, and the Marine

Protection, Research and Sanctuaries Act sought to stifle pollution by eliminating the dumping of

hazardous waste into the ocean. Most all environmental laws in the 1970s were concerned with

slowing down, and stopping environmental harm at the source. But what if the problem at hand

spanned the entire globe? How did the environmental law of the Environmental Decade account

for this complex, globally linked ecosystem understanding of the environment? The short answer

is it didn’t, and yet by the early 1980s, Congress had already enacted “virtually all of the federal

206 Clean Air Act of 1970, Pub. L. No. 91-604, 84 Stat. 1676.

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environmental laws that continue to shape environmental decision making at the federal and state

level in the US today.”207

The type of law that was established in 1970s America was “ground-breaking at the

international level.”208 During the Environmental Decade, the United States, “provided

paradigms for environmental lawmaking worldwide.”209 After the Environmental Decade

however, the law failed to change in any significant way. This alone speaks to the United States

inadequate addressing of climate change, seeing as the “Clean Air Act Amendment of 1990,

arguably, represents the last time the US federal government adopted or revised a major, new

environmental law.”210 The Clean Air Act Amendments are also arguably the only major revision

of environmental law between 1980 and the modern day.211 This could in large part be due to the

nature of climate change, considering the problem isn’t so much domestic, as it is international.

As such, before criticizing the United States inability to adjust law to climate change research, a

look at their international efforts is necessary.

Scientists at the April 24, 1980 CO2 proceedings in Washington understood the

importance of international cooperation on the topic of climate change, and in 1988, the

establishment of the International Panel on Climate Change (IPCC) indicated the rest of the

world felt the same way.212 Some four years later, the IPCC would produce the United Nations

Framework Convention for Climate Change (UNFCCC) that would come into force in 1994, and

spawn the Kyoto Protocol in 1997. The United States inconsistent involvement with these

207 Cinnamon Piñon Carlarne, Climate Change Law and Policy: EU and US Approaches, 27.208 Ibid., 28. 209 Ibid., 28.210 Ibid., 30. 211 David Ismay (Staff Attorney at Conservation Law Foundation), interview by author, Chestnut Hill, Massachusetts, October 28, 2015.212 Cinnamon Piñon Carlarne, Climate Change Law and Policy: EU and US Approaches, 34.

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international environmental organizations was consistent with a flawed legal/political

environmental conceptualization.

Initially, the United States was in full compliance with the UNFCCC, suggesting that the

US would be a leading party in international environmental law as it had been in the 1970s. This

joining of the United States as a party of the UNFCCC was a symbolic gesture establishing

America’s official stance acknowledging climate change. Sadly, this acknowledgement was

about as substantial an effort as the United States made in the international community. “While

the US federal government does have an official climate change policy, this policy lacks the

form, substance, and direction that one would expect from a political, economic, and-formerly-

environmental world leader. In particular, the US climate change policy lacks substantive legal

content.”213 Legal commentators generally agree with this interpretation of the US federal

government’s legal failings as they pertain to international climate change efforts.214 One of the

most prominent examples of the United States refusal to join in on substantive international legal

efforts was its refusal to ratify or sign the Kyoto Protocol, as previously discussed.

Though flawed, the Kyoto Protocol was one of the first major international efforts aimed

at unifying the globe against the problem of climate change. The United States expressly anti-

Kyoto position was a position “different from any other country in the world,” and in accordance

with the argument of this thesis, the justification for this opposition to the Kyoto Protocol was

primarily economic.215 President Bush said, “he would not commit to any protocol to the

UNFCCC that would exempt developing countries from obligatory emission reduction

obligations.” 216 In other words, Bush was worried that by reducing emissions, the United States

213 Ibid., 35. 214 Ibid., 35. 215 Ibid., 36. 216 Ibid., 36.

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risked falling behind economically to developing countries with laxer obligations. In this respect,

the United States rejected the Kyoto Protocol to protect their economic interests. No other

country in the world did this. Although many reasonable arguments can be made defending the

United States decision, this did not excuse them from denying the Protocol outright, and refusing

to participate in international efforts when every other powerful economy signed on. The overall

stance of the Bush administration, much like the stance of 1970s lawmakers, was pro-

environment in purpose, but anti-environment in substance, focusing more on economy and

health, than on greater environmental issues. “Bush’s global climate change policy proposed to

address what many perceived as the most significant global environmental threat with only

further study and a voluntary incentives program for industry.”217

The lack of any major domestic environmental legislation other than the Clean Air

Amendments of 1990, and the inconsistent, often unsubstantiated international legal efforts of

the United States in the years following the Environmental Decade were indicative of an overall

stagnation of American environmental law that began in the early 1980s. The reason for this

stagnation, as this thesis has argued, was a flawed, tangibly minded legal environmental

conceptualization in the 1970s, that didn’t properly allow for the addressing of climate change.

