ENVIRONMENTAL LAW AT 50: A CUTTING-EDGE JOURNAL EXAMINING THE CENTRAL ISSUES OF OUR TIME.

Author:Blumm, Michael C.
 
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  1. INTRODUCTION II. ORIGINS III. EVOLUTION IV. CONTINUING SIGNIFICANCE V. CONCLUSION APPENDIX: ARTICLES BY DISTINGUISHED ENVIRONMENTAL LAW VISITORS I. INTRODUCTION

    A half-century ago, in 1970, eight years after the publication of Silent Spring (1) and just a year after pictures from the moon landing showed the interconnectedness and vulnerability of planet Earth, (2) Lewis & Clark Law School became the first law school to publish a journal dedicated to the then-nascent field of environmental law. (3) It was a providential decision, one that proved to be a harbinger of the school's great success over the last half-century in assembling its top-rated environmental program, (4) its rich and unrivaled curriculum, (5) its unmatched environmental clinics, (6) its consistent success in environmental moot courts, (7) and its graduates who have gone on to fill important positions throughout the country in environmental and natural resources law. (8) None of this was foreordained when Environmental Law was founded the year of the first Earth Day. (9)

    As we celebrate the first fifty years of the journal, it is worth a look back to its origins, its evolution, and continuing importance to a legal field that has only grown in importance since 1970, and today is central to efforts to manage the ongoing effects of climate change due to atmospheric pollution. This is a brief effort to do so.

  2. ORIGINS

    Legendary faculty member Billy Williamson was the instigator behind the founding of Environmental Law. (10) Billy had been the motivating force the year before in establishing the on-campus nonprofit organization, the Northwest Environmental Defense Center (NEDC), staffed by volunteer law students and attorneys. (11) NEDC has since grown to retain an executive director, its own staff attorney, and student law clerks. Williamson's far-sightedness in founding both NEDC and Environmental Law is now remembered every year when the school's environmental alumni select a Williamson Public Interest Environmental Law award winner from the graduating class, given to the person whose commitment, vision, leadership, and creativity in the public interest environmental law field demonstrates a commitment to continue the work after law school. (12)

    1970 was a tumultuous year in American history and a formative one for modern environmental law. (13) The year began with President Nixon signing the National Environmental Policy Act (NEPA) into law on the first day of the new decade. (14) NEPA, the so-called Magna Carta of the environment, (15) declared a national goal to maintain conditions in which man and nature can co-exist in productive harmony in order to promote efforts to prevent or eliminate damage to the environment and biosphere and protect the health and welfare of man, and increase understanding of ecological systems and natural resources. (16) NEPA called for early public involvement in government decision making and required public disclosure of the environmental consequences of all proposed federal actions. (17) The heart of the statute was to make federal agencies evaluate practicable alternative courses of action to foster its goals, (18) including making federal agencies fulfill their responsibilities "as trustee [s] of the environment for succeeding generations" and promote uses that ensure "the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences." (19)

    The first issue of Environmental Law was published in the spring of 1970, with Professor Williamson as the sole faculty advisor, featuring a message from President Nixon to the editors praising them for undertaking an effort to search for positive answers to what he called the "great question of the Seventies, which is whether we shall surrender to our surroundings or whether we shall make our peace with nature and begin to make reparations for the damage we have done to our air, our land and our water." (20) Nixon's apparent chief competitor at the time in the upcoming 1972 election, Sen. Edmund Muskie (D-Me.), contributed an article for the inaugural issue, outlining an environmental agenda for the nation. (21) Famed environmental litigator, Victor Yannacone, authored an article on NEPA. (22) Supreme Court Justice William O. Douglas offered an article on ocean pollution. (23) The journal made an early significant mark on the field.

