Social movements, law and society: the institutionalization of the environmental movement.

• Author: Coglianese, Cary

Social change lies at the heart of the definition of a social movement. A social movement is a broad set of sustained organizational efforts to change the structure of society or the distribution of society's resources. (1) Within social movements, law reformers typically view law as a resource or strategy to achieve desired social change. (2) Since social change is the purpose of a social movement, law reform generally is taken to provide a means of realizing that goal. (3)

According to this conventional view, social movements, law reform, and society interact in a simple, unidirectional fashion. Social movement organizations seek to secure law reform; in turn, changes in the law bring about changes in society. While this conventional conception dominates much research and can be helpful for the purpose of analyzing the direct effects of social movement law reform, (4) it misses several important dimensions of the relationships among social movements, law, and society. First, social movements seek to effect social change through means other than law reform, whether it be by seeking to after public opinion, mobilizing voters, or creating new, nonlegal norms of behavior. These shifts in public values and nonlegal norms can sometimes directly bring about social change. Second, changes in society's values and public opinion can feed back into the legal system and affect the prospects for law reform and enhance the effective implementation of legislation. (5) Finally, law reform efforts themselves may have an impact on public opinion, with action by courts and other legal institutions sometimes lending legitimacy to the claims advanced by social movements. (6) In these ways, social movements, law, and society interact with one another in a more dynamic, bidirectional fashion than is generally recognized.

The symbiotic nature of the relationships among social movements, law, and society is well illustrated by the history of the environmental movement. The environmental movement has contributed to dramatic changes in law and in public values in the United States, and, as a result, society has achieved notable improvements in some of its underlying environmental conditions. Yet the relationships among the environmental movement, law, and society have been decidedly interactive, not unidirectional, over the past three decades. The movement existed for much of the twentieth century as a small niche in American society, outside the mainstream of prevailing political discourse. Beginning around the early 1970s, however, the environmental movement began to transform both law and society. Congress created a large web of new federal environmental legislation along with new rights for citizens and environmental groups to file suits to enforce government regulation. Public opinion also shifted dramatically and the environment took a prominent, and seemingly permanent, place on the public agenda. (7)

Following its transformational period in the early 1970s, the movement settled back into a pattern of more normal politics and law reform. Compared with the dramatic shift in the legal landscape that accompanied the transformational period, the movement has more recently sought discrete, even incremental change, with activists working as often to maintain past gains as to achieve new ones. Environmental organizations have grown in both size and number since the 1970s, and they now work within a society that generally accepts the values of environmentalism, and within a regulatory regime that entrenches those values in law.

This Article examines the institutionalization of the environmental movement in the United States, paying particular attention to the movement's interaction with law and society. In Part I, I trace the rise of the environmental movement in American politics and the significant changes in both law and social attitudes that the movement helped bring about in the 1970s. In Part II, I show how the movement became more institutionalized beginning in the late 1970s and continuing through the 1990s. Just as the movement shifted from being a minority viewpoint in American politics to an institutionalized presence in the center of American political activity, its law reform efforts shifted as well. Reformers in the early 1970s pursued and achieved "transformational" law reform, helping to effectuate a dramatic change in the legal landscape through major legislation. In comparison, reformers in the institutionalized environmental movement now tend to pursue what more appropriately might be considered "normal" law reform, or efforts to secure discrete or incremental legal change as well as reactive efforts to maintain earlier legal gains. (8)

The fact that the contemporary environmental movement now plays a normal role in policymaking is indicative of the impact of the movement on American law and society. Though the United States still confronts environmental challenges, the environmental movement has succeeded in achieving significant changes in law, social values, and certain environmental conditions. Yet the very success of the environmental movement has also tended to constrain the movement in important ways. In Part III of this Article, I suggest that environmentalism in the United States appears to have achieved a steady state, with law and social norms mutually reinforcing each other to maintain (at least for now) a relatively stable commitment to environmental protection. Environmental regulation has effectively addressed many tangible environmental problems and, in so doing, may have lessened the sense of urgency felt by the public when it comes to less palpable, but potentially no less serious, environmental concerns such as global warming. Even though public opinion has served to prevent a large-scale retreat from existing environmental controls, prevailing public sentiment tends to be latent and insufficient to support another transformational expansion of environmental regulation. The environmental movement finds itself fighting smaller battles to maintain past victories and faces competition and divisions within its ranks. Any major advances in environmental regulation will still require salient focal points and crises to prompt legislative action, but these very disasters are less likely to occur precisely because of the existing network of environmental regulation. The very presence of the set of environmental laws established during the transformational period of the 1970s makes it less likely that further significant transformations in environmental law will occur for many decades to come.

1. ENVIRONMENTALISM AS A SOCIAL MOVEMENT

   The environmental movement in the United States dates back at least to the latter part of the nineteenth century, but the movement transformed itself dramatically during the latter half of the twentieth century. The changes that occurred during what many have called the "environmental decade" of the 1970s amounted to nothing less than a sea change in both public attitudes and environmental law. In this Part, I trace the development of the contemporary environmental movement in the United States and the legal and social changes that accompanied its growth.

   1. The Early Roots of the Environmental Movement

      Environmentalism's roots in American political life extend at least as far back as the 1800s. In those early times, the movement manifested itself in two distinct, but sometimes related, strands. The first strand consisted of efforts principally by hunters, naturalists, and explorers to promote the conservation and preservation of the nation's forests and other natural resources. The second consisted of efforts by doctors, engineers, and urban reformers to develop sanitation systems, ensure clean water supplies, and improve the overall living conditions in America's growing cities.

      The first manifestation of a concentrated environmental movement came in the late nineteenth and early twentieth centuries with efforts to improve the management of the nation's natural resources. Until this time, management of such resources was highly decentralized or, for some resources, entirely nonexistent. The rise of the Progressive Era saw the expansion of the federal government into management of water, land, and wildlife. Congress adopted legislation setting aside lands for reserves as well as authorizing the management of natural resources by a series of new agencies, including the Forest Service and the Bureau of Reclamation, and later, the Fish and Wildlife Service and the Bureau of Land Management. (9) These agencies tended to favor the efficient management of natural resources, promoting the conservation philosophy articulated by Gifford Pinchot, the first director of the U.S. Forest Service. Pinchot held that resources should be managed to promote their efficient use for multiple purposes, including grazing, mining, logging, game protection, and recreation. (10) By the first decade of the twentieth century, the federal government had set aside over one hundred million acres of national forests and created nearly a dozen major national parks. (11)

      Some of the earliest conservation groups came into existence during this period. John Muir founded the Sierra Club in 1892, and contemporaneous groups such as the Audubon Society, National Wildlife Federation, Ducks Unlimited, and the Izaak Walton League were organized by hunters and naturalists interested in the effective management of wildlife and forest resources. The Sierra Club, for example, took an active role in seeking to preserve pristine wild areas in and around the Yosemite Valley in California. Unlike other groups of the era, the Sierra Club tended to resist the prevailing multiple-use philosophy and favored instead the preservation of wild areas for their intrinsic value. (12)

      A second early strand of the environmental movement could be found in America's growing cities around the beginning of the twentieth century...