Coming of age in the environment.

• Author: Cudahy, Richard D.

In this Essay, Judge Richard Cudahy traces the history of the environmental movement in the United States. Starting with several examples of environmental disasters during the 1950s, he then moves on to discuss the budding awareness of environmental problems in the 1960s. The Sixties gave way to an explosion of environmental laws and literature during the 1970s. Pushed by the energy crisis and a fear of nuclear power, the Seventies witnessed the birth of a plethora of environmental laws and writings concerned with energy conservation and clean energy production. Judge Cudahy recounts how the 1980s saw a political backlash against the environmental movement and how popular opinion tempered the backlash, not only during the 1980s, but during the mid-1990s as well. Judge Cudahy concludes with a peek into the future of environmental issues and law.

Very best wishes to Environmental Law on its thirtieth birthday. You were the first of your kind, and you have been contributing to the development of environmental law during all those years when it has been a work in progress.

It doesn't seem possible that before 1960 there was no "environment"--or at least no environmentalism. I can even remember the Thirties, when we all heedlessly threw our trash out of car windows, burned coal in the home furnace (if we could afford to buy any), and used a lot of lead for everything from fishing sinkers and paint to no-knock gasoline. Those were the days when belching black smoke meant a welcome end to the Depression and little else.

In the war years, a healthy environment was one free of five hundred pound bombs and long-range artillery fire. There was a flickering of concern about radioactivity when A-bombs and H-bombs began exploding.(1) In fact, I think in principle nuclear explosions raised the basic environmental question. Here was an awesome source of primal energy released by sophisticated human calculation, but spreading a whole battery of mysterious and severe health hazards in its wake.

In the Fifties, the rapidly proliferating automobile culture, with mounting air pollution and suburban sprawl, became an increasing burden on the environment. Cars caused smog to hang over Los Angeles,(2) and a prosperous smokestack industry in the Midwest produced such notable environmental disasters as the death of Lake Erie(3) (and later the fire on the Cuyahoga River in Cleveland(4)). In fact, the failure of the widely anticipated post-war depression(5) to appear on schedule may have been an unexpected blow to the environment.

The Sixties, of course, brought Rachel Carson(6) and the first real wave of environmental legislation with an assault on pesticides,(7) the strengthened Clean Air Act,(8) and the astonishing reversal of beliefs that had seemed sacred for decades. For example, the plunge of DDT from miracle pesticide to executioner of birds was awesome(9)--at the moment a small bounce in DDT's fortunes may result from its value in malaria control. (l0) The enactment in 1969 of the National Environmental Policy Act(11) was a revolutionary development, requiring an analysis of the impact on the environment of actions by the federal government and thrusting the environment into the forefront whenever significant federal activities were undertaken. It incorporates the most important concept in the entire field of environmental law.

Even before the Sixties, there had been enclaves of environmentalism in the nation--as in my home state of Wisconsin.(12) These tendencies developed under the banner of "couservationism"--a long-honored tradition focusing on the protection and nurturing of wildlife and creation of natural preserves. The conservation tradition at the national level was fostered by famous advocates like Theodore Roosevelt and Gifford Pinchot.(13) This was a political tradition that broadened and later gained force under the new banner of environmentalism. Despite setbacks, the commitment of the public to environmental preservation and conservation had enduring power that fortified those ideals even in hostile political eras.

The early Seventies, under the unlikely aegis of the Nixon Administration, marked the high-water mark of this early ecological wave. The first notable step was the establishment of Earth Day under the leadership of Senator Gaylord Nelson (D-Wis.).(14) Gaylord Nelson had made conservation and environmental protection a major part of his program as Governor of Wisconsin in the late Fifties and early Sixties.(15) Earth Day was a very important idea in popularizing environmental issues with young people. Over the years, school children have been adamant in their defense of the environmental point of view. They have rarely been swayed by the political cross-currents that have influenced their elders on these issues.

The Seventies also brought a blizzard of...