Jedediah S. Purdy (Duke University - School of Law) has posted The Politics of Nature: Restoring Democracy to Environmental Law on SSRN. Here is the 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.
And from the text:
[A]n initial typology of the appeals Americans make in arguing about environmental commitments [is] of three broad types, each with a variety of particular inflections. The first is a utilitarian ideal of rational resource management, historically connected with Progressive images of economy and society as complex systems requiring expert governance. It has market- friendly and market-hostile versions, versions that disregard aesthetic and spiritual values and others (important in the parks and wilderness movements) that treat these as important resources for public well-being. It is marked by commitment to intelligent mastery of the natural world, understood as an aspect of humans’ rational self- governance generally. In the second type of appeal, nature figures as a source of inspiration and instruction for human consciousness: whether through epiphany or more measured contemplation, it changes us by helping us to change our minds. Important versions of this appeal include the Romantic conviction that intense, even transformative aesthetic and spiritual experiences are uniquely available in encounters with the natural world, and an ideal, famously articulated in Aldo Leopold’s “land ethic,” that heightened awareness of human participation in nature’s complex and interdependent systems is not just prudentially useful, but a source of both humility and delight. A third type of appeal is a warning, with roots in both jeremiads and the apocalyptic possibility of nuclear warfare, that technological civilization will prove self-undermining unless it develops a new relation to the natural world.
Environmental appeals may also be classified by the domain of values that they invoke, rather than the substance. Some appeals are at the level of national identity, asserting that the country will be diminished or fall short of potential in the absence of certain public actions, such as preserving parks or wilderness. Others are in the register of aggregate individual interests, arguing that these will be disserved without national action, such as creation and scientific management of national forests.20 A third type of appeal has affinity with perfectionist approaches to normative political theory: it relies on the qualitative importance of the interests environmental law can serve.21
And later:
In the decade-plus that ran from the publication of Silent Spring to the passage of the Clean Water Act, and particularly the five years beginning in 1968, a new set of claims became available in public environmental language. Ideas that would previously have been parochial, eccentric, or even unintelligible entered into the repertoire of arguments and authority by which Americans could appeal to one another in disputes over the use of political power, the duties of citizenship, and the character of the national community. These new claims nonetheless had real limits. They were not asserted, refined, and implemented against sustained opposition, nor did they arise from a movement commensurate to the scale of the cultural and conceptual ambition they expressed. A crisis and shift in values routinely described as transformative, even revolutionary, was not thematized and tested by opposition in a national election, although representatives targeted as unfriendly to environmental issues proved vulnerable in the early 1970s.215 The consequences of taking the new commitments seriously, as a matter of public policy or personal conduct, remain disputed at best, inspiring argument over whether the country has adopted them in any real sense.216 This should not, however, lead us to neglect that debate over their meaning continues today.
And from the conclusion:
Ideas about the value of the natural world are and have always been integral to the repertoire of arguments by which Americans try to persuade one another of the character and implications of common commitments. How we understand nature is part of our civic identity. It has developed through interaction with changes in the other, better- trodden themes of American public language: national purpose, civic dignity, and the role and appropriate scale of government, to name those that have figured most prominently in this paper. This understanding of the natural world is anything but monolithic: it is one of the common terms that Americans interpret variously in setting out and battling over their disagreements.261 The natural world has stood at various times, and for various constituencies, for the idea of infinite material progress, the possibility of rational resource management in the public interest, and the need to redefine human flourishing beyond material mastery of nature toward a heightened aesthetic awareness and spiritual response to it. The last idea has often served synecdoche for awareness of the circumstances of one’s own life. The politics of nature has contributed to the civic dignity of the free labor idea, in which the public domain was the acreage open to settlement and exploitation; to that of progressive reformers, in which the citizen should do her part in maintaining a social order that managed its complex and interdependent systems for health and mutual benefit; and the Romantic whose loyalty to the political community is paradoxically conditioned on its enabling him to leave its constraints from time to time, escaping into solitude, reflection, and perhaps mystical ecstasy. More than a century of development in these themes contributed to the rise of modern environmentalism, sometimes inaptly described as an event without a history. These themes contributed mightily to the specific shape that environmentalism gave to the anxieties of its time, the 1960s and early 1970s, and that environmentalism in turn gave the idea of nature’s intrinsic value and moral instructiveness a new reach in American language. Understanding that era as one in which legislators joined movements and commentators in adopting this new account of the natural world casts some light on the peculiarities and limits of their landmark legislation. In turn, understanding today’s politics as a continuation of the politics of nature casts light on the signal anomaly of climate politics, the proliferation of local initiatives to control greenhouse-gas emissions.
Very interesting & recommended.
