Environmentalism and civil rights are the twentieth century's two most Important social movements, yet despite their divergent histories, they today share a common position--one where waning public support has placed both movements in potential peril. As environmentalists face the challenges of the new millennium, a careful examination of the movement's similarities to and differences from civil rights may yield important lessons for how environmentalists might reverse their apparent trajectory and reforge the backing needed to protect the planet's health. Embarking on this analysis by tracing the history of America's legal response to the two movements--from the first slave codes and Transcendental thought to Plessy v. Ferguson and the trifurcation of environmentalism, from Jim Crow and Hetch Hetchy to the 1964 Civil Rights Act and the 1970 Clean Air Act, from increased judicial intolerance for both movements' tactics to Proposition 209 and Wise Use--Lessons for an Endangered Movement attempts to provide such guidance. Specifically, the Article concludes that environmentalists would do well to avoid zero-sum politics, shun being characterized as a fringe element of society, recognize the current paradigm of compromise in which they operate, revitalize the use of cooperative federalism in environmental regulation, seek other forums to enforce laws, and make environmental education one of the movement's highest priorities.
In 1995, Dinesh D'Souza, a resident scholar at the American Enterprise Institute In New York, proclaimed the Wend of racism" In the United States. He wrote, "all the evidence shows that young people today are strongly committed to the principle of equality of rights," and "they are not disfigured by the racism that afflicted earlier generations of America."(1) Yet in the same month D'Souza issued his 724-page decree, a rash of bombings struck a number of predominantly black churches across the South. By the end of 1996, the tally of such bombings had increased to thirty-four, and many of the targets had been left with racial epithets painted on their doors or walls.(2) At least from a brief glance at the social landscape, it seemed that D'Souza's assertion was somewhat overstated. The next year, however, California voters made their own statement on the issue. Passing the initiative with approximately fifty-four percent of the popular vote, California's Proposition 209 banned affirmative action in the state's public education, employment, and government contracting programs.(3) Within three years, a number of other states, including Washington, Texas, and Florida, chose to follow California's lead. Indeed, from all sides Americans seemed to be rising up, contending that the nation's racial solutions crafted in the late 1960s were no longer helpful, no longer acceptable, and no longer needed. Even if racism was not dead in America, the civil rights movement, as it had come to be known, perhaps was.
Curiously, environmentalism, the movement almost all Americans seem to love, by the end of the century also found itself perilously close to extinction. The movement still enjoyed incredibly wide support--over two-thirds of the public identified themselves as environmentalists(4)--but it was increasingly clear that no matter how broad this support was, it did not run deep. When the costs of environmental protection affect Americans individually, their support for the movement quickly wanes. Early in the decade, preservation of the endangered spotted owl in the Pacific Northwest quickly turned to a showdown between "jobs and birds," and a 1995 poll found that only a third of the public would be willing to increase taxes in order to protect the environment.(5) Likewise, the average size of the American house in 1996 had grown by nearly forty percent from 1971, resulting in increased demand for natural resources used to build, heat, and cool the homes.(6) And nearly half of the nation's car sales were accounted for by minivans, pickup trucks, and sport utility vehicles, all of which are less fuel efficient and contribute more to air pollution than smaller cars.(7) The public, it seemed, had also come to hold views somewhat divergent from those of environmentalists. Today, half of the public believes that plants and animals exist primarily for human use, but only one in twelve environmentalists hold the same view.(8) Similarly, sixty-one percent of Americans consider government regulation of business harmful, while only six percent of environmentalists concur in that opinion.(9) The result is that the public is relatively apathetic when the objectives the environmental movement advances hit close to home. As one author noted in reference to environmentalists' yearly celebration, "Earth Day ... has become something like the green version of Secretaries Day. Everyone's for it. Everyone feels good about it. But that broad support is of questionable depth."(10)
This Article addresses the growing demise of the nation's two most important social movements of the twentieth century by placing the American legal system's response to civil rights and environmentalism in historical juxtaposition. Working from a perspective that views ecological protection as a condition precedent to developing sustainable, prosperous societies, I argue that this juxtaposition has much to teach environmentalists about how they should pursue their advocacy in the coming millennium. Part II begins the analysis by offering a background vantage of the two movements, their development, and their treatment In the law.(11) Part III continues by describing the birth of the modern civil rights and environmental movements, as evidenced in the context of the Civil Rights Act of 1964 and the Clean Air Act of 1970. Part IV then describes the judicial resistance to the movements' success In the legislature, a recoil that has decreased access to the courts for both civil rights and environmental activists. Next, Part V addresses the emerging sociological backlash against the two movements, with a specific emphasis on Proposition 209 in the civil rights context, and the repeal of two provisions of the Clean Air Act in the environmental arena. Finally, Part VI outlines the lessons environmentalists have to learn from the downward path they increasingly share with civil rights activists. Specifically, environmentalists would do well to avoid zero-sum politics, shun being characterized as a fringe element of society, recognize the current paradigm of compromise In which they operate, revitalize the use of cooperative federalism In environmental regulation, seek other forums to enforce laws, and make environmental education one of the movement's highest priorities.
BACKGROUND: A BRIEF HISTORY OF THE AMERICAN LEGAL SYSTEM'S RESPONSE TO THE CIVIL RIGHTS AND ENVIRONMENTAL MOVEMENTS
From a modern-day perspective, civil rights and environmentalism may seem rather similar movements whose roots diverge slightly into a nebulous past but whose blossoms only came in the midst of the cultural change, activism, and social upheaval of the late 1950s and 1960s. Indeed, the sweeping societal transformation during these decades definitely influenced both movements, and the years surrounding the middle of the twentieth century even today symbolize the time in our nation's history when civil rights and environmentalism were thrust onto the national agenda, a place where, until recently, both seemed to be very firmly situated. Yet a more thorough analysis of the movements' respective pasts Indicates that, while there are certainly similarities between the two, there are also deep differences.
Civil rights activism, although clearly founded in notions of equality, has almost always come through active protest, speech, rebellion, violence, and sometimes, war. Legal response came early and bifurcated early, with northern states abolishing slavery and southern states using law to oppress. Eventually, however, almost all legal activism came through the courts, as northern and southern legislatures provided little relief, and when they did, laws were not enforced. Likewise, civil rights activism has long met heated and vehement opposition, causing societal rifts that stretch across the nation. Environmentalism, on the other hand, began largely as a philosophical movement and did not use direct action for its cause until the late nineteenth century--and then only in one faction of the movement. Legal response, too, did not truly arrive until the twentieth century, and then it typically came through laws rather than judicial decisions. And opposition to environmentalism was historically rarely as fervid as it was for civil rights, as many changes brought about by environmentalists were incremental, and as the philosophical nature of the movement allowed industry, war, and the economy to at times sweep it into an unnoticed corner of the American conscience.
Regardless of their historical differences, however, the modern civil rights and environmental movements today seem to share a good deal of common ground. For instance, congressional as well as judicial laws are now critically important to both movements, and the two often use similar methods in seeking change. And, as noted, both also seem to be in danger of losing public and political favor, or at least seem to be teetering in such a position. Indeed, civil rights and environmentalism at the end of the twentieth century both appear to have landed in roughly the same place. The remainder of this Part traces how they got there.
Civil Rights: From Slavery to the Modern Movement
Perhaps no institution is as paradoxical in a nation devoted to democracy and personal freedom as is slavery, but this is our nefarious legacy. In 1619, a Dutch ship sailed through the Chesapeake Bay to the colony of Jamestown, Virginia, and sold the settlers "twenty negars."(12) This introduction of African slaves...