Response to Edmund Russell and Arthur McEvoy
By Karl Brooks
Arthur McEvoy and Edmund Russell offer complementary observations of the American state engaged in its two supreme expressions of sovereign agency: declaring law and making war. Although my comments engage Professor McEvoy's work most directly, Professor Russell's study of war frames my analysis. Throughout the 20th century in America, we witnessed war making both environmental law and environmental history.
Professor McEvoy's and Professor Russell's papers suggest that the exigencies of war-making caused the state and its agents, public and private, to transform existing laws. Both papers also demonstrate how old wars left in their wake new legal institutions. Rules enforced by these institutions continued to reshape the natural world long after the emergency leading to their creation had passed.
Franklin D. Roosevelt declared his New Deal a “war on want,” and indeed many New Deal institutions facilitated mobilization when real war erupted. I think this was not entirely fortuitous, especially after 1937 and 1938, when Roosevelt came to believe general war in Europe was likely to begin at almost any time. For these reasons, Professor Russell's imaginative focus on war complements Professor McEvoy's assessment of the New Deal's legal legacy.
I will use two quite different American places to compare Professor McEvoy's and Professor Russell's approaches to a similar problem: how do law and nature respond to war? In the Pacific Northwest and on the High Plains during World War II, the nation used law to press nature into military service. Service for the war-fighting state, the role Professor Russell has termed “nature as ally,” transformed rivers and grasslands. What happened--to law and to nature--after peace came?
An analysis of the war-time and postwar control of natural resources in the Columbia River Basin of the Northwest tends to bolster Professor McEvoy's argument detailing the rise and fall of New Deal-style environmental law. Six weeks after the Japanese attacked Pearl Harbor, the United States government ordered all private and public electricity providers in Washington, Oregon, Idaho, and Montana to create the Northwest Power Pool. Mobilization for global war accomplished in days what more than thirty years of political agitation and trust-busting litigation had not. A few pen strokes in Portland, Oregon, and a few Federal Register pages in Washington, D.C., handed the nation control over generating, distributing, and selling all electricity in the region. As hydropower supplied nearly all Northwestern electricity, the federal government thus became the region's watermaster as well as its powerbroker.
In the Northwest, federal administrative agencies used key features of the New Deal legal system to supplant traditional common law and state-law regimes. Wartime natural resources management became postwar economic and social planning. Federal experts used the vast administrative discretion conferred upon them by broad statutory grants to manage water--the Northwest's principal power source--largely free from judicial scrutiny. New Deal political liberalism waned rapidly in the Northwest after 1950. Yet legal institutions and practices established during the New Deal influenced the region's economy and shaped its society until the 1970s.
Today, however, the status of that regime--based on controlling nature through administrative expertise--seems to confirm Professor McEvoy's declension narrative. No Northwesterner puts much stock in federal resource planning; and comprehensive river basin development survives only on ancient blueprints and in educational films. Judges watch the federal waterpower agencies like hawks. Litigious native peoples and activist anglers keep the once-mighty agencies on short leashes. The 21st century Northwest seems to epitomize the decrepitude of environmental law: agencies are distrusted, experts ignored, the gridlocks over water, power, and fish become tighter each day.
However, consideration of another wartime legal innovation on the High Plains cautions us to beware environmental law's premature demise. In late summer 1942, the War Department divested ranchers and farmers of some 60,000 acres-- roughly half a county--in Kansas's Flint Hills. The Smoky Hill Bombing Range, by 1944, was absorbing daily poundings by B-29 Superfortresses built in Wichita for the air war against Japan. There, the government and industry collaborated to test the airworthiness of a new generation of heavy bombers. Planes tested in Kansas ultimately dropped the two atomic bombs that ended the Pacific War. It is noteworthy that each of these bombs contained materials created using the cheap hydroelectricity delivered by the Northwest Power Pool to the Hanford Works in Washington State.
Kansas's Smoky Hill Bombing Range offers a different look at environmental law's trajectory after the 1970s. Its legal history doesn't easily square with Professor McEvoy's declensionism. It has become a place covered by a thick residue of environmental law. Even after the nation shouldered aside common law and state statutes during World War II, federal environmental law forms and values continue to shape the range's management today. Amid a state with the nation's lowest proportion of public lands and one of its most environmentally indifferent polities, Smoky Hill stands apart. For example, U.S. Defense Department regulations stress planning to maximize biodiversity over production agriculture. This place reminds us legal forms can toughen over time, growing resilient and durable through repetition despite criticisms of their coherence and doubts about their legitimacy.