As the legal and cultural conceptualizations of environment diverged in 1980, another major shift

in American life would send the political conceptualization of environment skewing away from

the cultural understanding as well. The flawed 1970s legal conceptualization allowed for the

opening of a economically minded political conceptualization of environment, and in 1980,

despite the best efforts of sitting President Jimmy Carter, the conservative administration of

Ronald Reagan would capitalize on the economic interpretation of environment, and declare war

on intangible environmental ideas.

217 Ibid., 37-38.

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3.2- Carter, Reagan, and the Conservative War on the Environment

Perhaps the reason the fifth strand of environmental thought did not have any one figure

as prominent as Carson, Roosevelt, or Muir was because the one person who may have been that

leader was not allowed the opportunity to be. During the Environmental Decade, lawmakers

responded to Rachel Carson’s expansion of cultural environmental thought, and when a new

cultural concept evolved in the late 1970s, Jimmy Carter tried to respond, but sadly, the

circumstances of Carter’s time did not grant him the opportunity to evolve political

environmental thought. Climate change research was just a few years away from achieving some

degree of substantial public acceptance by the end of Carter’s term in 1980. Carter could have

used more concrete research in appealing to the sensibilities of the public in 1979. Unfortunately,

when Carter spoke out to the American public in 1979 and 1980 about the necessity of

sacrificing for intangible, hard to define societal goals, one of which was combating climate

change, research just hadn’t reached the public acceptance necessary for it to matter to voters.

Carter was just a few years away from being able to successfully appeal to the cultural

conceptualization of environment, but instead, his words fell on deaf ears, and America elected a

man who instead actively tried to devolve the political environmental conceptualization.

One infamous speech, commonly referred to as the “Malaise Speech”, represented well

Carter’s efforts to encourage the American people to leap to action in confronting a myriad of

issues. The speech was exemplary of the staggering complexity of both American life, and

environmental understanding at the end of the 1970s. As a result of a wide variety of

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sociopolitical forces over the previous decade, Carter’s speech did not help the environment

become clearer to the 1979 American cultural consciousness, but rather entangled the topic with

the malaise that Carter’s speech sought to address.

In his 1979 speech, Jimmy Carter sought to address the nations confidence and a

mounting energy crisis. Throughout the duration of his speech, Carter hit on both the political

reality of the late 70s and a key problem with the term “environment” that took hold in the

American political rhetoric. The term “malaise” itself indicted the state of the political climate in

which Carter’s speech took place. Much like the term environment, the term malaise approaches

an intangible, often inarticulable reality. Its dictionary definition is “a vague or unfocused feeling

of mental uneasiness, lethargy, or discomfort.”218 Thus, when Carter went in front of the nation to

address the nations “moral and spiritual crisis,” it was clear that he would be approaching an area

of American life with very little backing in numbers and science.219 Carter argued in his 30-

minute speech that “all the legislation in the world can’t fix what’s wrong with America,” and

that America was suffering a “loss of unity and purpose.”220 He maintained that part of being an

American was believing wholeheartedly that “the days of our children would be better than our

own,” pleading with the American people to sacrifice in betterment of tomorrow.221 Rhetoric like

this called upon the American people to prioritize an “invisible” truth. He begged Americans to

sacrifice and to change, so that tomorrow could bring a better country, with more promise.222

Climate change was one such future oriented, purposeful endeavor that Carter’s speech

advocated for. Unfortunately for many Americans at the time, still unable to grasp the topic of

218 Dictionary.com, s.v. “malaise,” http://www.dictionary.com/browse/malaise (accessed April 20, 2016).219 Jimmy Carter, “The Malaise Speech”, Great Speeches, Volume 7, Boston College Films on Demand (originally aired July 1979) http://fod.infobase.com.proxy.bc.edu/p_ViewVideo.aspx?xtid=49145# (accessed April 12, 2016). 220 Ibid. 221 Ibid.222 Ibid.

