Lessons for an endangered movement: what a historical juxtaposition of the legal response to civil rights and environmentalism has to teach environmentalists today.
Environmentalism and civil rights are the twentieth century's two most Important social movements, yet despite their divergent histories, they today share a common position--one where waning public support has placed both movements in potential peril. As environmentalists face the challenges of the new millennium, a careful examination of the movement's similarities to and differences from civil rights may yield important lessons for how environmentalists might reverse their apparent trajectory and reforge the backing needed to protect the planet's health. Embarking on this analysis by tracing the history of America's legal response to the two movements--from the first slave codes and Transcendental thought to Plessy v. Ferguson and the trifurcation of environmentalism, from Jim Crow and Hetch Hetchy to the 1964 Civil Rights Act and the 1970 Clean Air Act, from increased judicial intolerance for both movements' tactics to Proposition 209 and Wise Use--Lessons for an Endangered Movement attempts to provide such guidance. Specifically, the Article concludes that environmentalists would do well to avoid zero-sum politics, shun being characterized as a fringe element of society, recognize the current paradigm of compromise in which they operate, revitalize the use of cooperative federalism in environmental regulation, seek other forums to enforce laws, and make environmental education one of the movement's highest priorities.
In 1995, Dinesh D'Souza, a resident scholar at the American Enterprise Institute In New York, proclaimed the Wend of racism" In the United States. He wrote, "all the evidence shows that young people today are strongly committed to the principle of equality of rights," and "they are not disfigured by the racism that afflicted earlier generations of America."(1) Yet in the same month D'Souza issued his 724-page decree, a rash of bombings struck a number of predominantly black churches across the South. By the end of 1996, the tally of such bombings had increased to thirty-four, and many of the targets had been left with racial epithets painted on their doors or walls.(2) At least from a brief glance at the social landscape, it seemed that D'Souza's assertion was somewhat overstated. The next year, however, California voters made their own statement on the issue. Passing the initiative with approximately fifty-four percent of the popular vote, California's Proposition 209 banned affirmative action in the state's public education, employment, and government contracting programs.(3) Within three years, a number of other states, including Washington, Texas, and Florida, chose to follow California's lead. Indeed, from all sides Americans seemed to be rising up, contending that the nation's racial solutions crafted in the late 1960s were no longer helpful, no longer acceptable, and no longer needed. Even if racism was not dead in America, the civil rights movement, as it had come to be known, perhaps was.
Curiously, environmentalism, the movement almost all Americans seem to love, by the end of the century also found itself perilously close to extinction. The movement still enjoyed incredibly wide support--over two-thirds of the public identified themselves as environmentalists(4)--but it was increasingly clear that no matter how broad this support was, it did not run deep. When the costs of environmental protection affect Americans individually, their support for the movement quickly wanes. Early in the decade, preservation of the endangered spotted owl in the Pacific Northwest quickly turned to a showdown between "jobs and birds," and a 1995 poll found that only a third of the public would be willing to increase taxes in order to protect the environment.(5) Likewise, the average size of the American house in 1996 had grown by nearly forty percent from 1971, resulting in increased demand for natural resources used to build, heat, and cool the homes.(6) And nearly half of the nation's car sales were accounted for by minivans, pickup trucks, and sport utility vehicles, all of which are less fuel efficient and contribute more to air pollution than smaller cars.(7) The public, it seemed, had also come to hold views somewhat divergent from those of environmentalists. Today, half of the public believes that plants and animals exist primarily for human use, but only one in twelve environmentalists hold the same view.(8) Similarly, sixty-one percent of Americans consider government regulation of business harmful, while only six percent of environmentalists concur in that opinion.(9) The result is that the public is relatively apathetic when the objectives the environmental movement advances hit close to home. As one author noted in reference to environmentalists' yearly celebration, "Earth Day ... has become something like the green version of Secretaries Day. Everyone's for it. Everyone feels good about it. But that broad support is of questionable depth."(10)
This Article addresses the growing demise of the nation's two most important social movements of the twentieth century by placing the American legal system's response to civil rights and environmentalism in historical juxtaposition. Working from a perspective that views ecological protection as a condition precedent to developing sustainable, prosperous societies, I argue that this juxtaposition has much to teach environmentalists about how they should pursue their advocacy in the coming millennium. Part II begins the analysis by offering a background vantage of the two movements, their development, and their treatment In the law.(11) Part III continues by describing the birth of the modern civil rights and environmental movements, as evidenced in the context of the Civil Rights Act of 1964 and the Clean Air Act of 1970. Part IV then describes the judicial resistance to the movements' success In the legislature, a recoil that has decreased access to the courts for both civil rights and environmental activists. Next, Part V addresses the emerging sociological backlash against the two movements, with a specific emphasis on Proposition 209 in the civil rights context, and the repeal of two provisions of the Clean Air Act in the environmental arena. Finally, Part VI outlines the lessons environmentalists have to learn from the downward path they increasingly share with civil rights activists. Specifically, environmentalists would do well to avoid zero-sum politics, shun being characterized as a fringe element of society, recognize the current paradigm of compromise In which they operate, revitalize the use of cooperative federalism In environmental regulation, seek other forums to enforce laws, and make environmental education one of the movement's highest priorities.
II. BACKGROUND: A BRIEF HISTORY OF THE AMERICAN LEGAL SYSTEM'S RESPONSE TO THE CIVIL RIGHTS AND ENVIRONMENTAL MOVEMENTS
From a modern-day perspective, civil rights and environmentalism may seem rather similar movements whose roots diverge slightly into a nebulous past but whose blossoms only came in the midst of the cultural change, activism, and social upheaval of the late 1950s and 1960s. Indeed, the sweeping societal transformation during these decades definitely influenced both movements, and the years surrounding the middle of the twentieth century even today symbolize the time in our nation's history when civil rights and environmentalism were thrust onto the national agenda, a place where, until recently, both seemed to be very firmly situated. Yet a more thorough analysis of the movements' respective pasts Indicates that, while there are certainly similarities between the two, there are also deep differences.
Civil rights activism, although clearly founded in notions of equality, has almost always come through active protest, speech, rebellion, violence, and sometimes, war. Legal response came early and bifurcated early, with northern states abolishing slavery and southern states using law to oppress. Eventually, however, almost all legal activism came through the courts, as northern and southern legislatures provided little relief, and when they did, laws were not enforced. Likewise, civil rights activism has long met heated and vehement opposition, causing societal rifts that stretch across the nation. Environmentalism, on the other hand, began largely as a philosophical movement and did not use direct action for its cause until the late nineteenth century--and then only in one faction of the movement. Legal response, too, did not truly arrive until the twentieth century, and then it typically came through laws rather than judicial decisions. And opposition to environmentalism was historically rarely as fervid as it was for civil rights, as many changes brought about by environmentalists were incremental, and as the philosophical nature of the movement allowed industry, war, and the economy to at times sweep it into an unnoticed corner of the American conscience.
Regardless of their historical differences, however, the modern civil rights and environmental movements today seem to share a good deal of common ground. For instance, congressional as well as judicial laws are now critically important to both movements, and the two often use similar methods in seeking change. And, as noted, both also seem to be in danger of losing public and political favor, or at least seem to be teetering in such a position. Indeed, civil rights and environmentalism at the end of the twentieth century both appear to have landed in roughly the same place. The remainder of this Part traces how they got there.
A. Civil Rights: From Slavery to the Modern Movement
Perhaps no institution is as paradoxical in a nation devoted to democracy and personal freedom as is slavery, but this is our nefarious legacy. In 1619, a Dutch ship sailed through the Chesapeake Bay to the colony of Jamestown, Virginia, and sold the settlers "twenty negars."(12) This introduction of African slaves into the Americas was not new, and neither was the notion of entire groups of citizens sharing in less freedom than others. There had been extensive slave holding in ancient Arabia, Egypt, Greece, and Rome,(13) and Spain had used African slaves in the West Indies since 1517.(14) In fact, the early settlers of what is now the United States initially did not view slaves as the solution to their labor demands. In the first half of the seventeenth century, Africans were not numerous in the American colonies,(15) and "as late as 1669 those who thought of large-scale agriculture assumed it would be manned ... by white peasants under a condition of [indentured servitude]."(16) Eventually, however, it became apparent that indentured servants were not the solution for cheap colonial labor. The supply of voluntary servants became increasingly scarce, forcing the English to send prisoners as workers for the colonies.(17) This problem was only exacerbated by the type of work for which servants were sent: the new world's tobacco, rice, and indigo plantations required massive workforces.(18) Moreover, Indentured servants often challenged the terms of their servitude, sued their masters or ship captains, and ran away to unsettled lands,(19) Indeed, at least In the beginning, African workers were treated legally in a manner much like other servants.(20) After serving out their time, many earned their freedom and were assigned land similar to that of other indentured laborers.(21)
1. From Servitude to Slavery: 1619-Early 1700s
As demand for labor Increased, however, so did the amount of African servants purchased by colonial settlers.(22) Although it is not clear how the legal status of "slave" evolved to apply specifically and only to African servants, It is clear that the development was driven at least partially by European racism towards people with darker skin color.(23) Many colonial settlers thought of Africans as subhuman--ape-like and animal rather than cultured and civilized.(24) Many masters accordingly renamed their slaves with terms traditionally reserved for work animals such as dogs and horses, a likely Indication of what these European immigrants thought of those African.(25) The fact that Africans subscribed to pagan religions also certainly bothered the overwhelmingly Christian colonies. Most colonists referred to Africans as "heathens" or "savages" largely--if not solely--on the basis of religion,(26) and some believed that Africans did not have souls.(27) Skin color also may have acted as more than just a symbol of the many differences between colonial Africans and Europeans. Color was a clearer and easier way to apprehend, to control, slaves--an inheritable and traceable mechanism by which to differentiate, to caste, society.(28) In the end, some odd but fatal mix of these prejudices, intensified by a growing demand for labor and an apparently endless supply of African laborers, resulted in a truly abominable and peculiar system where the single attribute of race determined status as free or enslaved. Once this began, "the cycle of degradation was fully under way ..., slavery and racial discrimination were completely linked together, [and] the engine of oppression was in full operation...."(29)
a. The Initial Legal Response: Slavery Defined
While in some areas black servants and white servants may have been treated differently by the legal system as early as 1640,(30) Virginia first codified slavery in 1661.(31) Only one year later Virginia elaborated on the statute, making slavery a condition passed on to children from their mothers.(32) Five years later, in 1667, the colony clarified further: baptism into Christianity would not free a slave.(33) A similar pattern occurred in other colonies.(34) In New Jersey, for instance, slavery was explicitly governed beginning in 1675, and Queen Anne urged the colony to convert more slaves to Christianity by 1702.(35) The British crown likewise pressured New York, and in 1706 that colony enacted a law ensuring slave owners that baptism would not emancipate their slaves.(36)
b. Further Legal Oppression: Early Codes in Response to Slave Resistance
The country's earliest civil rights activists were the first slaves brought to the colonies; they resisted, rebelled, and ran away in search of their own freedom.(37) Though designating these activists as such is clearly a retrospective determination from a twenty-first century vantage, these slaves are in fact the roots of the modern movement--the underpinning and the beginning point. And although it is not clear precisely how much early resistance occurred, it is clear that at least "small scale [opposition] was common and widespread...."(38) Many owners feared murder at the hand of their slaves,(39) and some of the early colonial laws even recognized slave runaways as a common occurrence.(40)
Early resistance, however, was met only with further legal oppression. Slaves were valuable "assets" for their owners, and their attempts to resist or escape to freedom only struck anger and fear in the hearts of the European colonizers.(41) Virginia's early slave codes, for instance, restricted slaves in a multitude of ways. Slaves were required to obtain written permission to leave their masters' plantations, and a law enacted in 1659 provided for return of fugitive slaves.(42) The northern colonies, though holding far fewer slaves than their southern neighbors,(43) also enacted rather stringent measures. Much like Virginia, Connecticut enacted a fugitive slave law in 1690, and in 1703 Rhode Island forbade blacks and Native Americans--regardless of their status as free or slave--from traveling streets at night.(44) A New York law from 1702 disallowed unauthorized meetings of more than three slaves. Three years later, the same colony enacted legislation that provided for the execution of any slave found more than forty miles north of Albany.(45)
2.Early Abolition and Intensified Resistance: Early 1700s-1780
In 1688, a small group of Dutch and German Quakers who had settled in America were likely the first whites to advocate abolition of slavery.(46) Pointing to the inconsistency of slavery with the Christian notion of "doing unto others as you would have them do unto you," these early abolitionists eloquently presented the argument to the religion's Yearly Meeting for Pennsylvania and New Jersey: "`[T]ho' they are black,' there is no more `liberty to have them as slaves as it is to have other white ones.'"(47) The Yearly Meeting, however, postponed making a decision on the argument, but when it was raised again in 1696, the Meeting did at least condemn the cruelty of the slave trade.(48) This initial step toward denouncing slavery as a whole, while not entirely momentous in putting an end to the institution, did set the stage for other early abolitionists.
a. Religious Abolitionists
Beyond the Quakers, at least some other early abolitionists joined the cause on religious grounds. In early 1700, a Puritan, Samuel Sewall, published The Selling of Joseph, a pamphlet in which he argued on numerous pragmatic grounds that slavery was not beneficial to the colonies.(49) More vehemently, Sewall pointed out that slavery was not compatible with Christianity, even as a means for "converting the heathen."(50) Sewall's use of the pamphlet to convince others of the moral evils of slavery was clearly influential, but it did not convince the majority of Massachusetts Puritans that abolition was necessary for the foundation of their colony based on the Bible.(51)
The efforts of a growing number of dissatisfied Quakers, however, proved more effective. In 1712, the dissatisfied Quakers convinced the Philadelphia Meeting to write the London Meeting for advice on the subject of slavery, but the British response was simply to consult with other American meetings.(52) This response did not satisfy Quaker abolitionists, and they continued to pressure their Yearly and Quarterly meetings.(53) By 1730, the Yearly Meeting for Pennsylvania and New Jersey was cautioning its members not to purchase slaves,(54) and in 1758, the same Meeting concluded that they should "put a stop to the increase of the practice of importing, buying, selling, or keeping slaves...."(55) Other American Yearly Meetings slowly joined in the response, and by 1787 all the northern Quaker groups had released their slaves as a matter of conscience.(56) The efforts of the early Quaker abolitionists may have been slow in taking hold, but they were important indeed. In another sense, however, they "were both too early and too late--too early to take advantage of the wave of humanitarianism that marked the latter part of the eighteenth century and too late to prevent the beginnings of a new labor system before self-interest was involved."(57) Yet even these later humanitarian abolitionists were not able to unify the colonies on the issue of slavery, and their success, like the Quakers', was slow and mixed.
b. Humanitarian Abolitionists
As the Great Awakening(58) took hold on the country, humanitarian thought also blossomed. Importantly, humanitarianism included strong notions of empathy, which in turn implied equality.(59) These conceptions of equality assisted in pushing the colonies toward revolution, and their applicability to slavery was also clear--at least to some.(60) Thomas Paine, for instance, wrote that slavery was "contrary to the light of nature, to every principle of Justice and Humanity, and even good policy."(61) Likewise, Thomas Jefferson attempted to include a passage in the Declaration of Independence condemning King George for encouraging slaveholding in the colonies:
Determined to keep open a market where MEN should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce; ... he is now exciting these very people to rise in arms among us, and to purchase that liberty of which he deprived them, by murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.(62)
These words were excluded from the Declaration because they too offended Southern slaveholders and New England merchants,(63) but the fact that Jefferson drafted them at all demonstrates the influence of humanitarian thought on leaders of the time.(64) Indeed, another argument against slavery was burgeoning in the minds of the colonies' political leaders, and the legal fruits of this argument--combined with the moral assertions of the religious groups--would soon ripen following the American Revolution. In the meantime, however, slave resistance was intensifying, and lawmakers were responding with accordingly increased oppression.
c. Intensified Resistance, Intensified Restraint
While early abolitionists developed their arguments against slavery as an institution, slaves themselves heightened their resistance against their oppression. In 1712, one of the colonies' first major slave revolts occurred in New York City.(65) Twenty-three slaves intentionally burned a slave owner's house,(66) killed nine white men, and wounded just as many.(67) The slaves fled but were pursued.(68) A number committed suicide before they, could be caught, and the others were quickly tried, found guilty, and executed by hanging, by fire, by starvation, and by torture on the wheel.(69) Two and a half decades later, in 1739, nearly a hundred slaves in Stonto, South Carolina, rebelled against their masters, killing a number of white men and then marching south toward Spanish Florida.(70) The local militia pursued the escaped slaves, and a battle ensued.(71) Eventually, the band of freedom-seeking rebels dispersed, and the revolt ended.(72) Insurrections of this magnitude were not typical of slave resistance of the time, but they did occur in many of the colonies.(73) And they certainly did signal a break from the small scale, personalized resistance of earlier years.
Accordingly, fear of slave revolts increased, and this fear "verged at times on hysteria."(74) The colonists' reaction, of course, was to impose even more restrictive slave codes.(75) A North Carolina law enacted in 1715 banned interracial marriage and disallowed free whites from trading with slaves.(76) Georgia's slave codes, adopted in 1755, forbade public gatherings of more than seven blacks without the presence of a white escort and completely prohibited teaching blacks to read and write.(77) South Carolina had similar illiteracy impositions,(78) and New Jersey passed a law in 1704 providing for castration followed by execution of any slave convicted of persuading or forcing a white woman to engage in sexual relations.(79) Perhaps just as importantly, laws developed during this timeframe galvanized the idea that slaves were property and not people. A 1705 law from Virginia declared slaves "real estate," and other governments soon followed suit.(80) The legal acceptance--or imposition perhaps--of this idea was oppressive enough, but the oppression also rang with irony, for under criminal codes slaves were clearly treated not as property but as people.(81) In other words, courts recognized slaves as people only when doing so would not conflict with the rights of their masters.(82)
3. Division and Compromise: Northern Abolition, Southern Anti-Manumission, and Constitutional Silence: 1780-Early 1800s
At the same time many of the colonies were expanding the oppressiveness of their slave codes, a division had begun to form in the fledgling nation. Slaveholding had never been as extensive in the North as it had in the South, and by 1776 slaves did not constitute more than three percent of the population in any New England colony.(83) What was more, cotton was not king in the largely mercantile, small-scale agricultural colonies of the North, so abolitionist tendencies had taken a much stronger hold there. Indeed, many of the early Quaker abolitionists had long been petitioning their lawmakers to ban slavery, and in 1780, Pennsylvania finally obliged.(84) Establishing a policy of "gradual abolition," the Pennsylvania act freed slaves on their twenty-eighth birthdays, and it was the first actual law that provided for abolition.(85) Six years later, the Vermont legislature recognized that its state constitution of 1777 also had intended to completely abolish slavery.(86) Thus began the process of northern abolition. By 1804, Pennsylvania, Vermont, Massachusetts, Connecticut, Rhode Island, New York, and New Jersey had all outlawed slavery.(87)
During this wave of northern abolition, many slave owners in the South had begun to free their slaves.(88) Sometimes owners would manumit slaves at death through their testamentary estates, but owners still living often freed their slaves as well.(89) This trend of manumission lead to a growing population of free blacks, a fact that increasingly discomforted white society, which was developing both an expanding sense of racial prejudice and a heightened concern for maintaining its cheap labor source through slavery.(90) As a result, it was not long before lawmakers responded by limiting both manumission and the freedom of blacks in general. For example, all the southern states required free blacks to carry with them at all times a certificate of freedom, and blacks caught without their certificate were presumed to be slaves.(91) Florida and Georgia required free blacks to have white guardians.(92) An 1805 Virginia law allowed county officials to apprehend and then sell into slavery free blacks who had been in the area for more than a year.(93) This law clearly ran contrary to acts of manumission by slave owners, and it also limited free blacks by foreclosing the possibility of their settling in one area permanently. Other laws also restricted the "freedom" of "free" blacks. In 1793, Virginia barred free blacks from entering the state, and by 1835 many other states, both northern and southern, had done likewise.(94) Similarly, in 1805 Maryland required blacks who wished to sell corn, wheat, or tobacco first to obtain a license.(95) Other states obligated free blacks to prove they were employed or lose their freedom.(96) While not all these laws were strictly southern--for instance, Pennsylvania in 1725 had initiated the idea of requiring free blacks to demonstrate their means of support(97)--these laws, taken as a whole, certainly symbolized the region's effort to preserve slavery, which was a definite part of a growing fissure between North and South.
When the Constitutional Convention met in Philadelphia in 1787, abolitionists clearly hoped the country's new governing document would forever ban the slave trade--and perhaps slavery itself.(98) Yet the developing division between the nation's two regions was becoming increasingly clear, and the Convention's main goal of unification quickly drowned the idea of national abolition in a sea of political compromise and constitutional silence. After heated debates split largely along northern/southern delegate lines,(99) the Constitution in the end never mentioned the word "slavery." Instead, the document contained two provisions that had been essential to forging an alliance between the divergent North and South.(100) As to abolitionists' hope of banning the slave trade, the Constitution forbade the federal government from addressing the issue until 1808.(101) This left open the possibility of later appeasing the North by allowing a slave trade ban, but it also helped assure ratification by the slave-dependent South by keeping the trade open.(102) More vexing in retrospect, however, was the debate over how to count slaves in determining congressional representation. Delegates from the North argued vehemently that slaves were property and thus should not be counted at all, but the southern delegates insisted that slaves should be counted fully as individuals, despite the fact that they could not vote.(103) The resulting compromise is perhaps the most infamous and symbolic in our history: "The Federal Constitution ... decides [that slaves have a] mix[ed] character of persons and of property ..., regard[ing] the slave as divested of two fifths of the man."(104) Thus at the union's birth, the Framers at once ensured national solidarity and cast a net of state-sanctioned prejudice. "To many Americans, Madison included, this was precisely the wrong of slavery."(105) But years of compromise, rather than abolition or stalwart advancement of civil rights, were what followed. In the same year the Constitution was written, the Continental Congress banned slavery in the Northwest Territory,(106) but when the United States purchased the Louisiana Territory from France in 1803, slavery was allowed.(107)
4. Crystallized Prejudice, Continued Legal Compromise, and Early Civil Rights Activists: Early 1800s-1861
a. Crystallized Prejudice
If the silence and compromise underlying the Constitution spoke to the nation's emerging legal treatment of African Americans, whites' growing prejudice toward blacks screamed omens of future socio-cultural subjugation. While southern law increasingly addressed free blacks only with animosity, the early colonial notion of all blacks as less than human had crystallized across the country,(108) even if tapered in some minds to somewhat less harshly assume blacks as distinctly different from and inferior to whites.(109) Partially because of the differences blacks had carried with them from Africa and partially because of the differences whites had forced on blacks once they arrived in the colonies,(110) whites had developed what we now call "stereotypes." Male slaves were either Sambo or Nat: either "clown[s] and congenitally docile" or fierce, retaliatory, and rebellious.(111) Female slaves were either Mammy or Jezebel: either "loyal, trustworthy, maternal, pious, and asexual" or sensual and promiscuous.(112) And free blacks, of course, were simply a threat.(113) These growing prejudices clearly played into the law, with courts even drawing on them at times in reaching decisions.(114) More importantly, these gross characterizations helped enforce a notion that there was a need to separate whites from blacks, and segregation began as a trickle that would become a flood. Initially, the practice crept Into the world as northern states pushed slavery out,(115) and by 1810, hospitals and prisons in the North segregated by race.(116) Whites also forced blacks to form their own churches, a practice that had germinated in Philadelphia during 1787.(117) By 1834, a white person found gambling with a black was subject to whipping in South Carolina, and all 1835 New Orleans ordinance formally segregated cemeteries.(118) Indeed, segregation at once reflected contemporary thought,(119) symbolized trouble to come, and cast a dye still not washed from our social fabric.
b. Continued Legal Compromise
The legal landscape before the Civil War also highlighted the quelled status of blacks and reemphasized the new nation's position of compromise concerning slavery. Although sectionalism between the North and South already had begun to form by the early 1800s, it only intensified when in 1817 and 1819 the Missouri territory and the district of Maine sought admission to the Union as states.(120) After over two years of congressional debate, the controversy eventually ended when battling abolitionist and proslavery factions agreed to admit Maine as a free state and Missouri as a slave state, along with allowing slavery only in territories below Missouri's southern border but banning it above.(121) Thus yet another political bargain was reached, and the symbolic line between North and South was etched one shade darker.
While the Compromise's figurative demarcation survives in many ways even today, the Compromise itself did not last very long. With discovery of gold in California in 1848 and the subsequent rapid settling of the West, controversy again arose over slavery in those territories.(122) By 1850, influential congressional players, including John C. Calhoun, Henry Clay, Stephen A. Douglas, and William Seward, had developed a complex compromise in which California entered the Union as a free state, slavery was abolished in the District of Columbia, the New Mexico and Utah territories were established without restrictions on slavery, and a fugitive slave act more stringent than the one passed in 1793 would be adopted.(123) The final provision resulted in the Fugitive Slave Act of 1850, a law that extended the earlier statute not only to provide for capture and return of runaway slaves, but also to allow commandeering officials and funds for such purpose: under the new Act, federal circuit court judges were to issue warrants for the return of slaves, federal marshals could call bystanders to aid them in pursuit, and federal funds were appropriated to pay for the costs of slave recovery.(124) While this law was certainly detrimental to blacks both free and enslaved,(125) it was important in what it illustrated--a foreshadowing of a nation even more divided than just a few years before, and a reminder that American politicians had once again agreed only to compromise on the issue of slavery.
Morever, two Supreme Court cases of the time galvanized this political position into a federal legal stance. In Prigg v. Pennsylvania,(126) the Court invalidated northern laws that provided due process to blacks when slave catchers sought to remove them to the South under the federal Fugitive Slave Act of 1793.(127) Along with "legitimate" claims under the Act, many slave catchers by the early 1800s had resorted to kidnapping free blacks, aiming to take them into slavery.(128) In response, Pennsylvania enacted a statute that allowed slave hunters to remove blacks from the state only after first seeking adjudication with a state judge rather than merely a justice of the peace.(129) However, the Supreme Court, in an opinion by Justice Story,(130) struck down the Pennsylvania law as unconstitutional, finding that slave owners held "a positive, unqualified right [of possession that] no state law or regulation can in any way qualify, regulate, control, or restrain."(131) And in perhaps the nation's most infamous(132) legal case, the Court held fifteen years later in Dred Scott v. Sandford(133) that slaves were not citizens under the Constitution and that the Missouri Compromise was unconstitutional. The case had arisen when Dred Scott, a former slave, sued to have his and his family's freedom declared in court.(134) In deciding the case, the Supreme Court extended its analysis beyond the specific issue of Dred Scott's freedom(135) and addressed whether blacks were even citizens under the Constitution--and could thus sue in federal court, Writing for a 7-2 majority, Chief Justice Taney, himself a former slave owner, held in a fifty-four page opinion that "[b]lacks are not included, and were not intended to be included, under the word `citizens' in the Constitution, and can therefore claim none of the rights and privileges which the instrument provides and secures to citizens of the United States."(136) Because blacks were "so far inferior, that they had no rights which the white man was bound to respect,"(137) the Court found they were not American citizens and accordingly could not sue in federal court--"even if they were born in the country [and were] considered ... citizens [in] the states [where] they lived."(138) Despite finding that Dred Scott lacked Jurisdiction to bring the case at hand,(139) the Court went on to further hold that the federal government did not have authority to govern any territories not in existence at the time of the Constitution's ratification,(140) and that banning slavery north and west of Missouri violated the Fifth Amendment's guarantee against taking of property without just compensation.(141)
c. Early Civil Rights Activists
Despite increasing prejudice, segregation, and ill treatment on the part of courts and lawmakers, what might rightly be termed the nation's earliest civil rights activists emerged in the years after the Constitutional Convention and before the Civil War.(142) Unlike courageous slaves who earlier had independently resisted oppression from their masters, these pioneering citizens consciously worked against the institution of slavery and the legal and social oppression imposed by white society.
Perhaps most famously, a number of abolitionists used the power of words to fight slavery and what it stood for. Frederick Douglass--a slave who escaped to freedom, taught himself to read and write, published the abolitionist paper The North Star, and eventually rose to occupy a number of high federal government positions(143)--used his eloquence to deliver influential speeches on abolition, both in America and abroad, throughout his life.(144) Douglass often espoused his antislavery views from an ethical combination of non-violence, Christianity, and equality unparalleled at the time. An 1859 letter to the editor is typical in its message: "Men who live by robbing their fellow men of their labour and liberty ... have by the single act of slave-holding, voluntarily placed themselves beyond the laws of justice and honour, and have become only fitted for companionship with thieves and pirates--the common enemies of God and of mankind."(145) William Lloyd Garrison, a friend and teacher of Douglass,(146) helped solidify the abolitionist movement, using the power of the press to disperse his message.(147) Garrison's views were stark, but they were also instrumental in advancing the antislavery cause: "I assert the right of the free States to demand a gradual abolition of slavery, because, by its continuance, they participate in the guilt thereof and are threatened with ultimate destruction ...; because it is absurd and anti-republican to suffer property to be represented as men, and vice versa."(148)
Indeed, the power of the press was critical in advancing the antislavery movement, and proponents of slavery realized it. The New York Herald advised its readers to take Douglass's printing press and throw it into Lake Erie,(149) although his paper eventually earned high esteem and became an Important abolitionist tool.(150) Elijah Lovejoy, an abolitionist publisher who had moved from Maine to Illinois,(151) was far less fortunate. In September of 1837, a mob forcibly entered his storehouse, stole the printing press he had purchased to replace the second press that anti-abolitionists had destroyed, and threw it into the Mississippi River.(152) Lovejoy was determined to continue publishing antislavery messages, but after his fourth press arrived in November of 1837, he was killed defending it from a mob of anti-abolitionists.(153) Importantly, Lovejoy's death was not an isolated event; it was one of many attempts to limit abolitionist speech in the years before the Civil War.(154) From 1835 to 1837, for instance, ultimately unsuccessful proposals were made to suppress antislavery speech by state law, to ban mailing of abolitionist publications, and to extradite northerners to be tried in the South for sending antislavery rhetoric there.(155) Yet not all abolitionist literature was so inimically received. The foremost example is Harriet Beecher Stowe's famous novel, Uncle Tom's Cabin.(156) Written in response to the Fugitive Slave Act of 1850, the book sold over 300,000 copies in its first year of publication, was dramatized in theater productions throughout the North,(157) and complicated--if not shattered--Southerners' accepted images of blacks.(158)
Other abolitionists employed their own means to advance the cause. Sojourner Truth, a former slave from New York, toured the North and Midwest, giving lectures on civil rights(159) and openly disobeying proslavery laws in protest.(160) Daniel Payne, a bishop in the African Methodist Episcopal church, established and conducted a South Carolina clandestine school for slaves.(161) And in 1804, the Underground Railroad, a loosely organized system in which blacks and some whites secretly brought slaves to freedom in the North, began.(162) Many "conductors" on this "railroad" repeatedly risked their lives to help slaves. Such heroes included Harriet Tubman, a slave who escaped to freedom and returned south nineteen times, freeing over 300 slaves.(163) The words and acts of these and other reformers of the time helped advance a consciousness in the nation that had begun when earlier abolitionists such as the Quakers made their initial pleas. These pioneering individuals also laid a framework for future activists, providing examples of the courage needed to seek change. Yet their advocacy, despite its eloquence and forcefulness, could not by itself halt the practice of slavery.
5. Civil War and Constitutional Reprieve: 1861-1870
Although slavery was certainly not the sole cause of the Civil War,(164) the peculiar institution unquestionably contributed, both in the sectional division slavery had caused(165) and by the political and legal events surrounding that division. Following the Compromise of 1850, Congress in 1854 enacted the Kansas-Nebraska Act, which partially repealed the earlier compromises by allowing territories west of Missouri to decide whether they would allow slavery.(166) This Act led to formation of the Republican Party, a group whose stated goal was to prevent the spread of slavery in the territories.(167) The Dred Scott decision in 1857 only further pushed division to its limits, and when John Brown raided Harper's Ferry, Virginia, in 1859 in an attempt to encourage a slave insurrection, emotions rose one more level.(168) Republican candidate Abraham Lincoln's election to the presidency in November of 1860 was the death-knell; by early December South Carolina had seceded from the Union, and the nation's eighty-year attempt to compromise on the issue of slavery had ended.(169)
The resulting Civil War, which began in 1861, was the worst conflict our nation has ever seen. Over 600,000 died, families fought each other,(170) and the scars remain today. As Glover Moore observed, "the Civil War ... was easily the second greatest tragedy in American history, the greatest being the original introduction of slavery...."(171) And while the war may not have begun entirely over slavery, it certainly ended that way. After taking office, President Lincoln signed legislation in 1862 that slowly began the process of correcting the nation's previous wrongs. The Confiscation Act(172) freed slaves whose masters supported the Confederacy, and the Militia Act(173) allowed enlistment of black men into the Union military.(174) Six months later, the President issued his Emancipation Proclamation, freeing slaves in Confederate states.(175) Following the war, it was clear that "[s]ecession, Civil War, and Republican rule had effectively, if not actually, rewritten the Constitution."(176) In the same year that the war ended, Congress approved, and the states ratified, the Thirteenth Amendment, outlawing slavery throughout the nation.(177) A year later, Congress proposed the Fourteenth Amendment, and in 1868 the states ratified it. This amendment--which guaranteed "due process" of law to all Americans, redefined citizenship to include all people born or naturalized in America, abrogated the three-fifths compromise, and gave the federal government power to step in when local governments deprive citizens of their rights(178)--became the basis for most civil rights actions in the following hundred years.(179) Finally, the Fifteenth Amendment, ratified in 1870, removed race as a barrier to suffrage, ensuring a wider right to vote than had previously existed.(180)
6. False Dawn: Legislative Protection and Political Representation: 1870-1876
The years immediately following the Civil War presented a new nation striding toward equality, a promising beacon of a new day. Upon reentry into the Union, almost all the formerly Confederate states followed Mississippi's lead and enacted Black Codes, laws that sought to impose a caste system on and preserve the prewar social status of blacks.(181) Under the laws, blacks could not testify in cases involving only white parties, could not marry whites, could not serve as jurors, and could be arrested and returned to their employers for quitting their jobs without "good cause."(182) Yet the federal government, acting in Reconstruction mode, quashed the laws, passing a Civil Rights Act in 1866 that allowed federal enforcement of blacks' rights, following it with the Fourteenth and Fifteenth Amendments, and placing the South under military rule.(183) When the Ku Klux Klan (KKK) formed in 1865, the federal government likewise responded, strengthening the Freedmen's Bureaus, which were intended to help blacks adapt to a white economy,(184) and by adopting three Force Acts from 1870 to 1871,(185) laws that allowed the government to supervise state elections.(186) Indeed, it appeared that the American nation had finally decided to legally protect the same people it had for so long oppressed.
Riding this wave of apparent increased equality, blacks became prominent on the political landscape. African Americans participated as delegates in the constitutional conventions of many southern states, helping draft "the most progressive [instruments] the South had ever known."(187) They served as witnesses in court cases and on juries,(188) including the first jury to include both blacks and whites--a group impaneled to try Jefferson Davis.(189) Perhaps most importantly, blacks served in political office on both the state and federal level. Blacks served as state legislators in Alabama, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Virginia.(190) In Louisiana, Mississippi, and South Carolina, blacks not only obtained political power but also elevated to high positions; they served as lieutenant governors, secretaries of state, superintendents of education, speakers of the house, and for a short time in Louisiana, as acting governor.(191) In 1870, Hiram R. Revels from Mississippi was elected to the United States Senate, as was Blanche K. Bruce, also from Mississippi, in 1874.(192) Between 1870 and 1876, fourteen blacks served in the United States House of Representatives.(193) Finally finding protection under law and having obtained political representation, it seemed that Reconstruction's reform had truly brought a new day for African Americans and the cause they so nobly had been advancing. Unfortunately, the glowing light on the horizon was only a false dawn.
7. Erosion of Legal Protection, Increased Violence and Segregation, Proliferation of Anti-Voting Statutes, and Continued Civil Rights Activism: 1876-1910
a. Erosion of Legal Protection
As the nation's attention turned toward labor, industry, and railroads--and as racism both northern and southern resurfaced--legislative and social emphasis on civil rights, desegregation, and education quickly faded.(194) What was more, the United States Supreme Court seemed determined to play a part in this shift of focus. In a series of decisions handed down toward the end of the century, the Court repeatedly invalidated a number of state and federal civil rights statutes, greatly eroding legal protections that had been afforded blacks.(195) During Reconstruction, Congress had passed the Civil Rights Act of 1875.(196) Much stronger than the 1866 Act, this law had attempted to tackle segregation head on by creating civil and criminal liability for any person who disallowed anyone "full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement [on the basis of] ... race [or] color...."(197) However, in a group of cases popularly known as The Civil Rights Cases, the Court in 1883 struck down sections one and two of the statute. Although the aggrieved parties argued that the legislation was valid under both the Thirteenth and Fourteenth Amendments, the Court found it unconstitutional.(198) As to the Fourteenth Amendment argument, the Court cabined the Amendment's legislation provision, finding it to only encompass state and not private actions.(199) Justice Bradley, writing for the majority, stated, "[T]he legislation which Congress is authorized to adopt [under this amendment] is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce...."(200) The Court also dismissed the Thirteenth Amendment line of reasoning, implying that to allow such legislation as a constitutional attempt to prevent "slavery or involuntary servitude" would prove too much, even from a symbolic vantage:
It would be running the slavery argument into the ground to make it apply to every, act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.(201)
Alone, Justice Harlan dissented from the decision, noting that the purpose of the legislation was "to compel a recognition of the legal right of the black race to take the rank of citizens, and to secure the enjoyment of privileges belonging, under the law, to them...."(202) Unlike the Court, Justice Harlan acknowledged that the nation's legal recognition of slavery had left an entire race with "badges of slavery and servitude," a fact that required a broader construction of the Amendments.(203) Justice Harlan's words, however, were in vain, and the Court continued its march toward overturning civil rights legislation.
