ARTICLE CONTENTS INTRODUCTION I. THE SPECIAL CONFOUNDMENTS OF CLIMATE CHANGE A. Rational Inhibitions B. Nonrational Inhibitions C. The Relevance of Democratic Politics II. THE RISE OF CONSERVATION IN THE NINETEENTH CENTURY A. Early Attitudes 1. The Imperative of Use 2. A Limited Exception: "Curiosities and Wonders" in the Early Parks B. New Ways of Experiencing Nature: From Romantic Aesthetics to the Politics of Romanticism 1. Background Innovations 2. John Muir's Popular Innovation 3. A Romantic Social Movement: The Language of Experience in the Sierra Club C. The New Conservation Politics: Romantics and Progressives 1. The Sierra Club, Conservation, and "Materialism" 2. Conservation and the New Nationalism III. WILDERNESS: FROM CONSERVATION TO ENVIRONMENTALISM A. From Muir's Wilderness to the Wilderness Society 1. Thoreau's Ambiguity and Muir's Ambivalence 2. The Wilderness Society and Its Early Arguments 3. The Value of Nature as Such B. The Debate on the 1964 Wilderness Act IV. THE INVENTION OF THE ENVIRONMENT A. The New Environmental Language B. The Clean Air and Clean Water Acts as Exemplars of Their Time 1. Rejection of Comprehensive Cost-Benefit Analysis 2. Unreachable Goals 3. Rejection of Market-Based Instruments 4. The Character and Motives of the Antipollution Statutes C. Summary V. PROSPECTS FOR THE NEXT ENVIRONMENTAL POLITICS A. The Case Against Environmental Language, Revisited B. The Politics of Anomaly 1. Anomaly as Persuasion 2. Community, Politics, Thresholds C. Frames for Climate Change: Where Might Environmental Values Go Next? 1. Romantic Aesthetics and the Politics of Consciousness 2. Progressives and the Charisma of Management D. Teaching Environmental Law 1. Diverse Conceptions of Nature 2. A Place for Imagination CONCLUSION INTRODUCTION
Environmental crises are defining challenges for the next few decades and probably well beyond. Yet legal scholars approach these issues in a way that encourages pessimism and needlessly narrows the legal and political imagination. This is especially true of climate change, probably today's signal environmental question. Most scholarship envisions environmental politics as the pursuit of already fixed interests. That approach ignores the power of political communities to change both their values and their interests through the self-interpreting activity of democratic politics. In that politics, new forms of normative identity--who we take ourselves to be and what matters most to us--arise from reciprocal efforts at persuasion, arguments about the meaning of shared ideas and commitments. The medium of this persuasion is public language, the repertoire of arguments and appeals that make up the ongoing conversation of a polity. Nature, like liberty and equality, is a centerpiece of public language, one of the always-contested terms around which Americans orient individual identity and dispute the terms of common life.
The aim of this Article is to challenge the narrowing assumptions of the conventional approach to climate change, and environmental issues at large, by giving an account of nature's role in American public language. Doing so means challenging two widespread assumptions. The first is that, although people sometimes act on moral and civic motives, (1) such motives apply to environmental problems in a way that is vague in content and motivationally weak. (2) The second conventional assumption is that "environmentalism," which might otherwise furnish such values, is unhelpful in significant ways. In one account, environmentalism is an essentially negative politics: suspicious of human agency, always on the defensive against incursions into natural systems, and temperamentally associated with sacrifice, austerity, and guilt. (3) It is hostile to, or at best apart from, the projects of progress and justice. (4) In another, frequently overlapping view, environmentalism is nostalgic and ontologically naive, inseparably attached to an essential "nature" which environmentalists insistently contrast with the intruding human species. (5) A negative and defensive stance, the argument goes, cannot mobilize a political response to problems as big as climate change. (6) Similarly, a politics premised on a nostalgic contrast between human beings and the natural world is conceptually rudderless in a time when human action and natural systems have joined in irreversible symbiosis, most markedly in climate change, in which the global atmosphere stands revealed as substantially a human artifact. (7)
Of course, the ideal types conceal variety and disagreement. Nonetheless, they form a dominant attitude in which the only realistic, hence responsible, approach to climate change and other environmental problems is one of instrumentally rational resource management constrained by interest-based politics. In this attitude, interests that are regarded as effectively immutable (1) guide ideal public policy and (2) constrain public policy practice through politics. (8) This attitude is so incomplete as to be seriously mistaken. Moreover, it is mistaken in ways that underwrite exaggerated pessimism about an issue where a realistic sense of hope is essential.