    That same spring of 1970, and just six days after the first Earth Day celebrations, President Nixon ordered U.S. combat troops to invade Cambodia on April 28, in an effort to prevent North Vietnamese troops from attacking South Vietnam from their Cambodian sanctuaries. (24) The invasion poured fuel on the fires of a largescale anti-war movement on college campuses nationwide, no doubt exacerbated by the reinstitution of the military draft six months before. (25) The widespread protests resulted in the shooting and killing of four students by national guardsmen at Kent State University (26) and two more at Jackson State University. (27) The protests disrupted college campuses nationwide, with many schools going out on strike for the remainder of the academic year. (28) Although the demonstrations failed to stop the war, they did encourage the Senate to repeal the 1964 Gulf of Tonkin resolution, thought to authorize the buildup of troops in Vietnam, in June, on an 81-10 vote. (29)

    In some respects, the Vietnam protests--on the heels of the Civil Rights movement of the early 1960s (30)--created an era of activism that fueled the environmental movement. (31) Thus, it was unsurprising that the chief political supporter of the first Earth Day, Sen. Gaylord Nelson (D-Wis.), was also a staunch antiwar opponent.

    The enactment of NEPA, the Earth Day celebrations, and the founding of Environmental Law were hardly all the environmental achievements in that tumultuous year of 1970. (32) For example, before the year was out, President Nixon created the Environmental Protection Agency, (33) and he then signed into law the Clean Air Act Amendments of 1970 on the last day of the year, December 31st, 1970. (34) From NEPA on the first day of the year to the Clean Air Act on the last, the founding of Environmental Law came at a propitious time.

  3. EVOLUTION

    The 1970s were a decade of overwhelming environmental legislation. Students of environmental law, as I was then, were simply inundated with new legislative initiatives, from what is now called the Clean Water Act Amendments of 1972, (35) the Endangered Species Act of 1973, (36) the Resource Conservation and Recovery Act of 1976, (37) the Comprehensive Environmental Responsibility, Liability and Compensation Act of 1980, (38) and so forth. It seemed as if there were no end to the legislative fixes that Congress was willing to enact.

    And then, after enactment of the Alaska National Interest Conservation and Lands Act in in the lame-duck session of 1980, (39) the environmental legislative revolution suddenly stopped. The incoming Reagan Administration and a new Republican Senate would be much more skeptical of new environmental initiatives, and divided government would characterize the rest of the decade and continue well into the 1990s. (40) The 1970s environmental decade of legislation would never be repeated. (41) That hardly meant a slowdown in environmental law, however, as administrative and judicial interpretations proliferated. But it did mean that environmental statutes became difficult to enact and often impossible to update to keep pace with scientific and technological advances.

    Environmental Law kept pace with these developments, growing from three issues a year to four in 1981-1982, once producing a volume embracing a full 2,321 pages. (42) As Professor John Leshy, then Interior Solicitor, explained on the journal's twenty-fifth birthday in 1995, Environmental Law became "a bible in this field;" in his tribute, Leshy mentioned articles by several well-known figures as well as unusual articles during the early 1990s that illustrated the great variety of subjects the journal has continued to publish over the years. (43)

    In the same anniversary issue in which Leshy wrote, Denis Hayes, national coordinator of the first Earth Day, explored environmental law's challenges in the mid-1990s. (44) Well-known law professors Robert Adler, J.B. Ruhl, and L&C's own Susan Mandiberg also contributed. (45) In the volume containing that anniversary issue were symposia (sometimes called colloquia) on the then recent Supreme Court decision in Dolan v. City of Dgard, (46) on "Who Runs the (Columbia) River?," and on President Clinton's New Land Policies. (47) The following year the journal produced an epic cumulative index of its first quarter-century that was over 300 pages and is still well worth consulting today. (48)

    Over the ensuing twenty-five years, Environmental Law continued to feature a dizzying variety of issues. A sampling of symposia includes those on Northwest Water Law, (49) another on management of the Columbia River, (50) on habitat conservation plans under the Endangered Species Act, (51) on population law, (52) on international environmental law, (53) on takings law, (54) on energy law,55 on the Clean Water Act on its thirtieth anniversary, (56) on the Endangered Species Act on its thirtieth anniversary, (57) on public lands management, (58) on the rule of capture and its consequences, (59) on the effects of Oregon Ballot Measure 37 that attempted to revolutionize takings law in the state, (60) on Western instream flows, (61) on law, science, and the environment, (62) on environmental justice, (63) on greening the electric grid, (64) on the Clean Air Act at Forty, (65) on animal migration and conservation,66 on the Migratory Bird Treaty Act, (67) on the Supreme Court's decision in Sackett v. EPA, concerning Clean Water Act enforcement, (68) on point versus nonpoint regulation under the Clean Water Act...

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