Six years before The Civil Rights Cases, the Court had also overturned a Louisiana state law that required equal access to transportation. In Hall v. DeCuir,(204) a black woman sued under Louisiana law after she was denied access to a boat's white-only cabin while traveling from Louisiana to Mississippi. The Court rejected her claim, finding that the Louisiana law unconstitutionally interfered with interstate commerce by placing potentially conflicting requirements on common carriers: "Commerce cannot flourish in the midst of such embarrassments. No carrier of passengers can conduct his business ... if on one side of a State line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other be kept separate."(205) And in Pace v. Alabama,(206) the Supreme Court placed its stamp of approval on laws banning miscegenation. The Court upheld against a Fourteenth Amendment claim an Alabama law that provided a harsher penalty for interracial cohabitation and adultery than for intraracial cohabitation and adultery.(207) Strongly foreshadowing its decision in Plessy v. Ferguson, the Court found that because the law's "punishment of each offending person, whether white or black, [was] the same," the law did not violate the Constitution.(208)
b. Increased Violence and Segregation
While the Court's decisions immediately following Reconstruction were troubling for blacks as an emblem of lost legal protections,(209) the cases were perhaps more important for the latent message they carried: the federal government's stepping away from enforcing civil rights blew open the door for oppressive laws and practices to again ravage the nation. And ravage they did. Besides the Ku Klux Klan, a number of other secret societies formed around 1867, and until at least 1877 they "used intimidation, force, ostracism in business and society, bribery at the polls, arson, and even murder to accomplish their [goal of d]epriving [blacks] of political equality."(210) Even after many of these societies dissolved, their effects lingered. Some of the organizations, including the Ku Klux Klan, kept active although membership dwindled, and the deeds of all these groups raised the specter of Black suppression through overt white violence.(211) From 1882 to 1901, the Ku Klux Klan lynched over 2000 African Americans.(212) Such lynchings often included not only death but torture as well; many victims had their teeth pulled out one at a time, their fingers and toes chopped off while they were still alive, and some were castrated.(213)
In addition to increases in acting out racism through violence, the segregation that had slowly begun toward the beginning of the century took on even greater force as the 1900s approached. With the federal government removed to other concerns, southern states enacted statutes reminiscent of the Black Codes. Although these laws did not specifically mention race, they were obviously aimed only at blacks.(214) Clearly attempting to keep blacks in a state of peonage, the laws gave landlords a multitude of benefits while criminalizing activities that might allow workers to rise above their current status, such as offering a worker better wages at a better job.(215) In other words, the laws tied blacks "to the soil, as [they were] under slavery, except that now [they] could also be fired."(216)
Having succeeded in placing restrictions to ensure economic segregation, southern states soon added legal affirmation to their cultural notion of white supremacy. In 1870, Tennessee's constitution adopted the first of these "Jim Crow" laws,(217) which segregated public schools and banned interracial marriage.(218) What immediately followed is uncertain, as segregation at first likely occurred along not only racial but gender and class lines as well.(219) But as segregation emerged as the answer to preserving traditional racial customs,(220) Jim Crow laws became nothing less than commonplace. By 1885, almost all southern states segregated their schools by race,(221) and by the turn of the century, segregation had extended into every facet of public life. Trains, prisons, housing, and even voting were all segregated by force of law.(222) The practice that had trickled into public life less than a hundred years earlier was now a raging torrent, and when the Supreme Court faced the issue it only turned its head. In its most infamous case since Dred Scott, the Court in Plessy v. Ferguson(223) allowed a Louisiana train segregation statute to stand. Contending that segregation could provide for "separate but equal" institutions, the Court noted that "[l]egislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences.... If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane."(224) Again dissenting alone, Justice Harlan disagreed:
Our constitution is color-blind, and neither knows nor tolerates classes among citizens.... [I]t is difficult to reconcile ... a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law. The thin disguise of `equal' accommodations.... will not mislead anyone, nor atone for the wrong this day done.(225)
Yet Harlan's dissent was once again made in vain, and the Court's decision in Plessy reemphasized that the federal government would not interfere with state law in order to protect blacks. It was indeed a dark day for civil rights activists: the Court had now "put its stamp of approval on [both private and public] apartheid,"(226) and what was brewing in the background was just as grim.
c. Proliferation of Anti-Voting Statutes
The evolving racist sentiment that had led to with increased violence and segregation would not end there. Southerners deeply resented blacks' post-Civil War prominence in politics, and when whites found they could not control the black vote, they sought to take it away.(227) A lynchpin in the scheme to ensure white supremacy, southern states began to revise their constitutions, often with the sole objective of restricting suffrage.(228) Although these states enacted provisions that, like the segregation statutes, were neutral on their face, their clear target was to disenfranchise blacks. Mississippi was the first state to do so. In 1890, it added a constitutional provision that created a two dollar poll tax and required would-be-voters to be able to explain any section of the state constitution in order to exercise their rights.(229) Although apparently a colorless law, an African American delegate to the convention noted that the provisions would conveniently disenfranchise 123,000 blacks but only 11,000 whites.(230) Other states quickly followed suit. Five years later, South Carolina required voters to have resided in the area for two years, own property worth at least $300, pay a poll tax of one dollar, and meet a literacy requirement similar to Mississippi's to exercise their voting rights.(231) In 1898, Louisiana joined in by enacting high hurdles for "regular" voters while permanently placing on the rolls anyone whose father or grandfather was eligible to vote on the first day of 1867. Of course, no blacks at that time could vote in Louisiana.(232) Indeed, the law worked all too efficiently. Approximately 127,000 blacks were registered to vote in the state in 1896, but by 1900 only 3300 blacks maintained the right.(233) Importantly, the trend in Louisiana was not atypical. By 1910, Alabama, Georgia, North Carolina, Oklahoma, and Virginia had all passed laws modeled after Louisiana's and South Carolina's--effectively barring any political influence on the part of an entire race.(234)
d. Continued Civil Rights Activism
Despite the rapid cultural and legal assault on blacks following Reconstruction, civil rights activists perpetuated the tradition of peaceful advocacy begun by Douglass and Garrison. Although the time period cannot accurately be characterized as one of heightened activity, the fact that activism continued was important not only for its victories at the time but also because it laid a foundation for later advocates. Ida B. Wells, a black school teacher from Tennessee, bridged the gap between abolitionists and modern civil rights activists.(235) At age nineteen, she began a campaign against lynching, which eventually led to a national meeting of black leaders on the subject in 1893.(236) In 1883, she had also waged a court battle that ultimately proved unsuccessful when the Chesapeake, Ohio & Southwestern Railroad Company forced her to move from the first class car for which she had purchased a ticket to a different car in which boisterous drinking and smoking was occurring.(237) George Henry White, the only black Congressman at the turn of the century and a former slave, also led a crusade against lynching. Persistently speaking for civil rights while on Capitol Hill, he sponsored the nation's first anti-lynching bill.(238) And W.E.B. DuBois published The Souls of Black Folk, a powerful work in which he argued for a cultural transformation of American society in order to ensure racial equality. Along with a number of other activists including Wells, DuBois would later help form the National Association for the Advancement of Colored People (NAACP).(239) Although DuBois was the only black officer when the organization formed in 1910, within a few years its executive board was largely nonwhite, and by 1940 its membership was 50,000.(240)
8. A Virtual Holding Pattern: 1910-1940
The years following the onset of Jim Crow were in many ways a virtual holding pattern for the civil rights cause. Segregation, through both private and public vehicles, became only more marked. Legislative initiatives that would have even further exacerbated the problem bombarded Congress in the 1910s, and although almost all of these failed, President Wilson segregated eating and restroom facilities for federal employees through executive order.(241) By the end of his administration, Wilson had phased out most blacks from civil service.(242) The second decade of the century also saw an incredibly strong resurgence in the Ku Klux Klan. Although it had dwindled to a few thousand members, the KKK began a southern revival in 1915.(243) Largely spurred on by D.W. Griffith's racist film romanticizing the rise of the Klan, Birth of a Nation, the KKK had over 100,000 members by 1920.(244)
Other major events, namely World War I and the Great Depression, greatly diverted attention from the cause. Yet when the United States decided to enter the war, African Americans who enlisted in the armed services faced harsh discrimination. A higher percentage of registered blacks than registered whites were accepted to serve, largely due to racist practices by draft boards; the Army initially resisted training blacks to serve as officers, and many white officers treated black soldiers poorly; relegating them to the lowliest of tasks despite their skills.(245) However, when black soldiers returned from Europe they were given the same heroes' welcome as the other soldiers, a well deserved recognition of their brave service.(246) But the welcome did not last for long. During the war, somewhere between 330,000 and 1,000,000 blacks had moved north to take jobs in industry because of degrading economic and social conditions in the South.(247) The resulting racial tensions meant that a rash of race riots hit the country in 1910 and 1920, reaching from Omaha to Knoxville, and from Chicago to Arkansas.(248) The Ku Klux Klan's resurgence in power helped little. The organization flourished this time not only in the South but also the North, political officials feared not having the Klan's support, and the number of lynchings increased.(249)
But like the preceding era, major legal and political setbacks did not mean that everything turned downward for blacks. Partially because of political parties' changing agendas--and partially because of the "great migration" northward--the black vote again became a powerful influence.(250) After Franklin Roosevelt was elected, he and his Secretary of the Interior, Harold Ickes, a former president of the Chicago NAACP, appointed a number of blacks to positions in the cabinet.(251) The effect of these appointments--many of which were to the Departments of Commerce, the Interior, and Labor--was long lasting, as many of the appointees remained through the Truman Administration.(252) In 1941, Roosevelt also banned discrimination in the military and defense industries.(253) Perhaps most importantly, however, the NAACP, which had begun to use litigation as one of its tactics almost on the organization's inception, started to see some success in its challenges. In Guinn v. United States, for example, the Supreme Court overturned Oklahoma's "grandfather clause," deconstructing one barrier to black voting.(254) Likewise, in Buchanan v. Warley, the Court held that ordinances segregating cities by race were unconstitutional as laws "based wholly upon color."(255) And in Missouri ex rel. Gaines v. Canada, the Court held that the University of Missouri Law School's rejection of black students was unconstitutional because states were required to provide for the education of all their citizens.(256) A clear trend was emerging, and civil rights activists began to realize that while the nation's legislatures often would not help them, a new refuge might be found in the federal courts.
9. The Modern Movement: 1940-1961
Many argue that the modern civil rights movement began with the Supreme Court's landmark decision in Brown v. Board of Education(257) in 1954, but the modern movement was more galvanized by that decision rather than created by it. Beginning in 1940, the Court issued a number of cases that further demonstrated its willingness to depart from segregation in the battle for civil rights. In Smith v. Allwright, for instance, the Court declared unconstitutional all-white primaries.(258) Likewise, two years later, in Morgan v. Virginia, the Court overturned a Virginia law that required segregation on interstate buses.(259) Indeed, by the time of its holding in Morgan, the Court had begun a lockstep pattern by which It would help desegregate the nation piece by piece, decision by decision.(260)
a. Early Protests
While the Supreme Court was handing down decisions enforcing the Constitution and advancing civil rights, voices of protest began to rise across the nation. In 1942, a multi-racial organization, the Congress of Racial Equality (CORE), formed, seeking to use non-violent, direct-action protests to improve race relations.(261) When black soldiers returned from World War II, having fought Hitler's racism in the European Theater, interest in equal rights heightened even more as these soldiers were reminded that they were still subjects of racism at home.(262) Shortly after the war, CORE began peaceful and persistent sit-ins in restaurants that segregated by race. In some northern cities, the protests were effective in integrating a number of restaurants.(263) After the Court's decision in Morgan, CORE also began a "Journey of Reconciliation," a series of organized bus rides across the South to test whether the new law of interstate bus integration was being followed.(264) CORE was not alone in its efforts; a number of individuals also added to the burgeoning movement by participating in active protests such as bus rides.(265) Unlike the protests that would come, these early actions of civil disobedience would neither garner national media attention, nor draw as pointed opposition.(266) Yet despite the dearth of attention in the media, these actions were critical both in reestablishing non-violent protest as a means of advancing civil rights and in providing examples of specific mechanisms that could be used to do so.
b. Executive Assistance
As the modern civil rights movement began to grow, the executive branch, unlike the legislative, took notice.(267) President Truman carried on in his predecessor's footsteps by establishing a commission to study civil rights in the United States. The result, a 1947 report entitled To Secure These Rights, called for greater federal action in preserving citizens' liberties and strongly denounced lynching and other racist practices: "A lynching in a rural American community is not a challenge to that community's conscience alone. The repercussions of such a crime ... echo from one end of the globe to the other.... Similarly, interference with the right of a qualified citizen to vote locally cannot today remain a local problem.(268) The next year, the President took one step further by integrating the armed forces through executive order.(269) Indeed, by the end of the 1940s, the political and cultural climate in the United States reflected the growing influence of a modern civil rights movement, a movement that after centuries of oppression was again demanding equality for all people.
c. Galvanization and Proliferation
By 1950, the NAACP had over 500,000 members, and the organization's full-scale assault through legal action was well under way.(270) In fact, in the same year the organization's membership hit the half-million mark, the NAACP began to build the case that would ultimately become its most influential and symbolic ever. Although the Supreme Court had overturned various early segregation laws--and President Truman had integrated the military--many aspects of American life remained divided by race. The most glaring racial divide was education. In 1936, southern states spent nearly thirty-eight dollars per student per year for white children, while only thirteen dollars were paid out for each black student.(271) Segregated schools, both in the North and South (although more universally in the South), meant that many black students were bussed miles away to black schools when white schools were available in their neighborhoods.(272) Moreover, many all-white schools were used to advance the idea of white supremacy, a vicious circle of education begetting ignorance.(273) Indeed, blacks understood better than anyone that separate schools were anything but equal. Thus the NAACP brought Brown v. Board of Education,(274) a case that argued segregation itself was unconstitutional, a case that lost in the lower courts but won when it mattered most--galvanizing the modern civil rights movement and ushering in a proliferation of protest, social struggle, and ultimately, change.
In Brown, a unanimous Court explicitly rejected Plessy v. Ferguson and its progeny, finding that segregation of public education facilities was "inherently unequal."(275) After noting the Importance of public education in modern American life, Chief Justice Warren, writing for the Court, held:
To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.... The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting ... inferiority....(276)
Accordingly, the Court ordered nationwide integration of schools "with all deliberate speed,"(277) and the civil rights movement itself began moving even faster.
Four days after the Supreme Court issued Its decision in Brown, Jo Ann Robinson, President of the Women's Political Council, wrote a letter to the mayor of Montgomery, Alabama, demanding fair treatment on city buses.(278) As was common practice in much of the South, blacks were forced to ride at the back of buses, and to surrender their seats to whites when the front seats became filled.(279) Many blacks had protested this discrimination, but they were met only with arrests and violence. In response black workers stood in the aisles while white seats remained empty.(280) Likewise, when the mayor of Montgomery refused to act on Robinson's letter, the inequality continued seemingly unabated.(281) But on December 1, 1955, Rosa Parks, a black seamstress on her way home from work, refused to move from her seat when a white man entered the bus. Parks' ensuing arrest ignited a year-long bus boycott led by Robinson, the NAACP, and a newcomer to Montgomery, Martin Luther King, Jr. Blacks and whites worked together in the boycott, peacefully picketing, organizing car pools to shuttle masses of people long distances, and remaining non-violent even in the face of often violent and pointed resistance. Their victory, a Supreme Court decision ruling that the bus system must be integrated,(282) demonstrated what was possible when whites and blacks of varying economic conditions united and stood as a symbol of the power of non-violent protest.
Indeed, after the Montgomery bus boycott only more protests--and more conflict--would come. Martin Luther King, Jr. took the lessons from Alabama and organized the Southern Christian Leadership Conference, a group of black ministers who raised money for integration and used their spiritual influence to fight bus segregation in Atlanta and Tallahassee.(283) While King's Conference and other groups achieved a number of successes, it became increasingly clear that many civil rights would not come without resistance. Despite the Court's decision in Brown, many schools still had not integrated by 1957, and others had gone to great lengths to avoid doing so. The University of Alabama had expelled a black student admitted by federal court order, Virginia had closed all of its schools in Prince Edward County in order to avoid integration, and the governor of Arkansas, Orval Faubus, shut down the entire state's public schools for a year after President Eisenhower integrated a Little Rock high school by military force.(284) A Supreme Court decision a year later put a legal end to the Arkansas matter,(285) but the social debate was anywhere but finished. In 1960, a group of college students in Greensboro, North Carolina, furthered the advocacy by staging a sit-in at a local Woolworth's store that refused to serve blacks.(286) Unlike the previous sit-ins staged by CORE, this demonstration gathered wide media attention, and within a year over 70,000 people had participated in similar demonstrations, protesting segregation in libraries, parks, restaurants, swimming pools, and theaters.(287) Resistance to these sit-ins varied, but it was often violent, especially in the deep South.(288) Indeed, white resistance to civil protests was increasingly hostile. When CORE initiated a new set of bus rides in 1961, termed the "Freedom Rides," the protesters were met by white mobs when they arrived at their first stop in Alabama.(289) The mobs firebombed the buses, beat the riders, and even left one man confined to a wheelchair for life.(290) As the Freedom Rides continued, so did the violence. Both sides persisted in delivering their message, so Attorney General Robert Kennedy eventually stepped in and promised Mississippi that it could enforce its segregation laws if it allowed the Freedom Riders to continue unscathed.(291)
This was the stage that was set when Robert Kennedy's brother, President John F. Kennedy, considered a new Civil Rights Act two years later. This was a scene divided by centuries from colonial slavery in terms of time and progress, but a scene divided by very little from its past in terms of the message sent to America's citizens of color.
B. Environmentalism: From Early Thought to the Modern Movement
Environmental thought is hardly new. Our concern today with protecting the resources on which we depend certainly derives, at least in part, from our ancient ancestors' struggle to survive in the ecosystems in which they lived. Indeed, early environmental thought clearly precedes the United States or even European colonization of the American continent, and modern American environmentalism draws on these initial developments both historically and philosophically.
1. From Early Thought to Foundational Philosophies: Circa 300 B. C.-Early 1800s
At least as early as 300 B.C. arise the earliest recorded environmental ruminations. About that time, the Greek philosopher and naturalist Theophrastus wrote essays concerning deforestation and climate change on the Canary Islands.(292) Throughout the Renaissance, these writings gathered strength, and by the time of Columbus, they were "fashionable."(293) In fact, Columbus himself expressed concern about major rainfall decline in the West Indies, and shortly thereafter two English thinkers, Francis Bacon and Edmund Halley, began developing their own theories about the interrelationship of rainfall, vegetation, and the hydrological cycle.(294) Predating Bacon and Halley by a few hundred years was also St. Francis of Assisi, who delivered his Sermon to the Birds, an early religious argument that humans should concern themselves with the welfare of all God's creations, including plants and animals.(295)
At the same time environmental thought was developing on the European front, other cultures were adapting to their own ecosystems, and in the process, also advancing ecological understanding. Perhaps the most important of these for American environmentalism was the plethora of Native American cultures that predated European colonization. While it is fairly clear that most of these groups did not leave their environments unaffected,(296) the harm they inflicted on their habitats "seems almost inconsequential compared to the destructive behavior of Euro-Americans."(297) Moreover, many Native American groups certainly had a reverence for nature unmatched by most Europeans before colonization. In any event, the respect paid to nature by many Native American groups was qualitatively different from that possessed by Europeans. The Lakota, for instance, believed that spirituality inhabits all things--that all are "filled with the essence of the Great Mystery."(298) Likewise, Micmac religious beliefs included a number of animal-associated taboos that restricted hunting and consumption in a variety of ways, along with painting an allegorical picture of human influence on the ecosystem.(299) Even today, salmon is a crucial part of Nez Perce myths, culture, and subsistence.(300)
Despite the richness and importance of these early environmental thoughts, they were both figuratively and literally scattered--separated by geography and language, and unconnected in theory and practice. In fact, by the time the United States had declared its independence, England was well into its industrial revolution, a phenomenon that mesmerized the western world and shifted almost everyone's attention away from anything not associated with production, extraction, or innovation.(301) A few, however, did step back and observe. Increased Industrial activity drove prices of consumer goods down and wages up. This combination, coupled with the fact that most manufacturing jobs were In cities and towns, led to a rapid urbanization of England. Although urbanization brought with it a number of qualms for city residents, it also lengthened life spans and decreased infant mortality rates.(302) The resulting population boom was obvious, and scholars took notice. Perhaps most importantly, Thomas Robert Malthus theorized about the planet's ability to support a growing population accompanied by decreased agricultural production; he argued that overpopulation would lead only to a miserable, endangered world.(303)
Malthus's argument in many ways triggered the modern environmental debate,(304) but it went largely unnoticed In the United States. Indeed, the nation had been colonized in large part by those attempting to protect their religious autonomy by establishing self-rule and securing land ownership, and when these Europeans arrived on the continent, it showed. Any concerns for the environment that had been developing in Europe were hastily tossed aside, and much of the indigenous knowledge of North America also was ignored. The colonizers decimated Native American populations with disease, betrayal, and force, taking Indian land through a foreign system of ownership by Individuals and paper rather than groups and usefulness.(305) The new settlers also quickly deforested much of New England by using trees for shipbuilding, tanning, and household goods, along with clearing over half a million acres for farming.(306) Southerners fared little better, as they exhausted their soil through Intensive monocultures of tobacco and cotton.(307) Yet perhaps more important were the cultural assumptions underlying these practices. The religious character of the colonies provided fuel for the notion that nature existed for the sole purpose of serving people,(308) and the development of the mentality that America was a wilderness or frontier where resources were infinite meant that "[c]onservation seemed unnecessary."(309) Thus began American society, a culture with environmental thought lying nascent and all other foundational philosophies related to ecology bound up together in this strange compound of hunger for land ownership and democracy, anthropocentric arrogance, delusions about the limits of resources, and industry waiting to burst onto the scene.
2. Environmentalism Reborn: Romanticism, Transcendentalism, the Hudson River School, and Westward Expansion: Early 1800s-Mid 1800s
While scientific thought and the Enlightenment dominated eighteenth century philosophy, nineteenth century America, with its stabilization of a national government and economy, allowed Romanticism to replace these colder notions with its more pensive, spiritual tone. According to this new philosophy, "[h]umanity was a product of nature and within nature achieved a harmony that it could not find in the civilized world."(310) Indeed, Romanticism led to a more idealized view of nature, and contemporary literature was influential in portraying this perspective. Authors such as Thomas Hardy and James Fenimore Cooper helped popularize this Romantic view, while Edgar Allan Poe perhaps best typified the sentiment when he penned these words echoing the beauty he found in nature:
Fair river! In thy bright, clear flow Of crystal, wandering water, Thou art an emblem of the glow Of beauty--the unhidden heart-- The playful maziness of art In old Alberto's daughter....(311)
Romantic thought in America was highly influenced by the European Romantic movement, but toward the middle of the century the American movement also took a more particularized, nuanced path. Transcendentalism continued Romanticism's idealized vision of nature with "an appreciation for sunshine, clean air, sparkling rivers, [and] grand mountains,"(312) but it also took two further steps, and from those steps environmentalism in America was reborn. Transcendentalism placed importance on the opportunity of individuals to be alone with nature,(313) a relatively new value then but one that persists today--indeed, a demonstration of the movement's lasting influence. The result of this new value was profound and revolutionary ecological study. Never before had so many people at once shifted their focus away from human creations to natural ones, and the result was a different level--a different type--of consciousness than Euro-Americans, at least, had ever cultivated.
Philosophy rather than direct activism typified Transcendentalism,(314) and the movement accordingly included mostly thinkers and writers. Regardless, their contributions were immensely important to American environmentalism, not only for revitalizing such thought but for enriching it as well. Ralph Waldo Emerson observed the interconnectedness of nature, writing in The Over-Soul that "[w]e see the world piece by piece, as the sun, the moon, the animal, the tree; but the whole, of which these are the shining parts, is the soul...."(315) Likewise, Walt Whitman, in his continually revised work, Leaves of Grass, pointed both to the commonality of all natural things and to the complex relationship of people to nature.(316) In addition, John Stuart Mill, whose views influenced some Transcendentalists, argued that resource consumption must stabilize while world wealth distribution needed to equalize.(317) Yet perhaps the most influential Transcendentalist was Henry David Thoreau. Although his most important work, Walden,(318) was not well-received upon publication, it in every way epitomizes what Transcendentalism contributed to environmentalism. Written while Thoreau lived for two years in a simple cabin on a small pond in Massachusetts, the book articulately encapsulates a more ecocentric view of the world than Romanticism's.(319) Indeed, Thoreau's detailed descriptions of his observations of nature were imbued by a respect that demanded change in the dominant perspective of the time:
[M]ost men ... do not care for Nature and would sell their share in all her beauty ... for a stated sum--many for a glass of rum.... It is for the very reason that some do not care for those things that we need to continue to protect all from the vandalism of a few.(320)
And although in calling for this change Thoreau seemed to persist in an anthropocentric view that humans own "shares" of nature, his call to reconsider accepted assumptions was unique enough to eventually shift popular conceptions of humans' place in the environment.
c. Hudson River School
While Transcendentalists employed words to extol the importance of nature, a number of American painters used the visual medium to convince observers of the nation's physical beauty. The Hudson River School in upstate New York emerged as the most prominent group of naturalist painters. Led by Thomas Cole, these artists used a romantic style of painting that idealized nature but reminded that it would eventually succumb to civilization.(321) The paintings were influential in popularizing the notion that nature could provide spiritual fulfillment rather than only economic utility.(322) A number of other contemporary American artists also proved important for their contributions as more naturalistic painters. John James Audubon, for instance, sold a number of his paintings of birds to private collectors, and artists such as George Caleb Bingham and William Sidney Mount achieved success in portraying scenes of everyday American life, including fur trapping and fishing.(323)
d. Westward Expansion
As nature gained greater prominence through prose and art in the first half of the eighteenth century, another event significant to the development of American environmentalism also occurred. The discovery of gold in California spurred on greater migration to that state in 1849, and between 1840 and 1860, nearly a quarter of a million people moved westward by crossing overland paths like the Oregon Trail.(324) Manifest Destiny, an expansion of the Judeo-Christian notion that resources exist only for human use, helped motivate these pioneers, as many believed that "God had ordained them to spread American civilization and culture throughout the land."(325) The resulting "settling" of the West in fact reflected this anthropocentric view of nature, and in large part separated pioneers from their Transcendentalist contemporaries. Pioneers intentionally introduced numerous alien plant and animal species to the region; farmed heavily in monocultures; and extracted resources such as timber, minerals, and fur at a rapid pace.(326) Yet despite engaging in what today might accurately be characterized as resource-intensive development, these practices were likely more attributable to the prevalent philosophy of the time than to a pioneer-driven ignorance of the importance of nature. In fact, many pioneers very closely observed their new surroundings, gaining valuable ecological knowledge of places new to Euro-Americans. Pioneer women, especially, took note of the West.(327) For instance, Susan Proffitt captured both the beauty and difference of the Great Plains:
Spring gave in to summer, and in August at the close of a hot day when the grasses seemed to whither and the cattle bunched up near the creek and well and no air seemed to stir on the trees, all nature seemed still with an ominous stillness. A mass of black clouds loomed up in the west, distant thunder rumbled, the clouds gathered fast, taking on a greenish hue, thunder boomed and lightning streaked the sky and cut through the landscape and then with a rush and roar came the hail, devastating everything.(328)
While it might be easy to overlook descriptions such as Proffitt's in the wave of other eighteenth century environmental literature and art, it is imperative that we do not. As one commentator noted concerning pioneers, "It was the character of the land that shaped the character of the people.... [And w]e carry their stories [today]."(329) Indeed, through their journals and letters, pioneers passed on an intimate understanding of the places they inhabited, leaving the people who live in those areas today with a rich history--and bringing to the forefront of the nation's attention a region that through its austere beauty and immense resources has left an indelible legacy of powerful inspiration and pointed controversy for American environmentalism.
3. Environmentalism Urbanized: Increased Industrialization and Urbanization: Mid 1800s-Early 1900s
Following the Civil War, the United States experienced an industrial revolution of its own. A confluence of factors led to this shift in the nation's economy, but two changes were especially influential in enabling the transformation. A wave of new technological inventions--including Eli Whitney's cotton gin in 1793, John Deere's steel plow in 1837, development of artificial fertilizers in the 1840s, and the gradual move from single-item production by craftspeople to mass-production by factories in the latter half of the century--provided the physical mechanisms necessary for an economy more focused on production than agriculture.(330) Likewise, the country's wealth of resources provided the raw materials required by factories, railroads, and growing cities. In the 1870s, Congress passed a number of laws to encourage movement west and, thus, resource extraction. In 1862, the Homestead Act(331) laid the foundation for these laws by providing settlers 160 acres if they lived on and developed the land for five years.(332) The Timber Culture Act of 1873(333) added to the Homestead provision by giving settlers an additional 160 acres if they grew trees on forty of the acres.(334) Similarly, the Desert Land Act in 1877(335) offered up to 640 acres of arid lands per person for sale at $1.25 an acre, and the Timber and Stone Act(336) the next year allowed for sale of forested land at $2.50 per acre.(337) The laws proved very effective. A transcontinental railroad connected the two coasts by 1869,(338) and by 1893, Frederick Jackson Turner had declared the frontier "gone and ... closed."(339)
If technology and resources allowed for America's industrial revolution, population growth helped drive it. From 1860 to 1900, the nation's population increased from approximately thirty-six million to almost seventy-six million.(340) In roughly the same timeframe, fourteen million people, largely from eastern and southern Europe, immigrated to the nation, providing a boon to the country's workforce.(341) Increased population and industrialization led also to increased urbanization. Better farming technology meant that less labor was needed rurally, while factories, located primarily near and in commerce hubs, needed more and more workers. Accordingly, in 1830, only twenty-three American cities had more than 10,000 residents, but by 1910 there were fifty cities that had populations above 100,000.(342)
However beneficial the nation's economic and social growth may have been, it did not come without costs. Industrialization and urbanization resulted in an onslaught of environmental and public health harms. Air and water pollution; uncontrolled sewage; sweat shop working conditions in factories; poor safety conditions such as street lighting and paving; and inadequate housing, schooling, and health care conditions all severely impacted late-nineteenth century workers and city dwellers.(343) Yet those impacted did not simply turn their heads at the grime or plug their noses to the emanations of chemical waste. A "loose network of activists working in several movements and Institutions" advocated an environmentalism different from the Transcendentalist wilderness-focused bent and more centered on issues relevant to urban residents of the time.(344)
Perhaps the first to advocate environmentalism in urban-centered issues were Calvert Vaux and Frederick Law Olmsted, two foreign-educated landscape architects intimately connected to the Hudson River school.(345) Beginning in the 1850s and lasting until the 1880s, these two men designed and constructed a number of large, expensive parks across the nation.(346) Their parks provided the wealthy and middle-classes with important greenspace and opportunities for outdoor recreation, but enjoyment by lower classes was often limited or restricted in ways that prohibited the more active, recreational activities they preferred.(347) As the need for recreation space in working-class communities became so great that children were relegated to playing in the streets, many neighborhoods began petitioning for parks. In Worcester, Massachusetts, for instance, 140 workers signed a petition in 1882 requesting a park for "the less favored children," and in the ensuing years a number of other citizens demanded the same in letters to the editor.(348) Eventually, a convergence of protests such as the one in Worcester led to more and different types of parks, along with greater access to parks for people of lower income.(349)
b. Pollution and Public Health
Beyond seeking access to greenspace, urban environmental activists were also concerned about emerging problems with pollution and public health due to industrialization. In 1881, Chicago enacted an ordinance making "emission of dark smoke from the smokestack of any boat or locomotive or from any chimney within the city" a nuisance, thus becoming the first city in the United States to address air pollution.(350) The problems, however, went far beyond one type of pollution in one city. Accordingly, a number of settlement houses began working to improve the environments of various municipalities.(351) Perhaps most prominent was Jane Addams's Hull House in Chicago.(352) Unwilling to focus on any single issue, this organization recognized the relationship between environment, industry, and public health. One of the house's doctors, Alice Hamilton, organized a well-baby clinic, provided health care for the poor, and conducted neighborhood epidemiological studies exposing the link between typhoid and sewage exposure.(353) Likewise, Addams and other Hull House advocates were the first to use the method of citizens' environmental monitoring. After having their bid to collect the city's garbage rejected, Addams organized a garbage patrol in which she and other activists followed trucks to dumps, kept records of disposal, helped organize neighborhood garbage committees, "made citizen's arrests of landlords, complained to contractors, and were responsible for the city taking a serious look at [its] garbage problem."(354)
c. Working Conditions
While America's newfound prosperity through industry left its cities dirty and polluted, its effects on workers were even more pointed. As industry grew, many workers were killed or injured on the job. In fact, of the 38 million laborers employed in 1913, approximately 25,000 were killed and 700,000 were injured while at work.(355) Miners suffered from carbon monoxide poisoning, tobacco makers developed heart and respiratory problems, matchmakers contracted the phosphorous-related illness "phossy-jaw," and women who painted radium on clock faces died of radiation poisoning.(356) Both women and men worked long, hard hours--nearly twelve hours a day in 1840 and ten hours per day in 1890.(357) Indeed, conditions were deplorable, but at first voices for change were localized and independent. In 1861, novelist Rebecca Harding Davis captured the plight of downtrodden iron miners and their communities.(358) She wrote,
The idiosyncrasy of this town is smoke. It rolls sullenly in slow folds from the great chimneys of the iron-foundries, and settles down in black, slimy pools on the muddy streets. Smoke on the wharves, smoke on the dingy boats, on the yellow river, ... the two faded poplars, the faces of the passers-by.... A dirty canary chirps desolately in a cage beside me. Its dream of green fields and sunshine is a very old dream, --almost worn out, I think.(359)
Eventually, lone voices like Davis combined together, and by the 1870s, labor unions had begun to form.(360) In 1877, labor strikes and riots swept the nation, and shortly thereafter the battle moved to the courts.(361) In time, legislatures responded, first restricting child labor and then limiting the workday.(362) Ultimately, the Supreme Court upheld these laws, refusing to overturn Utah's eight-hour workday limit for miners and smelters in the 1898 case Holden v. Hardy.(363) Other social organizations also stepped in to fight for better working conditions. The Hull House, for instance, once again employed its advocates for the cause of the environment, campaigning for a minimum wage for women, complaining about the health conditions of the Chicago stockyards and surrounding neighborhoods, and helping to organize the National Women's Trade Union League and the National Consumers League.(364) And once again, Hull House's efforts were successful: widespread acceptance of Upton Sinclair's critique of the meatpacking industry in his 1906 novel, The Jungle,(365) combined with the House's earlier efforts to help pass the Pure Food and Drug Act,(366) a law that cast a net of influence on more than a handful of industries.(367) Indeed, the advent of labor unions and the many victories of Hull House demonstrated that urban environmentalists could effectively institute change, helping to protect public health and to thwart, at least partially, ever-growing pollution.
4. Environmentalism Galvanized and Divided: A Trilogy of Concerns: Early 1900s-1940s
Although urban environmentalism had made great strides in the latter half of the eighteenth century and the beginning years of the nineteenth, Transcendentalist and pioneer-like notions of wilderness still seemed to dominate the collective environmental consciousness of the white middle-class. To some these notions may have seemed much the same, as for some time the two were barely distinguishable from each other; while both schools of thought were initially enamoured with the idea of the frontier but had different goals for its use, all seemed to agree that nature would be used in some way.(368) Increasingly, however, these characterizations of nature had begun to diverge more fully than they had at their roots.
Toward the end of the nineteenth century, the argument that resources should be preserved rather than employed began to grow, largely from earlier Transcendentalist thought. Perhaps the first indication of what eventually became known as "preservation" arrived when Congress made Yellowstone the nation's first national park in 1872,(369) but the conflict between preservation and its antipode, "conservation," was likely first embodied in the works of George Perkins Marsh.(370) Although Marsh was "comfortable with the idea of human dominion over nature provided that it was both careful and farsighted,"(371) he rejected the idea that nature existed solely for that purpose: "[I]ntentional [human] changes and substitutions [to nature] constitute, indeed, great revolutions; but vast as is their magnitude and importance, they are ... insignificant in comparison with the contingent and unsought results which have flowed from them."(372) Other notables of the time--particularly Carl Schurz, who was Secretary of the Interior during the 1870s, and Major John Wesley Powell, who explored the Colorado River--also advocated for preservation of the nation's resources.(373)
Ultimately, however, the movement became most closely associated with John Muir, a Scottish immigrant who settled in Wisconsin. Muir traveled the nation widely, taking in as much of America's wilderness as he could. Muir's extensive exposure to the environment left him with the conclusion that nature required more protection from humans than it did for humans.(374) Recognizing that "[w]hen we try to pick out anything by itself, we find it hitched to everything else in the universe,"(375) Muir urged preservation of wilderness for its own sake and for its spiritual and aesthetic benefits, rather than for the benefit of humanity.(376)
Contrary to Muir's views, Gifford Pinchot, who was twice governor of Pennsylvania and later head of the United States Forest Service, championed the idea of conservation.(377) Pinchot believed that natural resources existed entirely for human use, but that humans should manage the resources carefully so as to maximize production and preserve them for later generations.(378) As defined by Pinchot, conservation was a type of democratic utilitarianism, meaning "wise use of the earth ... from the standpoint of the greatest good to the greatest number for the longest time."(379) Like Muir, Pinchot also benefited from notable citizens who prescribed to his school of thought. In fact, President Theodore Roosevelt, who had appointed Pinchot to manage the Forest Service,(380) referred to conservation as "my policy" and declared that "the prosperity of our people depends directly on the energy and intelligence with which our natural resources are used."(381)
At the turn of the century, the dichotomy between preservation and conservation was clear, but it was not heated. While Muir continued to advocate preservation of resources, most officials in Washington were conservationists, and many western business interests rejected both camps, wanting to exploit available resources for their timber, farming, ranching, and mining enterprises.(382) In 1912, however, a controversy over a valley in California forever placed a wall between advocates of preservation and those of conservation. In the first national debate over resource use, a San Francisco proposal to dam the Tuolumne River in Hetch Hetchy Valley was severely criticized by Muir but received support from Pinchot.(383) Preservationists contended that because Hetch Hetchy was within Yosemite National Park, Congress should not allow damming of a river that would flood a beautiful, magnificent valley.(384) Muir wrote,
These temple destroyers, devotees of ravaging commercialism, seem to have a perfect contempt for Nature, and, instead of lifting their eyes to the God of the mountains, lift them to the Almighty Dollar. Dam Hetch Hetchy! As well dam for water tanks the people's cathedrals and churches, for no holier temple has ever been consecrated by the heart of man.(385)
Conservationists, on the other hand, pointed to San Francisco's growing need for water, especially after the earthquakes and ensuing fires of 1906.(386) They also criticized preservationists for attempting to disallow an incredibly useful dam for protection of a valley visited by very few, contending that a dam would serve the most people by supplying San Francisco with water, augmenting Hetch Hetchy's beauty by adding a high-mountain lake, and increasing access to Hetch Hetchy by constructing a road around the lake.(387) After a heated 1913 debate in the United States House of Representatives, Congress passed by a wide margin a bill approving San Francisco's proposal.(388) Over twenty years later, the Hetch Hetchy dam was finally completed, and its water, still used today, began to arrive in San Francisco.(389) And while the immediate effects of Congress's decision were important for the city, California, and the nation, the implications of the broader debate were far more reaching for American environmentalism as a whole. The Hetch Hetchy controversy at once galvanized and divided the environmental movement.(390) By bringing the debate to the national level for the first time, a number of "citizens who were not a part of the small elite group of preservationists, conservationists[,] and outdoor enthusiasts got involved ... by writing letters, newspaper articles[,] and participating in public debates."(391) At the same time, the controversy succeeded both in completely cleaving preservation and conservation from one another and in highlighting only those two movements to largely obscure the urban environmental agenda.(392) Yet regardless of where public attention was focused, all three factions of American environmentalism achieved a number of accomplishments in the early 1900s.
Perhaps the greatest success of preservationists was their prominent encouragement of wilderness protection in the United States. Largely because of preservationists' influence and writings, Congress added eleven national parks, including Sequoia and Glacier, to Yosemite and Yellowstone by 1916.(393) In the same year, Congress formed the National Park Service for the purpose of "conserv[ing] the scenery and the natural and historic objects and the wild life [in the Parks] ... by such means as will leave them unimpaired for the enjoyment of future generations."(394) The preservation movement had also extended its reach by forming a number of environmental organizations. In 1892, Muir helped form the Sierra Club, and then went on to serve as its first president.(395) Thirty years later, sportspeople founded the Izaak Walton League to advocate wilderness protection.(396) The first Audobon societies had been organized in the late 1880s by women who sought to educate others about the peril of birds whose feathers were used in popular contemporary hats.(397) With the formation of the National Audobon Society in 1905, they were eventually able to convince Congress to ban wild bird feather imports in the 1913 Tariff Act, a victory that helped protect species such as egrets, little blue herons, and ibises.(398)
Conservationists, on the other hand, typically effectuated their goals through government officials sympathetic to their school of thought. In 1902, President Theodore Roosevelt convinced Congress to pass the Reclamation Act,(399) which provided for construction of water power projects across the West.(400) Three years later, he also established the Forest Service,(401) and during his tenure as president, he expanded the national forests to 190 million acres.(402) Later, when President Franklin Roosevelt implemented his New Deal program, he also carried out a number of conservationist policies. The Civilian Conservation Corps planted nearly two billion trees, and the national forests again grew in size.(403) In addition, the administration added three national parks to the system, and in 1936 banned killing predators in the parks.(404) Three years later, FDR created the Fish and Wildlife Service.(405) And after the dustbowl of the 1930s, Congress passed the Taylor Grazing Act(406) and the Soil Conservation Act(407) to help prevent soil erosion in the Great Plains.(408)
c. Urban Environmentalism
Although largely obscured from the public view as a part of the movement--and still not as coalesced as preservation or conservation--urban environmentalism also achieved a number of victories in the earlier part of the twentieth century. By 1912, twenty-three of the twenty-eight American cities with populations greater than 200,000 had enacted ordinances addressing air pollution similar to Chicago's earlier law.(409) A number of women's groups in St. Louis, Cincinnati, and Pittsburgh helped enforce these ordinances, along with testing new devices designed to abate air pollution.(410) And while many minorities were keenly aware of environmental problems, especially occupationally, they also understood that in order to overcome environmental problems, racial oppression first had to be blotted out.(411) Yet the growing civil rights movement did influence some environmental concerns, primarily through transportation issues.(412) Moreover, on other issues previously addressed by urban environmentalists, minorities played key roles. During the 1930s, for instance, Mexican Americans formed a number of their own unions "and played significant roles in organizing mining and agricultural workers."(413)
5. Environmentalism Abeyant: 1940s-1962
The Great Depression of 1929 helped place environmental concerns on the nation's political backburner, and World War II in the 1940s worked to keep them there.(414) Indeed, for approximately twenty years, environmentalism was in a state of abeyance, its developments quietly transpiring while the nation lay dormant to these new episodes.
