Document Type

Article

Publication Date

2012

Keywords

conservation, natural resources, climate change, Endangered Species Act, Environmental Protection Agency, EPA

Abstract

There is a firestorm of political and cultural conflict around environmental issues,including but running well beyond climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, neglecting the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension,approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world matters and how we should govern it. Each of these conceptions persists in a body of environmental law, a network of interest and advocacy groups, the attitudes and even identities of ordinary citizens, and even the American landscape. The first, providential republicanism, treats nature as intended for productive human use and gives high status to its users: this idea justified the European claim to North America, defined public debates about nature in the early republic, and persists in important aspects of private and public land-use law. The second conception, progressive management, arose in the later nineteenth century as part of a broader legal reform movement and gave its shape to much of federal lands policy, notably creation of the national forests and national parks. In this idea, nature’s productive use requires extensive management by public-spirited experts, whom reformers imagined as steering the environmental policy of the administrative state. The third conception, romantic epiphany, concentrates on the aesthetic and spiritual value of nature and has defined national parks policy, spurred creation of the national wilderness system, and lent essential support to the Endangered Species Act. This idea entered environmental politics at the turn of the last century, with the efforts of the Sierra Club and other innovators. The most recent conception of nature, ecological interdependence, arose in the middle of the twentieth century and shaped much of the environmental law of the 1970s and thereafter. This conception treats nature as an intensely inter-permeable web, which humans are unavoidably part of, to our benefit and hazard. All of these ideas persist in today’s environmental law and politics and provide a map of our existing statutes and doctrines, the conflicts around those laws, and emerging issues such as climate change.