A "realistic" focus on interests can never be the whole story because interests are themselves creations of democratic activity. Interests arise from a history of persuasion and experimentation in which new aims and experiences become central to the value of our lives. (9) Environmental language and ideas have been deeply involved in this history. They contain themes that can help organize our understanding of the past--including the history of interests, interwoven as it is with that of values--and illuminate prospects for the future.
A minority strand of commentators assumes what this Article argues: that environmental public language is more coherent and important than is conventionally recognized. (10) This Article begins where they leave off. (11) Its central argument is that environmental public language has been involved throughout American history in contests over the nature of progress, the role and scale of government, and the meaning of national identity, social membership, and civic dignity. Environmental language has taken shape from these contests, and it has lent its shape to them. Such language has not, mainly, been attached to any naive contrast between humanity and nature, but has instead been the vehicle for exploring the complex ways in which interaction with the natural world can serve, inform, and constitute human purposes. The deficiencies that critics identify do exist, but they are hardly touchstones of a monolithic environmentalism. On the contrary, more subtle and affirmative ideas have been the leading qualities of a richly multifarious tradition of argument. (12)
Other major areas of public law, such as constitutional law, the statutory law of civil rights and employment relations, and criminal law are studied and taught as parts of the ongoing self-definition of the political community. Nothing commensurate has developed in environmental law. There are at least three reasons to begin addressing this lack. For one, legal scholars' picture of American public language is incomplete without an account of the place that the natural world has played in it. Second, our understanding of existing environmental laws can gain from appreciating how they grow out of, and contribute to, changes in public language--that is, by locating them in the tradition of argument that they both emerge from and help to shape. Third, which is the immediate motivation of this Article, a sense of the resources of history can enrich choices for the future. In addressing new environmental challenges, such as climate change, a lack of a tractable vocabulary for discussing the interplay of values and interests in democratic self-interpretation has helped push scholarship toward a narrow variety of political economy that neglects the capacity of political communities to achieve basic change in their own identities. This omission underestimates our cultural resources and can produce a blinkered view of new environmental questions.
Part I of this Article briefly sets out the pessimistic view of climate change as a politically insurmountable problem and the response from the history of public language and values: sometimes people use democratic processes to change their own reasons for acting. The Article then turns to history to develop this idea. Part II describes the prevailing attitude toward the natural world in the American politics of the early and middle nineteenth century and the rise of new and very different views, which form the basis of much of today's environmental public language. The earlier view valorized the productive use of natural resources and honored an individual right to expropriate unused or unclaimed lands, a right which was often invoked as a mark of membership in the polity. A series of innovations then introduced a new mode of valuing the natural world, first in literary expression and personal experience, and eventually in public language: the Romantic mode. Beginning in aesthetic theory and literature, it moved, signally through the popularizing work of John Muir, into the hands of a social movement, the Sierra Club, which created a limited public in which the Romantic valuation of nature was common currency, available as an account of the motives for conservation. The Romantic mode of valuation interacted with another basis of conservation politics, the Progressive mode, which elevated public management of natural resources as both utilitarian public policy and a way of rekindling civic virtue in an individualistic society. Romantic and Progressive views coincided in supporting the public management of natural resources and in opposing the perceived individualism and materialism of nineteenth-century America; but they also rested on quite distinct views of nature and social...