Perhaps the most important environmentalist of the period was Aldo Leopold, a professor from Wisconsin. Leopold was initially a conservationist at heart, helping the United States Forest Service implement a game management program in the Southwest that attempted to keep deer populations up by exterminating predators such as wolves.(415) The program succeeded in extirpating wolves--by 1935 they were virtually eliminated from the country--but the result was unexpected. Deer populations skyrocketed, and as a result, either had to be shot or left to die by starvation and disease.(416) The experience changed Leopold, and he began to develop a thesis that would eventually help lead to the modern study of ecology.(417) In A Sand County Almanac, a posthumous work, Leopold passionately enunciated his evolving view of the interrelationships in the natural world, urging adoption of a "land ethic" that places value on ecosystems and not only economic productivity:
It is inconceivable to me that an ethical relation to land can exist without love, respect, and admiration for land, and a high regard for its value. By value, I of course mean something far broader than mere economic value; I mean value in the philosophical sense.... The `key-log' which must be moved to release the evolutionary process for an ethic is [that we e]xamine each question in terms of what is ethically and esthetically right, as well as what is economically expedient. A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.(418)
Unfortunately, like many other environmental developments during the period, Leopold's words went largely unheeded for some time; in the decade following A Sand County Almanads release, only a few thousand copies were sold.(419)
Beyond Leopold's ultimately monumental work, other environmental victories, scattered across all three fractions of the movement, also took shape in the years preceding the 1960s. On the preservation front, Leopold had joined with George Marshall, a high-ranking official in the Forest Service, to form the Wilderness Society in 1935.(420) Twenty-one years later, this organization joined forces with the Sierra Club to successfully defeat a Bureau of Reclamation proposal to build a dam in Echo Park located inside Dinosaur National Monument.(421) Likewise, a number of important conservationist trends began to develop. "Americans became accustomed to outdoor recreation--hunting, fishing, hiking, and swimming--as a way of life, and found the public areas increasingly crowded each year."(422) From 1936 to 1961, five important environmental organizations formed, including the National Wildlife Federation, Ducks Unlimited, Defenders of Wildlife, the Nature Conservancy, and the World Wildlife Fund.(423) A group of neo-Malthusianists published important works, including Fairfield Osborn's Our Plundered Planet,(424) which reminded that rapid resource consumption and food production could not continue indefinitely.(425) Finally, urban environmentalists also succeeded in effectuating important changes in the 1940s and 1950s. Congress approved the Water Quality Act of 1948,(426) which provided federal grants to states for water pollution regulation.(427) Eight years later, Congress also approved a bill over President Eisenhower's veto that provided funding to municipalities for sewage treatment plants.(428) Additionally, Congress passed the Air Pollution Control Act of 1955,(429) which mandated research related to air pollution.(430) Activism in the grassroots also continued. In 1951, for example, a group of Mexican American wives and husbands conducted a strike against their employers at a silver zinc mine in New Mexico, successfully petitioning for higher wages, improved sanitation, and cleaner drinking water.(431)
6. The Modern Movement: 1962-1969
While environmentalism rested largely dormant in the two decades preceding the 1960s, the nation's economy had begun to thrive. In the postwar years, a "baby boom" occurred and the population increased from 151 million to 180 million in the 1950s alone.(432) Moreover, all facets of the economy, including manufacturing, transportation, utilities, construction, and trade, grew rapidly as the gross national product almost doubled from 1950 to 1970.(433) Especially steady in its growth was chemical manufacturing. Increased scientific knowledge during and after the war led to an increased ability to manipulate molecules, and by 1970, chemical production was five times what it had been in 1950.(434) While these new chemicals were used in many industries and processes, for environmentalism their use in agriculture became the most important application. In 1947, the nation produced 124,259,000 pounds of chemical pesticides, but by 1960, production had reached 637,666,000 pounds.(435) Initially, few questioned use of these chemicals, proclaiming them scientific "wonders" and "miracles."(436) In 1962, however, that all changed, and American environmentalism was revitalized, heightened, and transformed forever.
a. Rachel Carson's Silent Spring
In 1958, Rachel Carson, a scientist from Maryland, began research on the ecological effects of DDT and other chemical pesticides.(437) The result, a series of articles ran first in The New Yorker and published shortly thereafter as the book Silent Spring,(438) mesmerized the nation and took environmentalism to a place it had never been. In eloquent but readable prose, Silent Spring chronicled the unintentional effects of chemicals like DDT on birds, pets, and non-pest insects. Importantly, it also discussed for the first time in popular form the potential of pesticides to bioaccumulate in animals and humans, to cause cancer, and to induce genetic modifications.(439) "Every meal we eat," wrote Carson, "carries a load of chlorinated hydrocarbons."(440)
Carson's stunning alarm received immense attention from the press and public.(441) Within five months, 500,000 copies of the book had been sold, and within a year Silent Spring was available in much of Europe.(442) The American public poured letters into federal government offices, and in 1963, the Office of Science and Technology issued a report endorsing Carson's findings.(443) Indeed, by aptly demonstrating how resource use and misuse could affect every individual, Silent Spring put environmental issues on the national agenda in a way unprecedented throughout the movement's long history. Moreover, the book drastically shifted the landscape of environmentalism. By questioning pesticide use, Carson catapulted an issue that had typically belonged to urban environmentalism into the mainstream. Likewise, by issuing a "stern warning that man, in his arrogant attempts to control nature, had turned an arsenal of terrible weapons against the earth and, in the process, was unraveling the very fabric of life,"(444) Silent Spring demonstrated how all three facets of the environmental movement related, each seeking to achieve goals that influenced the others' objectives.
b. Further Scholarship and Advocacy
Carson's work in Silent Spring truly signaled the coming of the modern environmental movement, and In the years after its publication, a number of scholars and advocates issued their pleas for environmental protection. In 1965, Ralph Nader's book, Unsafe at Any Speed,(445) criticized the defective design of the Corvair car, beginning his fight for consumer protection.(446) The next year, University of Colorado professor Kenneth Boulding published The Economics of the Coming Spaceship Earth, an essay In which he argued that the planet's resources were both finite and decreasing.(447) In 1968, Paul Ehrlich of Stanford University expanded on the notion of living in a limited world, explaining the problem and impacts of out-of-control population growth in his incredibly influential book The Population Bomb.(448) And in December of the same year, the journal Science published Garret Hardin's The Tragedy of the Commons, an article that shifted the course of modern environmental thought by explaining the relationship between resource consumption, overpopulation, and a need for change in human values to remedy the problem.(449)
c. Shifting Socio-Cultural Values
In addition to the immense wave of environmental scholarship in the 1960s, socio-cultural values were also shifting. While outdoor recreation had begun to increase in the 1940s and 1950s, it expanded even more quickly in the 1960s. In those ten years, national park use increased from approximately 100 million visitors per year to almost 275 million.(450) The roaring economy led to greater amounts of leisure time and more people owning cars and living in the suburbs. Traffic jams and smog heightened consciousness of the effect of these trends on the environment, bringing environmental concerns home for the white middle-class.(451) The advent of color television was also important, as many news programs typically broadcast one or two environmental stories a night, probably at least partially because of the stunning effect color added to brown smog against blue skies or yellow pollution in blue rivers.(452) The coming age of environmental disasters also added to the social milieu, when in 1969 alone a massive oil spill occurred off the California coast near Santa Barbara, the Cuyahoga River near Cleveland caught fire, and air pollution in Los Angeles forced residents to stay indoors for days at a time.(453) All these factors were only further impacted by the emerging climate of social unrest at the time, including the civil rights movement and protest over the Vietnam War, and by the late 19608, it was clear Americans wanted change.
d. Growing Legal Response
During the early part of the decade, the federal government had in fact begun to promulgate some legal changes in response to environmental problems. In 1964, President Kennedy signed the Wilderness Act,(454) allowing areas of federal lands to be declared unavailable for development.(455) The next year, President Johnson hosted a White House Conference on National Beauty.(456) In 1963, the federal regulation of air pollution began with the Clean Air Act, which allowed for issuance of advisory air quality contaminant criteria.(457) Four years later, Congress modified this Act with the Air Quality Act of 1967,(458) which provided federal funding to states for air emission controls, required them to adopt ambient air quality standards, and defined air quality control regions according to meteorology and topography.(459) Similarly, the Water Quality Act of 1965 required states to adopt water quality standards for interstate waters and provided for federal enforcement, although enforcement never came.(460) However, other laws, such as the Solid Waste Disposal Act of 1965, did not even provide for enforcement, with Congress instead opting to fund research.(461) Indeed, federal regulation of environmental protection in the 1960s had started to become copious, but it was in no way comprehensive or effective.
This was the stage that was set when President Nixon made the environment a focus of his State of the Union address in 1970. This was a scene where the effects of industry and population growth had started to become visible; the three facets of the environmental movement had finally been, at least temporarily, forged; and society was, together and at once, demanding response.
III. LANDMARK LEGISLATION: THE CIVIL RIGHTS ACT OF 1964 AND THE CLEAN AIR ACT OF 1970
A. The Civil Rights Act of 1964
Following the national wave of sit-ins that began in 1960 and the Freedom Rides of 1961, protest--and injustice--continued. Martin Luther King, Jr., and other civil rights leaders persisted in organizing demonstrations, which continued to raise consciousness of the issue and also heightened racial tensions. Yet not all of these protests were as successful as civil rights activists hoped. In the summer of 1961, King helped lead a protest in Albany, Georgia. After having had many of the so-called "Albany Movement's" strategies defeated by local police officers who avoided confrontations and refused to make arrests on segregation grounds, King had himself arrested to punctuate the message.(462) But the local police chief deflated the move by having King's bail paid anonymously, and an ensuing police beating of an activist--and retaliation by protestors that included showering officers with stones--left the demonstration an "impassioned failure."(463) And although protest of and displeasure with discriminatory treatment grew, change did not come very quickly. Many southern cities only fortified their stances in response to the demonstrations, and others simply evaded enforcement of court orders by closing down public facilities. Birmingham, Alabama, for instance, closed its golf courses, parks, playgrounds, and swimming pools to avoid desegregation.(464) Likewise, legal response from the federal government helped only minimally. The Civil Rights Act of 1957 and the Civil Rights Act of 1960(465) became law just a few years earlier, but they provided little relief. Having been gutted of their most powerful provisions by amendments and compromise in Congress,(466) the 1957 Act merely set penalties for anyone who violated the voting rights of an American citizen,(467) and the 1960 Act was so weak that Thurgood Marshall declared it "not worth the paper it's written on."(468) Enforcement was of course also a problem, and so segregation, discrimination, and growing social unrest marched in a lockstep pattern toward more eruptions of violence or effective legal redress, whichever would come first. As it turned out, they came together.
1. The Kennedys
John F. Kennedy's election to the presidency had come by a narrow margin, having received a mere 118,500 votes more than his opponent, Richard Nixon.(469) What was clear, however, was that this narrow victory had been secured by black votes. Unlike Nixon, Kennedy campaigned heavily for African American votes, engaging in their cause by having his brother and then-campaign manager Robert plead with a Georgia judge for Martin Luther King, Jr.'s release from prison in October of 1960 and by criticizing President Eisenhower for not having used his executive order power to end discrimination in federally funded housing.(470) And when he gave his inaugural address, Kennedy spoke brave words that gave hope to those who had voted for him in an attempt to help secure their rights:
Let the word go forth From this time and place, to friend and foe alike, that the torch has passed to a new generation of Americans, tempered by war, disciplined by a hard and bitter peace, proud of our ancient heritage, and unwilling to witness or permit the slow undoing of those human rights to which this nation has always been committed.(471)
Despite his words, Kennedy was slow to act. After nearly two years, in November of 1962, Kennedy issued the executive order he had criticized Eisenhower for not issuing.(472) During Kennedy's tenure, the violence surrounding the Freedom Rides had also occurred, and now tension was again rising. But Kennedy recognized that he was dealing with an even more conservative Congress than before the election,(473) and from his own time on the Hill, he was keenly aware of the tit-for-tat nature of politics.(474) Not wanting to alienate Southern Democrats and less conservative Republicans--both of whom were needed as congressional allies--and not wanting to lose the next election by achieving nothing while in office, Kennedy decided not to focus on civil rights legislation, and instead opted to push his New Frontier programs and center his attention on international issues.(475) For a new Democratic president faced with a Republican and increasingly stagnant legislature, broaching an issue as divisive as civil rights was politically dangerous, and something far more drastic than a few demonstrations would have to occur before Kennedy was willing to jeopardize his career by enforcing the civil rights of African Americans.
In April of 1963, Martin Luther King, Jr. and Birmingham police chief Bull Connor provided the President with that drastic event. King and the ever-strengthening Southern Christian Leadership Conference (SCLC) planned a three-part demonstration in Birmingham. When the first stage of the protest began, it appeared rather meager; the media largely ignored the SCLC's press release, demonstrators sitting-in on segregated restaurants were ignored by waiters and then quietly arrested, and Attorney General Robert Kennedy called the demonstration "ill-timed."(476) As the protest continued three days later, however, it gained momentum. A number of marches were held, growing in size as days passed, and one protestor was mauled by two police dogs.(477) By April 11, eight days after the demonstration had begun, Bull Connor obtained an injunction from a state court barring the marches. Noting that the protestors had "an injunction from heaven," King disclaimed the court order, and the next day he and fellow civil rights leader Ralph Abernathy walked together to the Birmingham jail.(478) While there, King penned his "Letter from Birmingham Jail," proclaiming
Frankly, I have yet to engage in a direct-action campaign that was "well timed.... "For years now I have heard the word "wait!" It rings in the ear of every Negro with piercing familiarity. This "wait" has almost always meant "Never.... "Perhaps it is easy for those who have never felt the stinging darts of segregation to say "Wait," [but w]e know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.(479)
When King was released on bail eight days after his arrest, the demonstrations, fueled and solidified by his arrest and letter, heightened. The demonstrators began using children in the protest marches, lightening the economic impact of the showdown on blacks detained from their jobs while in jail and accentuating the moral nature of the issue.(480) On May 2, child protestors enraged Connor by marching on downtown Birmingham despite his police blockade, filling the city's jails with 959 of these juveniles.(481) The next day, thousands of children took to the street, but Connor was prepared to meet them with force.(482) Birmingham police battered the children down with water cannons powerful enough to tear bark off trees and break bones, and other officers pulled marchers into police German shepherds.(483) By this time, the press had taken notice of what was happening in Birmingham. Photographs of the events were plastered across the country on front pages of prominent papers like the Washington Post and the New York Times, and news reporters were supplying national television stations with video footage.(484) Horror struck the nation. President Kennedy's hand was forced.
3. Introduction into the House
While President Kennedy had been focusing on the New Frontier and international issues such as the Bay of Pigs invasion, the Berlin Wall, and the developing controversy in Vietnam, his brother and attorney general, Robert, had given his attention to the growing number of civil rights demonstrations at home.(485) So when the Birmingham crisis began, the younger brother "studied [a] map of the United States where pins showed trouble spots multiplying daily, [and] he [then] knew that the federal government could no longer run around the country like firemen putting out brushfires."(486) On a plane ride a few days later, Robert Kennedy discussed the possibility of a comprehensive new civil rights bill with his Assistant Attorney General, Burke Marshall, and they commissioned Department of Justice attorney Harold Greene to draft their ideas into proposed legislation.(487) When the attorney general returned to Washington, he urged his older brother to propose his bill to Congress, but the President was still apprehensive.(488) For two weeks, he and his aides debated the need for and dangers of presenting such a bill to the legislature, although it eventually became clear that there was little choice. The unrest continued. Five-hundred-thirty-one blacks had been arrested in Jackson, Mississippi, for marching on the streets, and on June 11, President Kennedy and his Deputy Attorney General Nicholas Katzenbach were forced to use the National Guard to enroll two black students in the University of Alabama against Governor George Wallace's will.(489) In response, President Kennedy decided that he would use television time he had reserved in case of a mishap in Alabama to instead deliver perhaps his greatest speech ever.(490) Addressing the nation that evening, Kennedy stated,
We face ... a moral crisis as a country and as a people. It cannot be met by repressive police action. It cannot be left to increased demonstrations in the streets. It cannot be quieted by token moves or talk. It is time to act in Congress, in your state and local legislative body and, above all, in all of our daily lives.(491)
Eight days later, the President sent the bill his brother had helped draft, entitled the Civil Rights Act of 1963, to the nation's legislature.
4. Compromise in the House
As soon as Kennedy's bill, now H.R. 7152, reached the House of Representatives, it was caught in a gargantuan political tug-of-war. Civil rights leaders were happy that a strong bill had finally been brought before the legislature, but they also wanted some of the provisions, including those relating to public accommodations, strengthened.(492) Conservative Republicans in the House, however, did not want to pass the bill at all, and their influence began to be felt as hate mail came in bundles to the White House, and members of Congress such as Senator Barry Goldwater voiced their disapproval of the bill.(493) On the other hand, polls showed that a majority of whites supported the bill, although this was not the case in the South.(494) President Kennedy met with religious leaders asking for their support too, but their wholehearted endorsement was not immediately forthcoming.(495) And the nation, racially, was still on fire. Just hours after Kennedy had given his address in which he stated his intent to seek civil rights legislation, Medgar Evers, the director of the Mississippi branch of the NAACP, was assassinated.(496) Moreover, in the ten weeks after the Birmingham demonstration, there had been another 758 protests in the South alone, and the gigantic March on Washington, including Martin Luther King's stirring "I Have a Dream" speech, was scheduled for Labor Day weekend of that summer.(497)
Once legislative action began in the House, the war of politics almost instantly took its toll on H.R. 7152. The bill began in Representative Emanuel Celler's liberal Subcommittee Number 5 of the Judiciary Committee for mark-up.(498) Although President Kennedy had intentionally targeted the bill to begin in such a friendly environment, he also knew that to pass the House he would need the support of a number of moderate Republicans. Accordingly, he made a deal with an influential Republican Representative from Ohio, William McCulloch--the Ohian's endorsement of the President's plan in exchange for the power to approve any change agreed to by the Administration once H.R. 7152 reached the Senate. Yet when the bill came out of Celler's subcommittee, it was far stronger than what McCulloch had agreed to; Celler had his own agenda.(499) When the bill was sent to the far more moderate and bipartisan Judiciary Committee, Republicans sabotaged Celler's plan to trade away some of his strengthened provisions to retain others, refusing to negotiate and making a motion to send the bill as it was to its almost certain death on the House floor.(500) Thus the game of politics went on--for months. Eventually, what emerged from the House was a bill almost entirely like the one crafted in a compromise between McCulloch and the Justice Department as a last ditch effort to save H.R. 7152 from its apparently imminent demise in the Judiciary Committee.(501) The bill was passed only after President Kennedy's assassination inspired the public and Congress to act in his memory, new President Lyndon Johnson worked feverishly to revitalize the bill, and an amazing bipartisan showing on the House floor in which McCulloch and Celler tag-teamed the bill away from gutting amendments offered by southern representatives and on to victory.(502)
Indeed, the bill sent to the Senate was a true political compromise, in both the congressional and popular contexts of the term. Its authors and advocates in the House were a carefully amalgamated bipartisan mix. Its provisions were strong enough to achieve the President's and civil rights activists' goals while also appeasing an American majority disquieted over the nation's racial troubles. Yet they were not so strong as to avoid passage by the House. The provisions enforced voting rights, addressed discrimination in many but not all public accommodations, desegregated public education, provided for a civil rights commission and for equal opportunity employment, but they clearly targeted many of these provisions at the South.(503) And strangely enough, the most controversial amendment offered on the House floor was accepted--and strengthened the bill. In one last effort to torpedo the legislation,(504) a representative from Virginia, Howard Smith, offered an amendment to include sexual discrimination among the bill's prohibitions for employers. Rather than derail the bill, Smith's amendment offered Wan argument [that] appealed to both progressives and conservatives ... creat[ing] even more ironical pairings than the [general] left-right coalition [already involved].... "(505)
5.Filibuster in the Senate
Once in the Senate, essentially only one hurdle had to be cleared for the bill to obtain approval, but the hurdle was an extremely large one. Southern senators were certain to employ the delay tactic of filibuster, a tactic that forced the 1957 and 1960 Acts to be severely watered down.(506) Because filibuster had proved so effective in gutting the earlier civil rights bills--and because then-Senator Lyndon Johnson's strategy of holding extremely long sessions had not succeeded in frustrating the filibusters' effect--the coalition working for the bill this time decided to seek cloture, which would allow a two-thirds vote to end debate.(507) So cloture was sought, but it would take time. Essential to obtaining the sixty-seven votes needed was gaining the support of the Republican senate leader from Illinois, Everett Dirksen.(508) In the meantime, the southerners began their filibusters. When a motion was made to call the bill up for debate, the first of these filibusters began.(509) It lasted from March 9, 1964, to March 26 of the same year.(510) Finally, the Southerners yielded and debate could begin. But what waited in the bill's debate was only more filibuster, the longest in the nation's history: 534 hours, 1 minute, and 51 seconds.(511) When the filibuster finally ended with Senator and former Ku Klux Klan member Robert Byrd's over 14-hour delivery of an 800-page speech, the votes for cloture were secured, and in essence, so was passage of the bill.(512) On June 19, 1964, the Senate voted 73-27 to approve a bill only slightly modified from the House's--with all its changes approved in advance by McCulloch.(513) The fate of the Civil Rights Act of 1964 was certain.
6.The Act's Provisions
Addressing a national television audience on July 2, 1964, President Johnson spoke simply of the law he was about to sign:
Its purpose is not to punish. Its purpose is not to divide, but to end divisions--divisions which have lasted too long. Its purpose is national, not regional. Its purpose is to promote a more abiding commitment to freedom, a more constant pursuit of justice, and a deeper respect for human dignity.(514)
Indeed, the Civil Rights Act of 1964 was "the most far-reaching and comprehensive law in support of racial equality ever enacted by Congress."(515) It strengthened voting rights and limited the use of literacy tests. It prohibited segregation in public accommodations and facilities--including motels, restaurants, theaters, stadiums, parks, and schools--and allowed for suit to be brought in federal court to stop segregation in such places. It also prohibited discrimination on both race and sex in employment and established the Equal Employment Opportunity Commission (EEOC). Likewise, the Act mandated elimination of discrimination in federally assisted programs and gave the attorney general power to intervene in suits brought under the Act to help abolish discriminatory practices. But perhaps most importantly, the Act stood as the first symbol embodied in law that the nation as a whole would not tolerate such blatant, violent racism--that such sentiments, as President Johnson stated, had "lasted too long."(516)
B. The Clean Air Act of 1970
Rachel Carson's publication of Silent Spring in 1962 raised the public's awareness of environmental issues, and that--coupled with an increasing amount of ecological literature and other contemporary social transformations(517)--led environmentalism to a state where it was gaining momentum at an almost frenzied pace by the beginning of the 1970s. Environmental groups were cropping up faster than ever before; from 1970 to 1972, seven major groups, including Greenpeace and the National Resources Defense Council formed, while in the entire previous decade only four major groups had organized.(518) More informal recognition of environmental problems was growing, too. While only seventeen percent of respondents to a 1965 survey rated "reducing pollution" as one of the top three problems to which the government should respond, by 1970 the percentage of such respondents had shot up to fifty-three.(519) Indeed, the early 1970s signified a time in which the public was becoming increasingly concerned about our nation's environmental degradation and was increasingly looking to government for solutions. In fact, some laws passed during the 1960s began, for the first time, to address pollution from a federal perspective,(520) but these statutes' provisions simply supplied funding for research and delegated enforcement to the states and thus had largely failed to abate pollution. As a result, public clamor for truly federal solutions to many environmental problems began to manifest itself in the national arena. On January 1, 1970, President Nixon signed into law the National Environmental Policy Act (NEPA), a statute that for the first time required consideration of the environmental impacts of federal actions, created the Environmental Protection Agency (EPA), and mandated that the government "use all practicable means and measures ... to create and maintain conditions under which [humans] and nature can exist in productive harmony...."(521) Three months later, Americans' collective desire for comprehensive solutions to environmental problems again became obvious, as Senator Gaylord Nelson helped lead nearly twenty million citizens in the first Earth Day celebration, a nationwide effort that highlighted numerous ecological dilemmas such as atmospheric thermal pollution, water pollution, growing amounts of solid waste, strip mining, and recent environmental disasters(522) And while NEPA and the first Earth Day were clear indicators of a growing public desire for central action, they barely intimated the era of federal regulation about to be ushered in by a law different from all previous, the Clean Air Act of 1970.
1.Growing Concern Over Air Pollution
Although Americans in the late 1960s and early 1970s were concerned about a number of environmental problems, their worries were most focused on water and air pollution.(523) In the air pollution realm, previous laws had not only failed to effectively abate industry's outputs but were also not even really designed to do so. The Motor Vehicle Pollution Control Act of 1965(524) only provided funding for research.(525) and the Air Quality Act of 1967(526) left almost all regulation to the states.(527) In fact, these statutes had been passed more out of industrial lobbying for uniform national standards to replace "inconsistent and progressively more stringent" state laws than out of pressure from environmentalists.(528) Accordingly, by late 1969, citizens began showing up en masse to state and county air board hearings, a trend that surprised many of the officials conducting the meetings.(529) It also apparently surprised many industry representatives, because at some of the hearings no such delegates were in attendance to present testimony.(530) By 1970, public consternation over air pollution had grown even greater. A 1967 survey had shown that seventy percent of urban residents thought they faced "some or a lot" of air pollution,(531) but only three years later the same percentage of the general public felt the same way.(532) As a result, politicians also began to take notice. Perhaps most prominently, Senator Edmund Muskie, a Democratic presidential hopeful from Maine who had come to be known as "Mr. Pollution Control" for his previous work on environmental laws, introduced a bill on December 10, 1969, that would have strengthened, although "not [fundamentally] alter[ed]," the 1967 Act's provisions.(533) Muskie apparently did not yet realize how much his proposal underestimated public concern for the environment and, perhaps even more importantly, how much political weight issues of pollution could carry.
2. Reshaping American Clean Air Policy: Muskie and Nixon Begin a "Politicians' Dilemma"
Widespread public concern for air pollution in the early 1970s, which was only augmented by a growing environmental movement in general and by a continually increasing exposure of the white middle-class to ecological problems through suburban expansion, created an atmosphere that demanded legal response and held potentially powerful political benefits for those willing to respond.(534) Senator Muskie had apparently realized this long before 1970, aptly using his burgeoning environmental record to garner attention as a vice presidential candidate and later as a major plank in his platform to be president.(535) However, with environmental concerns at the turn of the decade increasing far beyond what they had been when Muskie began his legislative work on the environment in the mid-1960s--and with the senator's intent to seek higher office becoming rather clear--"Muskie was vulnerable to see `his' issue stolen by other politicians, particularly the one in the White House."(536) In fact, this seems to be precisely what happened, at least from a perspective of political action. Rather than a series of compromises in which favors are traded for provisions, and standards are exchanged for future votes, the Clean Air Act of 1970 seems to be the result of a "politicians' dilemma"--a situation in which two politicians vying for the same constituency are forced into a position where they both grant concessions on their preferred stance to maximize their own political benefits by increasingly escalating their support of a publicly popular sentiment.(537)
On January 15, 1970, Senator Muskie likely highlighted this dilemma to an administration already aware of it and pondering a solution, when he publicly criticized President Nixon's antipollution record as "slogan-rich and action-poor."(538) Nixon took the challenge, stepped into the dilemma, and eventually reshaped American clean air policy. In his State of the Union address on January 23, President Nixon called for a number of stricter controls on air pollution, stating that
Restoring nature to its natural state is a cause beyond party and beyond factions. It has become a common cause of all the people in this country.... Clean air, clean water, open spaces--these should once again be the birth right of every American. If we act now--they can be.(539)
Approximately two weeks after his address, President Nixon followed through on his guarantee by sending a special message on the environment to Congress. Included in the package was an air pollution proposal substantially stronger than Muskie's bill introduced in the prior year.(540) But unlike Muskie's earlier proposal, which explicitly provided that air pollution control would not exceed what was technically and economically feasible, Nixon's bill granted agency discretion to determine pollution standards and allowed for, rather than required, feasibility to be taken into account.(541) For Muskie, the pressure was on, and it was about to get even greater.
3.Boomeranging Muskie's Criticism: Nader's Vanishing Air
While Muskie had taken the offensive in doling out criticism for laxity in environmental stances during January of 1970, his faultfinding was about to be boomeranged back at him. Less than a month after the first Earth Day celebration, Ralph Nader's group, The Center for the Study of Responsive Law, released its Vanishing Air report, an extremely critical account of Senator Muskie's leadership on the environmental front.(542) Focusing on Muskie's role in enacting the Motor Vehicle Pollution Control Act of 1965 and the Air Quality Act of 1967, Nader's group argued that Muskie had "`sold out' to political expediency and industry interests."(543) Clearly written in language meant to incite congressional action, Vanishing Air further heightened Nixon's impending environmental challenge to the senator from Maine, pointing out that "Muskie awakened from his dormancy on the issue of air pollution ... [only] when it appeared that the President might steal the Senator's thunder on a good political issue."(544) Indeed, prose claiming that Muskie should be "stripped of his title as `Mr. Pollution Control'"(545) quickly caught the media's attention, and its ensuing coverage almost immediately put Muskie on the defensive.(546)
4. Escalation in the House
While Senator Muskie was recoiling from Nader's criticism, the House of Representatives had begun work on President Nixon's proposal, and, surprisingly, had escalated its provisions above even what the administration had asked. Serving as chairman for the House's Subcommittee on Public Health and Welfare was Representative Paul Rogers, a Democrat from Florida who likely had senatorial aspirations.(547) Rogers had participated in hearings a year earlier in which his subcommittee questioned the effectiveness of the 1967 Act, and his hearings on the administration's proposal took largely the same tone, with Rogers constantly returning to the issue of HEW's(548) ability to administer the Act.(549) In the end, Rogers was apparently unsatisfied by the agency's answer, and he subsequently pressured the House Committee on Commerce to adopt a bill that contained provisions similar in type to but more stringent in bite than President Nixon's proposed law.(550) When this stronger bill was reported out of committee, it received wide bipartisan support on the floor, easily passing through the House on June 10, 1970, on a 374-1 vote.(551)
5. Muskie Strikes Back
The picture for Muskie was now even clearer than before; he had been challenged by Nixon, criticized by environmentalists, and the bill put up by the House for consideration in the Senate escalated air control policy even further than what the White House had proposed. He could respond by pushing for even stronger measures, or he could risk losing political clout. As Christian Science Monitor reporter Peter C. Stuart wrote in early July of that year, the House's "hard line leaves little room for toughening. But Senator Muskie seems determined to do just that. As Capitol Hill's `Mr. Environment' and a leading presidential contender, he has a reputation to keep."(552) Indeed, Muskie seized the political moment, using the opportunity to try to strike back by "one-upping" both the House's and the President's proposal with a more stringent bill of his own.
Far different than his bill introduced in 1069--and even more comprehensive than a bill he had subsequently introduced in March of 1970--Muskie's bill reported out of the Senate Subcommittee on Air and Water Pollution drew from Nixon's proposals but took a much more uncompromising stance.(553) Gone were notions of economic and technological feasibility; industry would instead be forced to develop technology that could meet the bill's requirements because public health outweighed economic costs. Gone, too, were deadlines ten years away; Muskie's bill required all of its mandates be met faster than did any of the other bills, leaving it, again, for industry to find a way to comply. Not surprisingly, when the bill was reported to committee, industry representatives were clamoring to comment. After they did, however, only two significant changes were made to the proposed legislation: manufacturers could apply for an extension to comply with emissions standards, and judicial review would be provided for administrative decisions.(554) On the Senate floor, Muskie also faced some opposition from more conservative senators such as Bob Dole, but in the end he defended his bill persuasively: "We think, on the basis of the exposure we have had to this problem, that th[ese are] necessary and reasonable standard[s] to impose upon the industry.... The [bill] is based not ... on economic and technological feasibility, but on consideration of public health."(555) When the bill eventually came up for vote, like its House counterpart, it passed easily: 73-0.(556)
6.The Act's Provisions
After the Senate passed its bill, media attention came rapidly--and favorably. This largely limited any room for maneuvering that might normally take place in conference, and the fact that the Senate sent more delegates than the House indicated that most of the Senate provisions would be agreed to.(557) Indeed, almost all of the Senate bill's provisions were retained, leaving the bill President Nixon signed into law on December 31, 1970, the most comprehensive and most stringent environmental law enacted at that time. The Clean Air Act of 1970 identified 189 pollutants and set standards for their emissions.(558) It also mandated that pollution preventing technology such as scrubbers be implemented in manufacturing and power plants, along with requiring use of alternative energy sources.(559) Car manufacturers were required to install catalytic converters to reduce exhaust, and lead was phased out of gasoline.(560) The Act left states with the responsibility to implement plans to meet emission requirements, but it provided for EPA to promulgate its own plans when states did not comply or failed to act.(561) Likewise, citizens could now sue to force EPA to effectively administer the Act. And perhaps most importantly, like its counterpart in the civil rights arena, the Clean Air Act of 1970 symbolized an important change from past legal response to environmental dilemmas. By shifting the focus from the state to federal level, it ushered in a new era of centralized regulation, placing environmental issues firmly and visibly on the national agenda.
For each of their respective movements, the Civil Rights Act of 1964 and the Clean Air Act of 1970 constitute true landmark legislation. Indeed, both laws signify important and lasting shifts in the legal response to the problems they address. For civil rights, this meant finally implementing opportunities of equality that the nation had been trying to afford minorities since at least the Civil War. Likewise for environmentalism, the Clean Air Act of 1970 served as an emblem of a new day for the treatment of ecological issues in the legal world. But rather than shift the way in which the federal government treated these issues, it simply meant that the federal government would begin to comprehensively address environmental concerns. Yet despite their similarities in importance to their movements, the Civil Rights Act of 1964 and the Clean Air Act of 1970 also differed, primarily in the political processes that drove their enactment, and in the implications of their mechanisms for enforcement.
1. Political Process
Perhaps the most striking of the differences between the two acts was the political process underlying their enactment. Although both laws may accurately be described as momentous events in the timelines of their movements, neither law came to be through the same set of political circumstances and transformations as the other. In an overarching sense, this difference can be characterized as one between a process of compromise and a process of "one-upmanship" or a "politicians' dilemma." The more important analysis, however, seems to be determining what was driving these divergent patterns of lawmaking rather than merely leaving the examination at deciding what type of process was at play.
a. Political Economics
One perspective that may be used in examining lawmaking processes is to assess how political costs and benefits might affect decisionmaking.(562) From this perspective, a reasonable explanation for the difference in processes for the two statutes may be found in the distribution of their political costs and benefits. For the Civil Rights Act of 1964, political costs were relatively spread out--across the southern region of the country--while the benefits were largely limited to minorities.(563) Accordingly, political action in this realm, if any, would seem to be posed to occur in much the same manner as it did: through compromise and tradeoffs reflecting the cost-benefit distribution rather than through an escalation of policy increasingly moving toward the benefited group while ignoring the other or vice versa. For the Clean Air Act of 1970, however, just the opposite should be expected from its political cost-benefit distribution. In this situation, costs were relatively focused on industry, while its benefits pervaded every part of society through health, environmental, and aesthetic effects. It is not surprising, then, that Muskie and Nixon engaged in a type of "politicians' dilemma" in which both tried to outdo the other in order to gain the pot of constituents and political power at the end of the clean air rainbow.
One manifestation of these political cost-benefit distributions for the Acts seems apparent from the congressional voting record on the issues. In the deliberations for the Civil Rights Act, for instance, there was much resistance in both chambers of Congress. In the House, this came in the form of compromise, delay, and near death for the bill, while in the Senate, it came in the form of mass filibuster.(564) From a non-legislator's perspective, this resistance would not seem to make sense. Civil rights had become a major issue portrayed regularly by the media, racial strife was striking from coast to coast, and major events such as the mayhem in Birmingham and the March on Washington continually drew the public's attention to the issue. Yet congressional resistance remained, and the reason why is found in the political costs and benefits available to legislators for supporting the Act. Southern legislators had the most to lose, as the Act targeted regions where segregation was still legal. In fact, southerners cast almost all of the votes against the Act. In the House, for example, ninety-six of the 130 votes cast against the Act were from representatives of states that had been a part of the Confederacy.(565) Others who may have faced great political costs for voting in favor of the Act likely included those representing conservative regions or those representing regions in which very few minorities resided. Indeed, these legislators appear to have comprised the bulk of the remainder of the "nay" votes: twenty-four non-southern Republican legislators voted against the Act in the House, and many Midwestern legislators required much convincing before they would vote In favor of the Act.(566) In contrast, the near-unanimous vote in the House and the unanimous vote in the Senate for the 1970 Clean Air Act(567) demonstrate the pervasiveness of the Act's political benefits rather than costs. Legislators who chose to vote in favor of the Act were likely to gain wide support regardless of their region. The only countervailing force was a group of industries that organized late and that had succeeded in making some changes to the bill, which may have even further mitigated the appearance of the weightiness of their costs.
