Two recent pioneers of environmental law–David Sive and Joseph Sax–died recently. Both of these deaths reminded me of the complex legacy of legalistic environmentalism. By this, I mean the reliance by environmentalists on the courts to enforce environmental law as the primary means of effective advocacy, as opposed to grassroots organizing. This strategy began in the early 1970s but really took off in the late 70s as the political system became increasingly hostile to environmentalism with the growth of conservatism and the organization of the business lobby after the Powell Memo.
By the early 1970s, environmental organizations found the legal requirements of newly passed environmental legislation useful tools to force corporations and government to rethink their impact and policies. These laws passed with widespread support, sometimes unanimous voice votes in the Senate and nearly unanimous votes in the House. The overwhelming support for these laws is why Richard Nixon deserves no liberal credit for them, but that’s another issue. The laws themselves came out of grassroots demands and an overwhelming sense by Americans before 1973 that they could have both jobs and a clean environment. The mess of the American environment before 1970 profoundly moved citizens, as air and water pollution, the decline of wildlife, and other environmental hazards were manifested every day before people’s eyes (and noses and ears).
Of course, just because legislation passed didn’t mean that polluters and natural resource managers immediately stopped what they were doing and changed course. It required lawsuits to make that happen. The Izaak Walton League for instance sued the United States Forest Service to stop clearcutting on the Monongahela National Forest, noting that the Organic Act of 1897 allowed for logging only “dead, matured or large growths of trees” that had been “marked or designated.” Clearcutting definitely doesn’t qualify under that language. When the courts found in favor of the plaintiffs, Congress came back with the National Forest Management Act of 1976, a law that explicitly allowed clearcutting, but also created public comment periods and environmental impact statements for each national forest unit. These requirements gave environmentalists the ability to challenge the USFS and BLM on all sorts of entirely legitimate grounds, especially the Endangered Species Act after the NFMA required federal agencies to manage for wildlife.
And who can blame environmentalists for using these great tools. By the 1980s, they became all the more important because the hostility of the Reagan Administration and the rising conservative movement, personified in the Sagebrush Rebellion but really affecting environmentalism everywhere, slowly closed the legislative doors to environmentalists. What’s more, economic crises, job blackmail, and capital mobility went a long ways to undermining the popular environmentalism of the 60s and early 70s. When workers fear their employers are going to move to Mexico or Taiwan if they have to put that scrubber on the smokestack or stop dumping the PCBs, they are going to be too scared to push their employer on it (even though the employer was already planning to shift operations anyway). Consolidating gains and forcing the hands of reluctant government through lawsuits became the most important strategy for environmentalists. People live Sive and Sax played important roles in this process.
So the strategy totally made sense and I don’t want to criticize it per se. Taking companies to court made a lot of sense. But it’s also worth noting that the reliance upon court cases by the 80s and 90s basically meant that there wasn’t much of an effort to mobilize people on the ground. The big green organizations focused on fundraising for their legal operations and political lobbying. The focus of environmentalism turned from the nature you and I experience every day to charismatic animals like polar bears or the Amazon rainforest, things most of us will never see. Mobilizing the populace was becoming less important. Grassroots environmentalism became politically marginalized, although locally important. By the time of the spotted owl situation in the late 80s, the ground for environmentalists to talk to working class people had already slipped away. Some environmentalists understood that their own strategy shifts exacerbated this problem, although it’s of course complicated. More to the point, what the lack of a grassroots environmentalism has done is make the movement so overly reliant upon legal and political strategies that at a time of conservative domination, where courts increasingly don’t find for greens and even Democrats in statehouses and Congress increasingly ignore them, there is no real ability for mobilization.
Of course, this is perhaps an overly simplified narrative of shifting environmentalism and one can always question the extent to which big green organizations ever could truly call out the troops. And again, they didn’t make the wrong choices by using the courts. But it’s worth noting that the shift to legal strategies as the primary arena of fighting was both entirely justifiable from a strategy perspective and also had negative repercussions that environmentalists’ struggle to deal with today.