The Politics of Nature: Restoring Democracy to Environmental Law

Abstract:     
Legal scholars' discussions of climate change assume that the issue is one mainly of engineering incentives, and that "environmental values" are too weak, vague, or both to spur political action to address the emerging crisis. This paper gives reason to believe otherwise. The major natural resource and environmental statutes, the acts creating national forests and parks to the Clean Air Act and Clean Water Act, have emerged from exactly the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of national purpose, citizenship, and the role and scale of government. This paper traces several major episodes in those developments: the rise of a Romantic attachment to spectacular places, a utilitarian ideal of rational management of resources, the legal and cultural concept of "wilderness," and the innovation of "the environment" as a centerpiece of public debate at the end of the 1960s. It connects each such development to changes in background culture and values and the social movements and political actors that brought them into public debate and, eventually legislation. The result is both a set of specific studies and the outlines of an account of the ways in which the argument and self-interpretation of a democratic community have created and contested new ideas of "nature" throughout American political history. The paper then shows how past episodes cast light on the present: today's climate politics, including the seemingly anomalous (even "irrational") choices by municipalities to adopt the Kyoto carbon-emissions goals, make most sense when understood as extensions of a long tradition of political argument about nature, which does not simply take "interests" as fixed, but changes both interests and values by changing how citizens understand themselves, the country, and the natural world.

Accepted Paper Series