A similar example might come from an analysis of the key players in both acts. President Kennedy feared for his political career when considering proposing legislation concerning civil rights, as he did not want to alienate a large portion of an entire region of the country. In fact, it was not until Bull Connor's actions in Birmingham received wide national media coverage and public dismay that Kennedy felt compelled to propose legislation. Even then, his doubts about the political prudence of the move remained.(568) Along this same line, it is conceivable that the immense support Kennedy received following his assassination was what turned the tables and made it far easier from a political economics perspective for President Johnson to advocate for the Act so adamantly.(569) For the clean air legislation, however, a situation of political opportunity rather than demise presented itself. President Nixon apparently recognized both a potential opponent with a strong environmental record in Senator Muskie and growing public support for air pollution control. Accordingly, his initial escalation of policy through a proposal more stringent than Muskie's earlier bills can accurately be categorized as a move to gain a part of the constituency to which Muskie hoped to speak as a presidential candidate. Likewise, Muskie's response in further escalating the policy proposal can be seen as an attempt to counteract criticism, regain the growing environmental constituency, and again, reap the available political benefits.
b. Interest Groups
The role of interest groups is another factor that might have helped account for the different political processes engaged to enact the two statutes. While interest groups certainly influenced the outcome of both statutes, the manner in which they did so diverged in essentially two ways. In the development of the Civil Rights Act, interest groups lobbied early and throughout the process. In fact, the groups had been party to previous civil rights legislation negotiations, and their stances were likely well known even prior to any formal appearances they made in Washington: Southern legislators threatened from the beginning to derail the bill if at all possible, and the Birmingham protests and the March on Washington were hardly subtle statements. Moreover, their appearance in Washington was immediately forthcoming and forceful; civil rights activists met with Kennedy the evening the March on Washington ended,(570) and criticism of the civil rights bill began while it was in the House and continued while it was In the Senate.(571) Interest group lobbying on the Clean Air Act, however, came much later than It did for the Civil Rights Act, and never seemed as organized. Indeed, many national environmental groups focused on pollution Issues had formed just years before passage of the new clean air law--or were still in the process of forming--and older environmental organizations like the Sierra Club were still emphasizing wilderness issues.(572) Likewise, industry, which had been involved in every step of the process in the earlier statutes, was taken off-guard by the rapid escalation of the 1970 Act and thus did not participate meaningfully until the bill had passed the House and was well under way in the Senate.(573)
Another difference in the role of interest groups relates largely to the attractiveness of the possible outcomes from the statutes for different groups advocating the same side of the issue. In other words, the difference relates to whether likely statutory provisions will divide or unite activists.(574) For the Civil Rights Act, potential provisions seemed more to divide the activists than to unite them, as there was clear disagreement over how stringent of measures should be acceded to as acceptable and substantial.(575) For the Clean Air Act, however, a proposal of increasingly protective measures received no objections from any part of the pro-environment camp, and if anything, only heightened their advocacy by tempting them with success.
c. Symbolic Value
A final factor that may have augmented the differentiation in political process behind the two Acts was the influence of legislation's symbolic value.(576) Clearly, both the Civil Rights Act and the Clean Air Act carried strong symbolism, and their eventual enactment conveyed a message to the public that the federal government intended to address issues of popular concern in an effective manner. Yet the power of the statutes' symbolism was a less important driving force for the civil rights bill than it was for clean air. On the surface, this may seem surprising, especially in the context of such a charged racial environment. But that heightened conflict may have in fact been an element that helped deflate the Civil Rights Act's symbolic value: Because racial issues and conflict had been a mainstay of everyday American life for so long, and had especially displayed their prowess in the mid-1900s, the Civil Rights Act of 1964 may have been seen by some as just another shooting star in a scattered constellation of abolitionists, Emancipation Proclamations, Civil Wars, constitutional amendments, and Brown v. Board of Educations. The Clean Air Act, on the other hand, was truly the first federal legislation of its kind, and because of their limited purposes, earlier efforts to address pollution had not suffered the histories of optimism and subsequent setbacks as civil rights laws had. In addition, a point related to a political economics analysis reminds that while many whites certainly reaped benefits from knowing that minorities would now receive more equal treatment before the law, the symbolism of the law was most powerful for those it actually affected. In contrast, the Clean Air Act seemed to carry a promise of hope with universal implications: there would now be a better environment for everyone. As Senator Muskie stated when introducing his modified bill for Senate debate, "[this is] `a tough bill,' [but it is] a necessary bill because the health of our people is at stake."(577)
2. Mechanisms For Enforcement
While the Civil Rights Act of 1964 and the Clean Air Act of 1970 shared importance to their movements as symbols of landmark legislation but employed divergent political processes to arrive at that same place, the acts used similar mechanisms for enforcement that led to different implications for their movements' objectives. Both statutes sought to implement their provisions through a unique blend of administrative action and citizen suits. The Civil Rights Act's public accommodations title allowed aggrieved citizens to seek injunctive relief, along with authorizing the Attorney General to intervene if "the case is of general public importance."(578) However, the Act's provisions relating to removal of federal funding when government contractors use discriminatory practices relied largely on administrative action,(579) although the equal opportunity employment title employs enforcement provisions similar to accommodations title.(580) Likewise, the Clean Air Act of 1970 provided for state enforcement of emissions standards, with EPA ensuring state compliance, and allowed citizens to sue EPA "where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator."(581)
Although these statutes' mechanisms for enforcement serve clearly important purposes in effectuating the goals of the laws--segregation in public accommodations disappeared almost overnight after the Civil Rights Act's passage,(582) and the Act's federal assistance provision serves as an important tool for environmental justice advocates today(583)--the implications these provisions had for civil rights and environmental activists were perhaps even more meaningful because of how they helped shape the evolution of the movements. Indeed, the administrative enforcement provisions bestowed great benefits upon those interested in civil rights and environmental protection, but they did not further empower the movements. The Acts' citizen suit provisions, on the other hand, armed the movements with additional legal ammunition; the activists could now themselves seek enforcement of statutes, and thus increasingly petition the legal system for redress. However, the importance of these provisions to each of the movements likely differed. For civil rights activists, bringing lawsuits was nothing new. They had long done so, and now the Civil Rights Act changed the substance(584) of the claims but not their forum--the Act left the oppressed still appealing to the oppressor for relief. For environmentalists, however, the idea of bringing citizen suits to protect the environment was an entirely novel approach, resulting in increased citizen involvement in use of law to protect the environment--and potentially helping to further sustain, forge, and advance the movement as a whole.(585)
IV. A LEGAL RECOIL: FETTERED ACCESS TO COURT
Passage of the 1964 Civil Rights Act and the 1970 Clean Air Act represented the modern arrival of the movements, both as emblems of their popular support and as symbols of the legal system's determination to fully and effectively' address the issues. Indeed, following the enactment of those two laws, the movements achieved a number of other important legal accomplishments. Just before enactment of the 1964 Act, the Twenty-fourth Amendment banned poll taxes,(586) and in 1965, the Voting Rights Act prohibited literacy tests and required areas with historically repressed political participation to receive federal approval before modifying their voting laws--all in an attempt to ensure that minorities would be able to fully exercise their suffrage. Likewise, a wave of environmental laws followed the Clean Air Act's passage. Attempting to address pollution in every medium, prudently manage the nation's natural resources, and protect our ecosystems, Congress went on an environmental law shopping spree of sorts: included were the Clean Water Act; the Federal Insecticide, Fungicide, and Rodenticide Act; the Resource Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, and Liablility Act (Superfund); the National Forest Management Act; and the Endangered Species Act.(587)
Despite the movements' growing recognition in the legislature, however, acceptance began to wane in the judiciary. Congress had expanded access to the courts through their inclusion of citizen suit provisions in these landmark statutes,(588) and in the ensuing years, the movements became more and more reliant on this mechanism of advancing their interests. In the civil rights context, for instance, advocates filed 296 cases in federal courts in 1961, and by 1992, that number had risen to 30,556.(589) But while the number of cases civil rights and environmental activists filed was increasing, courts' receptiveness to these claims was diminishing. By employing a variety of limiting procedural devices, the judiciary slowly issued a legal recoil to Congress's efforts, fettering access to court for civil rights activists and environmentalists alike.
A. Civil Rights
Perhaps the easiest way for courts to limit access to the legal system is by denying standing to plaintiffs. Indeed, this is one of the primary methods courts use to limit access for environmentalists,(590) and for the civil rights movement, this initially seemed a potentially perilous hurdle. However, in Alien v. Wright,(591) the Supreme Court reaffirmed the notion that when plaintiffs have personally been denied the right of equal protection, standing will typically not pose a problem--even if claims of injury solely from discrimination's stigmatizing effects may have less success. The Court's earlier decision in Monroe v. Pape,(592) which expanded the applicability of section 1983 of the Force Act of 1871(593) by holding that those acting "under color of" state law could be sued even if their actions were prohibited by the state, worked along with the 1964 Act's new substantive anti-discrimination provisions to reinforce the accessibility of the courts for civil rights claimants. Regardless, courts have employed a variety of other procedures and rules that have since restricted court access for civil rights activists. Especially important are the doctrine of claim preclusion, the allowance of contract-enforced arbitration of employment discrimination claims, the effects of the 1983 amendments to Rule 11 of the Federal Rules of Civil Procedure, and restrictions on recovery of attorney's fees.
1. Claim Preclusion
Partially because the 1964 Civil Rights Act's ban on segregation in public accommodations achieved success so quickly, the Act's most powerful provision today is Title VII,(594) which prohibits employment discrimination based on race, color, religion, sex, and national origin. In fact, Title VII "is the most frequently invoked protective mechanism in employment discrimination litigation," even though other federal and state laws also provide protection.(595) Moreover, Title VII's inclusion of sex as a protected class means that it is broader in scope than the other provisions of the 1964 Act.
Yet despite the importance of Title VII to those who believe they have suffered discrimination in the workplace due to race or gender, the Supreme Court has adopted a doctrine of claim preclusion for this area of law that bars Title VII claims adjudicated in state court from being brought in federal court. In Kremer v. Chemical Construction Corp.,(596) a Jewish immigrant from Poland, who had been discharged from his position as an engineer, sought relief under Title VII in state court but lost. Citing an earlier decision that found section 1983 claims decided in state court to be precluded from litigation in federal court for lack of an implicit or explicit congressional repeal of the Full Faith and Credit Clause's(597) applicability to the 1871 Force Act,(598) the Court held that Congress had similarly failed to repeal the Clause's effect in the 1964 Act.(599) Accordingly, the Court noted that "the usual rule [in American jurisprudence] is that merits of a legal claim once decided in a court of competent jurisdiction are not subject to redetermination in another forum" and found that the state court's decision precluded litigation of the Title VII claim in federal court.(600)
Likewise, in University of Tennessee v. Elliott,(601) the Court extended its reasoning from Kremer to apply to discrimination claims brought under the various Reconstruction civil rights acts(602) and adjudicated in state administrative proceedings. In Elliott, a black employee brought a discrimination claim against his employer when he was discharged from his position with the University of Tennessee Agricultural Extension Service. After failing to obtain relief on the state agency level, he appealed. The Supreme Court held that although state administrative adjudication does not preclude Title VII clams from federal court,(603) it does preclude section 1983 and other Reconstruction act claims:
The Full Faith and Credit Clause is of course not binding on federal courts, but we can certainly look to the policies underlying the Clause in fashioning federal common-law rules of preclusion.... Accordingly.... federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts.(604)
The Court's decisions in Kremer and Elliott set out a twofold pattern in which aggrieved parties' access to federal court is limited. Plaintiffs who bring employment discrimination claims under Title VII are forced to choose between preserving their right to bring a federal claim in federal court and seeking state judicial review of an unfavorable agency determination.(605) Similarly, plaintiffs bringing other federal discrimination claims will be entirely precluded from federal court if they first seek state administrative relief. Navigating a claim to success without forcing some sort of preclusion thus becomes confusing at least, and the bottom line rapidly shifts to getting to federal court "as expeditiously as possible."(606) Perhaps even more problematic, however, is the issue of whether once in federal court plaintiffs can join their state claims with their federal. This is an important question because state employment discrimination laws are often more expansive than Title VII and other federal provisions;(607) the answer is not always clear, for the federal district court first must have the authority to exercise pendent jurisdiction, and the plaintiff may also need to have exhausted administrative remedies--no easy, nor certain, feat.(608)
2. Compulsory Arbitration
Another way in which courts have limited access for civil rights litigants also comes within the employment discrimination context. In a 1974 case, Alexander v. Gardner-Denver Co.,(609) the Supreme Court held that the right to bring a Title VII claim before a judicial forum could not be waived through arbitration clauses contained in employment contracts. Even though the plaintiff in Gardner-Denver had been represented vicariously in negotiating his contract through a collective bargaining agreement--and even though amendments to Title VII in 1972 granted the EEOC power to bring its own actions--the Court found arbitration clauses contrary to Title VII's overall purpose: "[T]he private right of action remains an essential means of obtaining judicial enforcement of Title VII."(610)
Regardless of the Court's apparently strong holding in favor of litigants' rights in Gardner-Denver, this protection for employment discrimination claims has since been eroded, and some courts now even allow mandatory arbitration of Title VII claims. In a series of cases beginning with a decision to allow arbitration of international securities disputes,(611) the Court's reasoning slowly slid away from its protective stance for employment claims and toward one favoring arbitration.(612) Finally, in Gilmer v. Interstate/Johnson Lane Corp.,(613) the Court upheld a mandatory employment contract clause that required arbitration of all claims under the Age Discrimination in Employment Act (ADEA).(614) Having found that neither the provisions nor the legislative history of the ADEA seemed to preclude contract provisions requiring arbitration as a condition of employment, the Court rejected Gilmer's final argument that the clause frustrated the purpose of statutes that protect employees' rights: "Mere inequality in bargaining power ... is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context."(615) The immediate effect of the Court's decision in Gilmer was that lower courts almost universally began enforcing agreements to arbitrate statutory discrimination claims,(616) Indeed, Gilmer seemed to officially announce both that the tide had shifted and that Gardner-Denver was practically, if not actually, dead.
Yet Gilmer apparently did not entirely close the arbitration lid on Title VII and other labor discrimination claims, and there may still be life today. Employing the 1991 Civil Rights Act, which was passed just months after the Court handed down Gilmer, the Ninth Circuit in Duffield v. Robertson Stephens & Co.(617) recently held that the Act essentially nullified the Supreme Court's decision by setting "definite limitations on the situations where arbitration [can] be utilized to resolve claims under Title VII."(618) Accordingly, the Ninth Circuit found that rather than furthering a trend in which discrimination claimants are increasingly forced out of court and into arbitration, the 1991 Act's provision encouraging arbitration was intended "to increase the possible remedies available to civil rights plaintiffs."(619) In contrast to the Ninth Circuit's decision in Duffield, the Third Circuit recently took the opposite stance, finding that the 1991 Act clearly encourages even mandatory arbitration at the expense of precluding other avenues of redress. In Seus v. John Nuveen & Co.(620) the court found the Act's legislative history unpersuasive and the EEOC's interpretation irrelevant,(621) holding that the 1991 amendments were nothing but "clear [provisions adopted] to encourage arbitration."(622)
In light of the Court's decision in Gilmer--and the emerging debate over the 1991 Act's effects on that decision--plaintiffs bringing actions challenging contract provisions that mandate arbitration of discrimination claims will likely receive unpredictable treatment and mixed results at best. And in some jurisdictions, courts will even enforce agreements requiring arbitration of Title VII claims as a condition of employment. While such a result may be troubling enough for its effects of keeping claimants out of court, the place to which it relegates them raises problems of its own. Foremost is the notion that arbitration tends to pit the "have nots" against the "haves"--individual, often minority employees against large corporations--and does so on the terms of the latter.(623) Indeed, arbitration clauses are classic examples of contracts of adhesion: "Arbitration cannot be consensual when presented as a `take-it-or-leave-it proposition.'"(624) In addition, arbitration raises still other concerns about fairness. Many arbitrators, such as those at issue in Gilmer, are not constrained by regulation. They "are not required to strictly follow the law.... are not required to do legal research in reaching their decisions.... and are [not expected to have] even one member of [the] panel [who is] particularly knowledgeable in the area of employment discrimination law."(625) Moreover, some arbitration clauses require employees to pay for the procedure's cost, raising a barrier of approximately $700 a day for access to a less amenable forum than litigation.(626) In the context of a court system that increasingly and disproportionately restricts access for civil rights and environmental plaintiffs,(627) the system's resounding approval of a process that limits avenues of relief for the traditionally oppressed seems questionable at best, especially when we remember that arbitration was first used in the Reconstruction South to protect white planters against the rights of former slaves.(628)
3. Rule 11
While claim preclusion and compulsory arbitration have shifted civil rights claims to other forums, another procedural device has discouraged civil rights litigation altogether. In 1983, Rule 11 of the Federal Rules of Civil Procedure was amended to assuage a growing concern for abusive litigation behavior. This amendment added a requirement that lawyers make a reasonable inquiry into their cases before filing in court, and perhaps more importantly, it also mandated sanctions for lawyers, their clients, or both, when violations of the rule are found.(629) Although this amendment on its face seems to be a legitimate and neutral attempt to ensure attorney accountability and prevent abuses of the Federal Rules' relaxed pleading requirements, its actual effect on civil rights claims seems to be less evenhanded.
Several problems have emerged. Perhaps most alarming is that civil rights cases appear to receive a disproportionate number of Rule 11 sanction requests.(630) In some jurisdictions, the percent of civil rights cases receiving sanction requests may be as much as two to four times as high as their relative proportion of the case load.(631) Likewise, it is also probable that Rule 11 sanctions are disproportionately issued to civil rights cases. In the Third Circuit, civil rights cases make up sixteen percent of all civil case filings, but they account for thirty-seven percent of the cases for which sanctions are imposed.(632) Moreover, some studies suggest that sanction requests filed on civil rights cases are granted more often than are requests made on non-civil rights cases.(633) Finally, reported Rule 11 cases also contain a high concentration of civil rights cases, a fact that may "produce more of a signaling effect to the outside world than" do other studies or analyses.(634) Indeed, taken together, the effects of the 1983 amendment to Rule 11 seem to adversely impact civil rights cases filed in court, and proved great incentive for attorneys to either resort to other means of obtaining relief for such claims or abandon them altogether.
4. Attorney's Fees
Much as Rule 11's disproportionate impact on civil rights cases serves as a disincentive to attorneys that might normally consider taking on such cases, recent Supreme Court jurisprudence in the area of attorneys' fees also discourages representation of civil rights claims. However, unlike Rule 11's apparently unintentional effects, the Court's jurisprudence concerning attorneys' fees seems to contradict the legislative intent of the civil rights statutes.(635) The 1964 Civil Rights Act provides that for actions brought under Title VII, courts "may allow the prevailing party, other than the [EEOC] or the United States, a reasonable attorney's fee as a part of the costs."(636) In 1976, Congress also enacted the Civil Rights Attorney's Fees Awards Act,(637) which included a similar provision to Title VII's and extended coverage to the Reconstruction acts and Title VI (federal funding) of the 1964 Act. However, despite Congress's apparent intent to provide private enforcement of the nation's civil rights laws through litigation, two developing trends in the courts--restricting what is considered a "prevailing party" and disallowing certain fee calculation techniques--have limited the power of these statutory provisions, further closing the door to civil rights plaintiffs.
a. Limiting the Definition of "Prevailing Party"
In a series of cases starting in 1987, the Supreme Court began developing a judicial doctrine that with each step increasingly limited the definition of "prevailing party," thus also undercutting incentives for attorneys to take civil rights cases--and plaintiffs' means of bringing them.(638) First, in Hewitt v. Helms(639) the Court held that a prisoner who had been sanctioned solely on hearsay evidence for striking a prison guard during a riot could not qualify as a "prevailing party" after his suit had failed to yield monetary relief but had instigated promulgation of new prison regulations concerning hearsay testimony. Noting that the plaintiff had since been released from prison, the Court found it important that he could not receive "redress from promulgation of the informant-testimony regulations."(640)
The next year, the Court extended its reasoning in Hewitt to plaintiffs who had obtained equitable relief through litigation. In Rhodes v. Stewart,(641) the Court addressed a situation in which two prisoners, who had been denied permission to subscribe to a magazine without receiving their due process rights, obtained a declaratory judgement against the prison and then sought attorney's fees. Overturning the lower court's fee award, the Supreme Court again emphasized that the prisoners had since been released, finding that declaratory and other equitable judgements "constitute relief [for `prevailing party' purposes] ... if, and only if, [they] affect the behavior of the defendant toward the plaintiff."(642) Finally, in Farrar v. Hobby,(643) the Court extended its reasoning one step further by finding that civil rights plaintiffs who receive nominal damages constitute "prevailing parties," although the amount of fee awards may be constrained by the degree of success obtained. Because the plaintiffs had requested seventeen million dollars but had received only one, the Court found that the "moral satisfaction of knowing that a federal court concluded that [their] rights had been violated"(644) was the limit of their due compensation and no attorney's fees should be granted.
Taken together, the Court's decisions in Hewitt, Rhodes, and Farrar serve to discourage civil rights enforcement by private parties in a number of ways. Most importantly, the decisions add even more risk than already exists in civil rights cases. Now, even attorneys who are successful in obtaining equitable or monetary damages for their clients may not be able to recoup their own costs. While this may well be an acceptable alternative in the context of American legal system norms for traditional cases, it is far more troubling when Congress seems to have recognized a need to compensate lawyers willing to undergo risk for the possibility of advancing civil rights. The Court's decision does seem to undercut Congress's anticipation that both public and private claims will work to enforce civil rights statutes.(645) In addition, Rhodes may provide strong incentives for attorneys to undervalue the compensation for which they ask out of a fear of losing attorney's fees, since the Court apparently measures success by comparing damages received with damages requested. Further, the Court's decisions in Rhodes and Farrar erode Congress's attempts to advance more fundamental notions of democratic participation in government by signaling that important public policy changes instigated by private litigation often may not qualify under the attorney's fees statutory provisions.(646)
b. Restricting Fee Calculation Techniques
Beyond limiting who might be considered a "prevailing party" for the purposes of seeking attorney's fees, the Court has also restricted the techniques that may be used to calculate fees for parties that do overcome the hurdle of qualifying as a "prevailing party." Specifically, the Court has rejected "risk multipliers" and use of other factors that would increase attorney's fees awards to reflect the complexity, riskiness, and public value of successful civil rights litigation. The Court began its line of reasoning in this vein in Blum v. Stenson,(647) in which the Legal Aid Society of New York had succeeded in having its attorney's fee award increased from $79,312 to $118,968 because of the complexity and novelty of--and the "`great benefit' achieved" for the public by--a Medicaid case it had won. When the fee award reached the Supreme Court on appeal, Justice Powell, writing for a 7-2 majority, found fault with the method used to increase the award. Pointing to the legislative history of the Civil Rights Attorney's Fee Awards Act, the majority found the so-called "lodestar method," which calculates attorney's fees by multiplying the prevailing market rates in the community by reasonable hours,(648) to be the default method for determining "reasonable fees." Finding that the novelty and complexity of issues are accounted for in the hours spent by counsel--and that attorney quality would be reflected in the prevailing rates--the Court held that "there may be circumstances [where lodestar method of calculating fees] ... is either unreasonably low or unreasonably high. When the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee...."(649)
Five years later, in Blanchard v. Bergeron,(650) a unanimous Court held that contingent fee agreements could not limit the amount of an attorney's fee award. In reaching this conclusion, the Court again reemphasized, in dicta, the importance of the lodestar approach, calling it "the centerpiece of attorney's fee awards."(651) Indeed, although seeming to relax in its march toward restricting attorney's fees, the Court's dicta in Bergeron ultimately proved more telling than did its holding. In City of Burlington v. Dague,(652) the Court construed the attorneys' fee provisions of the Solid Waste Disposal Act and the Clean Water Act, explicitly referencing their similarity to the civil rights and other federal fee-shifting provisions. Justice Scalia's 6-3 majority opinion began by recognizing the lodestar calculation method as "the guiding light of our fee-shifting jurisprudence,"(653) and then went on to hold that the riskiness of a case could not serve as a factor in calculating fee awards. Finding that a case's riskiness could be quantified in terms of the merits of the case and the difficulty of establishing its merits, the Court held that any difficulty in establishing the merits would be reflected in counsels' hours, while recognizing the merits of the case in fee awards would only "provide attorneys with the same incentive to bring relatively meritless claims as relatively meritorious ones."(654)
Although the Court's decisions in this area may be well founded for their acknowledgement of the lodestar method's ability to account for attorney quality and case complexity, their willingness to allow the method to so easily subsume other factors belies the point. Especially with the Court's dismissal of risk in City of Burlington, their logic seems lacking. Indeed, it may be difficult for attorneys "to determine whether a civil rights lawsuit is [meritorious]."(655) In addition, the determination of whether to proceed with a case does not occur solely at the beginning of an attorney-client relationship but instead takes place a number of times as the case moves sequentially from filing to discovery and through negotiation to trial.(656) Even very experienced attorneys who feel confident in their ability to assess the merits of a case may not be able to accurately assess outside or undisclosed factors, such as the plaintiffs willingness to step aside from her representation and settle,(657) the possibility of a runaway jury, or the competency of defendant's counsel. In other words, while our goal is a legal system that only produces justice, the results might not always be as tidy as our intent. Certainly, the legal system does not operate in a vacuum. Accordingly, the Court's apparent sole reliance on the lodestar method, as in Blum, fails to recognize the reputational risk attorneys assume when taking on unpopular cases that may nevertheless greatly benefit society
Unlike the majority of recent legal developments limiting access to the courts for civil rights advocates, judicial decisions influencing environmentalists' ability to challenge government actions have largely done so by disallowing suits rather than shifting them to other forums or disproportionately impacting them through procedural devices. In fact, while environmentalism and the civil rights movement have suffered some of the same setbacks in the courts concerning attorney's fees, increasingly the largest obstacle for those concerned about our nation's natural resources is standing.
Traditionally, plaintiffs that wished to establish standing to sue first had to demonstrate impending or transpired monetary or physical damage.(658) Slowly, however, the Supreme Court moved away from this narrow view and in 1972 applied the evolving doctrine for the first time to the new citizen suit provisions of environmental statutes.(659) In Sierra Club v. Morton, the Court, in a plurality decision, found that the Sierra Club had not established standing because the Club had failed to allege that its members would be affected by the National Park Service's approval of a permit allowing Disney to build highways across Park land in order to develop a ski and amusement resort. Although on its surface the decision was clearly not a favorable one for environmentalists, many felt that their lost battle might have permanently turned the course of the war. On its way to determining that the Sierra Club lacked standing, the Court held that the type of injury required to establish standing need not be economic in nature but instead must simply be all "injury in fact"(660) to the plaintiff: "Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process."(661) However, environmentalists would later find that this important concession on the injury issue would prove only somewhat helpful when the Court began to again address standing questions two decades later.
During the 1980s, environmental legislation proceeded relatively unscathed by standing dilemmas. In fact, in the decade's only major case decided on the issue, Japan Whaling Association v. American Cetacean Society,(662) the Court found in favor of the defendants but held that plaintiffs had satisfied standing requirements under the Administrative Procedure Act (APA) through their participation in whale watching and studying activities.
By the early 1990s, however, the Supreme Court, led by Justice Scalia, had begun down a path in which it would evince a number of decisions increasingly limiting environmental plaintiffs' access to court. The first of these cases, Lujan v. National Wildlife Federation,(663) signaled the Court's abrupt turnaround, as the majority found inadequate to establish standing plaintiffs' affidavits that seemed to precisely meet the "injuries in fact" required by Sierra Club. In National Wildlife Federation, environmentalists again used the APA to challenge the Bureau of Land Management's reclassification of lands allowing leases for oil and gas excavation and mining, asserting standing on the grounds that the organization's members used the lands for "recreational use and aesthetic enjoyment."(664) Despite their apparently sufficient interest in the Bureau's decisionmaking process, Justice Scalia, writing for the Court, rejected their suit due to an alleged lack of specificity in their affidavits: "[Standing requirements are] assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory.... It will not do to `presume' the missing facts because without them the affidavits would not establish the injury...."(665)
Indeed, the National Wildlife Federation decision ushered in a dark era for environmentalists hoping to use litigation to advance their cause, as the Court would soon apply its reasoning from the procedure-oriented realm of the APA to the movement's toughest substantive statute, the Endangered Species Act (ESA).(666) In Lujan v. Defenders of Wildlife,(667) environmentalists charged that the government's funding of the Aswan Dam in Egypt and the Mahaweli Project in Sri Lanka violated the ESA's section 7 for failure to consult with the Fish and Wildlife Service about its adverse impacts on the habitat of endangered species. Justice Scalia's majority decision began by clarifying the test for standing, noting that plaintiffs must suffer an injury in fact that is both traceable to the defendant's alleged action and redressable by the court.(668) Next, however, the decision proceeded to demonstrate how Defenders had failed to satisfy these requirements. Although plaintiffs' affidavits alleged harm for loss of enjoyment and study of the imperiled species--and plaintiffs had in fact studied these species in the precise locations at issue and intended to continue doing so in the future--the Court found these injuries were not imminent enough to qualify for standing: "[P]rofession of an `intent' to return ... [is] simply not enough [to establish standing]. Such `some day' intentions--without any description of concrete plans, or indeed even any specification of when the some day will be--do not support a finding of ... `actual or imminent' injury."(669) Similarly, a plurality of the Court found that Defenders had not demonstrated that a court ruling could sufficiently redress any harm suffered, because even an injunction forcing the United States to withdraw its funding would not ensure that the projects would cease.(670)
Defenders of Wildlife was an apparently clear indication of where the standing doctrine was headed, but the next decision on the issue seemed in many ways to turn the Court's prior decisions on their collective head. In Bennett v. Spear,(671) the Court recognized standing for two irrigation districts and two ranchers who were challenging a Department of the Interior order restricting water flow in order to protect endangered fish. In a legal sense, the decision certainly kept in line with previous decisions--demonstrating economic harm had long been one of the few fast-tracks to establishing standing--and it may have even stood as a victory for environmentalists by proclaiming that the scope of plaintiffs who could sue under the ESA is truly far-reaching.(672) At the same time, the Court's decision to grant certiorari on the case may have been more an indication of its corporatist or commercial leanings than of its approval of environmental citizen suit provisions.
The Court's two most recent decisions in the standing area advanced the redressability reasoning from Defenders of Wildlife one step further and then cemented these newly developed standing principles into place. In Steel Company v. Citizens for a Better Environment,(673) the Court considered a situation in which plaintiffs sought civil penalties and access to inspect defendant's facilities, along with a declaratory judgement stating that defendants had violated the Emergency Planning and Community Right-To-Know Act (EPCRA)(674) for failing to file toxic waste emission reports. Refusing to address whether violations of the EPCRA constitute "injuries in fact," the Court instead focused on redressability, finding that because Steel Company had conceded violation of the statute, "the declaratory judgment is not only worthless to respondent, it is seemingly worthless to all the world."(675) Likewise, because civil penalties would be paid to the government and not the plaintiffs, granting such a remedy would only provide "psychic satisfaction ... [that] does not redress a cognizable Article III injury."(676) Accordingly, plaintiffs lacked redressability, and thus, standing to sue. Finally, in Friends of the Earth v. Laidlaw Environmental Services, Inc.,(677) the Supreme Court, with almost surprising consistency, applied its earlier decisions to a suit alleging violations of the Clean Water Act (CWA).(678) Noting plaintiffs' affidavits describing their use of specific portions of a polluted river while CWA violations were still occurring, the Court had no trouble establishing an "injury in fact."(679) The Court then went on to also find that the alleged violations could be redressed by civil penalties paid to the government. Distinguishing the case at hand from Steel Company, the Court held that because the violations were still continuing at the time the complaint was filed, civil penalties would redress plaintiffs "[t]o the extent that they encourage defendants to discontinue current violations and deter them from committing future ones...."(680)
The Court's development of standing doctrine has not been especially predictable, nor has it been especially kind to the environmental movement.(681) It severely limits the number and type of cases environmentalists can bring. Under National Wildlife Federation and Defenders of Wildlife, some groups may be barred from bringing suit because they cannot locate members who have current plans to use a very specific resource or study a certain endangered species. Likewise, under Steel Company, corporations may evade enforcement of more procedural statutes like the EPCRA by simply admitting violation and thus squelching any chance at proving redressability. Indeed, to the extent that the Court's new standing principles disallow citizen enforcement of procedural requirements, they also undermine the congressional intent behind many statutory provisions. In Defenders of Wildlife, for instance, Justice Scalia's assessment of redressability missed the mark entirely; plaintiffs were not necessarily seeking to invoke judicial power to halt funding of the Aswan Dam, but were instead attempting to enforce the ESA's requirement that government agencies consult with the Fish and Wildlife Service before undertaking any action that may harm an endangered species. Similarly, in Steel Company the plaintiffs' primary motivation was not to gain an admission of guilt but instead to enforce the EPCRA reporting requirements. Moreover, the Court's new stance on standing also seems to ignore the legislative history of the environmental citizen suit provisions themselves. Congress included these provisions in the statutes "precisely to obviate disputes over standing and to enable any persons with the constitutionally-mandated degree of interest to enjoin violations of environmental laws."(682) Accordingly, the Court's reluctance to recognize mere alleged violations of the statutes as enough to constitute standing imposes a higher hurdle on the nation's environmentally interested citizens than Congress had ever imagined. In Laidlaw, for example, even though the Court granted standing, its requirement that Friends of the Earth demonstrate its members' interest in the polluted river cut away at Congress's seemingly clear vision that "any person" interested in protecting the nation's water could use litigation to enforce the statute.(683) This result may have the additional effect of forming yet another barrier to enforcement for communities consisting primarily of low-income and minority citizens, communities that already share an unequal portion of society's pollution burden.(684) Indeed, apart from the intellectual shakiness of its new standing doctrines,(685) the apparent disingenuousness of the Court's approach(686) may send a strong signal out of line with the nation's popular--and legally represented notions--of democratic participation and environmental protection.
2. Attorney's Fees
As in the civil rights arena, environmentalists face numerous legal dilemmas when trying to obtain attorney's fees in successful litigation, even though most of the environmental statutes provide for fee-shifting.(687) One of the most imposing problems concerning attorney's fees is an inability to increase fee awards to recognize the riskiness of suits.(688) However, two other decisions have also limited attorney's fees awards for environmental citizen suits. In Ruckelhaus v. Sierra Club,(689) the Supreme Court construed the Clean Air Act's fee-shifting provision and limited its applicability to parties who prevail on the merits despite the provision's language stating that awards can be made "where appropriate." Importantly, the Court in Ruckelhaus also extended its holding to sixteen other federal statutes, including the Toxic Substances Control Act, the Endangered Species Act, and the Safe Drinking Water Act.(690) Similarly, in Key Tronic Corp. v. United States,(691) the Court construed CERCLA's fee-shifting provision, finding that it too had definite limits. Unlike its decision in Ruckelhaus, the Court's decision in Key Tronic was restricted to CERCLA, but the Court nevertheless took a large step toward limiting important environmental litigation. While CERCLA gives EPA authority to institute response actions for hazardous waste sites, EPA rarely invokes this authority; instead, it relies largely on potentially responsible parties (PRPs) to conduct cleanups under EPA supervision. Almost invariably, litigation surrounding these cleanups ensues, but in Key Tronic the Court held that private parties conducting cleanups may not recover litigation-related attorney's fees from other PRPs unless they are proven to be a "necessary cost of response."(692)
Judicial doctrines concerning attorney's fees provisions impose many of the same problems on environmental advocates as they do on civil rights activists: they dodge an apparent congressional intent of providing for private attorneys general,(693) and they limit access to the courts by undercompensating lawyers willing to take the cases. At least one study has shown that because environmental fee-shifting jurisprudence provides disincentives to private law firms who might take such cases, most plaintiffs' groups are forced to turn to public interest law firms, which also are hesitant to accept the cases for fear of losing their non-profit status.(694) Similarly, less possibility of receiving attorney's fees translates into an even greater discrepancy between stellar legal representation for wealthy communities concerned about their environment and little-to-no representation for poor and minority communities worried about their already unfair share of pollution(695)--an effect that may be further compounded by jurisprudence in the civil rights attorney's fee area. Moreover, as in the civil rights arena, the potentially synergetic effects of these decisions may serve to simply provide for less environmental enforcement, less environmental cleanup,(696) and in the case of CERCLA, fewer settlements and more delay in remediation of the nation's worst hazardous waste sites.(697)
In the years following enactment of the Civil Rights Act of 1964 and the Clean Air Act of 1970, both the civil rights and environmental movements came to increasingly rely on these and other acts' provisions allowing citizens to bring litigation to enforce the laws. At the same time, the judiciary began a countermovement of sorts, using various procedural and other devices to limit the new access to the courts afforded to the movements by congressional mandates. The overall effect on both movements' litigation attempts was in many ways the same. Fewer of their cases arrived in the halls of the federal judiciary, and accordingly, fewer legal victories emerged for the movements. As a result, private enforcement of both civil rights and environmental laws decreased, a fact that for both movements seemed to run contrary to the congressional intent behind attorney's fees provisions and many of the statutes themselves. Indeed, restrictions on attorney's fees awards meant that lawyers became undercompensated for taking cases with potential public benefits and possible reputational risks. This in turn created a larger barrier for both citizens discriminated against and citizens concerned about the environment that might want to bring suit to remedy these problems. In so doing, the legal recoil also quieted public participation in the ongoing policy discourse by gagging the voices of those who might care most--those personally affected by the nation's racial and ecological dilemmas.
Although the judiciary's fettering of access to courts has broad similarities in Its overall effect on both the civil rights and environmental movements, it has done so in different and potentially important ways. Most significantly, the Supreme Court's decisions in the employment discrimination context shift claims to other forums, primarily state courts and arbitration. The decisions do not, however, entirely bar the claims. In fact, the claim preclusion doctrine still explicitly allows claims to be brought in federal court, only earlier and with perhaps more difficulty. In contrast, the Court's standing decisions in the environmental area serve to stop many genuinely interested would-be plaintiffs from bringing citizen suits altogether, and the unpredictable course of the decisions may both confuse lower courts and leave some claimants who deserve standing, even under the Court's labyrinthian doctrines, without it.
On its face, this difference may spell potential danger for environmentalists, but what the difference might represent is just as worrisome. While the Court's application of different doctrines to the two movements is a simple matter of legal chance, it may also reflect a divergence in the impacts the movements have made on the judiciary. Civil rights advocates, for example, have long voiced their concerns and have long used the courts to resolve their disputes. In fact, the judiciary was the first branch of the government to rise this century in an attempt to stomp out legalized racism. Environmentalists, on the other hand, are relative newcomers to court halls and courtrooms, and it is possible that not as much of their message has been absorbed by the judiciary.(698) In the standing context, for instance, the Court's decision in National Wildlife Federation that plaintiffs had not established an "injury in fact" because of their failure to specify what portion of land they were interested in highlights judges' unwillingness to incorporate very basic ecological principles--that all things are connected--into our legal understanding. While it is true that the National Wildlife Federation example may also fall under the old problem of line-drawing, other factors also point in the direction of judicial rejection of the environmental message. For instance, the Court's decision in Key Tronic concerning CERCLA's fee-shifting provision frustrates not only the citizen suit or attorney's fees provisions of CERCLA, but also hampers the overall purpose of the statute: remediating seriously polluted hazardous waste sites.(699) Indeed, it may well be that the Court's decisions concerning judicial access represent a regression for both movements but a much larger and swifter one for environmentalists. Civil rights advocates who are precluded or are sent to arbitration still voice their claims, still have the option of beginning in federal court, and may ultimately achieve their goals. However, environmentalists sent packing by frustrating limits on attorney's fees and a rigid standing doctrine may fail to accomplish anything for the good of the planet on the federal level, especially if EPA and other agencies turn their head and plug their ears as they did in the Reagan years.
V. THE SOCIOLOGICAL STATE OF THE MOVEMENTS TODAY: RESISTANCE AND BACKLASH
As courts began to use legal procedures and devices to limit access for civil rights advocates and environmentalists, a popular resistance to both movements also began to grow, eventually escalating to full-scale backlash. The causes and concerns for the backlash to the two movements differed, but the implications did not. Today, popular distaste for affirmative action has placed the civil rights movement in a position where its death seems more possible and imminent than ever, and local loathing for federal regulation of our natural resources has put environmentalism teetering on a ledge from which it could very easily fall, following is the path of civil rights.
A. Civil Rights: White Backlash Against Affirmative Action
In an executive order issued the year before his ban on housing discrimination, President Kennedy quietly urged that government contractors "take affirmative action to ensure that applicants ... and ... employees ... are treated ... without regard to their race, creed, color, or national origin."(700) Like his quiet statement, the kind of affirmative action for which the President was asking included rather subdued, inconspicuous programs to assist minorities: special training, "head start efforts, financial aid, and community development funds."(701) Indeed, these types of efforts seemed to be what was anticipated when the Civil Rights Act of 1964 granted courts authority to "order such affirmative action as may be appropriate"(702) and when President Johnson updated his predecessor's executive order concerning government contractors in 1965.(703) All, however, was about to change.
1. The EEOC and Its Second Phase of Affirmative Action
Following passage of the 1964 Civil Rights Act(704) and the 1965 Voting Rights Act,(705) the newly formed EEOC began implementing its charge to remove discrimination from the workplace. Yet how EEOC began implementing its charge differed greatly from past practices of the Kennedy Administration or those continued in Johnson's tenure. Rather than using special recruiting efforts to hire minorities, the EEOC began seeking to achieve equality in hiring results. In EEOC itself, for example, forty-nine percent of the 1971 staff was African American, while only eleven percent of the American population and twelve percent of the total workforce consisted of that racial group.(706) Similarly, women represented forty-seven percent of EEOC staff, but only thirty-eight percent of the American workforce.(707)
Yet EEOC was not satisfied with simply advancing its goals within its own walls. Bolstered by the so-called Philadelphia Plan of 1969(708) and the Equal Employment Opportunity Act of 1972's amendments to Title VII, which brought almost all employers in America under the provision's jurisdiction,(709) EEOC began instituting a number of annual affirmative action plans for all Title VII employers. Described by one author as a progression in "phases" of affirmative action--from Kennedy-like reach-out attempts to number-oriented methods--this change reflected a "fundamental shift of goals and means ... from `soft' to `hard' or from positive-sum to zero-sum affirmative action."(710) It meant, in the words of EEOC's 1975 plan, that employers should aim at "increasing the representation of females and minority groups to approximately their representation in the civilian labor force."(711)
2. Social Change on a Noisy Background: Black Power and School Busing
While EEOC was busy implementing its new, result-oriented attack on the lingering effects of America's over-three-century-old legacy of racism, two other important changes were occurring on the civil rights scene. First, a rash of assassinations of black leaders, beginning with Malcolm X in 1965 and culminating with Martin Luther King, Jr., in 1968, led to four consecutive summers of urban rioting from 1964 to 1967.(712) Chicago, New York, and Philadelphia succumbed to utter mayhem, and Los Angeles burned.