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climate change fully, environmental conservation demanded, “the welfare of this generation first,

and afterward the welfare of the generations that follow.”223

The difficulties facing the country in the 1970s certainly were abundant. As the

Environmental Decade wore on, behind the scenes, the country was reeling. The bitterness of the

failure in Vietnam, the mistrust of government after the Watergate scandal, the Iran hostage

crisis, soaring inflation, increased divorce rates, and the “the twilight peace of nuclear terror”

were just a few of the most prominent factors influencing the American psyche.224 By the time

Carter took office, inflation and unemployment already looked dire, and when running in 1976

Carter tried to reassure the American people of better days saying, “We want to have faith again!

We want to be proud again!”225 Carter ran on a platform of making things better, but the “misery

index” (a combination of inflation and unemployment) sored during Carter’s presidency from

12.5 in 1976, to over 20 in 1980, which was nearly double.226 There is no doubt that the morale

of the nation suffered during Carter’s administration, and as hard as Carter tried to address the

reeling nation, forces far more powerful than him were at work. No matter what he did, Carter

was the face of a struggling country, and undoubtedly shouldered the blame. Perhaps the greatest

of the obstacles that plagued the Carter administration during his four years in office was the

energy crisis. Carter, understanding the global impacts of the energy problem, advocated

strongly for renewable energy as a means of combating the energy crisis.

Starting in 1973, the United States struggled with a foreign dependence on oil.227

Throughout the 1970s an oil embargo by OPEC (Organization of Petroleum Exporting

223 Gifford Pinchot, The Fight For Conservation, 43. 224 Gil Troy, “1980 Cleveland “There You Go Again!,” Defeating Defeatism-and Jimmy Carter,” in Morning in America, (Princeton: Princeton University Press, 1997), 27. 225 Ibid.226 Ibid.227 Ian Ostrander, and William R. Lowry, “Oil Crises and Policy Continuity: A History of Failure to Change,” 384-404.

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Countries) to the United States tightened consumer pockets, and contributed heavily to a

mounting inflation problem.228 To combat this, Carter promised to seek alternative fuel sources,

and decrease foreign dependence on oil. The years between 1976 (the start of Carter’s

presidential term) and 1980 saw the energy crisis dominate the American political consciousness.

The topic of energy was front and center in 1979, even over the Iran hostage crisis, and Carter

almost exclusively referred to energy in his pleadings with the American public to overcome

their confidence issues. In other words, energy embodied the misery and mounting despair of the

American people in 1979. To become energy self-sufficient became a key talking point for

Carter going into the election of 1980.

In a November 1980 debate, Jimmy Carter, just a week before the presidential election,

came up against the formidable Republican candidate, Ronald Reagan. From the onset of the

debate, Reagan appeared calm, confident and determined, while Carter seemed tired, overrun,

and redundant. Reagan talked far longer than Carter in the debate, despite being asked the same

questions, and he countered every one of Carter’s points two-fold. Visually, the debate was

indicative of the reality of the political situation.229 Jimmy Carter seemed worn down by his term

in office and his inability to spur the American people into action. Ronald Reagan prayed on

Carter’s fatigue, and went after the environment with full force.

During the debate, Reagan made it clear, that the environmental agenda set forth in the

Environmental Decade needed to be stopped. He said that 70% of oil is hidden under

government protected multi-use land, suggesting that the oil industry should go and get it.230 The

government protected land he referred too was most likely the newly protected land in the

228 Gil Troy, “1980 Cleveland “There You Go Again!,” Defeating Defeatism-and Jimmy Carter” Morning in America, 27.229 Ibid.230 Ibid.

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Alaska Land Bills Act, and Reagan vowed that if he were to take office, “governmental

interference” like the Alaska Land Bills Act would cease to exist.231 For Reagan, environmental

protection came hand in hand with governmental interference, and governmental interference

meant regulation, and regulation hurt the economy.

