BEYOND "BIG GOVERNMENT": TOWARD NEW LEGAL HISTORIES OF THE NEW DEAL ORDER'S END.

• Author: Levine, Gabriel L.

PUBLIC CITIZENS: THE ATTACK ON BIG GOVERNMENT AND THE REMAKING OF AMERICAN LIBERALISM. By Paul Sabin. New York: W.W. Norton. 2021. Pp. xviii, 254. $26.95.

INTRODUCTION

New York State wants congestion pricing in Manhattan. In September 2021, Governor Kathy Hochul announced that she supported efforts to charge at least some drivers entering the busiest parts of the borough. (1) Congestion pricing already exists in London, Singapore, and elsewhere. (2) Los Angeles is looking into it too. (3) Though New York's congestion pricing politics have proven troublesome (4)--it turns out car commuters don't want to pay to go to work each day or rearrange their daily routines to travel by train--the policy seems to be a sensible way to encourage the country's largest metropolitan area to reduce its carbon footprint and to fund investment in public transit. If voters allow it, congestion pricing seems worth a shot. We are, after all, in the middle of a global climate crisis.

So there was something tragic, or maybe just absurd, when in August 2021, the Metropolitan Transportation Authority announced that environmental review of the New York City Congestion Pricing Project would take about sixteen months. (5) This review is required under the National Environmental Policy Act (NEPA), one of the bedrock laws protecting human health and environmental quality in the United States. (6) To be sure, congestion pricing is not a perfect policy; nothing is. But its climate and health benefits, at least, seem clear. Why, then, would environmental safeguards stymie this initiative? Why would they impose more than a year of waiting when climate danger is already upon us? Something has gone awry.

New York's experience with congestion pricing is, alas, not an isolated case. Professors J.B. Ruhl and James Salzman have recently argued that the "Old Green Laws," with NEPA and its state analogues foremost among them, threaten progress toward a "Green New Deal." (7) This isn't just a matter of regulatory schemes such as congestion pricing: building green infrastructure large and small will require "major" governmental actions of all sorts, from spending to permitting. In some cases, environmental laws such as NEPA and its state analogues may alert the government to hidden costs. But these procedural requirements generally apply bluntly to both threats and opportunities, imposing presumptions of harm even on those projects necessary for averting disaster. New environmental laws, therefore, seem necessary for confronting new challenges.

Professor Paul Sabin's (8) excellent book, Public Citizens: The Attack on Big Government and the Remaking of American Liberalism, illuminates the status quo from which some climate activists, as well as a broader cohort of "supply-side progressives," now wish to break. (9) Public Citizens is not exactly a prehistory of our current environmental discontents. (More on that later.) Rather, it examines the "public-interest" legal movement, of which NEPA and laws like it are a product. Sabin's focus is the network of nonprofit organizations led (some literally, others symbolically) by Ralph Nader in the 1960s and '70s. These groups aimed to serve the previously unorganized public by providing a countervailing force against both business and government. Environmentalism was central to the public-interest legal movement, linking new consumer advocacy with older conservationist campaigning. Nader and his allies were remarkably successful both in litigating for environmental causes and in pressing for new legislation. (10) But, Sabin argues, by criticizing the government, they unwittingly helped undermine public confidence in it. Ultimately, public-interest law helped unmake the New Deal order from within.

Though Public Citizens masterfully links legal advocacy to the broader history of American political economy, the book does not quite fulfill its own ambitions. Sabin shows that public-interest liberals were often harsh critics of the postwar state and the political coalitions that sustained it. In this respect, Nader and his allies had surprising affinities with the New Right. But unlike the conservatives who ultimately triumphed, public-interest liberals typically sought to expand the federal government, (11) not--in Grover Norquist's charming phrase--to cut it to the size where they could drown it in a bathtub. (12) Nader was not the unwitting ally of Ronald Reagan, his antibureaucracy rhetoric notwithstanding.