At the same time, a growing grassroots movement was spreading nationwide. Begun in Lowndes County, Mississippi, in order to maximize the power of the black vote, the Black Panther party adopted its symbol in response to the local Democratic Party's mascot, a white rooster branded with the words "White Supremacy for the Right."(713) A sister group soon started in Oakland, California, and the movement began gathering momentum, eventually becoming known as Black Power.(714) When the summer riots took their course, however, the media quickly associated their occurrence with the rage behind Black Power.(715) "Shallow sympathies" from whites quickly shattered as the civil rights movement became increasingly perceived as one of violence rather than prayer and peaceful protest, and a white backlash began.(716) During a march through an all-white neighborhood in Chicago, a group led by Jesse Jackson was attacked by a mob carrying signs of "White Power."(717) And by 1965, Martin Luther King, Jr. was already lamenting: "The decade of 1955 to 1965, with its constructive elements, misled us. Everyone underestimated the amount of rage Negroes were suppressing, and the amount of bigotry the white majority was disguising."(718)
After the riots ended, another dispute awaited. In a pair of 1971 decisions, Swann v. Charlotte-Mecklenburg Board of Education(719) and Davis v. Board of School Commissioners of Mobile County,(720) the Supreme Court imposed a system of cross-district busing to eliminate school segregation that was outlawed by Brown but still largely remained in reality. "Desegregation plans cannot be limited to the walk-in school," wrote the Court regarding southern cities that had integrated only by disallowing the practice of sending black and white children from the same neighborhood to different schools.(721) But the Court's solution to the problem was not well-received. Many whites rejected the idea of busing by simply moving away or placing their children in private schools, and when the Court later applied its reasoning from Swarm and Davis to cities outside the South, resistance only intensified.(722) School districts also opposed busing because of its high costs and because of its ensuing damage to community-oriented neighborhood schools.(723) And many blacks disliked the process as well. For instance, the National Black Convention of 1972 proclaimed compulsory busing a "bankrupt, suicidal method of desegregating schools based on the false notion that Black children are unable to learn unless they are in the same setting with white children."(724) Likewise, black children who had been bused favored attending non-white schools more than those who had not been bused.(725)
3. White Revolt in the Courts: From Bakke to Adarand
Spurred on by the rise of Black Power and the imposition of school busing, the burgeoning white resistance to the evolving civil rights movement--especially its use of affirmative action--eventually took to the courts. Increasingly, whites filed suits of "reverse discrimination," and in 1978, the Supreme Court finally addressed the issue in Regents of the University of California v. Bakke.(726) At issue in Bakke was the decision of the University of California at Davis to twice deny Alan Bakke admittance to its medical school.(727) Bakke, a white male with higher objective scores than a number of minority applicants who were admitted under a special program ensuring that sixteen percent of the entering class would be non-white, sued, claiming that the admissions program violated the Fourteenth Amendment's equal protection clause.(728) Applying strict scrutiny, the 5-4 decision found the University's system of racial quotas unconstitutional, but then held that because of the nation's history of discrimination, "a properly devised admission program involving the competitive consideration of race and ethnic origin" could be used to achieve a diverse student body.(729)
The Court's decision in Bakke stood as a dual symbol in the historical discourse of civil rights: it emphasized the growing white revolt against affirmative action, and it began the Supreme Court's march toward greater acceptance of that revolt.(730) In the years following Bakke, the Court repeatedly addressed affirmative action questions, and it repeatedly flip-flopped--often along political lines(731)--as to what standard of scrutiny such programs should receive.(732) Most recently, the Court in Adarand Constructors, Inc. v. Pena(733) overruled its prior decisions, returning the applicable standard to the one pronounced in Bakke: strict scrutiny. The Court's decision in Adarand to ratchet the scrutiny of affirmative action programs upward, which was only bolstered by its denial of certiorari for two cases that held programs at the University of Maryland and the University of Texas unconstitutional,(734) is more indicative of a nationwide trend toward less tolerance of affirmative action than it is a return to the jurisprudence of the late 1970s. To be sure, the Court's latest stance is only a small isle--albeit an important one--in a surging sea of changing racial attitudes in America.
4. Resentment Turns to Rage: "The Rise of the New Racism"
If the racial picture in America was blurry in the late 1960s and early 1970s, it is only more tangled and confused now. Even if the picture were a clearer one, its full resolution might be lost without the sense of perspective history provides. Still, if we stare into the static long enough, some disjointed images appear. Taken together, one might gather from the resulting mosaic that despite the many important advances our society has made, the discrimination of America past has not gone away but has simply changed--a transformation one author calls "The Rise of the New Racism."(735)
a. Resurging Violence
One growing trend appears to be a resurgence in race-motivated violence. Although clearly not as intense or widespread as the Klan or its lynchings of the early 1900s, there is still cause for concern. In fact, the KKK itself grew from 273 groups to 346 between 1990 and 1992 alone.(736) And the prominence of its protests in recent years also seems to have risen. When a federal judge ordered desegregation of government housing in thirty-six Texas counties in 1993, for instance, the Klan protested, and a national television talk show featured the issue.(737) More recently, the KKK held a recruitment rally in a Seattle suburb, an area where no such gathering had occurred before.(738) Racial violence seemed to heighten as the nation entered the 1990s, even if it differed in its relative organization and unification from race crimes of the past. In fact, increased hate crimes at the turn of the decade convinced Congress to pass the Hate Crimes Statistics Act of 1990.(739) During 1997 and 1998, the FBI received 15,804 reports of hate crimes under this Act, 9051 of which were attributable to racism.(740) And although toward the end of the decade some areas reported a decline in hate crimes, race remained the predominant motive.(741) Additionally, a rash of black church bombings in 1995 and 1996 highlighted a persistence of racially motivated crime. Thirty-four predominantly black churches were targets of arson in only eighteen months,(742) and many of these were left with racial epithets such as "white is right" on their doors.(743) By 1999, an additional 800 church arsons and bombings had been investigated by a national task force to determine if they were racially motivated.(744)
b. Persisting Stereotypes
Despite the legal advances since the Civil War and before, stereotypes at the turn of the century seem exceedingly robust for having endured the recent decades of rapid societal change. In fact, a 1993 poll showed that for "the first time in 40 years, young white adults were found to be more likely to hold anti-black views than their baby boom counterparts"(745)--a reversal of a forty-year trend in which each succeeding generation showed greater racial tolerance than those coming before it.(746) Indeed, the placement of entire classes of people into monochromatic categories seems extraordinarily prevalent in today's society--the perception of Asian women as "exotic playthings for white males,"(747) young black men as criminals or "gangbangers,"(748) "[w]omen as [h]elpless [v]ictims.... [and] Southern males as racist rednecks"(749)--but the proliferation of these stereotypes is more difficult to explain. One cause may be the use of stereotypes in movies and on television.(750) Another may be a vicious circle of sorts: use of stereotypes for political gain, which in turn strengthens a commonly accepted or unitary view and thus makes it all the more tempting for future reuse.
Perhaps the prime example of this is George Bush's use of Willie Horton, an escaped and black Massachusetts convict who raped a white woman, to characterize Michael Dukakis as soft on crime during the 1988 presidential campaign.(751) One commentator summarized Bush's political monopolization of racial undertones in employing this example:
[T]he Bush campaign's job was made easier ... by the racial symbols of the Horton story and the racial undertow of the crime issue in America.... The politics of crime is not about a party's record or a candidate's proposals, but about perceived character and values.... Willie Horton isn't just a black man. He is a black murderer who raped a white woman. There is no more powerful metaphor for racial hatred in this country than a black man who rapes a white woman.... And day after day, month after month, in sound bite after sound bite, the man who [became] president of the United States told Willie Horton's story.(752)
Yet the use of stereotypes for electoral gain is not limited to President Bush's campaign twelve years ago. Politicians continue to tap into the American racial stereotypes in an effort to tug at our ballots--a symbol itself of how powerful stereotypes remain in contemporary society.(753) But regardless of why stereotypes continue to proliferate in our culture, their effect on our thought patterns may be even more important than their persistence itself. "Stereotypes make reality easier to deal with because simplification reflects important beliefs and values as well. These two characteristics ... mean that ... society has two powerful motives to encourage people to `live up to their stereotypes' [by acting] like the images ... culture already has of them...."(754)
c. Substituting Culture for Biology
While part of the "new racism" engages historically used methods for advancing its agenda, its ability to subsist in modern times also relies on novel modifications to its older forms. Perhaps the most powerful of these plays directly off the proliferation of stereotypes in our society. As Professor Finkelman writes, "[t]he `new racism' substitutes culture, or `civilization,' for biology. Blacks are inferior not because they are born that way, but because they lack civilization."(755) Part of this shift in focus may derive from an understandable fissure between black and white civilization, or more particularly, white misunderstanding of black culture. In the absence of a historical context, the Black Power and return-to-Africanism movements three decades ago were easily rejected by whites as a revolt against the mainstream, and whites today often follow by rarely considering the legacy of legal and social constraints inherited by modern African Americans. The reason why is an obvious but potent snare:
[W]hite guilt, in its broad sense, springs from a knowledge of ill-gotten advantage.... [I]t comes from the juxtaposition of this knowledge with the inevitable gratitude one feels for being white rather than black in America .... [Yet g]uilt has always been the lazy man's way to innocence--I feel guilt because I am innocent, and guilt confirms my innocence. It is the compulsion to think always of ourselves as innocent that binds us to self-preoccupied guilt.(756)
The resulting problem is that a collective white handwashing from their ancestors' sins leads directly to a feeling of innocence, and accordingly, less tolerance of black difference. From here, it is an effortless fall into believing that a mysterious cultural hunger for drugs, love for violence, and inability of men to parent has left many blacks less fortunate in life. And from there, it is a small step toward police units using racial profiling, landlords refusing to rent, or employers dismissing applicants without another look. At that point, it is hard to argue that cultural biases are any better than the biological prejudices of modern Americans' progenitors. Both follow the path of ignorance to societal division.
d. Believing the Problem Solved
A final facet of America's "new racism" is driven by the notion that our racial problems have been solved. Granted, we have made great strides, and they should be identified as such. In fact, most Americans do seem to recognize the progress our nation has made. A 1994 Wall Street Journal poll found that sixty-five percent of whites and seventy percent of blacks felt that the nation "has made some or a lot of progress in easing black-white tensions in the past [decade]."(757) Similarly, seventy percent of whites and sixty-five percent of blacks viewed integration as beneficial for society.(758) However, views diverged over what is left to accomplish. Sixty-two percent of blacks felt that the "country needs to do more to extend legal rights to blacks," but only twelve percent of whites held that view.(759) The causes for this discrepancy in opinions are not entirely clear, but the "white guilt"-driven innocence of past wrongs may certainly play into the trend. And while in one context the "new racism" may be garnering support by substituting culture for biology, another factor at play here may be a reemerging body of literature attempting to tie intelligence to race. Publication of The Bell Curve(760) in the early 1990s was emblematic of these attempts to use "scientific" information to establish the inferiority of the black mind, and even though this book received much negative press,(761) its message did not go entirely unnoticed. Similarly, a growing use of genetic evidence to tie race to criminal behavior has proved scientifically unconvincing,(762) although its impact on the public is not so certain. As one observer noted, many of these researchers follow "in a long line of proponents of racial supremacy who have traded in the Klan's white sheets for white lab coats."(763) Likewise, increasingly prevalent literature that tries to convince America its racial problems are over only further spread myths postulated as fact. One author, for instance, recently asserted:
Racism undoubtedly exists, but it no longer has the power to thwart blacks or any other group in achieving their economic, political, and social aspirations. It cannot be denied that African Americans suffer slights in terms of taxidrivers who pass them by, pedestrians who treat them as a security risk, banks that are reluctant to invest in black neighborhoods, and other forms of continued discrimination.... Such incidents undoubtedly cause pain, and invite legitimate public sympathy and concern. But they do not explain why blacks as a group do worse than other groups in getting into selective colleges, performing well on tests, gaining access to rewarding jobs and professions ..., and maintaining productive and cohesive communities.(764)
Statements that so sweepingly discount such incredibly harmful behaviors as entirely ineffectual only perpetrate their very existence. They assert that unlike years past when opposition to the civil rights movement urged a reversal of public policy, today the situation has changed to one where "we need no policies at all, because we have no problem."(765)
5. Erasure: Proposition 209--the Death of Affirmative Action?
As opposition to affirmative action began to take hold on the nation, policymakers also began to respond, implementing plans to halt various affirmative action programs. An important first blow occurred when President Clinton signed into law one of the infamous 104th Congress's bills, a repeal of a federal program that allowed businesses selling broadcast or cable television stations to minority-owned companies to defer the ensuing capital gains taxes.(766) However, further federal action would be delayed, and the debate would soon shift to a state where ethnic and racial diversity, bipolar politics, and the importance of public universities had together been pushing the affirmative action issue to a head for years.
In California, educators had been concerned about the diversity of their universities since at least 1966, and a 1974 legislative resolution asked that the campuses' incoming classes reflect the ethnic composition of California's high school graduates.(767) The measure achieved its goal of diversity, but it also left some paradoxes. By 1988, the state's flagship campus, the University of California at Berkeley, had a first-year class consisting of thirty-nine percent whites and twenty-six percent Asian Americans, while sixty-two percent of the state's high school graduates were white, and only eight percent were Asian.(768) In fact, a 1984 decision by Berkeley's administration excluded whites and Asians from the 1974 resolution in an effort to ensure greater enrollment of other, less-represented minority groups.(769) The result was that by 1988 both Asians and whites claimed the university was discriminating against them on the basis of ethnicity, and the campus was becoming increasingly racially charged. Anti-black racial slurs were painted in campus bathrooms, the African Students Association office was vandalized, and black students began reporting attacks.(770) Finally, in 1996, the University of California Board of Regents responded by adopting a policy supported by then-Governor Pete Wilson to cease affirmative action in admissions, hiring, and promotion on all campuses.(771) What some may have realized, however, was that the Regents' decision was only the beginning of the affirmative action debate in California.
Shortly after the Board of Regents decided to end affirmative action on the University of California campuses, a voter initiative that would extend the policy to other parts of state and local government by amending the state constitution began to gather support. As the deadline for initiatives to make it onto the ballot neared, however, Proposition 209, the "California Civil Rights Initiative," lacked 30,000 additional petition signatures needed to certify it for a statewide vote.(772) Eventually, Governor Wilson stepped in and circulated the petition, ensuring its certification for the ballot, and in turn, setting off a fierce and heated debate among Californians.(773)
If approved, Proposition 209 would halt "preferential treatment" on the account of "race, sex, color, ethnicity, or national origin" by public school systems, state employers, and those awarding public contracts.(774) Once on the ballot, initial support for the Proposition was broad. A September poll showed that approximately two-thirds of California voters favored the initiative.(775) Many of these supporters subscribed to theories typically advanced against affirmative action, and they took their views vehemently to the press. "[Proposition 209] will wipe out the unfairness of the old affirmative action laws," wrote one newspaper in an obvious reference to claims that affirmative action shifted the focus away from merit and thus discriminated against whites and Asians.(776) James Q. Wilson, a professor at UCLA, expounded further in an editorial to the Los Angeles Times: "The argument for diversity is a sham.... Diversity not only means racial quotas, it means quotas for some minorities and not others."(777) Other supporters appealed to the notion of a colorblind society, arguing that Proposition 209 would only advance that objective,(778) while some alluded to the idea that the United States' racial problems had already been solved.(779) Likewise, still others contended that diversity does not add to the pedagogical value of education, and some supporters urged that affirmative action's costs in terms of "significant waste, inefficiency, fraud, and hypocrisy" far outweighed any benefits the programs might provide.(780) A growing faction opposed to the initiative also fought back, attempting to poke holes in the wave of arguments offered in favor of the proposal. Four days after Professor Wilson's editorial was published in the Times, John D. Maguire, president of the Claremont Graduate School located east of Los Angeles, returned fire:
[T]he backers of Proposition 209 ... [are] afraid that affirmative action has deprived certain people, implicitly understood to be white males, of their `civil rights' in employment and education.... [But] if Proposition 209 passes, it will unleash a toxic seep of division and fear deep into the landscape, eventually touching all of us.(781)
Others opposed to the initiative bolstered Maguire's claim, reminding that "the thought of `Ms. President' [still] sound[s] like science fiction,"(782) and pointing to the hypocrisy of preferential treatment for Regents' family friends, legacies, and those associated with generous benefactors--"affirmative action for the affluent," so to speak.(783) Finally, the nation's two most prominent presidential candidates joined in the debate, only intensifying the fits of bipartisan fervor. President Clinton implied that approving Proposition 209 would not be the best course of action,(784) and Republican hopeful Bob Dole gave his outright support for it: "We cannot fight the evil of discrimination with more discrimination, because this leads to an endless cycle of bitterness...."(785)
As the election neared, the gap had closed, but the initiative was still widely favored. Fifty-four percent of voters supported Proposition 209, thirty-one percent were opposed, and fifteen percent were undecided.(786) In the end, the numbers were barely different. On November 5, 1996, California voters adopted Proposition 209 by a margin of 54.3% to 45.7%.(787) The next day, a coalition of civil rights activists filed suit in federal court, challenging the new law under the Fourteenth Amendment's equal protection clause and various other legal theories. The district court granted a preliminary injunction,(788) but on appeal the Ninth Circuit reversed.(789) The Supreme Court denied certiorari, leaving the Ninth Circuit's validation of the law in place.(790)
Once approved, Proposition 209 worked swiftly, and its primary intent was effected within the year. The incoming 1998 first-year class at the University of California at Berkeley was comprised of 8000 students--only 191 of which were black and 434 of which were Hispanic--while in the year prior to Proposition 209's approval, 753 black students and 1,479 Hispanic students had enrolled in the school.(791) Similarly, the incoming class at UCLA was described as "the most academically formidable in the history of the school ... [but] the least ethnically diverse ... in years."(792) Yet the Proposition's effects were not limited to college admissions alone. One commentator noted that the law may have had a chilling effect on minorities' decisions regarding whether to apply to college, and perhaps not only in California. "The national hoopla over Prop. 209 ... has sent a dangerous message to non-white high school students that they are about to be `shut out' of the opportunity to get a quality college education. That doomsday scenario obscures the other options disadvantaged students can take."(793) Besides limiting California localities that may have wanted to employ rigorous affirmative action programs for their own reasons,(794) the new law's national effects were both stunning and startling. California Republican Congressman Frank Riggs began by announcing a proposal to ban university affirmative action programs on a national level,(795) and only months later Washington state voters followed California's lead by adopting their own Initiative 200.(796) That same year, Texas Governor George W. Bush also implemented a plan that followed his state's federally court-ordered ban on affirmative action by guaranteeing admission to Texas's public universities for the top ten percent of each high school's graduating class.(797) And most recently, Bush's brother, Florida Governor Jeb Bush, followed by installing a policy mimicking Texas'. Termed the "One Florida Initiative," the plan instituted its own ban on affirmative action while, as in Texas, it guaranteed college admission for the state's top high school students.(798)
Despite the symbolism of a burgeoning national anti-affirmative action response following California's adoption of Proposition 200, two curious and potentially ironic trends remained in the voting patterns behind the approval of that initiative. First, the apparently confusing nature of the initiative's language may have compounded the complexity of the issues underlying the proposal. One voter's statement paradoxically reflected the potentially confounding nature of the initiative: "Affirmative action has been helpful. It was needed. But the reverse discrimination part disturbs me."(799) In fact, polls show that nearly one-third of those who cast ballots in favor of the Proposition also voiced support for affirmative action.(800) Perhaps even more importantly, there was a definite division along racial lines as to how votes were cast. Approximately seventy percent of whites supported the measure, while only fifty-eight percent of Hispanic and thirty-eight percent of black voters offered that same approval.(801) While many factors might possibly account for this discrepancy in support, the most likely seem to derive from a difference in racial perspectives rather than an ideological effort at ensuring colorblind laws: Many whites may have perceived the initiative as positive to their lives, while many minorities held the opposite view. And many whites may have cast their votes under an assumption that the nation's racial dilemmas are largely gone, while many minorities may have had a much different perspective. If views like these persist, then Proposition 209-esque laws may very well continue to spread across the land, and the modern civil rights movement may well become a relic of the past--something we all once did to "correct" our course, "solve" our problems, and quietly move on.
B. Environmentalism: Local Backlash Against Federal Regulation
As Congress completed its decade-long environmental law bonanza with the passage of CERCLA in 1980, public support for environmentalism was still strong. The undercurrents, however, were shifting. Despite the movement's wide support, a 1981 public opinion poll showed that only about forty-four percent of Americans felt that the environment should be protected regardless of cost.(802) This may have been a partial reflection of the nation's economic problems of the times, which stemmed largely from the oil shortages and ensuing rise in inflation rates of the late 1970s. More importantly, such passiveness to environmental protection when costs came into play was also a likely representation of not just economic concerns but an increasing conservative-minded, anti-government response by the populace to the nation's massive and perceivably inefficient federal government.
1. Seeds in the Dust: The Sagebrush Rebellion
The first manifestation of this growing grassroots rejection of federal control of natural resources came at the close of the 1970s. Disquieted by what they perceived as a presidential ignorance of the West, a number of western states began a campaign to transfer federal lands to local or state control. Their perception of President Carter seemed well-founded--he visited the West only four times during his stay in the White House(803)--but their movement, termed the "Sagebrush Rebellion," would be short-lived. Nevada led the way, passing a bill that demanded the federal government give control over fifty million acres of land to the state.(804) Arizona and Utah adopted similar legislation, but efforts in Colorado, Idaho, New Mexico, and Oregon all faltered or were overturned by veto or voter referenda.(805) Similarly, when Representatives and Senators from these states took their cause to Washington, they "were unable to convince enough of their colleagues to take up the issue."(806) Already fizzling, the Rebellion abruptly halted in 1980 as the nation elected Ronald Reagan, a conservative Republican from California, to the presidency.
2. A Political Prelude: Reagan, Bush, and a Declining Economy
Reagan's election was a clear and immediate political blow to the environmental movement. Both symbolically and practically, the new president began undercutting the accomplishments made during the 1970s. When he moved into the White House, for instance, one of Reagan's first actions was to remove the rooftop solar panels installed during Carter's tenure.(807) His political appointments were only more damaging. Donald Hodel, who advocated suntan lotion as a solution to ozone depletion, became Secretary of Energy, and James Watt was installed as Secretary of the Interior.(808) Watt, who had been involved in the Sagebrush Rebellion through his activity in the Mountain States Legal Foundation, immediately began dismantling a number of pro-environment programs by "placing a moratorium on the addition of new parklands, proposing to turn wildlife refuges over to the states, and supporting the exploration of oil, gas, and mineral resources in wilderness areas throughout the West."(809) Eventually, public and congressional uproar at Watt's actions forced him to resign in 1983,(810) but Reagan's legacy of anti-environmental policy continued on other fronts. Most prominent was Ann Gorsuch Burford, who had been appointed to head EPA and who had reduced the agency's budget by $200 million and its staff by 23 percent.(811) Burford, however, was also unpopular, forcing Reagan to finally remove her, also in 1983.(812) Still, as the upcoming election neared, environmentalists were unable to mount enough support to oust Reagan, and the Republican President's anti-environmental policies continued into the next term largely unabated.
As Reagan left the White House after his two terms in office, his successor and former vice president, George Bush, gave some hope to environmentalists for a change from Reagan's practices, promising during his campaign to be an "environmental president."(813) As he took office, however, environmentalists became increasingly dissatisfied while Bush's efforts became fewer and less successful. Importantly, Bush helped push the 1900 amendments to the Clean Air Act through Congress,(814) further limiting toxic air and ozone damaging pollutants, and allowing the use of market incentives in the form of "tradable permits" to achieve the Act's objectives.(815) The same year, Bush signed into law the Pollution Prevention Act of 1990,(816) which encouraged businesses to reduce pollution rather than remediate it. But Bush also refused to sign the Biodiversity Treaty(817) reached at the 1992 Earth Summit In Rio de Janeiro, and he worked at that same conference to avoid having any firm deadlines established for reducing carbon dioxide emissions.(818) Indeed, Bush was increasingly moving away from his promise to be an "environmental president," and he spent more and more time worrying about the nation's sliding economy. By 1990, the unemployment rate exceeded seven percent,(819) and things were only getting worse. Accordingly, in early 1992, Bush placed a moratorium on certain federal regulations, including those affecting environmental protection.(820) The decision was only a blip in a growing political and popular view that worked to polarize economic and environmental concerns, but Bush's order sent a strong message to the nation that the choice was between jobs and the environment.
3. Desperately Seeking the Here and Now: The Wise Use Movement
While Reagan was paying little attention to environmental protection and Bush was beginning to cast environmentalism into zero-sum light, an anti-environmental movement unlike any before it had begun to emerge. The genesis came when in 1984 Ron Arnold, a former Sierra Club member who had spent a number of years producing slide shows and films for various industries and timber companies, met Alan Gottlieb, a publisher, radio station owner, and pro-gun advocate, who held anti-environmental views of his own.(821) They began planning, and after Gottlieb was released from jail for a tax conviction, joined with Charles Cushman, a longtime advocate against the National Park system,(822) to begin implementing their efforts in full.(823) At first, results were slow, but soon it was clear that their message was catching on. "It takes a movement to fight a movement," warned Arnold in 1984.(824)
By 1988, Arnold, Cushman, and Gottlieb had found enough supporters and other groups sympathetic to their cause that they decided it was time to host a national gathering. The 1988 Multiple-Use Strategy Conference occurred in Reno, Nevada, and was attended almost exclusively by representatives from large timber companies, oil and chemical giants, mining and ranching associations, hunter-fishers and other recreationists, farm bureaus, and pro-gun advocates.(825) Although rather small in size--only about 300 participants made their way to the Western Nevada town--the Conference's ultimate effects were monumental. Out of the meeting came a 1989 document entitled The Wise Use Agenda, a mission statement that both coalesced and named the burgeoning anti-environmental movement.(826) The Agenda became a lightening rod for the newly christened Wise Use movement, as it demanded that Congress provide for oil extraction in the Arctic and logging of three million acres in Alaska, urged a weakening of the Endangered Species Act, and asked for laws that would provide "proindustry advocates" with standing to sue.(827) Soon, Arnold would be on national television proclaiming, "The environmental movement is the establishment now, and now we are the rebels coming to tear them down. Now they're Goliath and we're David, and we intend to put the stone in their head."(828)
With leaders in place and a clearer vision of where it was headed, Wise Use began to gather momentum. The "movement," however, was far less than it proclaimed to be and by 1994, had "fewer than a hundred thousand" members.(829) To make up for its lack of grassroots support, Wise Users sought "to mobilize a network of core activists to intervene and politicize local conflicts, creating a perception of power that they hope can be used as a springboard for further expansion."(830) In a battle over a proposal to make an important Kansas tallgrass prairie into a National Park, for instance, Cushman descended with Wise Use literature in tow, warning "[i]f you like the IRS, you will love the National Park Service," and helping to ultimately prevent the proposal from going forward.(831) Likewise, the movement's continual advocacy of county-based land use regulation(832) plays into public concern that mainstream environmental groups have grown into slick, Washington-based lobbying machines that are out of touch with what their memberships want.(833) And when Wise Users' local targeting efforts do not succeed in making the movement seem larger than it actually is, its members resort to other tactics. For example, the movement commonly claims non-affiliated organizations' memberships as their own, including those of the American Farm Bureau Federation, the Future Farmers of America, the National Cattlemen's Beef Association, and the National Rifle Association.(834) Similarly, Cushman admits to manipulating fax machines in order to give an appearance that multiple individuals are sending messages to Congress when all the messages in fact come from a single Wise Use office. He also possesses "contacts all over the country who are willing to make phone calls at his request, falsely representing themselves as members of a particular constituency."(835) Also seeking to add a perception of a movement based in the grassroots, Wise Users conduct yearly "Fly-Ins" where they pay for local citizens to travel to Washington, D.C., for lobbying purposes--so long as the activists remember to "[w]ear work clothes ... with special attention to gloves, boots, hard hats, bandannas, hearing protection, protective eye-wear and other work-related accessories."(836)
Indeed, the dominant mode of operation for the Wise Use movement is one of deception. Beyond trying to foster an appearance of size and grassroots nature far afield from its true, industry-backed footings, the movement also appeals strongly with simplified logic and reasoning. Attempting to dichotomize every issue, the movement engages in what one author calls "politics by anecdote."(837) Accordingly, the choice becomes one between jobs and the environment, people and animals, or "`red, white and blue' [and] the `greens.'"(838) Wise Users often frame issues in terms of patriotism versus communism, calling environmentalists watermelons, or "green on the outside but red on the inside."(839) Likewise, the movement distorts religious themes to play to the public's gut instincts. The notion that "God wouldn't have given man chain-saws if he didn't think they were benign" typifies the sentiment.(840) In the same vein, many Wise Users support what Paul and Anne Ehrlich have called "brownlash" literature, "a body of anti-science [that] twist[s] the findings of empirical science ... to bolster a predetermined worldview and to support a political agenda."(841) This pseudoscience works, in turn, to undercut rather than contest environmentalism: many might only be exposed to an issue's arguments as portrayed by one side, and conflicting evidence only creates mountains of doubt.(842) Moreover, the Wise Use movement's mimicking of environmental groups' names--the Alliance for Environment and Resources, the Environmental Conservation Organization, and the National Wetlands Coalition, for instance(843)--works to delegitimatize true environmental groups.(844) Similarly, some Wise Users often employ tactics that operate in a twofold manner to portray environmentalists as "ecoterrorists" and to heighten levels of conflict between the two movements. Even though only one person has ever been injured by a tree spike--and even though almost all environmentalists typically engage in non-violent protest--one Wise User, Barry Clausen, publishes a journal entitled Eco-Terrorism Watch, and he also appeared on an ABC television news program in an attempt to link Ted Kaczynski to Greenpeace.(845) Other Wise Use groups, such as the Sahara Club, have engaged in monkeywrenching activities of their own--typically against governmental agencies such as the Bureau of Land Management--and have also been accused of physically harassing environmentalists who were to testify before Congress.(846)
While the initial Wise Use Agenda set out twenty-five substantively diverse goals for the movement, two concerns have emerged as Wise Users' primary targets for action: property rights and resource extraction. Property rights, especially, has created attention-getting issues for the movement. Armed with the Fifth Amendment's prohibition on government takings of private property without just compensation, the movement has increasingly taken to the courts to advance their objective of unrestricted property use.(847) Moreover, recent Supreme Court decisions, which might accurately be portrayed as limiting government's ability to regulate private property for environmental protection purposes, have only bolstered this tactic. In Lucas v. South Carolina Coastal Council, a property owner successfully obtained a $1.2 million award when South Carolina's Beachfront Management Act prevented him from building houses on his property and, according to the Supreme Court, "rendered valueless" his land.(848) Similarly, in Dolan v. City of Tigard, the Court found that a city's approval of a building permit on the condition that the property owner dedicate a portion of her land for a bikepath was constitutional only if the city council first found the requirement to be "roughly proportional" to the effect the expansion would have on the area.(849) And in City of Monterey v. Del Monte Dunes, the Court held that a jury could have reasonably inferred that a city had not advanced a legitimate public purpose in its denial of a property company's development application because the city's reliance on environmental concerns may have seemed disingenuous.(850) The Court found that the developer had modified its plans a number of times in an attempt to meet the city's demands and only one larva of an endangered butterfly at issue had ever been found on the property.(851) Indeed, the movement often attacks the Endangered Species Act's limitations on landowners who may have listed species or listed species' habitat on their property as another case of the federal government intruding into Americans' private lives.(852)
Similarly, the movement criticizes the Clean Water Act's section 404, which may prevent property owners with wetlands on their estates from developing that land.(853) The Wise Use analysis fails to recognize the inverse of their takings claims--that many environmental regulations actually improve property values--and they often overstate how commonly these restrictions actually influence landowners.(854) But by casting the issue in the context of federal intrusion on private citizens, the movement "automatically puts environmentalists in the position of defending the federal government and appeals to anyone who has ever had any kind of negative experience with the federal government...."(855) When issues are cast in those terms, many of the counterpoints are easily lost in the dichotomous noise.
The movement also heavily criticizes federal regulation of natural resource extraction. The Wise Use Agenda foreshadowed the movement's foray into this area in its demands for access to arctic and Alaskan resources,(856) but perhaps the most famous example of Wise Use advocacy in this context came in the early 1990s when controversy erupted in the Pacific Northwest over protection of the endangered northern spotted owl.(857) Depicting the issue in terms of "jobs versus owls," a number of timber industry-backed groups coalesced, working out joint lobbying plans and using the media to distort the facts behind the situation into a charged, nationally important dispute.(858) In fact, timber-based labor at the time constituted less than five percent of Oregon jobs,(859) and declining employment in the industry was actually a result of increased mechanization and a shift in timber sales from "milled products to raw logs."(860) But by casting the issue in terms of a public choice between people and endangered animals, the timber advocates were able to advance their objective of unfettered resource extraction while at the same time cutting away at environmentalists' reputation by portraying them as cold-hearted cause promoters unconcerned with issues important to common people. They were able to appear as more than a "loose amalgam of national and local membership and industry sponsored organizations"(861)--a group devoted to protecting the land for the people and not to "destroy[ing] the environmental movement once and for all," as Arnold professes.(862) And while the movement's actual intentions might be suspect, its public message has unquestionably resonated, only adding to environmentalists' growing concern that their movement may be losing ground.
4. Locally Unwanted Federal Regulation: Opposition to Two Provisions of the Clean Air Act of 1990
Even as the Wise Use movement's popularity and attention from the press was growing, most Americans remained in favor of environmental protection. A 1990 poll found that seventy-four percent of the nation believed the environment should be protected regardless of cost.(863) Also, the 1990 Earth Day celebration was the first nationally organized Earth Day since the event's origination in 1970, and its newfound popularity spurred on a number of corporations to begin using green marketing to sell their products.(864) Despite the apparently broad-based backing the environmental movement received from the public, some questioned the depth of that support. A 1995 Wall Street Journal article concluded that public support for environmentalism "begins to fray in the face of the hard choices before Congress."(865) A poll had found that fifty-nine percent of environmentalists were in favor of saving endangered species regardless of cost, but only thirty-eight percent of the general public concurred in that view.(866) Likewise, the country's continued election of Republican Congresses throughout the decade, and other studies such as one finding that forested land closer to endangered red-cockaded woodpeckers was more likely to be logged than other land, only added to the growing evidence that Americans were either less green in the 1990s than they were in the 1970s or that they were less green than they professed to be all along.(867) Indeed, Wise Use seemed to have made at least a dent, and by mid-decade, two provisions of the Clean Air Act of 1990 targeted at curtailing air emissions from automobiles--trip reduction programs and Inspection/maintenance regimes--had crumbled under local opposition.(868)
a. Trip Reduction Programs
As Congress labored in 1990 to forge a more workable and more effective Clean Air Act, it recognized a need to decrease air emissions caused by cars--primarily carbon monoxide, hydrocarbons, and nitrogen oxides.(869) Aiming at mitigating one of the causes of such pollution, increased automobile use, Congress included a "little-noticed provision" in the 1990 Act that required companies employing 100 or more people in regions with "severe" or "extreme" air quality problems to use special programs in order to decrease commuting, traffic jams, and, accordingly, emissions.(870) Under these "employee trip reduction" programs, large employers in areas such as Baltimore, Chicago/Gary, Houston, Los Angeles, and New York/northern New Jersey were required to craft plans that would decrease the ratio of employees to cars arriving at work during rush hour.(871) Employers could provide financial or other incentives to employees who agreed to carpool, walk, bicycle, or take public transportation to work; stagger employee schedules; allow telecommuting; require payment for parking; and provide guaranteed emergency rides home for those not using cars to get to work.(872)
When the employee trip reduction provision was debated on the Senate floor, it passed virtually unopposed.(873) In fact, after its leading proponent, Senator Joseph Lieberman, spoke on the issue, no one rose to contest his remarks, perhaps because of his assurances that the program was less stringent than other programs that had worked in California and that it would save businesses money.(874) Likewise, when the bill was considered in Conference Committee, the focus was on many of the other differences between the House and the Senate bills, and the trip reduction provision remained intact essentially "without any member [of Congress] apparently noticing it."(875) When the mandate was handed down to the states, however, the opposition that had been lacking on Capitol Hill came quickly. Some businesses implemented programs with success--and sometimes even to their employees' delight. For example, Merck & Co. in New Jersey used a combination of subsidies to carpoolers, dollar-per-day gifts to bicyclists and walkers, guaranteed rides home, and a company shuttle service to a nearby train station to greatly improve, although not meet, their driver reduction goal.(876) Similarly, the Southwest Washington Medical Center in Vancouver, Washington, began providing on-site laundry pickup for its employees and convinced the local bus system to redirect one of its routes to stop in front of the medical office building.(877) But others were not nearly as pleased. A spokesperson for Houston area corporations claimed that the law was too costly, and contended that removing older cars from the road would be more effective than attempting to reduce the number of commuters.(878) A San Francisco Bay area business association echoed these concerns, arguing that the requirement placed an unfair cost on employers: "Instead of targeting the source of the problem (all drivers), [the provision] ha[s] placed a heavy burden on employers to reduce the trips made by their employees coming into the workplace."(879)
By 1995, the early complaints lodged against the employee trip reduction mandate by businesses had transformed into a wave of condemnation from public officials as well. Houston's mayor blasted the provision, and California governor Pete Wilson signed a law that forbade the state's air districts from requiring trip reduction programs.(880) Then, a Los Angeles based study found that trip reduction was ineffective at reducing emissions,(881) and Mary Nichols, the official charged with administering the program, announced that because trip reduction efforts "would have only `miniscule' air quality benefits," EPA would not enforce the provision.(882) Even New Jersey, which continued with its program, faced great difficulties in obtaining compliance from businesses. More than six months after employers' plans were due to the state for approval, nearly one-fifth of companies subject to the requirement either had simply not filed plans or had sought extensions.(883) Eventually, Congress abandoned the program altogether. With little debate and no fanfare, Senator John Chafee declared the mandate "a provision that has not worked," both houses of Congress unanimously voted to repeal the trip reduction program, and President Clinton without comment signed the bill into law.(884)
b. Inspection/Maintenance Regimes
There was something to the Houston businessmen's complaint about old cars causing significant amounts of air pollution, and by 1990, Congress agreed. EPA estimated that between twenty and forty percent of cars were emitting more pollutants than allowed under the Clean Air Act.(885) Accordingly, the 1990 amendments to the Act required EPA to revise its regulations concerning automobile emissions issued under the previous version of the statute, which had provided guidance to states with air quality attainment problems as to what types of vehicle inspection/maintenance programs would be successful in reducing emissions.(886) Congress told EPA that states were to help improve their air quality through state implementation plans but that EPA guidance for the state implementation plans had to "provide the States with continued reasonable flexibility to fashion effective, reasonable, and fair programs for the affected consumer."(887)
Before promulgating its new regulations, EPA conducted a number of studies that exposed a variety of flaws in the inspection/maintenance regimes used under the 1977 Act. Perhaps most problematic was that emissions testing was improperly conducted under these regimes about fifty percent of the time.(888) Similarly, state efforts to correct testing problems by educating mechanics were "often poor or nonexistent."(889) This, combined with severe technical limitations of the testing machinery in use and an incentive in many states for testing sites to automatically pass cars after repairs were performed, led EPA to conclude that an entirely different program was necessary to improve the programs to a level where they would actually reduce emissions.(890) The agency's new regulations accordingly set a performance standard for states required to use inspection/maintenance regimes based on the accuracy of state-of-the-art testing technology.(891) Under the rules, states were free to use whatever methods they wished to achieve the standard, but as the statute directed, states would have to follow EPA's preferred system of centralized testing unless they could demonstrate that decentralized, local-service-station-type testing would be as effective as the EPA model.(892) Moreover, states that decided to use decentralized regimes where testing and repairs could be performed at the same location would face a presumption that such regimes were not equivalent to the EPA model and when left unrebutted, would dictate that any emissions reduction claimed for such programs would be discounted by fifty percent.(893)
The immediate reaction to EPA's regulations was one of disdain on all sides. The National Automobile Dealers Association and the Natural Resources Defense Council challenged the rules in a lawsuit for different reasons, both of which failed when the case reached the D.C. Circuit on appeal.(894) Then, the newly elected 104th Congress introduced sixty-five proposals to amend the Act, including a proposal that would remove the 1990 Act's provision encouraging centralized testing.(895) Afraid that Congress might go forward with the proposals and gut the Act, EPA officials met with two governors representing a number of states in early 1995, eventually agreeing to propose a rule that would allow states more flexibility in crafting inspection/maintenance programs, including a provision that would allow an easier way out of using centralized regimes.(896) The move was a "strategic retreat [to] avoid disastrous amendments ..., [but t]he retreat ... quickly became a rout."(897)
Mounting state pressure forced EPA to continually back down on each of its successive proposals, all of which increasingly relaxed the requirements for inspection/maintenance regimes.(898) Protracted negotiations between the agency and a recalcitrant, car-dependent California led EPA to threaten sanctions a number of times for failure to comply with the inspection/maintenance requirements. Nevertheless, the two eventually reached an agreement in which the state would subsidize low-income car owners willing to repair or retire polluting vehicles and in exchange would only be required to use decentralized testing on some cars.(899) However, the California agreement only opened a window through which other states immediately started trying to climb. "Within days after the California compromise became public ... Georgia announced that It would delay entering into a contract with a private company to administer a centralized [testing] program," citing public distaste for the idea of a centralized regime.(900) Pennsylvania went one step further, announcing that it would back out of a deal it had entered to have a corporation run its facilities.(901) Similarly, in Texas a private company that had already begun operating franchised testing facilities in the state's centralized regime reported that only about one percent of its customers had filed complaints: many were pleased with the new system; and most waited ten minutes or less to receive an inspection.(902) Regardless, the radio talk show airwaves soon became filled with complaints that the facilities were inconvenient, time-consuming, and burdensome.(903) A local pastor led a "sparsely attended" march protesting the centralized program as "elit[ist]"; state legislators began chastising the requirements as "unnecessary, inefficient, and ill-conceived"; and then-governor-elect George W. Bush claimed that the program was "too onerous.(904) Finally, Governor Bush signed into law legislation that cancelled the state's agreement with the private company--despite the contract's guarantee to provide a reasonable return for the franchises--and removed inspection requirements altogether for Houston cars.(905) When EPA warned that the plan violated the Clean Air Act, Bush replied: "Texans can run Texas."(906)
Eventually, Congress passed, and President Clinton signed into law the National Highway System Designation Act, which lessened EPA's ability to require high-technology testing and barred the agency from penalizing states for not having centralized inspection/maintenance programs.(907) The official retreat symbolized a second instance within one year in which conservative congressional influence and local opposition stripped the Clean Air Act of its most important provisions regarding vehicle emissions. Perhaps more importantly, the retreat symbolized both a growing public contempt for federal environmental regulations that affect Americans' daily lives and a burgeoning willingness on the part of state and local governments to play into such concerns. In short, the retreat symbolized the increasingly perilous position of environmentalism in the United States today.