Taken together, the Columbia Basin and Smoky Hill invite us to think hard about American environmental law's origins and its agents. We need to ask some of the basic questions: what historical dates are of the most import, which places deserve study, what people working within which institutions made and resisted change? There is further need to address more normative questions such as whether crises and crossroads are the formative stages of environmental law, or should we seek a gradual, almost imperceptible unfolding of doctrines?
Professor Russell's thoughtful application of environmental history to the law of war should encourage us to take up Professor McEvoy's challenge to trace out the life-course of American environmental law. We do not yet know enough to characterize its story as declensionist, whiggish, or simply accretive, with one decision settling atop another precedent until something distinctive enough drew people's attention to the emergence of a new field of law.
Environmental and legal historians, as well as legal academics, have too often taken the easy way out by ritually intoning that environmental law began in or around 1970, shortly after the first Earth Day. Professor McEvoy reminds us that environmental law has a past, too. It did not spring fully formed from Senator Edmund Muskie's furrowed brow along an arc traced by Rachel Carson's golden pen. Even though I suggest more work needs to be done on the law's “origins story,” Professor McEvoy's effort urges us to push beyond the easy answer.
I suggest the following research agenda still needs to be addressed before we say, with any confidence, that we have ascertained the true history of environmental law. I am eager to join Professors Arthur McEvoy and Richard Lazarus, among other pioneers, in the search to answer these questions:
• Why do so many law teachers still date the advent of environmental law to 1969-1974?
• What happened in the twenty years before 1969 that stimulated decisive change during those five years?
• What traditional legal rules--defining property, procedure, contract, tort, administrative and municipal law, remedies, and principles of statutory construction--underwent decisive change during that period?
• How did existing legal institutions change them, and what new institutions appeared to accelerate the pace of change?
• Which rules and institutions persisted, or even resisted change, their inertia impelling development of different responses to long-standing concerns?
• What influences for change were at work between 1945 and 1970?
• Who were the likely dyadic suspects driving the change: lawyers and clients, litigants and judges, politicians and constituents, administrators and the regulated, law schools and practitioners?
• And, to do the fullest justice to a story literally rooted in humans' dependence on nature--what was occurring in the natural world itself that stimulated legal change after 1945?
My own theories addressing these questions are at a formative stage. I believe that the story about environmental law's emergence began earlier than we think--and well before 1969-70. The New Deal borrowed more Progressive Era administrative and statutory innovations than we think. More was happening in states and specific local places than we understand now and much more remains to be known about the parts played by individual lawyers, judges, clients, and elected officials in responding to specific situations in specific places.
Willard Hurst told legal historians fifty years ago to spend more time watching the lumber market and less time reading appellate opinions if we wanted to know why Wisconsin's pine forests nearly vanished in the second half of the 19th century. He pried open what had been, until then, something of a “black box” approach to legal history, one that posited the law as a product uniquely grown within a legal system largely impervious to economic, political, and cultural forces. The field of legal history has never been the same, and Professor McEvoy's seminal work on the environmental history of Pacific fisheries bears the deep impress of Willard Hurst's teachings.
We should now take Hurst's advice to heart. To know how, when, and where American environmental law emerged after World War II, historians need to imaginatively and methodically sit along the walls in legislative hearing rooms, pull up chairs to lawyers' conference tables, slip into administrators' cubicles to overlook their desks, and stand just inside the doors of corporate board rooms. We will see and hear law being tested, tossed away, and invented. And historians should also visit another environmental law forge, a place I know somewhat from my past life: we should settle onto metal folding chairs in the middle of poorly ventilated high school auditoriums and listen closely while aspirants for elective office try to enlist local groups to endorse their campaigns.
As we revisit these places, and we are still very early on along our itinerary, we are likely to watch the process of legal change giving birth to environmental law. And along our way, we must continue to debate our hypotheses and compare our research in settings like this innovative conference at the University of Virginia School of Law. Doing so would, once again, commend the judgment of Thomas Jefferson, the University's founder, who believed that spirited conversation among curious people offered the best chance to spread light into corners previously dark.