Reagan by no means hid his anti-environmental tendencies, infamously suggesting to a

group of environmentalists that trees generate more air pollution than cars.232 Reagan was no less

abrasive in his blatant disregard for the environment at the debate. The debate took place in

Cleveland, Ohio, a city who’s Cuyahoga River literally burst into flames in 1969 as a result of

flammable chemical river pollution.233 Bills like the Clean Water Act were passed during the

Environmental Decade to regulate harmful river pollution like this, and protect the health of

Cleveland’s citizens. Undoubtedly cognizant of the Cuyahoga’s late 1960s environmental

trouble, Reagan nevertheless continued to emphasize the deregulation of environmental agencies

like the EPA, who oversaw the cleaning of rivers like the Cuyahoga.

Carter did his best in the debate to warn Americans about Reagan’s anti-environmental

stance. He accused Reagan of opposing the Clean Air Act in 1970, as well as the Occupational

Health and Safety Act in 1972.234 This didn’t faze Reagan, and he understood the people of the

United States were concerned primarily with their economic well-being, and as such he didn’t

even pretend to dispute Carter’s claims against him. He played up the continued growth of coal,

and avoided talking of alternative fuels, preferring to redirect his attention to oil exploration and

231 Bill Christofferson, The Man From Clear Lake: Earth Day Founder Senator Gaylord Nelson, 337.232 Gil Troy, “1980 Cleveland “There You Go Again!,” Defeating Defeatism-and Jimmy Carter” Morning in America, 25.233 Ibid.234 Jimmy Carter and Ronald Reagan, “Ronald Reagan and Jimmy Carter Debate,” US Presidential Election Debates, Boston College Films on Demand (originally aired October 28, 1980) http://fod.infobase.com.proxy.bc.edu/p_ViewVideo.aspx?xtid=94916 (accessed April 23, 2016).

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offshore drilling.235 Just a week after the debate, Reagan was elected to office, and Jimmy Carter,

perhaps the best hope for the politicization of the fifth strand of environmental thought, sadly

could not save the legal/political conceptualization of environment. Instead, Reagan used the

environmental conceptualization of law in the 1970s to justify a narrowing of the political

conceptualization of environment even further. For Reagan, the environment was viewed strictly

through an economic lens, and a key tool for viewing the environment economically was cost-

benefit analysis.

“During President Ronald Reagan’s tenure, environmental policy was characterized by

budget cuts for administrative agencies, lax enforcement, and administrative incompetence

among other things.236 His introduction of cost-benefit analysis provided him with the economic

justification to carry out these detrimental environmental policies. Cost-benefit analysis

“provides that, to the extent the law permits, ''regulatory action shall not be undertaken unless the

potential benefits to society from the regulation outweigh the potential costs to society.''”237 The

deregulatory power of cost-benefit analysis was so great, that even environmental health often

times was put at jeopardy. Henry A. Waxman, a California Democrat in 1981 said, “it is very

dangerous to think we can quantify the way we make policy judgments. We don't know how to

measure the true cost of health or disease.''238 The Environmental Decade understood the

environment as a strictly tangible thing; Reagan took this flawed conceptualization a step further,

understanding the environment as strictly a numerical, economic thing. In this way, the Reagan

administration was actively devolving the political conceptualization of environment.

235 Ibid. 236 Cinnamon Piñon Carlarne, Climate Change Law and Policy: EU and US Approaches, 34.237 Philip Shabecoff, “Reagan Order on Cost-Benefit Analysis Stirs Economic and Political Debate,” The New York Times, November 7, 1981, under “US,” http://www.nytimes.com/1981/11/07/us/reagan-order-on-cost-benefit-analysis-stirs-economic-and-political-debate.html?pagewanted=all (accessed May 1, 2016). 238 Ibid.