C. Environmental Justice: The New Movement?
While the mainstream civil rights and environmental movements began fraying at the edges, a new truly grassroots movement that combined facets from both its predecessors emerged in the late 1980s and early 1990s. The environmental justice movement, responding to findings that poor and especially minority Americans suffer a disproportionate share of the nation's pollution,(908) grew out of a consensus feeling that the mainstream groups had converged into a "white, middle-class [movement focused on] ... conservation, pollution control, species and habitat preservation, ... and consumer protection."(909) In 1991, the movement forged its course and created a formal agenda for itself by holding the first national People of Color Environmental Leadership Summit and drafting a document entitled the Principles of Environmental Justice, which called for equal protection from ecological harms, fair access to natural resources for all, greater corporate and military responsibility, better health care availability, and community involvement in environmental decisionmaking.(910) By 1994, the movement had begun obtaining legal protections(911) by securing an executive order from President Clinton that required all federal agencies to consider and address the effect of their actions on minority and low-income communities.(912) And by the turn of the century, significant developments in the academic treatment(913) of the movement had helped it streamline even further, allowing it to focus on four primary objectives: seeking distributional justice of environmental harms and goods, obtaining political justice in access to legal and decisionmaking processes, securing the rights of self-determination and sovereignty, and allowing for notions of "home as the environment" and one's "sense of place" to play into environmental determinations.(914)
Drawing from the strength of their ethnically and gender-diverse membership--and from their locally-based roots and typically action-oriented tactics--environmental justice advocates also began taking matters into their own hands, crafting creative and important solutions to the environmental discrimination problems they faced. A community in Highland Park, Michigan, for instance, used the state's law allowing reimbursement for cleanup of polluted parcels of land to redevelop a site ridden with various toxic wastes into a mixed-use development containing stores and low-income apartments.(915) Other communities, primarily in the South, have somewhat successfully used claims under Title VI of the 1964 Civil Rights Act to challenge the siting of waste facilities.(916) And in some areas, the movement has been able to mobilize community members with such force that polluters have simply turned away, agreeing not to locate in disproportionately affected neighborhoods or ensuring that pollution laws will be met.(917)
Indeed, while the mainstream civil rights and environmental movements seemed to be falling out of public favor to some extent and increasingly facing various legal obstacles, the environmental justice movement seemed to be gathering momentum. It had skirted the problems faced by proponents of affirmative action because, unlike in that area of law, the facts increasingly pointed to unfair treatment of minorities rather than laws facially preferenced against whites. Likewise, environmental justice avoided the pitfall of an industry-capture appearance faced by many mainstream environmental groups since the new movement was clearly footed in the grassroots. In fact, a solid argument can be made that at the end of the century, this new outgrowth of civil rights and environmentalism stands on firmer ground than either of its parent movements. At the very least, "[e]nvironmental justice undoubtedly will shape [mainstream environmentalism]. It already has."(918) How these three movements will continue to develop, influence each other, and affect the nation in the future, however, can only be seen with time.
As the civil rights and environmental movements inched temporally further and further away from their mid-century heydays, they also found themselves in increasingly less favored positions publicly. By the 1980s, gone were notions of passing landmark legislation, courts' doors were more often found closed, and both movements typically realized they were defending their ground rather than advancing their cause. For civil rights advocates, the crumbling foundation of their movement meant that their flagship program, affirmative action, was being cut slowly away. Likewise for environmentalists, local opposition meant two important provisions of the Clean Air Act were repealed in order to save the statute as a whole. Indeed, both movements seemed to be suffering from a popular backlash, although the reasons behind and implications of such an about-face both differed and shared characteristic parallels.
1. Fading Public Support: Reasons
While both movements suffered from fading public support during the latter decades of the century, the factors leading to this shared plague of backlash overlap only partially. Perhaps most prominently, both movements seem to be suffering from a public perception that their objectives are functioning in a zero-sum system. Thus, affirmative action is seen by white males as a program that will reduce their chances at receiving a job or being admitted to a college. Likewise, those who view environmental and economic goals as mutually exclusive may devalue environmental protections. Both of these analyses are bolstered by the arguments that the Constitution is colorblind and that the Fifth Amendment requires payment for restrictions on property--but rarely are these arguments complete or adequately nuanced. Regardless, they derive enough from deeply embedded cultural values of fairness and self-preservation, and add enough mental fortification to the notion of dichotomous choices, that much of the public will step away from a cause when they believe supporting it might harm them personally.
Similarly, other factors leading to the decline in support for civil rights are paralleled in environmentalism. Many whites believe that America's racial dilemmas are "solved," as do those advocating against environmental protection. The more this view is advanced, the more it may spread, and accordingly, the more the movements might suffer from fading public support.(919) This trend is only perpetuated further when anti-civil rights advocates or anti-environmentalists espouse pseudo-science in support of their views--notions, for instance, that race determines intelligence or that global warming is not occurring. Likewise, "white guilt" may provide yet another reason for Americans to believe the nation's racial problems have vanished, and even members of the public sincerely concerned about the environment may lose patience or give up hope in the face of genuine but constantly contradictory scientific conclusions.
Despite their similarities, the driving forces behind waning public support for the two movements differ in some important ways. Perhaps most notably, opposition to affirmative action seems to be a widespread phenomenon, while anti-environmentalists are slightly more organized under the auspices of the Wise Use umbrella. Of course, this is more of a black and white caricature than the gray real world where local citizens also oppose inspection/maintenance programs, but to the extent the difference applies, it may be an important one: it may mean that environmentalists, at least in part, have a smaller target to hit than "American culture." Because the Wise Use movement is industry-backed, environmentalists may be able to better understand the motives of their "opponents," so to speak, than might civil rights activists.(920)
Another distinction between the movements' loss of public support may arise from a difference in public perception of the movements. Civil rights made its greatest strides when it fit easily within the dominant paradigm of white cultural beliefs about equality and the unacceptability of undeserved violence. When the movement shifted gears by taking on a violent tone of its own, however, it lost ground with the public. Environmentalism, so far, has not largely suffered from this dilemma. Increasingly, though, Wise Users and the media portray environmental groups like Greenpeace and Earth First! in an extremist light, and it is likely that this image has harmed the movement.
Similarly, the civil rights movement seems to have suffered from a public perception that it switched its main message from equality in opportunity to equality in results. This "betrayal" of sorts has left the public and the movement in two very different places--each believing the other has flip-flopped its position. Environmentalists, on the other hand, typically seem to be portrayed in the same light as they traditionally have been: as those concerned about the planet's natural systems. To the extent that the public begins to view the movement as unconnected with its concerns, environmentalists may begin to suffer from some of the same problems as civil rights advocates. This has already occurred in the context of minorities and the poor rejecting a "white and rich" environmentalism--and Wise Users clearly are attempting to drive a wedge into what gap there is between mainstream groups and the public by portraying environmentalists as extremists--but the public's continued widespread support for the movement seems to indicate otherwise for the majority of Americans.
2. Fading Public Support: Implications
The result of fading public support for the two movements does not mean that the public favors civil rights and environmentalism less widely, but rather that it favors them less deeply. For civil rights this translates into a scenario in which the public will likely favor programs that do not appear to pose harms to white males--programs that, in terms of the proxy, are neutral in their racial application. Likewise, environmentalism enjoys support so long as a law or policy is not perceived as restricting the individual, robbing people of their jobs, or encroaching on the rights of private property owners.
Viewing the issue differently, the problem appears to be that Americans simply dislike having their individuality regulated by the government. Given our heritage of revolting against a monarch that taxed us without asking or caring what we thought, this observation is hardly surprising or novel, but its implications for the civil rights and environmental movements are no less important. Indeed, resistance of individuals from being regulated may pose severe problems for the modern civil rights movement. Some disparities can be corrected through laws and court action, but the most dangerous specter of all, rampant racism, remains largely unsolved in a paradigm where government cannot regulate the individual. This is not to say that such a paradigm is a negative one--I would argue otherwise--but it nevertheless spells difficulty for a movement concerned with blotting out antiquated and newly adapted notions of prejudice unfounded in anything but ignorance and cultural impatience. In contrast, environmentalists may be more blessed in this context, as many ecological problems can be tackled by regulating corporations and government or by managing public lands differently.(921) When the perception is that business regulation encroaches on individual rights to employment, the distinction becomes more blurred. But blurry lines are not nearly as harmful to a social cause as are racist views that corrode the basis of the movement itself.
Finally, and most importantly, a resulting implication of fading public support for the two movements is that legal and policy provisions implementing civil rights and environmental objectives may be more easily eroded or cut away altogether as the support increasingly wanes. This, too, is a somewhat obvious point in its most general terms, but when it is applied to specific situations, it proves more illuminating. California's repeal of affirmative action programs provides a telling example of the reaching effects of lost public support. White backlash against these programs by itself played a critical role in California's adoption of Proposition 209, but one of the most important impacts of the lost support was a type of "multiplier effect" it engendered. By exploiting a weakness in the American political system, our reliance on two parties, reduced public support for any given objective means that arguments against that goal immediately become magnified in public officials' minds. This effect seems to apply to any issue, but because civil rights and environmental problems may be portrayed as "leftist," a centrist political party can count on getting the votes of those who care about the issue without ever really delivering on it. When these same officials later learn that the voters they relied on to win the election now favor a given policy even less than before, they are less motivated to advocate for it. As a corollary, constituents who might hold contrary views suddenly become more important. Thus, when public opinion polls show that Proposition 209 enjoys wide approval, Asian Americans' argument that the University of California admissions program discriminates against them becomes an even more powerful paradox than before. This analysis of course does not apply neatly to California, since Proposition 209 was a voter initiative and not a creation of representative government, but in the context of other states such as Florida, the message clearly resonates. Moreover, even in California the effect may send policy ripples, as government officials shift their calculations as to how they should vote or conduct decisionmaking according to the public's concerns.
The two-party multiplier effect also seems to have implications for environmental law. The employee trip reduction mandate, for instance, was easily adopted into the 1990 Clean Air Act Amendments, but when employers and localities began resisting, Congress changed its position without hesitation. Clearly, other factors were at work in this situation--the program suffered from its own attempt at changing culture by force,(922) it had not been as well-researched as initially thought,(923) and the makeup of Congress had changed--but the similar course of legal evolution in the inspection/maintenance regimes may indicate the power of local opposition to provide a dual incentive to resist implementation of environmentally friendly policies.
3. Environmental Justice's Role
While the implications of fading public support for the two mainstream movements are perhaps the most significant issues the movements face, the importance of environmental justice's role also should not be overlooked. Most meaningfully, the environmental justice movement's rapid growth in the last ten to fifteen years delivers a dual message to mainstream environmentalists: issues of equity cannot be ignored, and a perception that the movement is out of touch with the grassroots will only hinder its future progress. To some extent, the mainstream movement seems to have taken these messages to heart, but a failure to Incorporate them entirely could be a mistake. The environmental justice movement seems hardly in a position to overtake the mainstream civil rights movement, as the objectives of civil rights advocates in general are far broader than merely ensuring equity in the environmental context. But if mainstream environmentalism and environmental justice continue to coexist as separate entities in our social universe, then the places where the two movements conflict may only add more noise to the cacophony created by Wise Use and other messages in disharmony with what some environmentalists advocate. In contrast, fully embracing environmental justice may provide an opportunity in which environmentalists may more effectively regain part of what first jump-started the movement: grassroots support at the local level.
VI. CONCLUSION: LESSONS FOR ENVIRONMENTALISTS
From the day African servants set foot on American soil in 1619 to President Lincoln's Emancipation Proclamation In 1863, from the Supreme Court's decision in Dredd Scott to its holding a century later in Bakke, race has been and continues to be a defining and often divisive feature of American society. Unquestionably, African Americans are legally and socially in a better position today than during Washington's time, or even Kennedy's, but the road taken to arrive where we are now has been a tumultuous one. Slavery and its codes oppressed through power and law, politicians traded portions of black souls for constitutional assurance and southern votes, and the nation shed blood time and time again. Progress came in fits and spurts, starts and stops. Abolition reigned in the North, but in the South cotton was king. Congress began to reconstruct the nation, but the courts turned their heads. Then, in yet one more ironic twist to the story, Congress turned its head and the courts began to listen. Finally, in 1964, after the death of a president, protracted congressional compromise, and a record-breaking Senatorial filibuster, the privileged finally bowed, passing a law that sought to ensure equality for all Americans irrespective of race. The victory, however, was short-lived. By decade's end, public support began to wane and in the ensuing years, courts again became far less eager to accept civil rights claims. And by the turn of the century, the movement that had outlived the nation seemed near death. Proposition 209 in California set off a wave of state-led repeals of affirmative action, and the backlash from the historically privileged did not seem limited to preferential programs, as church bombings, hate crimes, and racial profiling all reminded America that our past has never entirely faded away.
Environmentalism, too, traveled a long--although less socially fatiguing--path before it finally arrived at a place where the nation was willing to fully recognize the importance of the movement's message. Bearing a course of philosophical evolution rather than political revolution, the movement meandered slowly for two millennia until it found its rebirth in Transcendentalism and the related movements of the early nineteenth century. Then, trifurcated into preservation, conservation, and urban environmentalism, the movement began to gain incremental but important achievements. The National Park Service, the Forest Service, and the Fish and Wildlife Service were created; cities began regulating air pollution; and national groups started finding their focus. When the movement finally arrived at its own legislative moment, however, its popularity was a newfound prospect. Only decades earlier, Hetch Hetchy had been dammed, the movement had been brushed to the side for war and depression, and one of the most important environmental works, A Sand County Almanac, had gone almost entirely unnoticed. Still, spurred on by the wave of concern from suburbanites beginning to realize their effect on the planet, Senator Muskie and President Nixon engaged in a type of political competition that enhanced rather than eroded the tone of environmental legislation throughout the 1970s. Yet just as they had done to civil rights activists, the courts quickly closed their doors to environmentalists, and as the wave of legislation faded back into the congressional sea, an undercurrent called Wise Use reared its head. The implications were unclear, but by century's end the backlash had definitely had an effect, public support was not as ardent as it once was, and 1995 brought ominous signs as two important Clean Air Act programs were repealed entirely in the face of local opposition.
The two movements that had most shaped the nation during the twentieth century had suddenly arrived at a common place. Despite their divergent heritages, both achieved their greatest successes in roughly the same period, both had subsequently suffered rejection in federal court, and both had then gone on to face popular opposition that was most severe when individuals felt the movements encroached on their opportunities or rights in order to achieve civil rights or environmental objectives. Civil rights, however, was in the most perilous position. It had been America's most divisive issue throughout the nation's history; its backlash had already commenced when environmentalism was just beginning to receive significant federal legislative response; and the result was that the movement's flagship program, affirmative action, was quickly disappearing. Indeed, the civil rights movement seemed to be in a position dangerously close to either demise or utter transformation, and environmentalism was not lagging far behind. The question that remained was what lessons environmentalists could garner from the increasingly shared trajectory of America's two most important social movements--lessons, it seemed, that might help environmentalism avoid following in civil rights' path. The remainder of this Part outlines what some of those lessons may be.
A. Avoiding Zero-Sum and Apparently Zero-Sum Politics
In the midst of the Montgomery bus boycott, the Reverend Martin Luther King, Jr. commented on his surprise at the great white intransigence to civil rights leaders' demands. "I had believed that the privileged would give up their privileges upon request," he disclosed, "[but] I [have come] to see that no one gives up his privileges without strong resistance."(924) King's words were insightful at the time for their concise understanding of the crux of the obstacles civil rights activists would face in the coming decade, but they proved most prophetic for their characterization of the dilemma both civil rights advocates and environmentalists would face forty and more years later as they advanced their causes. In fact, the most resounding message that a historical juxtaposition of the two movements has to deliver is that public resistance is greatest when the public perceives something is being lost in order to achieve civil rights or environmental goods. In other words, environmentalists should avoid politics that are zero-sum--or appear to be zero-sum--in nature.
The problem of zero-sum politics is further exacerbated when the objective advanced appears to yield few individual benefits. Examples of these situations abound, but the most potent is California's Proposition 209. When white males gained enough of a perception that their chances of being admitted to the state's most prestigious universities were being diminished by policies that favored racial minorities, the policies suddenly had to go. Due largely to a white belief that the nation's racial problems have been solved, a popular notion of colorblind law following the enactment of the 1964 Civil Rights Act, and a perception of irony when Asian Americans also felt discriminated against, affirmative action appeared only to harm broad classes of people while unfairly advancing the lives of a few who no longer needed or deserved special treatment. Similarly, the 1995 Wall Street Journal poll showed that public support for environmentalism begins to wane as the movement's objectives increasingly encroach on the pocketbook,(925) and Wise Users' success seemed to be greatest when they were able to categorize choices as decisions between jobs and the environment. Again, the costs in these circumstances are obvious to the individual--humans lose economically--but the benefits of environmental protection are diffuse, temporally distant, and not always clear. While landmark legislation is not imminent for either movement, the difference between the political processes behind the 1964 Civil Rights Act and the 1970 Clean Air Act also seem to support the conclusion that zero-sum politics must be avoided. There, Presidents Kennedy and Johnson were barely able to push a heavily compromised bill through Congress because southern opposition and midwestern apathy represented a sentiment that the bill would bestow few benefits on the majority of Americans. On the other hand, as the population suburbanized, the economy further industrialized, and science began demonstrating the problems associated with a chemical society, the benefits of cleaner air became clear and Senator Muskie and President Nixon were forced to fight over who could bring the strongest law to the people.
The trick, then, appears to be that environmentalists need to expose more clearly the individual benefits environmental protection provides while at the same time mitigating its costs to members of society. The good news is that environmentalists seem to have a hand up on civil rights activists in their ability to do so. The individual benefits of affirmative action, for example, are difficult enough to grasp due to the program's primary targets of providing a more racially harmonious society and compensating for past wrongs, but when the policy is perceived as one that actually harms many individuals, its benefits are then almost impossible for many people to comprehend. In contrast, many benefits of environmental protection can be easily tied back to making individual lives better: safer drinking water, decreased probabilities of respiratory or other pollution-induced illnesses, and the possibility of taking the family on a camping trip to Yellowstone. Moreover, civil rights may suffer from a logical crisis when the notion that our laws should be colorblind prevents consideration of race even though that single characteristic has been the essence of the issue all along.(926) Fortunately for environmentalists, however, almost no one denies that to stop pollution we must go to the polluter, or that to preserve our chances of survival we must better understand our effect on the planet.(927) Rather, environmentalists need only aim at dispersing their policies' costs rather than allowing them to become concentrated on individual members of society. Some environmental policies already in place may provide excellent examples of how the movement can craft innovative solutions that at once achieve environmental protection, more prominently display the individual benefits of the policy to the players involved, and spread the costs of doing so across the nation as a whole.
1. Habitat Conservation Easements
A growing approach to protecting habitat of threatened and endangered species allows government, well-known environmental groups, or other socially reliable entities to purchase easements from private property owners that disallow development in the habitat areas. By compensating property owners who voluntarily choose to enter into such contracts, these so-called habitat conservation easements take away Wise Users' argument that endangered species protection forces land owners to relinquish important rights. Moreover, because easements can be drafted to include only the property rights needed to protect the habitat, they are more economically efficient than other preservation possibilities such as purchasing land outright.(928)
2. Emissions Trading Programs
Another innovation, the 1990 Clean Air Act's Title IV, allows emitters of sulfur dioxide and nitrogen oxide, two of the main sources of acid rain, to meet emissions requirements by buying allowances from other polluters.(929) Accordingly, polluters who can easily comply with the law may sell their unneeded allowances to other polluters for whom further emission reductions would be extraordinarily expensive. The immediate result is that the same level of pollution abatement is achieved as under traditional command and control regulation. However, by making the process of pollution control more economically efficient, Title IV pulls air quality protection out of the zero-sum game by reducing industry's resistance to pollution control.(930) Environmentalists, in turn, benefit as workers from polluting facilities become less concerned about losing their jobs to a nonsensical federal law, and the public's perception of environmental regulation as an all-or-nothing proposition begins to fade.
3. Job Training Subsidies
Similarly, subsidies for job retraining programs "compensate" workers who lose their natural resource-related jobs due to environmental protection and thus derail Wise Users' argument that the choice is one between "people or owls." Although such programs clearly cannot offset the lost personal value of ending a family tradition of logging, for instance, they can help to mitigate the likely overriding concern of familial economic survival. Indeed, the federal government has already begun subsidizing job retraining and boat buyback programs for New England fishers unable to work in the Eastern Seaboard's declining fisheries.(931) And National Forest officials in California have helped train former loggers to conduct wildlife studies and stream restoration projects--skills that will enable them to continue working in the forests.(932)
4. Ecosystem Services
A growing body of knowledge about the benefits "ecosystem services" provide humans--insects' pollination of crops and renewal of soil fertility, wetlands' natural cleansing of water, and plants' regulation of the climate, for instance--is broadening our understanding of the extent to which we rely on nature for our survival.(933) In some ways, the values of these services are already implicitly acknowledged in environmental laws such as the Clean Water Act, the Endangered Species Act, and the National Forest Management Act.(934) However, to the extent that environmentalists can achieve laws and regulations that incorporate the value of these services more fully, the public may become more aware of the multifarious and rich benefits we all individually reap by protecting our planet. For example, public land managers could use ecosystem service indicators such as nutrient trapping or water flow to mandate baseline levels of environmental protection.(935) Similarly, ecosystem services may prove a useful way to better harmonize our mass of federal environmental laws. As Professor Salzman notes,
a focus on ecosystem services has the potential to unify disparate parts of environmental law, linking the conservation goals in laws such as the Endangered Species Act and National Forest Management Act more closely with the human health goals in seemingly unconnected laws such as the Clean Air Act and Safe Drinking Water Act.(936)
In other words, by tying all environmental laws back to a common goal of preserving the planet for human survival, rather than to many divergent ones such as pollution abatement, species protection, and land conservation, ecosystem services could allow more Americans to see how environmental law provides a personal nexus to the quality of their lives.
B. Avoiding a Fringe Characterization
While environmentalism faces its greatest opposition in situations where zero-sum politics seem to be at play, a newer and growing problem for the movement is the characterization of its members as a fringe element of society. Wise Users especially employ this tactic to advance their own goals, depicting environmentalists as nature-loving human-haters who would rather spike a tree and endanger a person than use the forest's resources to build homes, make paper, or create jobs. When the media then covers Greenpeace boats blockading whale hunters or Earth First! members storming Congressmembers' offices, the public gains a factual foundation for any beliefs they might have previously held about the questionable nature of the movement, and the myth of environmentalists as "a bunch of wackos" is further perpetuated. Continued spin from the Wise Use camp combined with folklore or fiction--such as Edward Abbey's The Monkeywrench Gang(937)--that might easily be confused for advocacy in turn reinforces the perception, and the public's view of environmentalists begins on an informational cascade cycling ever toward a position that is neither entirely accurate nor terribly helpful.(938)
The cascade is a dangerous one. The civil rights movement's sudden about-face in the public mind following the rise of Black Power provides a persuasive example of just how concerned activists should be about societal perception. The historically disfavored position of civil rights activists contrasts starkly with the exponentially expanding mainstream support environmentalism enjoyed throughout its development, but how this difference cuts is unclear. On one hand, the difference may mean that environmentalists need not have great concern over their public perception, because civil rights' troubled history prescribed its course--an inapplicable one for environmentalism--and when the movement shifted away from advocacy through non-violence, it was doomed. On the other hand, the fact that a movement so historically disfavored was able to gain broad support from blacks and whites alike may only prove the power of public perception to transform a movement's ability to effectuate its cause. When a lack of popular support is enough to gut two important programs of the Clean Air Act--and when environmentalists have difficulty communicating how the broad benefits of their objectives relate individually to Americans--the movement would be ill-advised to decide to gamble on its characterization in society.
To avoid being characterized as a fringe element, environmentalists should change their tactics. Violence turned the tide for the Black Panthers, so it seems that any activities that could be construed as violent or that could lead to violence should be avoided entirely. Tree spiking, monkeywrenching, and other uses of physical force are certainly symbolic, but their symbolism is counterproductive. Other direct-action methods may prove unharmful, but they should be used with caution. Peaceful rallies in redwood forests may quickly turn to police-led pepper spray altercations, and the use of any force again implies what environmentalists do not want to communicate: violence for the sake of nature. Yet caution in employing direct-action poses two problems for the movement. The first is that environmental justice advocates view direct-action as a necessary tool to the furtherance of their cause, as the disparities in ecological goods and harms is a likely systematic result, so using the system to respond appears pointless. Likewise, some environmentalists may view abandoning certain modes of operation as compromising their ethics. Environmentalists should not depart from the substance of their message; rather, they should rechannel their energy to more effectively accomplish their objective of ecological protection. Teach-ins, for example, could serve as an important forum in which activists could use their knowledge to at once better educate the public, heighten awareness, and personally advocate for the cause. Similarly, environmentalists should consider communicating their message in terms that will more clearly resonate within society. The notion of ecosystem services is again a useful example. By explaining the value of nature to humankind in economic terms, preserving a wetland suddenly stacks up more understandably with building a home or paving a parking lot. Of course, explaining other environmental problems in monetary terms may make some environmentalists squirm. For example, some have criticized the Clean Air Act's tradable permit system as conveying an unacceptable "right" to pollute, and others contend that the value of endangered species is immeasurable.(939) But while placing monetary values on some environmental issues may be an uncomfortable position ethically, it may be a more effective one politically.
C. Recognizing a Paradigm of Compromise
When President Kennedy took his civil rights bill to Congress in 1963, it was hardly surprising that compromise would be the order of the day. Compromise, in fact, had been the order for some time. Even abolition had initially been instituted as a "gradual" program, and the Court's decisions in The Civil Rights Cases and others such as Hail v. Decuir certainly seem from a historical perspective to have created a de facto middle ground between the aggressiveness of the North's new constitutional amendments and the South's increasing resistance to them. Moreover, the bill was a classic case of King's zero-sum analysis in which the privileged are asked to hand over their privileges, and the representatives for the privileged were all there on Capitol Hill. The Clean Air Act, in contrast, had some very certain differences. There had been very little prior national debate over environmental protection, especially in the pollution context. The benefits of increasing air quality seemed wide and immense, while the costs seemed comparatively small and confined. And industry representatives arrived late to the scene, while environmentalists pushed largely on the political actors rather than the provisions of the statute itself.
Today, however, environmentalists are in a much different position than they were in 1970. The economic costs of pollution control have become exceedingly clear, and the benefits are less obvious for each dollar we invest. We have put solutions to the easy problems in place. There are scrubbers on smokestacks, monitors on discharge pipes, and it is illegal to kill an endangered species. Abating that last pound of pollution is often a more enigmatic prospect than the first ten, and the fact that our laws now address many environmental problems may lead to a perception that, like the modern white view of race relations, we have solved the problem.(940) Industry, too, has learned its lesson, and never fails in putting forth a lobbying effort. What is more, the wide variety of public officials(941) interested in advancing at least some environmental goals today means that the majority of the political benefits for doing so can no longer be reaped by a single or a few politicians.(942) Likewise, legislation's symbolic value has decreased. This is no longer pollution's legal frontier; this is no longer our first and noble attempt to make the world right.(943) The result is that there is a fight over the outcome of every issue.(944) The determination of whether to protect a desert area as wilderness, the decision over the stringency of air pollution control, and the placement of a hazardous wastes facility all are subject to the new paradigm. The paradigm is compromise.
For environmentalists, recognizing this paradigm of compromise poses a number of challenges. The incremental policies that are necessarily a result of give-and-take politics may invoke an increasing appearance of co-option. To the extent that this appearance of co-option then leads to dissatisfaction with environmentalists' tactics or achievements, rifts may begin to form within the movement. Such divisions may already be a problem for environmentalists. As one author has noted, "the diversity of interests and the resulting instability of large coalitions over time make the ... [environmental] movement somewhat less cohesive (though more global in scope) than the American social movements of the 1960s."(945) Indeed, environmentalism's history in America began as a trifurcated one, with all three factions advancing rather different specific objectives, although their ultimate goals shared a general common purpose. More recently, the appearance of co-option certainly played a role in the emergence of environmental justice, as members of that movement felt activists in the mainstream were out of touch with the equity-centered problems faced by minorities and the poor. When a perception of co-option begins to divide the movement--as perhaps it already has-environmentalists should strive to create a greater sense of unity, or in other words, to build a stronger consensus. The details of the blueprints for this consensus-building are unclear, but there may be some places to start. The mainstream movement should work to more fully embrace the goals of environmental justice within its own objectives. By itself, this will create greater unity by ameliorating the alienation of this important group, and it may also help to bring environmentalism back to issues that affect people individually. Similarly, by defining more clearly a few major objectives of the movement, environmentalists could streamline their course and focus their attention. These objectives may be, and may need to be, substantively very diverse, but by winnowing down where efforts are placed to a representative but more consolidated agenda, the movement could avoid certain divisions. For example, the World Wildlife Fund believes the movement has lost sight of endangered species by focusing on issues of suburban sprawl, whereas 1000 Friends of Oregon's(946) view is that the movement has left sprawl on the side to deal with endangered falcons, turtles, and salmon. By tying this more national agenda to local issues, environmentalists could capitalize on the primary lessons taught by both environmental Justice advocates and Wise Users--that having the grassroots on your side is an important step toward results.
D. Rediscovering and Redefining Cooperative Federalism
Although on a broad level the popular backlashes against civil rights and environmentalism seem to share a common contempt for legal encumbrances on personal opportunities or rights, on a more specific level they may also differ in a somewhat nuanced way. The source of the backlash against civil rights appears to come largely from whites who believe that the nation's racial difficulties are past, those who believe the movement advances "reverse discrimination," and those who are party to the "new racism." The backlash derives, then, from a rejection of any law--state or federal--that advances certain objectives of the movement, especially affirmative action. Environmentalism, on the other hand, faces its opposition to some extent from individuals who feel that the laws encroach on their rights, but also from localities and states that feel the laws restrict their ability to govern. The environmental backlash derives, then, in part from a rejection of the notion that federal government can embezzle state sovereignty. An excellent example of the contrast in the movements' backlashes is provided by a juxtaposition of the repeals of affirmative action and the Clean Air Act's inspection/maintenance programs. Californians' decision to enact Proposition 209 was one that rolled back a state, not federal, program. The law specifically focused on state and local governments, and was a reaction against the use of race in a certain way rather than the invasion of federal officials into local affairs. The inspection/maintenance regimes, however, were turned back largely due to state unwillingness to cooperate with a federal mandate. In fact, Californians resisted because of the extremely important role of cars to the state's transportation infrastructure, and because service station owners had a lot invested in the "Smog Check" programs they had been using.(947) Likewise, Texans seemed generally unwilling to be told by anyone in Washington how to clean up their air. As then-Governor Bush noted, "Texans can run Texas."
This difference in opposition to the two movements--combined with environmental justice's basis in the grassroots and Wise Users' ability to portray environmentalism as a national movement unconcerned with the common person--demonstrates a clear need for environmentalists to advance their agenda on local fronts through local citizens. Local participation in the environmental decisionmaking process may lead to more enduring solutions, because the people who ultimately live with them have helped craft them. In Michigan, communities that have more input into how polluted sites are redeveloped are more pleased with the outcomes than communities that do not have as great an opportunity to influence redevelopment or that feel their concerns were not adequately addressed.(948) Moreover, in some situations, local environmental laws may provide more protection than federal provisions. For example, California's Proposition 65 places much stricter restrictions on toxic substances than does federal law.(949) Similarly, states may ratchet their air and water emission standards above the federally required levels.(950) And in the interstate waste transport context, the dormant commerce clause has prevented a number of states from banning garbage from being brought within their borders and deposited in their landfills.(951)
The prospect of relying more on locally focused environmental activism, however, does not come without problems of its own. To begin, too much reliance on local solutions would seem to run contrary to the emerging need for environmentalists to build a consensus agenda--the more issues are identified as unique to localities, the less a group in Baltimore seems to have in common with a group in Albuquerque. Likewise, because environmental problems are so broad and complex, they demand federal attention for a number of reasons. First, most states do not have the resources, financial or otherwise, to adequately address environmental problems as diverse and far-reaching as species loss, pollution control, land preservation, waste facilities, and more. Additionally, some of these problems, such as species loss and pollution control, may cross state boundaries and thus necessitate involvement of a regulating entity with more widely reaching authority than a single state possesses. But perhaps most problematically, leaving environmental regulation entirely to the states may result in a variation on Hardin's "tragedy of the commons," or what has been called a "race to the bottom"--a "progressive relaxation of state environmental standards, spurred by interstate competition to attract industry, that also occasions a reduction in social welfare below the levels that would exist in the absence of such competition."(952) Although there is some debate as to the intricacies of how this reduction in welfare might occur,(953) it is clear that federal environmental regulation has the potential to obviate concerns about states competing for Industry by adopting even lower environmental standards.(954) Accordingly, environmentalists should not advocate for an abandonment of federal regulation but should instead look for ways in which federal control and state maneuverability can be combined to maximize both ecological protection and local influence.
An important example of how environmentalists might Implement this goal can be found in the common ancestor of all modern environmental laws, the Clean Air Act. Under the Act, states are required to design "implementation plans" that must be approved by EPA and that will allow them to meet federally-mandated air pollution levels.(955) Expanding on the New Deal's model of "cooperative federalism," this program works in theory to maintain a higher level of air quality than could be achieved if states set standards themselves, while also allowing states to decide for themselves how to reach that level. Although the Clean Air Act's state implementation program system has not worked perfectly,(956) it could be refined and then adopted into other environmental laws to simultaneously bring about greater ecological protection and local involvement. One way to accomplish this would be to remove some of the procedural requirements of the Act, such as EPA approval of state plans and increasing incentives in order to offset an increased possibility of state refusal to comply. Federal grants could be used as carrots or sticks in this context, and techniques such as granting tax credits to citizens who comply may also better ensure success on that level.(957) In inspection/maintenance programs, for instance, then-Governor Bush would have been allowed to let Texans decide how to meet emissions standards, and tax credits very well might ensure that most drivers comply with the program the state adopts. Similarly, the Clean Air Act's tradable permit system provides an excellent example of how the federal government can ensure a given level of protection when dealing with industrial polluters, while also allowing businesses to decide how they will meet that level of protection. Other variations on this theme certainly exist, and environmentalists should use their ingenuity to help find them, craft them, and forge them into law.
E. Seeking Other Forums
Environmental laws, no matter how well-designed, will likely have little effect if interested parties cannot enforce them. Because most of the enforcement power for these laws lies in the executive, when presidents uninterested in environmental protection take office, the impetus for that protection shifts largely onto the public. One does not have to look far to find an example of such an occurrence; President Reagan not only refused to enforce many environmental laws but also allowed massive staff and budget cuts in EPA. It is perhaps unsurprising, then, that Congress included citizen suit provisions in almost all of our modern environmental laws. It is also in this context that courts' increasing disfavor for environmental plaintiffs is so troubling. Especially when compared to the civil rights movement, courts' fettering of access for environmentalists seems bleak. While civil rights litigants are also often denied judicial access, their cases are not simply turned away but are instead shifted to other forums. Environmental plaintiffs are more often entirely denied capacity to bring suit under the Supreme Court's increasingly stringent standing jurisprudence. On the other hand, environmentalists may be able to turn a bleak situation into a positive one if they take a lesson from the civil rights movement. Reversing the trend in the Court's rulings on standing would benefit the movement, but there may be other important avenues for environmentalists to pursue.
The clearest possibility is for environmentalists to seek greater access to court on the state level. The Supreme Court's decisions in the standing area limit what cases can be brought according to Article III of the federal Constitution.(958) Accordingly, states are not necessarily barred from enacting laws that provide broader notions of injury, traceability, or redressability. Pursuing such state provisions would thus seem to be an important first step to gaining greater judicial access. Another worthwhile objective would be to tie such standing provisions into federal environmental law. If Congress were to modify state implementation plan requirements according to redefined notions of cooperative federalism, environmentalists may be able to circuitously use state laws to enforce federal environmental standards. For example, if the requirement of EPA approval were removed, laws adopted by states to achieve cleaner air would be free of any federal taint and therefore not subject to the strictures of Article III as defined by the Court.
Environmentalists should also consider seeking access to enforcement through another forum with some parallels to the use of mediation in the civil rights context: negotiation. In at least one situation affecting natural resource use, negotiation has already been employed fairly widely and with some success.(959) The process of "watershed management" brings together interested parties including local, state, and federal government representatives--and in many cases those of environmental and other groups--to provide for participatory, "bottom-up" planning that surpasses what individualized planning on a city-wide, county-wide, or even state-wide basis could provide.(960) For example, New York City recently received an EPA waiver allowing the city to forgo building an expensive water filtration system after it successfully negotiated with the state, affected communities, and environmental groups to help fund protection of the Delaware and Catskill watershed from which its drinking supply comes.(961) Similarly, one author has proposed a similar approach for those who rely on the Colorado River.(962) When such negotiations work well, the result is that environmentalists are able to advance their agendas while at the same time avoiding conflict by building a consensus among the interested parties. This in turn means that the ultimate outcome should be a more lasting one, which would also help to ensure that the level of protection sought is more likely to be achieved. But the process, of course, has its limitations. In contexts in which the controlling party is subject to capture by industry or another group advocating interests divergent from environmentalists', negotiation is unlikely an adequate substitute for judicial access. Moreover, negotiation simply may not suit certain situations. The process seems to work well in addressing complex problems with a diverse array of interested parties, such as watersheds,(963) but attempting to apply negotiation to determinations such as the allowable air emission levels for Nebraska or North Carolina would only complicate the issue. Likewise, parties may not be at all amenable to negotiation if they believe they have a decent chance at succeeding through political, media, or other avenues--or in court.(964) Indeed, environmentalists would be well advised to take long pause before they abandoned a citizen suit provision in favor of one that allows for negotiation with industry.
F. Prioritizing Education
A final lesson for environmentalists is an expected, yet unsatisfying one. Despite the countless hours and forests of paper used over the centuries to address our nation's civil rights and environmental problems through law, some problems are so intractably intertwined within our culture that legal solutions simply do not work. The day that race somehow became associated with slavery was a tragic one at the time, but no one could have known then the heartache and bloodshed to which it would eventually lead. Environmentalism also suffers its own, somewhat less emotionally unsettling cultural quandaries. We believe in America that owning things is happiness, and that the happier you are, the better. These problems and others of their type are some of the greatest we face. They leave black churches in ashes in the South, and they consume precious resources to make fancy watches and expensive television sets while children across the world starve. Yet law alone cannot mend them. It cannot force Klan members to believe that all races were created equal. And it cannot convince anyone that owning a luxury car is not a true symbol of worth, despite the message of status it might convey. If it could, our country would arguably be worse off for it, and if it did, the law would likely tumble under the pressure of the unchanged society that allowed it to come about.