For the privilege of beginning that Jeffersonian conversation about environmental legal history, I thank Art McEvoy and Ed Russell for getting me thinking, and offer my warmest appreciation to Jon Cannon and Willis Jenkins for inviting me to share a portion of Mr. Jefferson's community at work.
Professor McEvoy's and Professor Russell's papers suggest that the exigencies of war-making caused the state and its agents, public and private, to transform existing laws. Both papers also demonstrate how old wars left in their wake new legal institutions. Rules enforced by these institutions continued to reshape the natural world long after the emergency leading to their creation had passed.
Franklin D. Roosevelt declared his New Deal a “war on want,” and indeed many New Deal institutions facilitated mobilization when real war erupted. I think this was not entirely fortuitous, especially after 1937 and 1938, when Roosevelt came to believe general war in Europe was likely to begin at almost any time. For these reasons, Professor Russell's imaginative focus on war complements Professor McEvoy's assessment of the New Deal's legal legacy.
I will use two quite different American places to compare Professor McEvoy's and Professor Russell's approaches to a similar problem: how do law and nature respond to war? In the Pacific Northwest and on the High Plains during World War II, the nation used law to press nature into military service. Service for the war-fighting state, the role Professor Russell has termed “nature as ally,” transformed rivers and grasslands. What happened--to law and to nature--after peace came?
An analysis of the war-time and postwar control of natural resources in the Columbia River Basin of the Northwest tends to bolster Professor McEvoy's argument detailing the rise and fall of New Deal-style environmental law. Six weeks after the Japanese attacked Pearl Harbor, the United States government ordered all private and public electricity providers in Washington, Oregon, Idaho, and Montana to create the Northwest Power Pool. Mobilization for global war accomplished in days what more than thirty years of political agitation and trust-busting litigation had not. A few pen strokes in Portland, Oregon, and a few Federal Register pages in Washington, D.C., handed the nation control over generating, distributing, and selling all electricity in the region. As hydropower supplied nearly all Northwestern electricity, the federal government thus became the region's watermaster as well as its powerbroker.
In the Northwest, federal administrative agencies used key features of the New Deal legal system to supplant traditional common law and state-law regimes. Wartime natural resources management became postwar economic and social planning. Federal experts used the vast administrative discretion conferred upon them by broad statutory grants to manage water--the Northwest's principal power source--largely free from judicial scrutiny. New Deal political liberalism waned rapidly in the Northwest after 1950. Yet legal institutions and practices established during the New Deal influenced the region's economy and shaped its society until the 1970s.
Today, however, the status of that regime--based on controlling nature through administrative expertise--seems to confirm Professor McEvoy's declension narrative. No Northwesterner puts much stock in federal resource planning; and comprehensive river basin development survives only on ancient blueprints and in educational films. Judges watch the federal waterpower agencies like hawks. Litigious native peoples and activist anglers keep the once-mighty agencies on short leashes. The 21st century Northwest seems to epitomize the decrepitude of environmental law: agencies are distrusted, experts ignored, the gridlocks over water, power, and fish become tighter each day.
However, consideration of another wartime legal innovation on the High Plains cautions us to beware environmental law's premature demise. In late summer 1942, the War Department divested ranchers and farmers of some 60,000 acres-- roughly half a county--in Kansas's Flint Hills. The Smoky Hill Bombing Range, by 1944, was absorbing daily poundings by B-29 Superfortresses built in Wichita for the air war against Japan. There, the government and industry collaborated to test the airworthiness of a new generation of heavy bombers. Planes tested in Kansas ultimately dropped the two atomic bombs that ended the Pacific War. It is noteworthy that each of these bombs contained materials created using the cheap hydroelectricity delivered by the Northwest Power Pool to the Hanford Works in Washington State.
Kansas's Smoky Hill Bombing Range offers a different look at environmental law's trajectory after the 1970s. Its legal history doesn't easily square with Professor McEvoy's declensionism. It has become a place covered by a thick residue of environmental law. Even after the nation shouldered aside common law and state statutes during World War II, federal environmental law forms and values continue to shape the range's management today. Amid a state with the nation's lowest proportion of public lands and one of its most environmentally indifferent polities, Smoky Hill stands apart. For example, U.S. Defense Department regulations stress planning to maximize biodiversity over production agriculture. This place reminds us legal forms can toughen over time, growing resilient and durable through repetition despite criticisms of their coherence and doubts about their legitimacy.