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With cost-benefit analysis as powerful tool, the Reagan administration conducted a

multitude of intentional political moves aimed at dismantling the environmental gains of the last

20 years.239 Two of these moves were especially revealing of Reagan’s anti-environmental

agenda. The first, and perhaps most devastating, was Reagan’s appointment of James Watt as the

new Secretary of the Interior. Watt came from the Mountain States Legal Foundation, an

environmental entity that worked closely with economically minded businesses, often advocating

legally on their behalf.240 Watt came in determined to change hundreds of regulations to such an

extent, that his successors wouldn’t have the determination to change them back.241 He attempted

to fight financing of National Park expansion, ousted environmentalists from the Executive

Branch, and advocated for development whenever his power allowed.242 Luckily, Congress often

fought him on such things, blocking his efforts to cut off funding for National Park expansion

among other things.243

To accompany Watt, Reagan named Anne Gorsuch, a leader of the Republican right in

the Colorado legislature, as the administrator of the EPA.244 Placing Gorsuch in charge of the

EPA was just another effort by the Reagan administration to systematically deregulate the

Environmental Protection Agency.245 What ultimately saved the EPA from being dismantled was

its connection with small daily environmental regulations. For example, when the Reagan

administration sought to abolish the EPA noise program, citizens revolted against the idea that

private businesses would not be subjected to even the most basic noise regulation.246 The basic

239 Samuel P. Hays, Beauty, Health and Permanence (Cambridge, Cambridge University Press, 1989).240 Ibid.241 Ibid.242 Ibid., 498-505.243 Ibid. 244 Ibid., 494.245 Ibid., 502.246 Ibid., 502.

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function of many commonsensical EPA administered institutions helped keep the EPA afloat

through drastic budget cuts, direct scrutiny, and unprecedented disregard for environmental

concerns.247

In the eight years that Reagan held office (1980-1988), “partisan politics defined

environmental law.”248 As a result, by 1989 “the federal government no longer possessed a strong

political mandate to deal with issues of environmental law.”249 How could such a systematic

deregulation occur just one decade after a massive lawmaking spree comprehensively sought to

protect the natural world? Part of the answer lies within the Acts of the Environmental Decade

itself. Lawmakers of the 1970s in seeking a comprehensive understanding of environment,

inadvertently prioritized economy and health, and made the political conceptualization of

environment malleable and exploitable. The Reagan administration, and their cost-benefit

analysis used certain rhetoric of the Environmental Decade to justify their economic stance on

environment, primarily drawing justification from the Conservationists of the early 20th century.

In seeking comprehensiveness, law rhetorically allowed itself to be manipulated by the Reagan

administration to mean what they wanted it to mean.

247 Ibid., 502.248 Cinnamon Piñon Carlarne, Climate Change Law and Policy: EU and US Approaches, 30.249 Ibid.

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3.3- The Legal Environmental Conceptualization and 1970s Language Issues

In it’s opening statement, the National Environmental Policy Act of 1969 read as follows:

“The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the

natural environment, particularly the profound influences of population growth, high density urbanization, industrial

expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical

importance of restoring and maintaining environmental quality to the overall welfare and development of man,

declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments,

and other concerned public and private organizations, to use all practical means and measures, including financial

and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain

conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other

requirements of present and future generations.”250

At first glance the purpose of the law seems comprehensive and prepared to approach a

topic like global climate change. Rhetorically, terms like “all”, “profound”, “overall”, and

“general welfare” all indicated an intention of comprehensiveness. As rhetoric pertained to

global climate change and an ecosystem approach to law, the term “interconnectedness”

accounted well for this type of thinking. It is clear by the use of comprehensive rhetoric, that at

least conceptually, Caldwell’s policy ideas were driving the NEPA, and politicians accepted the

broad concept of environment as necessary. The comprehensiveness of this language in law

could be helpful, but it could hurt just as easily. Such an inclusive definition of the environment

allowed for a massive broadening of what constituted as “environment,” and opened the

250 National Environmental Policy Act of 1969, 42 U.S.C.§ 4331 (1969).

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environmental concept up to the prominence and prioritization of economy. Certain troublesome

words in the opening statement were indicative of this danger.

The terms “general welfare,” “productive harmony,” and “economic requirements” were

all examples of harmful legal terms. All three of these terms could be legally molded to support

and justify economic prioritization. The terms help to bypass strictness of environmental law,

essentially confusing the legal definition of environment. In terms of word meaning, “welfare”

has three definitions as defined by the dictionary.251 The first definition is the most broad, “ the

good fortune, health, happiness, prosperity, etc., of a person, group, or organization; well-being.”