The answer to the question of how such cultural faults can be repaired is perhaps the most elusive of all, but one place to start is through education. One of the most Important uses of education for environmentalists is to counteract the pseudo-science being spun out by Wise Users. The air of credibility with which these "indings" are typically delivered lends itself to defraying attention away from Ron Arnold's favorite epithet that the Wise Use movement is going to "put the stone in [environmentalism's] head."(965) It also serves to create a state of confusion among the public that leads to apathy over environmental issues and adds to the growing notion that there is nothing wrong in the planet's ecosystems. Moreover, Wise Use's pseudo-scientific rhetoric distances individuals from the environmental consequences of their actions because if there is no human-induced ecological deterioration, there is no need to change behaviors or support laws that protect the systems that sustain us.
There are a number of ways environmentalists might implement this goal of education, but the most obvious seems to be in the schools. Although a result of fostering a broad cultural change may be slow in coming, environmentalists should support environmental education programs on all levels of academe and through any means possible. Providing our nation with a greater scientific understanding of the world's environment will help to ameliorate the effects of the Wise Use movement, and more importantly, allow Americans to more fully see how environmental protection can benefit them individually. Programs that provide instruction about environmental laws may only bolster this effect. A Washington, D.C., law firm, for instance, sponsors a program in which its attorneys teach a semester-long course at a local elementary school about how the Clean Air Act tries to address the problems created by air pollution. Throughout the semester the children participate in a system in which the attorneys award them points depending on their knowledge of the law, and when the course is over, the children exchange their points for actual tradable permits that the firm purchases and then retires from the market.(966) The class' effect on the nation's air quality is little more than negligible, but the true effects go far beyond retiring a few permits. Environmental groups should consider engaging in similar programs, and they may well find that school systems warmly welcome them.
Environmentalists may also want to consider communicating their message to the public through media that will not tend to shortchange them. By necessity, television newscasts portray issues in sound-bites and factoids, moving to the next story before viewers are lost to another station showing the weather. Likewise, the ethics of journalism typically compel writers to convey "both sides of the story," even if one side clearly outweighs the other. In fairness, the task of the journalist is to convey useful information to the public so the public can weigh the facts and make its own judgment, but when environmental science is over-simplified or misrepresented, the effect can be a perpetuation of misinformation in the media.(967) Accordingly, environmentalists should support alternative forms of media that can more thoroughly discuss the complex scientific and policy issues behind environmental protection. Public radio stations, for example, typically provide more in-depth coverage than can other news sources. Likewise, using internet sites to make available easily understandable scientific information about the environment could be helpful in communicating environmentalists' message. The difficulty in this media form would be linking the pages of the Sierra Club, for instance, to topics for which the public typically searches, but with time and consideration this also could be accomplished.
Finally, environmentalists should make a concerted effort to help educate the people who are most likely to influence policy and law on a daily basis: attorneys and judges. Especially with judges, the Supreme Court's standing cases alone demonstrate a potential lack of comprehension of basic ecological concepts, and if environmentalists hope that environmental law will more realistically reflect the nation's environmental problems, then judges must be reached. One way of doing this would be to sponsor continuing legal education courses, optimally with both scientific and legal material included. Such courses would reach the bench and the bar, but sponsoring similar classes at legal conventions held only for judges would be particularly helpful in targeting that audience. Likewise, environmentalists should seek to foster environmental education in law school. A pipe dream would be convincing accredited law schools to make an environmental law or policy class mandatory along with the traditional first year curriculum, but other alternatives could also encourage greater enrollment in such courses. For example, schools could allow certain environmental courses to meet graduation requirements, such as "perspectives" or law and policy." Similarly, law schools could bring a greater diversity of students into their environmental programs by offering courses similar to "tax policy" classes for students who want to learn about tax--but not about the tax code itself. An "environmental policy" class that focuses on the processes behind environmental regulation rather than the ins and outs of pollution control or public land management statutes would serve a broader audience than many traditional environmental law courses.
Environmentalists in the coming millennium face challenges unprecedented by those faced earlier in the movement's history. At the same time the world population has exceeded six billion people,(968) scientists are warning of a possible mass extinction event,(969) and global warming poses potentially planet-altering climatic changes,(970) our nation's laws seem to have already addressed the "easiest" ecological dilemmas, and the public's support for environmentalism appears increasingly shallow. The greatest challenge for environmentalists may be keeping the movement afloat in a time when it is needed more than ever. Yet environmentalists also appear to be party to an informational boon, a fortunate byproduct of a lag-time in the movement's increasingly shared evolutionary path with civil rights. By implementing the lessons that a historical juxtaposition of these two movements teaches--that zero-sum politics and fringe characterizations should be avoided, that the current paradigm of compromise must be recognized, that a redefined notion of cooperative federalism and increased access to other law-enforcing forums may provide new opportunities for ensuring sustainability, and that education is a vital key to the future--environmentalists may be able to redirect and revitalize their apparently staggering movement. They may be able to restore environmentalism to a position where it can provide the ecological protection, scientific insight, and unrelenting desire to make a difference so desperately needed today.
(1) DINESH D'SOUZA, THE END OF RACISM: PRINCIPLES FOR A MULTIRACIAL SOCIETY 552 (1995).
(2) Sonya Walls, Black Church Bombings in the South, CHICAGO CITIZEN, June 20, 1996, at 2; see also discussion infra Part V.A.4.
(3) See discussion infra Part V.A.5.
(4) Traci Watson, For Most Americans, It's Not Easy Being Green, USA TODAY, Apr. 22, 1998, at 3A.
(5) S. Robert Lichter, Liberal Greens, Mainstream Camouflage, WALL ST. J., Apr. 21, 1995, at A10.
(6) Watson, supra note 4, at 3A.
(8) Lichter, supra note 5, at A10.
(10) Seth Borenstein, It's Not Easy Being Green: As Earth Day Turns 30, It May Be Losing Its Punch, SEATTLE TIMES. Apr. 21, 2000, at A3.
(11) For the civil rights movement, however, my analysis is limited almost exclusively to issues relating to African Americans. Although I recognize the importance of other ethnic groups' roles in the history of American race relations, I focus on African Americans to streamline the discussion.
(12) CHARLES W. WHALEN & BARBARA WHALEN, THE LONGEST DEBATE: A LEGISLATIVE HISTORY OF THE 1964 CIVIL RIGHTS ACT xi (1985) (quoting John Rolfe's journal).
(13) JOHN HOPE FRANKLIN, FROM SLAVERY TO FREEDOM: A HISTORY OF NEGRO AMERICANS 30-31 (5th ed. 1980).
(14) Id. at 36.
(15) Oscar Handlin & Mary F. Handlin, Origins of the Southern Labor System, in COLONIAL AMERICA: ESSAYS IN POLITICS AND SOCIAL DEVELOPMENT 207, 231 (Stanley N. Katz ed., 2d ed. 1967).
(16) Id. at 216.
(17) FRANKLIN, supra note 13, at 35.
(20) LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 85 (2d ed. 1985).
(21) FRANKLIN, supra note 13, at 54.
(23) See WINTHROP D. JORDAN, WHITE OVER BLACK: AMERICAN ATTITUDES TOWARD THE NEGRO, 1550-1812, at 3-43 (1968).
(24) Id. at 228-30.
(25) ARTHUR ZILVERSMIT, THE FIRST EMANCIPATION: THE ABOLITION OF SLAVERY IN THE NORTH 7 (1967).
(26) See JORDAN, supra note 23, at 95.
(27) ZILVERSMIT, supra note 25, at 8.
(28) FRANKLIN, supra note 13, at 35-36.
(29) JORDAN, supra note 23, at 98.
(30) See FRANKLIN, supra note 13, at 55-56 (describing an early Virginia court's different treatment of two servants who ran away together); William M. Wiecek, The Origins of the Law of Slavery in British North America, 17 CARDOZO L. REV. 1711, 1755-56 (1996) (discussing legislative punishments).
(31) FRANKLIN, supra note 13, at 56.
(34) See Wiecek, supra note 30, at 1742-73.
(35) See Gary K. Wolinetz, New Jersey Slavery and the Law, 50 RUTGERS L. REV. 2227, 2230-32 (1998).
(36) ZILVERSMIT, supra note 25, at 9. New Jersey had enacted a similar law in 1704, but its law contained other provisions that caused the entire devise to be struck down by the crown. Id.
(37) JORDAN, supra note 23, at 113.
(39) Phillip J. Schwarz, Forging the Shackles: The Development of Virginia's Criminal Code for Slaves, in AMBIVALENT LEGACY: A LEGAL HISTORY OF THE SOUTH 125, 133 (David J. Bodenhamer & James W. Ely, Jr. eds., 1984) [hereinafter AMBIVALENT LEGACY]. The legitimacy of these fears, though, was likely exaggerated. See JORDAN, supra note 23, at 114.
(40) See, e.g., ZILVERSMIT, supra note 25, at 12 (discussing a Connecticut law).
(41) ZILVERSMIT, supra note 25, at 15; JORDAN, supra note 23, at 114.
(42) FRANKLIN, supra note 13, at 56-57.
(43) ZILVERSMIT, supra note 25, at 6-7.
(44) Id. at 12.
(46) See Id. at 55.
(47) Id. (quoting the Germantown protest).
(48) Id. at 56-58.
(49) Id. at 58-59.
(50) Id. at 59.
(51) Id. at 61.
(52) Id. at 61-62.
(53) Id. at 63-64.
(54) Id. at 65.
(55) Id. at 74 (quoting the Meeting).
(56) Id. at 82-83.
(57) Id. at 66.
(58) For a discussion of how the Great Awakening affected slavery, see JORDAN, supra note 23, at 212-14. Jordan's analysis includes the Quakers but also takes the movement from a broader context.
(59) Id. at 365.
(60) See ZILVERSMIT, supra note 25, at 95-96.
(61) Id. at 96 (quoting Paine).
(62) THE EDITORS OF THE WORLD ALMANAC, WORDS THAT SET US FREE: A DOCUMENTARY HISTORY & CHRONOLOGY OF AMERICA'S STRUGGLE FOR EQUAL JUSTICE & CIVIL RIGHTS 8-9 (1992) (quoting Jefferson) [hereinafter WORDS THAT SET US FREE].
(63) See id. at 8.
(64) Jefferson's own stance on slavery, however, is rather ambiguous. He was a slave owner, but he inherited almost all of his slaves. Aaron Schwabach, Jefferson and Slavery, 19 THOMAS JEFFERSON L. REV. 63, 64-65 (1997). His writings also seem to both defend slavery, Paul Finkelman, Thomas R.R. Cobb and the Law of Negro Slavery, 5 ROGER WILLIAMS U. L. REV. 75, 83-84 (1999), and advocate against it. See Schwabach, supra, at 77-78.
(65) JORDAN, supra note 23, at 115-116.
(66) FRANKLIN, supra note 13, at 61.
(67) JORDAN, supra note 23, at 116.
(70) Id. at 120.
(73) Id at 110-22.
(74) FRIEDMAN, supra note 20, at 87.
(75) However, for the view that slave codes functioned more as a privately-funded militia than as alleged public safety enforcement, see JORDAN, supra note 23, at 108-09.
(76) FRIEDMAN, supra note 20, at 87.
(77) FRANKLIN, supra note 13, at 60.
(78) Wiecek, supra note 30, at 1788-89.
(79) Wolinetz, supra note 35, at 2233. England, however, repealed the law for "inhumane penalties." Id.
(80) FRIEDMAN, supra note 20, at 224; see also Thomas D. Morris, "Society Is Not Marked by Punctuality in the Payment of Debts": The Chattel Mortgages of Slaves, in AMBIVALENT LEGACY, supra note 39, at 147, 147-66 (examining nineteenth century laws allowing the mortgaging of slaves).
(81) FRIEDMAN, supra note 20, at 223-24; Schwarz, supra note 39, at 126.
(82) See generally A. Leon Higginbotham, Jr. & Barbara K. Kopytoff, Property First, Humanity Second: The Recognition of the Slave's Human Nature in Virginia Civil Law, 50 OHIO ST. L.J. 511 (1989) (discussing the development of Virginia's slavery law).
(83) ZILVERSMIT, supra note 25, at 3-4. Of course, slaves never had been as populous in the North as in the South. See Id.
(84) Id. at 124-29.
(85) Id. at 128-29.
(86) Id. at 116.
(87) FRANKLIN, supra note 13, at 93. It is unclear exactly when New Hampshire abolished slavery. It is possible it occurred in 1783, but that state's abolition was not entirely certain until 1857. ZILVERSMIT, supra note 25, at 117.
(88) See FRANKLIN, supra note 13, at 157-58.
(89) See id. (discussing reasons for freeing slaves, including conscience, affection, or efforts to avoid responsibility for the slaves).
(90) See id. at 158-59.
(91) Id. at 160.
(93) FRIEDMAN, supra note 20, at 220.
(94) FRANKLIN, supra note 13, at 160.
(95) Id. at 161.
(96) Id. at 161-62.
(98) See id. at 95 (discussing the Pennsylvania Abolition Society's request that Benjamin Franklin present their testimonial arguing for national abolition).
(99) For an excellent and concise examination of the Convention's discussion of slavery, see JORDAN, supra note 23, at 321-25.
(100) Apparently, none of the states objected to a third provision in Article IV, section 2, which required return of fugitive slaves. FRANKLIN, supra note 13, at 95.
(101) U.S. CONST. art. I, [sections] 9, cl. 1 ("The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight....").
(102) FRANKLIN, supra note 13, at 95; WORDS THAT SET US FREE, supra note 62, at 9. However, not all of the southern states opposed ending the trade. In fact, only Georgia, North Carolina, and South Carolina pressed the issue, but that was pressure enough. JORDAN, supra note 23, at 323-24.
(103) JORDAN, supra note 23, at 322. Maryland, New York, North Carolina, Pennsylvania, and Tennessee initially allowed free blacks to vote, but then these statutes took away, formally or informally, this right from 1789-1830. FRANKLIN, supra note 13, at 162.
(104) THE FEDERALIST NO. 54, at 367 (james Madison) (Jacob E. Cooke ed., 1961) (emphasis added); see also U.S. CONST. art. I, [sections] 2, cl. 3 ("Representatives and direct Taxes shall be apportioned ... according to [States'] respective Numbers, which shall be determined by adding to the whole Number of free Persons ... three fifths of all other Persons.").
(105) JORDAN, supra note 23, at 323.
(106) FRIEDMAN, supra note 20, at 219.
(107) See FRANKLIN, supra note 13, at 102-03.
(108) JORDAN, supra note 23, at 410, 493-94.
(109) Id. at 436-37 (discussing Thomas Jefferson's writings).
(110) Id. at 415 ("Slavery had formalized and ritualized relations between Negroes and whites and accordingly had served to clarify the status of both.").
(111) William W. Fisher III, Ideology and Imagery in the Law of Slavery, In SLAVERY AND THE LAW 43, 46-47 (Paul Finkelman ed., 1997) (quoting JOHN BLASSINGAME, THE SLAVE COMMUNITY: PLANTATION LIFE IN THE ANTE-BELLUM SOUTH 225 (rev. ed. 1979)).
(112) Id. at 47; see also PATRICIA H. COLLINS, BLACK FEMINIST THOUGHT: KNOWLEDGE, CONSCIOUSNESS, AND THE POLITICS OF EMPOWERMENT (1990). For an outstanding analysis of how the "Jezebel" stereotype has played into American law, see generally Joan R. Tarpley, Blackwomen, Sexual Myth, and Jurisprudence, 69 TEMP. L. REV. 1343 (1996).
(113) FRIEDMAN, supra note 20, at 220-23.
(114) Fisher, supra note 111, at 48-51.
(115) JORDAN, supranote 23, at 414.
(116) Id. at 415-16.
(117) Id. at 422.
(118) FRIEDMAN, supra note 20, at 223.
(119) For the argument that segregation reflected the conflict between the Enlightenment's desire to equate all people and white America's willingness to only accept that equality if it could be clone separately, see JORDAN, supra note 23, at 425.
(120) GLOVER MOORE, THE MISSOURI CONTROVERSY 1819-1821, at 33, 273 (1953).
(121) Id. at 129, 169, 341-51. For a far more in-depth analysis of the Missouri Compromise, see generally id.
(122) FRANKLIN, supra note 13, at 199-200.
(123) Id. at 200; WORDS THAT SET US FREE, supra note 62, at 35.
(124) U.S. CONST. art. IV, [sections] 2, cl. 3; see also James Oliver Horton & Lois E. Horton, A Federal Assault: African Americans and the Impact of the Fugitive Slave Law of 1850, in SLAVERY AND THE LAW, supra note 111, at 143, 144-45.
(125) See id. at 151-52,
(126) 41 U.S. (16 Pet.) 539 (1842).
(127) U.S. CONST. art. IV, [sections] 2, cl. 3.
(128) Joseph Nogee, The Prigg Case and Fugitive Slavery, 1842-1850, J. NEGRO HIST. 185, 186-87 (1954).
(129) Id. at 191. New York and Massachusetts had also enacted similar statutes. See THOMAS D. MORRIS, FREE MEN ALL: THE PERSONAL LIBERTY LAWS OF THE NORTH, 1780-1861, 23-41 (1974).
(130) Some commentators have defended Justice Story as a proponent of ending slavery despite his opinion in Prigg v. Pennsylvania. See. e.g., Morgan D. Dowd, Justice Story and the Slavery Conflict, 52 MASS. L.Q. 239, 240 (1967); Craig Joyce, Statesman of the Old Republic, 84 MICH. L. REV. 846, 857 (1986): Christopher L. M. Eisgruber, Comment, Justice Story, Slavery and Natural Law Foundations of American Constitutionalism, 55 U. CHI. L. REV. 273, 279 (1988). Others have argued vehemently that the opinion illuminates the Justice as owning an "antislavery reputation [that] is seriously overblown." Barbara Holden-Smith, Lords of Lash, Loom, and Law: Justice Story, Slavery, and Prigg v. Pennsylvania, 78 CORNELL L. REV. 1086, 1091 (1993).
(131) Prigg, 41 U.S. (16 Pet.) at 612.
(132) Modern commentators and jurists have criticized Dred Scott from almost every angle. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 984 (1992) (Scalia, J., dissenting); United States v. International Union United Auto., Aircraft & Agric. Implement Workers of Am., 352 U.S. 567, 590-91 (1957); ALEXANDER M. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 41 (1970); ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 28 (1990); DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS 1789-1888, 264 (1985); FREDERICK DOUGLASS, THE LIFE AND TIMES OF FREDERICK DOUGLASS 226-37 (Woodsworth Editions Ltd., 1996) (1882); CHARLES EVANS HUGHES, THE SUPREME COURT OF THE UNITED STATES 50 (1928): GARY JACOBSOHN, THE SUPREME COURT AND THE DECLINE OF CONSTITUTIONAL ASPIRATION 44 (1986); Christopher L. Eisgruber, Dred Again: Originalism's Forgotten Past, 10 CONST. COMMENT. 37 (1993); William Bradford Reynolds, Another View: Our Magnificent Constitution, 40 VAND. L. REV. 1343, 1348 (1987). For an excellent summary of the constitutional critiques, see Mark A. Graber, Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory, 14 CONST. COMMENT. 271 (1997).
(133) 60 U.S. (19 How.) 393 (1857).
(134) For an excellent and brief description of Dred Scott's story, see Paul Finkelman, The Dred Scott Case, Slavery and the Politics of Law, 20 HAMLINE L. REV. 1, 6-27 (1996).
(135) The parties in the case did not raise the question of jurisdiction before the Supreme Court, as it had been decided in Scott's favor by the district court. Id. at 27.
(136) Dred Scott, 60 U.S. (19 How.) at 404-05.
(137) Id. at 407.
(138) Finkelman, supra note 134, at 29.
(139) Logically, it seems the Court should have dismissed the case for lack of jurisdiction upon holding that blacks could not sue in federal court. Dred Scott, 60 U.S. (19 How.) at 564-65 (Curtis, J., dissenting); Finkelman, supra note 134, at 29.
(140) Dred Scott, 60 U.S. (19 How.) at 432, 446.
(141) Id. at 451-52.
(142) For insightful looks at early abolitionists, see generally ANTISLAVERY (Paul Finkelman ed., 1989); ANTISLAVERY RECONSIDERED: NEW PERSPECTIVES ON THE ABOLITIONISTS (Lewis Perry & Michael Fellman eds., 1979); Louis FILLER, THE CRUSADE AGAINST SLAVERY: 1830-1860 (1960). For an analysis that includes the importance of women in the movement, see generally THE ABOLITIONIST SISTERHOOD: WOMEN'S POLITICAL CULTURE IN ANTEBELLUM AMERICA (Jean Fagan Yellin & John C. Van Horne eds., 1994).
(143) See DOUGLASS, supra note 132, at 46-55, 139-50, 201-05, 328-29, 351-53, 391.
(144) For excellent biographies of Frederick Douglass, see generally WILLIAM S. MCFEELY, FREDERICK DOUGLASS (1991); BENJAMIN QUARLES, FREDERICK DOUGLASS (1997). For briefer but equally helpful volumes, see generally JAMES M. GREGORY, FREDERICK DOUGLASS THE ORATOR (1969); DOUGLAS T. MILLER, FREDERICK DOUGLASS AND THE FIGHT FOR FREEDOM (1988).
(145) DOUGLASS, supra note 132, at 246.
(146) See, e.g., MILLER, supra note 144, at 27-40; QUARLES, supra note 144, at 15-37. Douglass's friendship with Garrison subsided, however, as Garrison became unrelenting in his views and unwilling to allow Douglass his own opinions. See William E. Cain, Introduction to WILLIAM LLOYD GARRISON AND THE FIGHT AGAINST SLAVERY: SELECTIONS FROM THE LIBERATOR 1, 46-48 (William E. Cain ed., 1995); FREDERICK DOUGLASS, MY BONDAGE AND MY FREEDOM 361 (Dover 1969) (1855). Yet, like Douglass, Garrison was fiercely committed throughout his life to ending slavery non-violently. FRANKLIN, supra note 13, at 182.
(147) See generally WILLIAM LLOYD GARRISON (George M. Fredrickson ed., 1968).
(148) Id. at 16.
(149) DOUGLASS, supra note 132, at 203.
(150) See id; QUARLES, supra note 144, at 94-98.
(151) For more on Lovejoy's life and background, see MERTON L. DILLON, ELIJAH P. LOVEJOY, ABOLITIONIST EDITOR (1961); PAUL SIMON, FREEDOM'S CHAMPION: ELIJAH LOVEJOY (1994).
(152) SIMON, supra note 151, at 90-92.
(153) Id. at 118-35.
(154) For an examination of Lovejoy's actions and death from a free speech perspective, see generally Michael Kent Curtis, The 1837 Killing of Elijah Lovejoy by an Anti-Abolition Mob: Free Speech, Mobs, Republican Government, and the Privileges of American Citizens, 44 UCLA L. REV. 1109 (1997).
(155) For an analysis of these and other attempts to limit abolitionist speech, see DONNA LEE DICKERSON, THE COURSE OF TOLERANCE: FREEDOM OF THE PRESS IN NINETEENTH-CENTURY AMERICA (1990); W. SHERMAN SAVAGE, THE CONTROVERSY OVER THE DISTRIBUTION OF ABOLITION LITERATURE, 1830-1860 (1968); Michael Kent Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in 1835-1837, 89 NW. U. L. REV. 785 (1995).
(156) HARRIET BEECHER STOWE, UNCLE TOM'S CABIN (Bantam 1981) (1851).
(157) FRANKLIN, supra note 13, at 201.
(158) See Richard Yarborough, Strategies of Black Characterization in Uncle Tom's Cabin and the Early Afro-American Novel, in NEW ESSAYS ON UNCLE TOM'S CABIN 45 (Eric Sundquist ed., 1986); DOUGLASS, supra note 132, at 218 ("[N]othing could have better suited the moral and humane requirements of the hour....").
(159) FRANKLIN, supra note 13, at 188. For a compilation of many of Truth's writings and speeches, see NARRATIVE OF SOJOURNER TRUTH (Margaret Washington ed., Vintage Classics 1993) (1850).
(160) JACQUELINE BERNARD, JOURNEY TOWARD FREEDOM: THE STORY OF SOJOURNER TRUTH 187-92 (1967).
(161) FREE AT LAST: A HISTORY OF THE CIVIL RIGHTS MOVEMENT AND THOSE WHO DIED IN THE STRUGGLE 7 (Sara Bullard et al. eds., 1989) [hereinafter FREE AT LAST]: FRANKLIN, supra note 13, at 172.
(162) See FRANKLIN, supra note 13, at 189-94; James Oliver Horton, Links to Bondage: Northern Free Blacks and the Underground Railroad, 24 RUTGERS L.J. 667, 677 (1993) (noting that "the underground railroad was staffed informally by people of good will, often black, sometimes white, most of whom had a personal connection to those enslaved"). For more on the Underground Railroad, see generally, LARRY GARA, THE LIBERTY LINE: THE LEGEND OF THE UNDERGROUND RAILROAD (1961); WILLIAM STILL, THE UNDERGROUND RAILROAD (1968). For an analysis of the legal background of the Underground Railroad, see Kathleen L. Villarruel, Note, The Underground Railroad and the Sanctuary Movement: A Comparison of History, Litigation, and Values, 60 S. CAL. L. REV. 1429, 1437-40 (1987).
(163) FREE AT LAST, supra note 161, at 7; FRANKLIN, supra note 13, at 194. For a brief but helpful work on Tubman, see generally EARL CONRAD, HARRIET TUBMAN: NEGRO SOLDIER AND ABOLITIONIST (1942).
(164) Abraham Lincoln noted in his first Inaugural address that "[if war comes,] it will come over secession, not slavery." WORDS THAT SET US FREE, supra note 62, at 47 (quoting Lincoln). See generally DAVID M. POTTER, THE IMPENDING CRISIS: 1848-1861 (1977).
(165) For an analysis of slavery's role in creating intersectional division, see FRANKLIN, supra note 13, at 180-204; and MOORE, supra note 120, at 1-32, 318-38 (providing a largely economic perspective).
(166) Finkelman, supra note 134, at 10.
(167) Id. at 35.
(168) For a discussion of John Brown's raid on Harper's Ferry, see FRANKLIN, supra note 13, at 202-03. For the reaction of Douglass, who was a friend of Brown's but disagreed with his violent means of acting out antislavery views, see DOUGLASS, supra note 132, at 235-47; and QUARLES, supra note 144, at 169-85.
(169) WORDS THAT SET US FREE, supra note 62, at 46.
(171) MOORE, supra note 120, at 351.
(172) The Confiscation Act, 22 U.S.C. [sections] 6091 (1994).
(173) The Militia Act, 10 U.S.C. [sections] 311 (1994).
(174) See WORDS THAT SET US FREE, supra note 62, at 47.
(175) Finkelman, supra note 134, at 40-41. For the text of the Proclamation, see WORDS THAT SET US FREE, supra note 62, at 48-50.
(176) Finkelman, supra note 134, at 41.
(177) U.S. CONST. amend. XIII.
(178) U.S. CONST. amend. XIV.
(179) WORDS THAT SET US FREE, supra note 62, at 54.
(180) U.S. CONST. amend. XV.
(181) FRIEDMAN, supra note 20, at 504.
(182) Id at 504-05. For more on the Black Codes, see DANIEL A. NOVAK, THE WHEEL OF SERVITUDE: BLACK FORCED LABOR AFTER SLAVERY 1-8 (1978).
(183) FRIEDMAN, supra note 20, at 505.
(184) Id. However, these Bureaus ultimately failed at the hand of the Johnson Administration. Id.
(185) 38 U.S.C. [sections] 3566 (1994).
(186) See WORDS THAT SET US FREE, supra note 62, at 58.
(187) FRANKLIN, supra note 13, at 243.
(188) See, e.g., JOEL WILLIAMSON, AFTER SLAVERY: THE NEGRO IN SOUTH CAROLINA DURING RECONSTRUCTION, 1861-1877 329 (1965) (describing Jury service in South Carolina).
(189) FRANKLIN, supra note 13, at 245.
(190) Id. at 244-46.
(192) See id. at 246-47. P. B. S. Pinchback from Louisiana was also elected to the U.S. Senate, but he was denied his seat. Id. at 247.
(193) FREE AT LAST, supra note 161, at 8.
(194) See FRIEDMAN, supra note 20. at 504-05; NOVAK, supra note 182, at 18-19.
(195) But cf. Strauder v. West Virginia. 100 U.S. 303 (1879) (striking down a West Virginia law that allowed only white males to serve as jurors).
(196) Act of March 1, 1875. ch. 114, 18 Stat. 335.
(197) Id at 336.
(198) 109 U.S. 3, 25-26 (1883).
(199) Id. at 13.
(200) Id at 13-14.
(201) Id. at 24-25.
(202) Id. at 61 (Harlan. J., dissenting).
(203) Id at 35.
(204) 95 U.S. 485 (1877).
(205) Id. at 489.
(206) 106 U.S. 583 (1883), overruled by McLaughlin v. Florida, 379 U.S. 184 (1964).
(207) Id. at 584-85.
(208) Id. at 585. For an analysis of the importance of the Court's reasoning in Pace as related to other civil rights cases of the time, especially The Civil Rights Cases and Plessy v. Ferguson. see Steven A. Bank, Comment, Anti-Miscegenation Laws and the Dilemma of Symmetry: The Understanding of Equality in the Civil Rights Act of 1875, 2 U. CHI. L. SCH. ROUNDTABLE 303 (1995).
(209) See Marianne L. Engelman Lado, A Question of Justice: African-American Legal Perspectives on the 1883 Civil Rights Cases. 70 CHI.-KENT L. REV. 1123, 1128-72 (1995) (recounting the nationwide response of blacks in meetings, speeches, and the press).
(210) FRANKLIN, supra note 13, at 327.
(211) Cf. William S. McFeely, A Legacy of Slavery and Lynching: The Death Penalty as a Tool of Social Control, CHAMPION 30, (Nov. 1997) (tracing the connection of slave punishment and black lynchings to the modern day death penalty).
(212) FREE AT LAST, supra note 161, at 8.
(213) THOMAS F. GOSSETT RACE: THE HISTORY OF AN IDEA IN AMERICA 271 (1963).
(214) FRIEDMAN, supra note 20, at 505.
(216) Id. For more on the legacy of these statutes, see generally NOVAK, supra note 182; David Bernstein, The Davis-Bacon Act: Vestige of Jim Crow, 13 NAT'L BLACK L.J. 276 (1994); William Cohen, Negro Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis, 42 J. SOUTHERN HIST. 31 (1976).
(217) The seminal work on such laws is C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW (2d ed. 1966).
(218) JOSEPH H. CARTWRIGHT, THE TRIUMPH OF JIM CROW: TENNESSEE RACE RELATIONS IN THE 1880s 18 (1976).
(219) See Kenneth W. Mack, Law, Society, Identity, and the Making of the Jim Crow South: Travel and Segregation on Tennessee Railroads, 1875-1905, 24 LAW & SOC. INQUIRY 377, 402 (1999) ("Respectable white patriarchs sometimes found more in common with black middle-class riders than with lower-class whites.... Gender ... was often the most explosive element in [the] mix, as both black men and black women raised the question of whether the norms of patriarchy crossed racial lines.").
(220) Cf. CARTWRIGHT, supra note 218, at 258 (noting that segregation seems likely to have been "a blend of ... an attempt to institutionalize traditional racial customs [and to] depart from previous patterns of behavior"). See generally WILLIAMSON, supra note 188; Howard N. Rabinowitz, From Exclusion to Segregation: Southern Race Relations, 1865-1890, 63 J. AM. HIST. 325 (1976).
(221) FRANKLIN, supra note 13, at 342.
(222) FRIEDMAN, supra note 20, at 506.
(223) 163 U.S. 537 (1896).
(224) Id. at 551-52. However, for the argument that the Court's transit decisions did not revolve around race but instead represented "a consistent line of cases [that held s]tates could not control the seating arrangements of interstate passengers," see Joseph R. Palmore, Note, The Not-So-Strange Career of Interstate Jim Crow: Race, Transportation, and the Dormant Commerce Clause, 1878-1946, 83 VA. L. REV. 1773, 1810 (1997).
(225) Plessy, 163 U.S. at 559, 562 (Harlan, J., dissenting). However, for a criticism of Harlan's dissent in Plessy for its biracial rather than multiracial assumptions--along with its reflection of Harlan's views about Asian Americans--see generally Gabriel J. Chin, The Plessy Myth: Justice Harlan and the Chinese Cases, 82 IOWA L. REV. 151 (1996). Likewise, for the view that Justice Harlan was not the advocate of equal rights he is often made out to be, see Gabriel J. Chin, The First Justice Harlan by the Numbers: Just How Great was "The Great Dissenter?", 32 AKRON L. REV. 629, 633 (1999) (contending that Harlan's voting record portrays him as "the most ardent defender of African American civil rights" but "one of the worst" advocates for Asian Americans); Earl M. Maltz, Only Partially Color. Blind: John Marshall Harlan's View of Race and the Constitution, 12 GA. ST. U. L. REV. 973, 973-74 (1996) (arguing that Harlan's record on race-related cases in many ways reflected attitudes of his contemporary, Euro-centric society, especially in issues related to Native and Asian Americans).
(226) FRIEDMAN, supra note 20, at 508.
(227) See FRANKLIN, supra note 13, at 338.
(228) Id. at 339.
(232) Id. at 265.
(233) GOSSETT, supra note 213, at 266.
(234) Id. at 266-67; FRANKLIN, supra note 13, at 264-65. Crucial to the success of the grandfather clauses was that the Supreme Court did not overturn them until 1915. Guinn v. United States, 238 U.S. 347 (1915). When the Court finally did overturn the provisions, however, their fruits had already been reaped. Southerners had enacted the provisions in an effort to convince poor whites to vote for other restrictions. When the Court struck down the grandfather clauses, these other provisions remained. GOSSETT, supra note 213, at 266-67. The North could not boast of an exemplary record either. In 1860, only five northern states, all in New England, allowed blacks to vote. FRIEDMAN, supra note 20, at 507.
(235) For more on Wells, see generally CRUSADE FOR JUSTICE: THE AUTOBIOGRAPHY OF IDA B. WELLS (Alfreda M. Duster ed., 1970).
(236) FREE AT LAST, supra note 161, at 9.
(237) See Chesapeake, Ohio & Southwestern R.R. v. Wells, 85 Tenn. 613 (Tenn. 1887); CARTWRIGHT, supra note 218, at 189-91.
(238) FREE AT LAST, supra note 161, at 9.
(239) FRANKLIN, supra note 13, at 319.
(240) FREE AT LAST, supra note 161, at 9; GOSSETT, supra note 213, at 446.
(241) FRANKLIN, supra note 13, at 324.
(242) See id.
(244) Id. at 325, 345-46. See generally JOHN M. MECKLIN, THE KU KLUX KLAN: A STUDY OF THE AMERICAN MIND (1924). Curiously, President Wilson arranged for a private viewing of Birth of a Nation and then praised the film. WORDS THAT SET US FREE, supra note 62, at 75.
(245) See FRANKLIN, supra note 13, at 327-30.
(246) Id at 331-38. See generally ARTHUR E. BARBEAU & FLORETTE HENRI, THE UNKNOWN SOLDIERS: BLACK AMERICAN TROOPS IN WORLD WAR I (1974): EMMET J. SCOTT, THE AMERICAN NEGRO IN THE WORLD WAR (1919).
(247) See FRANKLIN, supra note 13, at 339-40. See generally LOUISE V. KENNEDY, THE NEGRO PEASANT TURNS CITYWARD (1930); EMMET J. SCOTT, NEGRO MIGRATION DURING THE WAR (1920).
(248) See FRANKLIN, supra note 13, at 347-51. See generally WILLIAM M. TUTTLE, RACE RIOT: CHICAGO IN THE RED SUMMER OF 1919 (1970).
(249) FRANKLIN, supra note 13, at 345-46. For examples of some of the utter and cruel hatred imposed on innocent citizens by the Klan, see FREE AT LAST, supra note 161, at 44-45, 64-71, 76-77, 86-88.
(250) See FRANKLIN, supra note 13, at 383-84.
(251) Id. at 391 (noting that Robert C. Weaver directed Housing and Home Finance Agency, which became an executive branch agency in 1966).
(252) Id. at 390-93.
(253) Exec. Order No. 8802, 3 C.F.R. [sections] 234 (1941).
(254) 238 U.S. 347 (1915).
(255) 245 U.S. 60, 73 (191.7). For an analysis of the impact of and reaction to Buchanan, see Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era Part 1: The Heyday of Jim Crow, 82 COLUM. L. REV. 444, 498-523 (1982).
(256) 305 U.S. 337 (1938).
(257) Brown v. Board of Education. 347 U.S. 483 (1954).
(258) 321 U.S. 649 (1944).
(259) 328 U.S. 373 (1946).
(260) FRIEDMAN, supra note 20, at 671-72: JOHN A. SALMOND, "MY MIND SET ON FREEDOM": A HISTORY OF THE CIVIL RIGHTS MOVEMENT, 1954-1968, at 5-9 (1997).
(261) See FREE AT LAST, supra note 161, at 11; WORDS THAT SET US FREE, supra note 62, at 83.
(262) FREE AT LAST, supra note 161, at 10-11.
(263) Id. at 11.
(265) SALMOND, supra note 260, at 3-4 (discussing the bus rides of Wilson Head, a World War II veteran).
(266) FREE AT LAST, supra note 161, at 11.
(267) Cf. Herbert Hovenkamp, Social Science and Segregation Before Brown, 1985 DUKE L.J. 624, 624 (noting that the "courts must bear a heavy share of the burden of American racism," although going on to analyze the importance of social science developments in advancing racist notions). Congress passed the Civil Rights Act of 1957 and the Civil Rights Act of 1960, but used amendments to largely gut both bills of their more powerful measures. See infra Part III.A.
(268) FRANKLIN, supra note 13, at 551 (reprinting a portion of the document).
(269) Exec. Order No. 9981, 13 Fed. Reg. 4313 (1948).
(270) FREE AT LAST, supra note 161, at 11-12.
(271) FRANKLIN, supra note 13, at 403.
(272) FREE AT LAST, supra note 161, at 12.
(273) See FRANKLIN, supra note 13, at 404-05.
(274) 347 U.S. 483 (1954). For more background on Brown, see LINO A. GRAGLIA, DISASTER BY DECREE: THE SUPREME COURT DECISIONS ON RACE AND THE SCHOOLS 26-52 (1976): and HUGH DAVIS GRAHAM, CRISIS IN PRINT: DESEGREGATION AND THE PRESS IN TENNESSEE 29-90 (1967) (analyzing the decision from the perspective of the southern press).
(275) Brown, 347 U.S. at 495.
(276) Id. at 494.
(277) Brown v. Board of Education, 349 U.S. 294, 300-01 (1955).
(278) FREE AT LAST, supra note 161, at 13.
(279) Cf. STEVEN KASHER, THE CIVIL RIGHTS MOVEMENT: A PHOTOGRAPHIC HISTORY, 1954-1968, at 35 (1996) (indicating that segregation had been defeated in some southern cities but not in Alabama).
(280) See FREE AT LAST, supra note 161, at 13-14.
(281) KASHER, supra note 279, at 30.
(282) For an excellent and stirring account of the Montgomery bus boycott, see KASHER, supra note 279, at 30-49.
(283) FREE AT LAST, supra note 161, at 15.
(284) Id. at 15-16.
(285) Cooper v. Aaron, 358 U.S. 1 (1958).
(286) For a description of the sit-ins, see KASHER, supra note 279, at 66-73, 77-85.
(287) See FREE AT LAST, supra note 161. at 18-20.
(288) Evidence of the extent of the violence can be found in the government, KKK, and police conspiracies to derail the Montgomery bus boycott--including bombings. See KASHER, supra note 279, at 36-37.
(289) For an account of the Freedom Rides, see KASHER, supra note 279, at 73-76, 86-87.
(290) FREE AT LAST, supra note 161, at 21-22.