Taken together, the Columbia Basin and Smoky Hill invite us to think hard about American environmental law's origins and its agents. We need to ask some of the basic questions: what historical dates are of the most import, which places deserve study, what people working within which institutions made and resisted change? There is further need to address more normative questions such as whether crises and crossroads are the formative stages of environmental law, or should we seek a gradual, almost imperceptible unfolding of doctrines?
Professor Russell's thoughtful application of environmental history to the law of war should encourage us to take up Professor McEvoy's challenge to trace out the life-course of American environmental law. We do not yet know enough to characterize its story as declensionist, whiggish, or simply accretive, with one decision settling atop another precedent until something distinctive enough drew people's attention to the emergence of a new field of law.
Environmental and legal historians, as well as legal academics, have too often taken the easy way out by ritually intoning that environmental law began in or around 1970, shortly after the first Earth Day. Professor McEvoy reminds us that environmental law has a past, too. It did not spring fully formed from Senator Edmund Muskie's furrowed brow along an arc traced by Rachel Carson's golden pen. Even though I suggest more work needs to be done on the law's “origins story,” Professor McEvoy's effort urges us to push beyond the easy answer.
I suggest the following research agenda still needs to be addressed before we say, with any confidence, that we have ascertained the true history of environmental law. I am eager to join Professors Arthur McEvoy and Richard Lazarus, among other pioneers, in the search to answer these questions:
• Why do so many law teachers still date the advent of environmental law to 1969-1974?
• What happened in the twenty years before 1969 that stimulated decisive change during those five years?
• What traditional legal rules--defining property, procedure, contract, tort, administrative and municipal law, remedies, and principles of statutory construction--underwent decisive change during that period?
• How did existing legal institutions change them, and what new institutions appeared to accelerate the pace of change?
• Which rules and institutions persisted, or even resisted change, their inertia impelling development of different responses to long-standing concerns?
• What influences for change were at work between 1945 and 1970?
• Who were the likely dyadic suspects driving the change: lawyers and clients, litigants and judges, politicians and constituents, administrators and the regulated, law schools and practitioners?
• And, to do the fullest justice to a story literally rooted in humans' dependence on nature--what was occurring in the natural world itself that stimulated legal change after 1945?
My own theories addressing these questions are at a formative stage. I believe that the story about environmental law's emergence began earlier than we think--and well before 1969-70. The New Deal borrowed more Progressive Era administrative and statutory innovations than we think. More was happening in states and specific local places than we understand now and much more remains to be known about the parts played by individual lawyers, judges, clients, and elected officials in responding to specific situations in specific places.
Willard Hurst told legal historians fifty years ago to spend more time watching the lumber market and less time reading appellate opinions if we wanted to know why Wisconsin's pine forests nearly vanished in the second half of the 19th century. He pried open what had been, until then, something of a “black box” approach to legal history, one that posited the law as a product uniquely grown within a legal system largely impervious to economic, political, and cultural forces. The field of legal history has never been the same, and Professor McEvoy's seminal work on the environmental history of Pacific fisheries bears the deep impress of Willard Hurst's teachings.
We should now take Hurst's advice to heart. To know how, when, and where American environmental law emerged after World War II, historians need to imaginatively and methodically sit along the walls in legislative hearing rooms, pull up chairs to lawyers' conference tables, slip into administrators' cubicles to overlook their desks, and stand just inside the doors of corporate board rooms. We will see and hear law being tested, tossed away, and invented. And historians should also visit another environmental law forge, a place I know somewhat from my past life: we should settle onto metal folding chairs in the middle of poorly ventilated high school auditoriums and listen closely while aspirants for elective office try to enlist local groups to endorse their campaigns.
As we revisit these places, and we are still very early on along our itinerary, we are likely to watch the process of legal change giving birth to environmental law. And along our way, we must continue to debate our hypotheses and compare our research in settings like this innovative conference at the University of Virginia School of Law. Doing so would, once again, commend the judgment of Thomas Jefferson, the University's founder, who believed that spirited conversation among curious people offered the best chance to spread light into corners previously dark.
For the privilege of beginning that Jeffersonian conversation about environmental legal history, I thank Art McEvoy and Ed Russell for getting me thinking, and offer my warmest appreciation to Jon Cannon and Willis Jenkins for inviting me to share a portion of Mr. Jefferson's community at work.