Nonetheless, understanding public-interest liberalism remains an essential task for historians, one that I begin to take up here. (13) Public-interest liberals transformed American governance in ways that still benefit us today, but which have also left the state vulnerable to conservative opposition. I examine this dynamic by sketching a new historical account of public-interest liberals' vision, focusing on environmental law in the 1960s and '70s. Environmental law was at the heart of both public-interest liberalism and of the late twentieth-century transformations of the American administrative state. In studying how lawyers worked to address the "insidious impacts of new technologies" (p. 23), we can see more clearly how they transformed American governance. Though environmental law is notoriously difficult to define in the abstract, (14) its creation marked a specific historical development in American legal thought and practice. Environment law, therefore, provides a powerful lens through which to view the whole of public-interest law--and the New Deal order's end more broadly.

The New Deal order, I argue, was not monolithic, but instead combined several distinct approaches to public policy. Chief among these were regulation and spending. Public-interest liberals embraced the former but not the latter, transmuting the New Deal's economic regulation into the "new social regulation." Public-interest liberals fused to regulation a moralized commitment to adversarial legalism. They hoped to escape from politics into law, and through law to develop ideals suitable for a new, environmental age. This synthesis of regulation and legalism was generative but short-lived. With their moral vision wedded so closely to law, public-interest liberals were unable to muster an effective, principled alternative when the courts turned hostile. In the 1970s and '80s, conservative judges dashed environmental legalism's grandest hopes. Regulation endured, but without the moral vision that had sustained it just a decade earlier. Today's challenges reflect not only the triumph of "small government" but also the limits of public-interest liberalism as an alternative.

Part I of this Review reconstructs Public Citizens main argument. Part II critically assesses Sabin's account. Part III outlines a new history of environmental law in the mid-to-late twentieth-century United States.

1. PUBLIC CITIZENS VERSUS THE NEW DEAL ORDER

   Lawyers today might not always imagine the 1970s as a period of major liberal change, but forty or fifty years ago legal scholars believed the legal order of the New Deal had recently undergone sweeping reforms from the left. One major article described the replacement of the " 'expertise' model of the New Deal period" by a new "interest representation" model in administrative law. (15) Another argued that federal environmental laws had gone "beyond the New Deal." (16) A third described "the Public Interest era" as breaking from the New Deal even as it left most existing legislation untouched. (17) The conservative politics of the last several decades, however, often overshadow these accomplishments. And when progressives seek models for today, they typically look further back to the New Deal. (18) The Roosevelt and Reagan administrations both seem more important than what happened in between them.

   Public Citizens can be understood as historicizing--and expanding upon--the consensus among law professors of the 1970s and '80s. This is less a story of liberals joining conservatives to unmake the New Deal order, than of liberalism coming to reflect public-interest lawyers' ideas. (19) As Sabin shows, the break from the New Deal was a fraught process of coalition formation and institution building; it was not foreordained that the "Public Interest era" would lie "beyond the New Deal." Public-interest lawyers, however, effectively transformed government institutions to reflect their skepticism of bureaucrats and their demands for robust public participation. We still live today, Sabin suggests, with the Naderization of the left.

   Part I of Public Citizens, "A Great Power with No Challengers," describes the New Deal legal and political-economic order, as well as early challenges to it.

   In Sabin's account, the post-World War II political economy is best understood as "a kind of managed capitalism," involving a "productive partnership between government, business, and labor" (p. 3). Sabin risks exaggerating this peaceable image, underplaying the racial and economic strife that plagued the New Deal order. Even in the United States' industrial core, for example, white property owners fought successfully against labor unions to resist racial integration. (20) Still, for many of the New Deal order's white, male beneficiaries, it really did seem harmonious, and the discord of the 1960s came as a shock.

   For Sabin's protagonists, the New Deal state had two principal failings, both concerning administrative agencies. First, agencies sometimes regulated in ways that favored industry over consumers. "Regulatory capture" of this sort was the focus of the Nader-led investigative reports that form the core of Chapter Five. Second, even when not captured, agencies occasionally acted unthinkingly, pursuing bureaucratic needs at the expense of social goods. Critics such as Jane Jacobs and Rachel Carson, whom Sabin discusses in Chapter Two, leveled this charge at urban planners and agricultural administrators.

   Sabin's...