However, the subsequent definition “financial or other assistance to an individual or family from

a city, state, or national government” clearly prioritizes the economy, and the very nature of the

American political institution devoted to “welfare” is of an economic nature. So while in the first

definition, an argument could be made for happiness falling in line with Preservationist

recreation, or transcendental spiritualism, the deeper reality was that welfare, in a capitalist

society, is and was inherently economic by nature. Health subsequently would be the second

most pressing issue, considering in the United States, again, a strictly capitalist country, one must

pay for their healthcare, and in order to be paid one must be healthy or capable of working. In

summary, health and economy are intrinsically more important in the notion of welfare in a

capitalist society, and their presence in the intent stated purpose of the National Environment

Policy Act indicated flexibility that allowed politicians to justify moving away from primary

concern for the natural world.

The term “productive harmony” once again proved troublesome, specifically the term

“productive”. Like “welfare,” the term seemed innocent to lawmakers, and in accordance with

251Dictionary.com, s.v. “welfare,” http://www.dictionary.com/browse/welfare (accessed April 21, 2016).

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Conservationist principles. To the lawmakers’ credit, both the term “welfare” and the term

“productive” were used by Conservationists. But just like the paradox of environmental

comprehensiveness, the term “production” falls victim to both serving, and contradicting an

environmental idea. In the first two decades of the 20th century the idea of conservation was

innovative, however, by the 1970s the “talk of importance of coal preservation” meant

something entirely different than in 1910 when Gifford wrote Fight for Conservation.252 Science

in particular evolved, and the harm of pollution from coal and the emerging research on the

damage of CO2 were not variables that Pinchot took into account. In 1910, Conservationists

advocated for the most basic principles of conservation, simply, Conservationists understood

natural resources were finite, and America should keep this in mind when expanding production.

By 1970, science revealed that not only were natural resources finite, but our use of nature’s

resources could be detrimental to the global climate. Furthermore, in 1910, America still needed

to grow its production capacity in order to innovate, and sustain a growing American economy.

By 1970, America maximized their production capacity and no longer needed to advocate on

behalf of the expansion of industry. Thus, the inclusion of a term like “productive”, though in

accordance with Conservationism, inadvertently opened an avenue for priorities other than

environment, namely interests economic by nature.

Perhaps most immediately apparent as an economic concern from the NEPA opening

statement was the use of the phrase “economic requirements.” Here again Conservationist

thought can be used to justify economic prioritization. “Conservation demands the welfare of this

generation first, and afterward the welfare of the generations that follow.”253Again, as was the

case in the last use of Conservationism, the historical context of the given phrase was important.

252 Gifford Pinchot, The Fight For Conservation, 44. 253 Gifford Pinchot, The Fight For Conservation, 43.

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By 1970, America was affluent, hugely productive, and a global hegemony that could afford to

care for things like the environment. In 1910, this wasn’t quite the case. The economic well-

being of the average American improved, and although there were times of recession or

difficulty, the overall well-being of the average American in 1970 materially and substantively

increased. For this reason, the inclusion of the phraseology “economic requirements,” good

intentioned and commonsensical as it may have been, was malleable from a legal standpoint.

What are economic requirements? Who determines this? The easy answer was the political party

in charge determined this. Thus, the phrase “economic requirements,” in and for itself (to borrow

Emerson’s phraseology), represented the malleability of the legal environmental understanding.

Lawmakers needed to make a stance on the environment in the 1970s, and their choice of

comprehensiveness, not strict prioritization of the protection of certain environmental values was

damaging in confronting climate change.

A case study on American coal can help to exhibit how economic prioritization in

environmental law hindered American climate change efforts. Coal was and is a primary

contributor to rising global carbon dioxide levels. Before climate change research gained

significant traction in 1980, coal was viewed like any other resource, and treated with no special

considerations for its broader impacts. As such, when climate change research implicated coal as

a heavy contributor to carbon dioxide emissions in the 1980s, outdated 1970s law couldn’t

properly regulate coals emissions based on the new information. Since environmental law has

gone largely unchanged in America since 1978, laws pertaining to coal regulation have gone

largely unchanged. Thus, coal is representative of how an outdated legal conceptualization of

environment has hurt climate change efforts.

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Case Study: Coal

In 1910, Gifford Pinchot and Theodore Roosevelt sought to preserve coal, and rightly so.

As one of America’s most abundant resources, coal was readily accessible and a great source of

energy. The positive outlook on coal would persist all the way through the Environmental

Decade and into the 1980s. There was no reason to think negatively of coal so long as it was

regulated at the pollution source like any other polluting substance. That was until global climate

change research suggested otherwise. Coal helps to show how the legal conceptualization of

environment and the cultural conceptualization of environment diverged in the 1980s. For

culture, coal was viewed as an increasingly negative thing that should be regulated heavily. For

law that failed to conceptually evolve however, coal was viewed as it always had been, polluting,

but not of particular concern.

To this day, there is no substantive policy to protect against coal.254 There were

regulations on mining and limitations on pollution put in place, but there was never any policy

protecting specifically against the resources negative impact on air quality, let alone global

climate change. Before 1980, this was primarily because there was no prominent reason to move

away from coal. There was no denying that pollution from burning coal in abundance could be

detrimental to health. But in terms of environmental harm beyond basic pollution, there was

absolutely no sense in the 1970s that coal carried with it additional burdens. As such, coal made

it all the way through the Environmental Decade relatively unregulated and with the full support

of industry and business.255 By promising to change what were called “old coal” burning

procedures, the coal industry remained a powerful polluter all the way through the

254David Ismay (Staff Attorney at Conservation Law Foundation), interview by author, Chestnut Hill, Massachusetts, October 28, 2015.255 Ibid.

110

Environmental Decade under the veil of “new coal” procedures.256 Evidence that coal was not

detected as a serious threat to the environment in the 1970s can be found in the words of Jimmy

Carter.

In 1980, Carter, the embodiment of liberalism, in his pre-election debate with Reagan

said America should “produce more coal” and in coal there was an “exciting future.”257 This was

somehow taken even further by Reagan who said, “regulations that prevent mining and coal

burning are bad.”258 Carter, the liberal environmentalist of whom Reagan was the antithesis,

advocated for coal and the expansion of coal burning to decrease foreign oil dependency. It is

hard to believe that Jimmy Carter would ever have advocated for coal if he’d known the scale of

damage the resource did to the environment. Carter’s pro-coal stance in the 1980 election debate

evidenced the infancy of global climate change research, and was proof that coal as a harmful

substance was not part of the legal environmental conceptualization of the Environmental

Decade. Considering there would be no major change to American environmental law for the

next 30 years, coal, one of the leading carbon dioxide emitters in the world, in effect bypassed

serious environmental regulations.

The fact that a resource like coal made it through the Environmental Decade virtually

unscathed speaks for itself. Had the Decade been truly comprehensive and effective in its

protection of the environment, coal would have been on its way out the second global climate

change research implicated the resource as particularly damaging. Through economic usefulness,

coal use was allowed to not only continue, but also thrive in American society, especially after

the OPEC crisis. Instead of using the crisis to expand solar and wind power research, the crisis

256 Ibid.257 Jimmy Carter and Ronald Reagan, “Ronald Reagan and Jimmy Carter Debate,” http://fod.infobase.com.proxy.bc.edu/p_ViewVideo.aspx?xtid=94916 (accessed April 23, 2016).258 Ibid.

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was used to expand coal use. If law succeeded in its comprehensive approach and the

prioritization of environmental protection, the reaction may have been more renewable resource

oriented. In the end it was the timing of climate change research’s prominence that doomed the

effectiveness of American environmental law and policy to meaningfully address global climate

change, and allowed coal to grow unchecked for the next quarter century.

Conclusion

The American understanding of environment evolved into a fifth strand of thought in

1980 that understood the Earth as a complex, interrelated ecosystem. Unfortunately as scientists

worked to bring this massive conceptual shift to the American public, Reagan declared war on all

things related to any sense of environment in 1980. Jimmy Carter tried hopelessly to incorporate

climate change into the political conceptualization of environment. For all of his efforts not even

health was properly integrated into the political conceptualization under the Reagan

administration.

In further misfortune, though lawmakers tried, the Environmental Decade failed to

adequately protect against a solely economic interpretation of environment. Though it may not

have been possible to fully block political disruption, lawmakers to some extent could have

determined to what end politics disrupted environmental efforts. By choosing to view the

environment comprehensively, lawmakers allowed economic prioritization into the legal

environmental understanding. Further, the law by focusing in on the Environmentalist strand of

thought depended on extensive point source pollution control policies, which ultimately proved

ineffective in dealing with the global climate change problem. The focus of lawmakers on the

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tangible health and economic aspects of the environment in the 1970s helped to diverge the

American cultural, and American legal/political understandings of the natural world in the 1980s.

In effect, the environment suffered because of the exact timing of the Environmental Decade,

with the fifth evolution of environmental thought coming too late for law to properly address it.

With no momentum to stimulate new lawmaking, American environmental law fell into

stagnation and deregulation during the reign of Ronald Reagan from 1980-1988. Reagan’s war

on regulation, and the regulatory agency of the EPA permanently hurt the American political

conceptualization of environment, which prevented any political momentum towards a

restructuring of American environmental law. As such, the legal conceptualization of

environment as it stood in 1978, remains largely unchanged today.

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Conclusion

This thesis sought to show the historical evolution of American cultural environmental

thought, and its subsequent evolutions in politics and law. The conceptualization of environment

did not first appear in 1962 with Rachel Carson, nor was Roosevelt the first to conceive of, and

articulate the environment. Rather, American thinkers like Ralph Waldo Emerson and John Muir

first articulated intangible relationships with the natural world as far back as the 1830s, seeking

to protect nature for its inherent value for the human spirit and for future generations, not just for

it’s present economic or health worth. From early environmental thinkers’ work and writings,

Roosevelt and Carson drew inspiration, and did not seek to alienate past strands of thought, but

rather saw themselves as part of a historical evolution, adding to, rather than subtracting away

from, a greater environmental understanding. This greater environmental understanding was

what Lynton Caldwell advocated for when he called for comprehensive environmental policy.

He saw the inherent value in making legislation that could protect the entire cultural

conceptualization of environment, intangible and tangible strands alike.

When lawmakers met during the Environmental Decade with hopes of formulating a

comprehensive legal understanding of environment, they inadvertently separated out intangible

understandings of environment from the greater cultural conceptualization. By doing so, law

only allowed for a conceptualization of environment characterized by its impact on human health

and the economy. The environment became strictly quantifiable in law as lawmakers continued

to view the environment in an ever-narrowing way as the 1970s wore on. Intangible

appreciations of the natural world like those the Transcendentalists and Preservationists valued

114

had no place in the new tangible legal conceptualization. When climate change research emerged

in the 1980s, a fifth strand of environmental thought, both tangible (based on science), and

intangible (future oriented, value based), called for the American legal conceptualization to once

gain evolve beside the cultural. This unfortunately did not occur, as the statutory laws of the

Environmental Decade failed to adjust to climate change, and continued to only prioritize point

source pollution control.

Had the law properly conceptualized the environment during the Environmental Decade,

the addressing of global climate change research most likely would have been immediate. Before

the Environmental Decade, as cultural environmental thought evolved, so too did legal and

political thought. The Environmental Decade was designed to enhance this process of parallel

growth between cultural, legal, and political environmental thought, but instead, it hindered it.

When climate change research reached the political/legal realms in 1980, the law wasn’t able to

conceptualize the problem, and since the law didn’t recognize the problem, politicians weren’t

expected to recognize the problem either. Reagan used the freedom granted to him by American

law to actively combat the gains of the Environmental Decade. His presidency in many ways

devolved the political understanding of environment in America. If the political

conceptualization of environment is to be fixed, the legal conceptualization must first be

changed. The very purposes, foundations, and missions of past environmental laws need be

adjusted to fit our current cultural conceptualization of environment, of which climate change is

an integral part.

In the years since the Kyoto Protocol, America has done significantly better in addressing

climate change, but there still exists a deep divide in cultural, legal, and political understandings

of environment, and this slows progress. So although the United States role in the Paris

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Agreement in 2016 can be considered a great achievement, there are still antiquated, conceptual

problems with domestic American environmental law that need to be addressed. If any real

substantive progress is to be made in time to properly address climate change, law needs to

quickly adjust to the fifth strand of American cultural environmental thought. Perhaps it is time

for a complete overhaul of previous laws, for a second Environmental Decade, a Decade that can

reunite the environmental conceptualizations of law and culture. The historical evolution of

American environmental thought was far more successful than the last 30 years suggests, and it

is time now to get that evolution back on track, so that America can rightfully take its place with

other world leaders in the fight against global climate change.

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