(291) After this attempt to quell the dispute was ultimately unsuccessful--328 freedom riders were arrested and placed in a Mississippi prison--Kennedy asked the Interstate Commerce Commission to issue federal regulations banning discrimination in bus terminals. Id.
(292) RICHARD H. GROVE, ECOLOGY, CLIMATE AND EMPIRE: COLONIALISM AND GLOBAL ENVIRONMENTAL HISTORY, 1400-1940 6 (1997). See generally CLARENCE J. GLACKEN, TRACES ON THE RHODIAN SHORE: NATURE AND CULTURE IN WESTERN THOUGHT FROM ANCIENT TIMES TO THE END OF THE EIGHTEENTH CENTURY (1967).
(293) GROVE, supra note 292, at 6.
(295) J. E. DE STEIGUER, AGE OF ENVIRONMENTALISM 4 (1997).
(296) See, e.g., Scott K. Miller, Undamming Glen Canyon: Lunacy, Rationality, or Prophecy?, 19 STAN. ENVTL. L.J. 121, 123-30 (2000) (discussing an Anasazi-built dam on the current site of Glen Canyon Dam): Alvin P. Sanoff, The Greening of America's Past, U.S. NEWS & WORLD REPORT, Oct. 19, 1992, at 68, 69 (quoting Arthur McEvoy and William Cronon).
(297) BENJAMIN KLINE, FIRST ALONG THE RIVER: A BRIEF HISTORY OF THE U.S. ENVIRONMENTAL MOVEMENT 13 (1997).
(298) STANDING BEAR, LAND OF THE SPOTTED EAGLE 192 (1978).
(299) See Calvin Martin, The European Impact on the Culture of a Northeastern Algonquian Tribe: An Ecological Interpretation, 31 WILLIAM & MARY Q. 3, 10-16 (1974).
(300) See generally DAN LANDEEN & ALLEN PINKHAM, SALMON AND HIS PEOPLE: FISH & FISHING IN NEZ PERCE CULTURE (1999).
(301) See DE STEIGUER, supra note 295, at 4.
(302) See id.
(303) Id. at 5-6.
(304) See George Sessions, Ecocentrism and the Anthropocentric Detour, In DEEP ECOLOGY FOR THE 21ST CENTURY 159, 163 (George Sessions ed., 1995).
(305) See DE STEIGUER, supra note 295, at 16-17; Carolyn Merchant, Ecological Revolutions, in MAJOR PROBLEMS IN AMERICAN ENVIRONMENTAL HISTORY 22, 22-23 (Carolyn Merchant ed., 1993) ("[The] colonial ecological revolution ... resulted in the collapse of indigenous Indian ecologies and the incorporation of a European ecological complex of animals, plants, pathogens, and people."). For an analysis of how law played a role in helping subjugate Native Americans from 1532 to 1941, see FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 50-143 (Rennard Strickland et al. eds., 1982).
(306) CHARLES F. CARROLL, THE TIMBER ECONOMY OF PURITAN NEW ENGLAND 123-26 (1973).
(307) See Avery O. Craven. Exhausted Soils, in MAJOR PROBLEMS IN AMERICAN ENVIRONMENTAL HISTORY. supra note 305, at 124, 124-31.
(308) See, e.g., Lynn White, Jr., The Historical Roots of Our Ecological Crisis, 155 SCIENCE 1205 (1967); see also IMMANUEL KANT, CRITIQUE OF JUDGMENT (1790). But see PHILIP SHABECOFF, A FIERCE GREEN FIRE: THE AMERICAN ENVIRONMENTAL MOVEMENT 126 (1993).
(309) RODERICK FRAZIER NASH, THE RIGHTS OF NATURE: A HISTORY OF ENVIRONMENTAL ETHICS 35 (1989) [hereinafter NASH, THE RIGHTS OF NATURE]. The preeminent work on the idea of wilderness in America is RODERICK NASH, WILDERNESS AND THE AMERICAN MIND (3d ed. 1982) [hereinafter NASH, WILDERNESS].
(310) KLINE, supra note 297, at 32.
(311) Edgar Allan Poe, To The River--, In COLLECTED WORKS OF EDGAR ALLAN POE, Volume 1 Poems 134 (Thomas Ollicic Mardott 1964).
(312) DE STEIGUER, supra note 295, at 9.
(314) MIGUEL A. SANTOS, THE ENVIRONMENTAL CRISIS 37-38 (1999).
(315) MAJOR PROBLEMS IN AMERICAN ENVIRONMENTAL HISTORY, supra note 305, at 183 (reprinting a portion of The Over-Soul).
(316) See, e.g., WALT WHITMAN, LEAVES OF GRASS 78-81, 130-32 (Lowe & B. Hould 1997) (1855).
(317) DE STEIGUER, supra note 295, at 6-8.
(318) HENRY DAVID THOREAU, WALDEN: OR LIFE IN THE WOODS (Barnes & Noble Books 1993) (1854).
(319) See generally Robert Kuhn McGregor. Deriving a Biocentric History: Evidence from the Journal of Henry David Thoreau. 12 ENVTL. REV. 117 (1988).
(320) SANTOS, supra note 314, at 38 (quoting Thoreau's journal).
(321) 2 MARILYN STOKSTAD, ART HISTORY 973-74 (rev. ed. 1999).
(322) MAJOR PROBLEMS IN AMERICAN ENVIRONMENTAL HISTORY, supra note 305, at 178-80. However, for the view that the Hudson River School glossed over its subject matter by excluding multitudinous human harms effected on that ecosystem, see Michael Heiman, Civilization over Nature, in MAJOR PROBLEMS IN AMERICAN ENVIRONMENTAL HISTORY, supra note 305, at 191, 193-94.
(323) STOKSTAD, supra note 321, at 974-76.
(324) KLINE, supra note 297, at 27-30.
(325) Id. at 22.
(326) Id. at 27-30; see also John Opie, The Drought of 1988, The Global Warming Experiment, and Its Challenge to Irrigation in the Old Dust Bowl Region, in A SENSE OF THE AMERICAN WEST: AN ANTHOLOGY OF ENVIRONMENTAL HISTORY 261, 279-80 (James E. Sherow ed., 1998) (pointing to historical farming practices as a cause for depletion of the Ogallala reservoir) [hereinafter A SENSE OF THE AMERICAN WEST].
(327) See generally JOANNA L. STRATTON, PIONEER WOMEN: VOICES FROM THE KANSAS FRONTIER (1981).
(328) STRATTON, supra note 327, reprinted in MAJOR PROBLEMS IN AMERICAN HISTORY, supra note 305, at 294.
(329) Terry Tempest Williams et al., Preface to NEW GENESIS: A MORMON READER ON LAND AND COMMUNITY viii (Terry Tempest Williams et al. eds., 1998).
(330) See KLINE, supra note 297, at 38-42. For more on cotton farming and its effects on slaves and the southern environment, see MAJOR PROBLEMS IN AMERICAN HISTORY, supra note 305, at 209-46.
(331) Homestead Act of 1862, 16 U.S.C. [sections] 450-u (1994).
(332) See KLINE, supra note 297, at 30-31.
(333) Timber Culture Act of 1873, 43 U.S.C. [sections] 1181 (1994).
(334) See id. at 31.
(335) Desert Land Act of 1877, 43 U.S.C. [sections] 641 (1994).
(336) Timber and Stone Act of 1878, 43 U.S.C. [sections] 311 (1994).
(337) See KLINE, supra note 297, at 31.
(338) See id.
(339) FREDERICK JACKSON TURNER, THE SIGNIFICANCE OF THE FRONTIER IN AMERICAN HISTORY 58 (Harold P. Simonson ed., Frederick Unger Publications Co., 1963) (1893).
(340) KLINE, supra note 297, at 39.
(341) Id.; see also FOSTER R. DULLES, LABOR IN AMERICA 98 (2nd rev. ed. 1960).
(342) KLINE, supra note 297, at 39.
(343) See Dorceta E. Taylor, The Urban Environment: The Intersection of White Middle-Class and White Working-Class Environmentalism (1820-1950s), 7 HUMAN ECOLOGY 207, 263-67 (1998) [hereinafter Taylor, Urban Environment. For additional discussion of the city's transformation of the environment through history, see SAMUEL P. HAYS, EXPLORATIONS IN ENVIRONMENTAL HISTORY 69-100 (1998)
(344) Taylor, Urban Environment, supra note 343, at 271; see also Dorceta E. Taylor, American Environmentalism: The Role of Race, Class and Gender in Shaping Activism 1820-1995, 5 RACE, GENDER at CLASS 16, 17-30 (1997) [hereinafter Taylor, Shaping Activism].
(345) See Taylor, Urban Environment, supra note 343, at 229-31; LAURA WOOD ROPER, FLO: A BIOGRAPHY OF FREDERICK LAW OLMSTED 135-474 (1973).
(346) Taylor, Urban Environment, supra note 343, at 240.
(347) See generally Dorceta E. Taylor, Central Park as a Model for Social Control: Urban Parks, Social Class and Leisure Behavior in Nineteenth-Century America, 31 J. LEISURE RESEARCH (1999).
(348) Taylor, Urban Environment, supra note 343, at 254.
(349) See id. at 260-63.
(350) Id. at 265.
(351) Id. at 263.
(352) See generally JANE ADDAMS, TWENTY YEARS AT HULL HOUSE: WITH AUTOBIOGRAPHICAL NOTES (1910).
(353) Taylor, Urban Environment, supra note 343, at 263, 266.
(354) Id. at 267.
(355) Id. at 264.
(357) FRIEDMAN, supra note 20, at 554.
(358) Importantly, environmental interests of whole communities, including women and children, were often tied up in the concerns expressed by workers. Taylor, Shaping Activism, supra note 344, at 24 ("At home women could not escape the environmental hazards that pervaded the community. Consequently, their interests and experiences were closely linked to those of the men....").
(359) Rebecca Harding Davis, On Pollution and Human Life in the Iron Mills, 1861, in MAJOR PROBLEMS IN AMERICAN ENVIRONMENTAL HISTORY, supra note 305, at 189, 189-90.
(360) FRIEDMAN, supra note 20, at 554.
(361) Id. at 555-60.
(362) See id. at 561-62.
(363) 169 U.S. 366, 395-96 (1898).
(364) Taylor, Urban Environment, supra note 343, at 267.
(365) UPTON SINCLAIR, THE JUNGLE (1906).
(366) 21 U.S.C. [sections] 379-e (1994).
(367) See Taylor, Urban Environment, supra note 343, at 267. For a brief examination of the Act's passage, see FRIEDMAN, supra note 20, at 461-62.
(368) See supra Part II.B.2 (noting the anthropocentric views of the pioneers and the dually ecocentric and anthropocentric views of Thoreau).
(369) See KLINE, supra note 297, at 49.
(370) GEORGE P. MARSH, MAN AND NATURE: OR, PHYSICAL GEOGRAPHY AS MODIFIED BY HUMAN NATURE 32 (1864).
(371) DE STEIGUER, supra note 295, at 9.
(372) MARSH, supra note 370, at 32.
(373) KLINE, supra note 297, at 49. For more discussion of exploration of the Colorado River, see Miller, supra note 296, at 130-31.
(374) See LESLIE PAUL THIELE, ENVIRONMENTALISM FOR A NEW MILLENNIUM: THE CHALLENGE OF COEVOLUTION 5 (1999).
(375) NASH, WILDERNESS, supra note 309, at 194.
(376) See THIELE, supra note 374, at 5.
(377) See DE STEIGUER, supra note 295, at 11-12.
(378) See id. at 12-13.
(379) GIFFORD PINCHOT, THE FIGHT FOR CONSERVATION 48 (1910); see also THIELE, supra note 374, at 5.
(380) See DE STEIGUER, supra note 295, at 11-12.
(381) KLINE, supra note 297, at 56 (quoting Roosevelt); see also Theodore Roosevelt Publicizes Conservation, 1908, in MAJOR PROBLEMS IN AMERICAN HISTORY, supra note 305, at 350, 350-52.
(382) See KLINE, supra note 297, at 60.
(383) See generally BRIAN GRAY, NO HOLIER TEMPLE: HETCH HETCHY AND THE AMERICAN ENVIRONMENTAL MOVEMENT (forthcoming 2001); HOLWAY JONES, JOHN MUIR AND THE SIERRA CLUB: THE BATTLE FOR YOSEMITE (1965).
(384) GRAY, supra note 383 (manuscript at 8, on file with author).
(385) John Muir, Hetch Hetchy Valley, in NATURE WRITINGS 817 (William Cronon ed., 1997).
(386) GRAY, supra note 383 (manuscript at 14, on file with author).
(387) Id. (manuscript at 19-26, on file with author).
(388) Id. (manuscript at 1, on file with author).
(390) See generally GRAY, supra note 383; NASH, WILDERNESS, supra note 309.
(391) Taylor, Shaping Activism, supra note 344, at 31.
(392) See id. at 17, 30-31.
(393) See KLINE, supra note 297, at 50, 62.
(394) 16 U.S.C. [subsections] 1-4 (1994) (Supp. IV 1998). However, for the view that the National Park Service initially managed the parks with a more conservationist bent, see Richard West Sellars, Manipulating Nature's Paradise: National Park Management Under Stephen T. Mather, 1916-1929, in A SENSE OF THE AMERICAN WEST, supra note 326, at 161, 168-69.
(395) KLINE, supra note 297, at 50, 151.
(396) Id. at 65.
(397) Carolyn Merchant, Women and Conservation, in MAJOR PROBLEMS IN AMERICAN HISTORY, supra note 305, at 373, 377.
(398) See id. at 378.
(399) Reclamation Act of 1902, 43 U.S.C. [sections] 393 (1994).
(400) See KLINE, supra note 297, at 56.
(401) See id. at 58.
(402) SANTOS, supra note 314, at 4.
(403) Id. at 5.
(404) See KLINE, supra note 297, at 69.
(405) See id.
(406) Taylor Grazing Act, 43 U.S.C. [sections] 315 (1994).
(407) Soil Conservation Act, 16 U.S.C. [sections] 3812 (1994).
(408) See KLINE, supra note 297, at 68. For a brief comparison of the legal and cultural responses to America's and Africa's dustbowls, see GROVE, supra note 292, at 34-35.
(409) SANTOS, supra note 314, at 5.
(410) Suellen M. Hoy, Women and City Wastes in the Early Twentieth Century, in MAJOR PROBLEMS IN AMERICAN ENVIRONMENTAL HISTORY, supra note 305, at 434, 437. For more on urban environmentalism during this period, see generally POLLUTION AND REFORM IN AMERICAN CITIES, 1870-1930 (Martin Melosi ed., 1980).
(411) Taylor, Shaping Activism, supra note 344, at 34.
(412) See supra Parts II.A.8-9.
(413) Taylor, Shaping Activism, supra note 344, at 37.
(414) See KLINE, supra note 297, at 63, 73-74.
(415) THIELE, supra note 374, at 7.
(417) See DE STEIGUER, supra note 295, at 15-16; WENDELL BERRY, THE UNSETTLING OF AMERICA: CULTURE AND AGRICULTURE 47 (1986). For more on the development of ecology in the twentieth century, see, for example, MAJOR PROBLEMS IN AMERICAN ENVIRONMENTAL HISTORY, supra note 305, at 444-83.
(418) ALDO LEOPOLD, A SAND COUNTY ALMANAC: AND SKETCHES HERE AND THERE 223, 224-25 (Oxford University Press 1968) (1949).
(419) THIELE, supra note 374, at 8.
(420) KLINE, supra note 297, at 69-70.
(421) See generally Mark W.T. Harvey, Battle for Wilderness: Echo Park Dam and the Birth of the Modern Wilderness Movement, in A SENSE OF THE AMERICAN WEST, supra note 326, at 181. Of course, to achieve this success, the two organizations essentially "traded" Glen Canyon, ceding that the dam should be built there instead. See Miller, supra note 296, at 144-49. For the argument that Glen Canyon Dam should now be decommissioned, see Richard J. Ingebretsen, Foreword, 19 STAN. ENVTL. L.J. xi, xi-xiv (2000), and Miller, supra note 296, at 206-07 (arguing that additional study of the Sierra Club's proposal to drain Lake Powell deserves further merit).
(422) KLINE, supra note 297, at 75.
(423) THIELE, supra note 374, at 232.
(424) FAIRFIELD OSBORN, OUR PLUNDERED PLANET (1948).
(425) See KLINE, supra note 297, at 75-76,
(426) Water Quality Act of 1948, 18 U.S.C. [sections] 1285 (1994).
(427) See ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 104 (2d ed. 1996).
(428) See id.
(429) Air Pollution Control Act of 1955, 42 U.S.C. [sections] 7401 (1994).
(430) See PERCIVAL ET AL., supra note 427, at 769.
(431) See TERESA L. AMOTT & JULIE MATTHAEI, RACE, GENDER, AND WORK: A MULTICULTURAL ECONOMIC HISTORY OF WOMEN IN THE UNITED STATES 81 (1991); Taylor, Shaping Activism, supra note 344, at 37.
(432) KLINE, supra note 297, at 83.
(433) SANTOS, supra note 314, at 8.
(434) See id
(435) KLINE, supra note 297, at 74.
(436) See id.; SANTOS, supra note 314, at 8.
(437) DE STEIGUER, supra note 295, at 30-32.
(438) RACHEL CARSON, SILENT SPRING (1962). An excellent and insightful summary of Silent Spring, its effects, and Carson's life can be found in DE STEIGUER, supra note 295, at 29-41.
(439) E.g., CARSON, supra note 438, at 188 ("[I]t is simply impossible to predict the effects of lifetime exposure to chemical and physical agents that are not a part of the biological experience of man.").
(440) Id. at 180.
(441) DE STEIGUER, supra note 295, at 29, 37-41.
(442) Id. at 29, 39.
(443) See id. at 35, 39.
(444) Id. at 34.
(445) RALPH NADER, UNSAFE AT ANY SPEED (1965).
(446) KLINE, supra note 297, at 82.
(447) Kenneth E. Boulding, The Economics of the Coming Spaceship Earth, reprinted in TOWARD A STEADY STATE ECONOMY 129 (Herman E. Daly ed., 1973). For more on Boulding, see DE STEIGUER, supra note 295, at 60-69.
(448) PAUL EHRLICH, THE POPULATION BOMB (1968). For more on Ehrlich's influence, see DE STEIGUER, supra note 295, at 80-90.
(449) See generally Garret Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968). For more on Hardin, see DE STEIGUER, supra note 295, at 91-103.
(450) SANTOS, supra note 314, at 7.
(451) See id. at 6-8.
(452) William D. Ruckelhaus, Environmental Protection: A Brief History of the Environmental Movement in America and the Implications Abroad 15 ENVTL. L. 455, 456 (1985).
(453) KLINE, supra note 297, at 82-83; SANTOS, supra note 314, at 10.
(454) Wilderness Act of 1964, 16 U.S.C. [sections] 460ggg (1994).
(455) KLINE, supra note 297, at 80.
(457) See PERCIVAL ET AL., supra note 427, at 769.
(458) Air Quality Act of 1967, 49 U.S.C. [sections] 3308 (1994).
(460) See PERCIVAL ET AL., supra note 394, at 881-82.
(461) See Id. at 208; Solid Waste Disposal Act of 1965, 42 U.S.C. [sections] 7429 (1994).
(462) See KASHER, supra note 279, at 90-91.
(463) Id. at 91.
(464) See id. at 88.
(465) Civil Rights Act of 1960, 42 U.S.C. [sections] 2000 d-6 (1994).
(466) See WHALEN & WHALEN, supra note 12, at 129, 139, 153; Nicole L. Gueron, Note, An Idea Whose Time Has Come: A Comparative Procedural History of the Civil Rights Acts of 1960, 1964, and 1991, 104 YALE L.J. 1201, 1212-16 (1995).
(467) See WORDS THAT SET US FREE, supra note 62, at 93; see also GOLDEN, supra note 467, at 136-37.
(468) DANIEL M. BERMAN, A BILL BECOMES A LAW: THE CIVIL RIGHTS ACT OF 1960 135 (1962) (quoting Marshall); GOLDEN, supra note 467, at 137.
(469) WHALEN & WHALEN, supra note 12, at xvi.
(470) FRANKLIN, supra note 13, at 465; see also GOLDEN, supra note 467, at 18-22. King endorsed Kennedy, and the results were clear: Nixon won fifty-one percent of the white vote, but Kennedy took sixty-eight percent of the black. WHALEN & WHALEN, supra note 12, at xvi; see also FRANKLIN, supra note 13, at 465-66 (noting that Kennedy won Illinois by only 9,000 votes, and nearly 250,000 blacks voted for him in that state).
(471) WHALEN & WHALEN, supra note 12, at xvii (quoting Kennedy),
(472) Exec. Order No. 11,063, 27 Fed. Reg. 11,527 (Nov. 21, 1962).
(473) WHALEN & WHALEN, supra note 12, at xvii.
(474) See GOLDEN, supra note 467, at 123-24.
(475) See Id. at 126; WHALEN & WHALEN, supra note 12, at xvi-xvii, 5, 19.
(476) KASHER, supra note 279, at 93 (quoting Kennedy).
(478) Id. at 93-94, 102 (quoting King).
(479) Martin Luther King, Jr., Letter from Birmingham Jail, reprinted in DOCUMENTARY HISTORY OF THE MODERN CIVIL RIGHTS MOVEMENT 110, 111 (Peter B. Levy ed., 1992).
(480) See KASHER, supra note 279, at 94.
(481) Id. at 94-95.
(482) See FREE AT LAST, supra note 161, at 23.
(483) KASHER, supra note 279, at 95.
(484) Id.; WHALEN & WHALEN, supra note 12, at xviii.
(485) KASHER, supra note 279, at 95.
(486) Id. at 5.
(488) Id. at 16.
(489) Id. at 17.
(490) See id.
(491) Id. at xx (quoting Kennedy).
(492) See id. at 14.
(493) See id. at 18.
(495) Cf. id. (discussing briefly reservations some clergy had about interracial marriage).
(496) Id. at 17-18.
(497) Id. at 19. Although it is not given further treatment here, the March on Washington was clearly influential in advancing the civil rights movement. King's speech, especially, is perhaps the greatest in American history, certainly in this century. For more on the March on Washington and King's speech, see for example, FREE AT LAST, supra note 161, at 23-25; KASHER, supra note 279, at 114-31.
(498) See WHALEN & WHALEN, supra note 12, at 4-21. For the most comprehensive and fascinating procedural history of the Civil Rights Act of 1964, see generally id. For a briefer history, see Gueron, supra note 466, at 1215-23. A medium-length but also excellent discussion is provided in HUGH DAVIS GRAHAM, THE CIVIL RIGHTS ERA: ORIGINS AND DEVELOPMENT OF NATIONAL POLICY 1960-1972, at 125-52 (1990).
(499) See WHALEN & WHALEN, supra note 12, at 30-42.
(500) See id. at 48-51.
(501) See Id. at 51-58.
(502) Id. at 74-91, 106-22; SALMOND, supra note 260, at 118-20; see also Gueron, supra note 466, at 1216-17 (describing the difficulty in obtaining hearings from the House Rules Committee).
(503) See GRAHAM, supra note 498, at 138-39.
(504) Smith had tried earlier to take down the legislation by not granting hearings on a rule to send the bill to the House floor. See WHALEN & WHALEN, supra note 12, at 85-86, 92-98; Gueron, supra note 466, at 1216-17.
(505) GRAHAM, supra note 498, at 136, 138. For a discussion of women representative supporters of the bill due to the amendment, see id. at 137-38; Robert C. Bird, More Than a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, 3 WM. & MARY J. WOMEN & L. 137, 153-60 (1997).
(506) See Gueron, supra note 466, at 1219.
(507) See WHALEN & WHALEN, supra note 12, at 125-30.
(508) Id. at 159.
(509) Id. at 141.
(510) Id. at 141-47.
(511) Id. at 200.
(512) Id. at 196-97, 200-09.
(513) Id. at 210-16.
(514) Id. at 227-28 (quoting Johnson).
(515) FRANKLIN, supra note 13, at 635.
(516) See WHALEN & WHALEN, supra note 12, at 227.
(517) See supra Part II.B.6.
(518) See THIELE, supra note 374, at 232-33.
(519) KLINE, supra note 297, at 84.
(520) See supra Part II.B.6.
(521) 42 U.S.C. [sections] 4331(a) (1994). National Environmental Policy Act (NEPA) is codified at 42 U.S.C. [subsections] 4321-4370e (1994 & Supp. III 1997). For a discussion of NEPA, see PERCIVAL ET AL., supra note 427, at 1107-81; and KLINE, supra note 297, at 84-85 (discussing the Act's passage).
(522) KLINE, supra note 297, at 84-85; see also CHARLES O. JONES, CLEAN AIR: THE POLICIES AND POLITICS OF POLLUTION CONTROL 145-46 (1975).
(523) Helen Ingram, The Political Rationality, of Innovation: The Clean Air Act Amendments of 1970, in APPROACHES TO CONTROLLING AIR POLLUTION 12, 30 (Ann Fetter Friedlaender ed., 1978).
(524) Motor Vehicle Pollution Control Act of 1965, 42 U.S.C. [sections] 7521 (1994).
(525) Pub. L. No. 89-272, 79 Stat. 992 (1965).
(526) Air Quality Act of 1967, 43 U.S.C. [sections] 7401 (1994).
(527) Pub. L. No. 90-148, 81 Stat. 485 (1967); see also supra Part II.B.6.
(528) E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. ECON. & ORG. 313, 326 (1985).
(529) See JONES, supra note 522, at 146.
(530) See id.
(531) Ingram, supra note 523, at 30.
(532) JONES, supra note 522, at 152-53. In 1967, 56% of the public held this view, while in 1970, 70% of Americans did. Id.
(533) ALFRED MARCUS, PROMISE AND PERFORMANCE: CHOOSING AND IMPLEMENTING AN ENVIRONMENTAL POLICY 60 (1980): see also S. 3229, 91st Cong. (1969): Elliott et al., supra note 528, at 336.
(534) See Ingram, supranote 523, at 17-18.
(535) Elliott et al., supra note 528, at 334-35.
(536) Id. at 335.
(537) See id. at 326-29; Ingram, supra note 523, at 34-35: JONES, supra note 522, at 175-210.
(538) JONES, supra note 522, at 180 (quoting Muskie's speech to the Magazine Publisher's Association in Chicago). When Muskie learned that the State of the Union address would likely contain strong pro-environment messages, he continued his critique in comments to the New York Times. `A stirring State of the Union speech ... will be just another contribution to environmental pollution if it does not include a firm commitment of manpower, money and back-up authority to attack ... pollution." Id. (quoting the New York Times).
(539) Id. at 179 (quoting Nixon).
(540) See id. at 182.
(541) Id. at 187; Elliott et al., supra note 528, at 336.
(542) JOHN C. ESPOSITO, VANISHING AIR (1970); Alfred Marcus, Environmental Protection Agency, in THE POLITICS OF REGULATION 267, 270-71 (James Q. Wilson ed., 1980).
(543) Marcus, supra note 542, at 271: see also ESPOSITO, supra note 542, at 290-92.
(544) ESPOSITO, supra note 542, at 291.
(545) Id. at 290.
(546) See JONES, supra note 522, at 192; Marcus, supra note 542, at 271.
(547) JONES, supra note 522, at 176-77, 183-85.
(548) The 1955 Act authorized the Secretary of Health, Education, and Welfare (HEW) to administer the air quality program. EPA assumed this responsibility in 1970 with NEPA's enactment.
(550) See id at 185; cf. Ingram, supra note 523, at 37-38 (discussing Muskie's "outmaneuvering" the House Committee on Commerce).
(551) JONES, supra note 522, at 191.
(552) Peter C. Stuart, Slow Air Cleanup Riles Congress, CHRISTIAN SCI. MONITOR, July 6, 1970, at 1.
(553) See Elliott et al., supra note 528, at 337.
(554) JONES, supra note 522, at 198.
(555) Id. at 201 (quoting Muskie).
(557) See id. at 205.
(558) For discussions of the Act, see, for example, PERCIVAL ET AL., supra note 427, at 763-872.
(559) Clean Air Act of 1970, 42 U.S.C. [sections] 4201 (1994).
(561) Id. (sections) 4201.
(562) See Ingram, supra note 523, at 15-19.
(563) There were also of course symbolic benefits for minorities and non-minorities alike, but the value of these benefits to non-minorities clearly did not outweigh the overall value of the statute to minorities.
(564) See WHALEN & WHALEN, supra note 12, at 125-59, 196-216.
(565) Id. at 121.
(566) Id.; cf. id. at 156 (describing Senator Dirksen's use of the argument on Midwestern legislators that the most optimal position for them would be to avoid criticism from civil rights activists and please the few minorities in their regions rather than voting against the Act because of the complacency of the majority of their constituents).
(567) Clean Air Act, 42 U.S.C. [subsections] 7401-7671 (1994 & Supp. III 1997).
(568) See WHALEN & WHALEN, supra note 12, at 19.
(569) See Theodore M. Hesburgh, The End of Apartheid in America, 54 GEO. WASH. L. REV. 244, 248 (1986).
(570) WHALEN & WHALEN. supra note 12, at 26-27.
(571) Id. at 144-45.
(572) Cf. KLINE, supra note 297, at 85 (discussing the non-involvement of traditional groups in Earth Day). But see R. SHEP MELNICK, REGULATION AND THE COURTS: THE CASE OF THE CLEAN AIR ACT 35 (1983) (contending that environmental group involvement in the Clean Air Act deliberations was what signaled the rise of their advocacy in the legislative arena).
(573) See JONES, supra note 522, at 196-99.
(574) See Ingram, supra note 523, at 30-31.
(575) See WHALEN & WHALEN, supra note 12, at 16-26.
(576) See Ingram, supra note 523, at 20-23.
(577) Id. at 21 (quoting Muskie).
(578) 42 U.S.C. [sections] 2000a-3(a) (1994).
(579) Id [sections] 2000d-1. However, aggrieved citizens may also request agencies to act on their behalf. See Luke W. Cole, Civil Rights, Environmental Justice and the EPA: The Brief History of Administrative Complaints Under Title VI of the Civil Rights Act of 1964, 9 J. ENVTL. L. & LinG. 309, 314-18 (1994).
(580) However, these claims must first go through the Equal Employment Opportunity Commission and potential subsequent state mediation. See 42 U.S.C. [sections] 2000e-5 (1994).
(581) Id. [sections] 7604(a)(2).
(582) See GRAHAM, supra note 498, at 152; Hesburgh, supra note 569, at 248-49.
(583) See Cole, supra note 579, at 396-97 (recognizing that administrative complaints under the Act can help in waging environmental justice battles but contending that they should not be relied on as the sole method of doing so); cf. Leslie Ann Coleman, It's the Thought That Counts: The Intent Requirement in Environmental Racism Claims, 25 ST. MARY'S L.J. 447, 458-63 (1993) (discussing the difficulty of using the Fourteenth Amendment to bring environmental racism claims because of its intent requirement). For more on environmental justice, see infra Part V.C.
(584) Of course, the Act did not even entirely alter the substance. Public accommodations claims needed not plead discriminatory intent as the Fourteenth Amendment requires, but equal employment cases did. 42 U.S.C. [subsections] 2000e-2, 2000e-3 (1994).
(585) Indeed, the Clean Air Act's citizen suit provision became a model for almost all subsequent environmental statutes, and these provisions are one of the main mechanisms environmentalists use to advance their goals today. See PERCIVAL ET AL., supra note 427, at 667-71; BRUCE A. ACKERMAN & WILLIAM T. HASSLER, CLEAN COAL, DIRTY AIR 7-12 (1981) (discussing the public and legal criticism of agencies that occurred after the New Deal).
(586) U.S. CONST. amend. XXIV.
(587) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997); Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. [subsections] 136-1364 (1994 & Supp. IV 1998); Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. [subsections] 6901-6992k (1994 & Supp. III 1997); Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [subsections] 9601-9675 (1994 & Supp. III 1997); National Forest Management Act of 1976, 16 U.S.C. [subsections] 472a, 521b, 1600, 1611-1614 (1994) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 State 476): Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).
(588) However, the extent to which these provisions expanded access to court for the two movements may have differed. See supra Part III.C.2.
(589) CHARLES ALAN WRIGHT, LAW OF FEDERAL COURTS 132 (5th ed. 1994).
(590) See infra Part IV.B.1.
(591) 468 U.S. 737, 738 (1984).
(592) 365 U.S. 167, 184 (1961). For an analysis of the impact of Monroe, see WRIGHT, supra note 589, at 132-40.
(593) Force Act of 1871, ch. 99, 16 Stat. 433 (1871).
(594) 42 U.S.C. [sections] 2000e-2 (a) (1) (1994).
(595) Andrea Catania, State Employment Discrimination Remedies and Pendent Jurisdiction Under Title VII: Access to Federal Courts, 32 AM. U. L. REV. 777, 782 (1983).
(596) 456 U.S. 461 (1982).
(597) U.S. CONST. art. IV, [sections] 1.
(598) Kremer, 456 U.S. at 468; see also Allen v. McCurry, 449 U.S. 90, 100-01 (1980).
(599) Kremer, 456 U.S. at 468-76.
(600) Id. at 485.
(601) 478 U.S. 788 (1986).
(602) See supra Part II.A,6.
(603) Elliott, 478 U.S. at 796.
(604) Id. at 799.
(605) See Catania, supra note 595, at 780-81.
(606) Id. at 781.
(607) Id. at 783-85.
(608) Id. at 788-834.
(609) 415 U.S. 36 (1974).
(610) Id. at 45.
(611) Scherck v. Alberto Culver, 417 U.S. 506 (1974).
(612) See, e.g., Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985); Shearson v. McMahon, 482 U.S. 220 (1986); Rodriguez de Quijas v. Shearson, 490 U.S. 477 (1989). For a discussion of these holdings and their implications for employment claims, see Karen Halverson, Arbitration and the Civil Rights Act of 1991, 67 U. CIN. L. REV. 445, 454-57 (1999).
(613) 500 U.S. 20 (1990).
(614) 29 U.S.C. [subsections] 621-634 (1994); 42 U.S.C. [sections] 1981
(615) Gilmer, 500 U.S. at 33.
(616) See, e.g., Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 837 (8th Cir. 1997); Metz v. Merrill Lynch, Pierce, Fenner at Smith, Inc., 39 F.3d 1482, 1487 (10th Cir. 1994); Bender v. A.G. Edwards at Sons, Inc., 971 F.2d 698, 700 (11th Cir. 1992); v. Shearson Lehman Hutton, Inc., 956 F.2d 932, 935 (9th Cir. 1992); Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 307 (6th Cir. 1991); Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229, 230 (5th Cir. 1991). However, a number of courts have also overturned arbitration clauses on other grounds. See, e.g., Paladino v. Avnet Computer Tech., Inc., 134 F.3d 1054, 1059 (11th Cir. 1998) (confusing language and damage limitations); Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126, 1131 (7th Cir. 1997) (lack of consideration on employee's part).
(617) 144 F.3d 1182 (9th Cir. 1998), cert. denied, 525 U.S. 996 (1998).
(618) Halverson, supranote 612, at 465; see also Duffield, 144 F.3d at 1194 (holding that it is an `open question whether Gilmer applie[s] to Title VII claims').
(619) Duffield, 144 F.3d at 1195 (citation and emphasis omitted).
(620) 146 F.3d 175 (3d Cir. 1998).
(621) For more on courts' treatment of EEOC interpretations of legislation, see generally Theodore W. Wern, Note, Judicial Deference to EEOC Interpretations of the Civil Rights Acts, the ADA, and the ADEA: Is the EEOC a Second Class Agency?, 60 OHIO ST. L.J. 1533 (1999) (exploring deference EEOC receives from courts).
(622) Seus, 146 F.3d at 182.
(623) See Jeffrey W. Stempel, Contracting Access to the Courts: Myth or Reality? Boon or Bane?, 40 ARIZ. L. REV. 965, 997 (1998). Although this characterization may have a "cartoonish quality," the `cartoon is relatively accurate if crude." Id.
(624) Halverson, supra note 612, at 451 (citation omitted).
(625) Mark L. Adams, Compulsory Arbitration of Discrimination Claims and the Civil Rights Act of 1991: Encouraged or Proscribed?, 44 WAYNE L. REV. 1619, 1666-67 (1999).
(626) See Id. at 1671.
(627) See Stempel, supra note 623, at 1000.
(628) See Halverson, supra note 612, at 450; cf Jean R. Sternlight, Compelling Arbitration of Claims Under the Civil Rights Act of 1866: What Congress Could Not Have Intended, 47 U. KAN. L. REV. 273, 305 (1999) (characterizing this form of dispute resolution as distinct from arbitration used today).
(629) FED. R. CIV. P. 11.
(630) Mark Spiegel, The Rule 11 Studies and Civil Rights Cases: An Inquiry into the Neutrality of Procedural Rules, 32 CONN. L. REV. 155, 171 (1999).
(631) Id. at 171-72; see also Gerald F. Hess, Rule 11 Practice in Federal and State Court: An Empirical, Comparative Study, 75 MARQ. L. REV. 313, 340 (1992) (reporting that civil rights cases comprised 5% of civil cases filed, while making up 20% of the cases receiving sanction requests); Lawrence Marshall et al., The Use and Impact of Rule 11, 86 NW. U. L. REV. 943, 966 (1992) (11.4% of cases filed while accounting for 18.7% of cases receiving sanction requests).
(632) Spiegel, supra note 630, at 172-73.
(633) See id at 173-74 (discussing the results of four different studies, some of which indicated higher rates for civil rights cases, and some of which reported equal or lower rates for civil rights cases).
(634) Id. at 169.
(635) See David Shub, Note, Private Attorneys General, Prevailing Parties, and Public Benefit: Attorney's Fees Awards for Civil Rights Plaintiffs, 42 DUKE L.J. 706, 721-26 (1992) (arguing that Congress intends civil rights plaintiffs to be considered "prevailing parties" if their litigation results in a public benefit).
(636) 42 U.S.C. [section] 2000e-5(k) (1994).
(637) Id. [sections] 1988.
(638) The glaring exception to this line of cases is City of Riverside v. Rivera, 477 U.S. 561 (1987), the only case in which the Court seemed to fully recognize the underlying intent of these provisions. See id. at 574 ("Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damage awards.").
(639) 482 U.S. 755 (1987).
(640) Id. at 763.
(641) 488 U.S. 1 (1988) (per curiam).
(642) Id at 4.
(643) 506 U.S. 103 (1992). For a more extensive discussion of Farrar, see generally Jennifer L. Horn, Case Note, 61 TENN. L. REV. 1013 (1994).
(644) Farrar, 506 U.S. at 114 (quoting Hewitt, 482 U.S. at 762).
(645) See Shub, supra note 635, at 723-25 (arguing that the Court has ignored Congress's intent that civil rights plaintiffs receive attorney's fees whenever their rights are vindicated, be they private or public ones).
(646) See Horn, supra note 643, at 1027 (arguing that litigants and attorneys will be less likely to file civil rights cases in the absence of the availability of attorney's fees); Shub, supra note 635, at 723-25.
(647) 465 U.S. 886, 891 (1984).
(648) See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
(649) Blum, 465 U.S. at 897.
(650) 489 U.S. 87 (1989).
(651) Id. at 94.
(652) 505 U.S. 557 (1992).
(653) Id. at 562.
(654) Id. at 563; see also id. at 562-63, 566 ("Contingency enhancement would make the setting of fees more complex and arbitrary, hence more unpredictable, and hence more litigable.").
(655) Peter H. Huang, A New Options Theory for Risk Multipliers of Attorney's Fees in Federal Civil Rights Litigation, 73 N.Y.U.L. REV. 1943, 1946 (1998).
(656) Id. at 1951-59.
(657) See Evans v. Jeff D., 475 U.S. 717, 730-32 (1986) (holding that plaintiffs can waive their statutory eligibility for attorney's fees).
(658) Sierra Club v. Morton, 405 U.S. 727, 733-34 (1972).
(659) Id. at 727.
(660) Id. at 734-35.
(661) Id. at 734; see also United States v. Students Challenging Reg. Agency Proc., 412 U.S. 669 (1973) (finding standing for plaintiffs who contended that Interstate Commerce Commission rates would decrease reuse of scrap metal and thus result in increased pollution to the forests and mountains they used).
(662) 478 U.S. 221, 230 (1986).
(663) 497 U.S. 871 (1990).
(664) Id. at 886.
(665) Id. at 889.
(666) 16 U.S.C. [subsections] 1531-1544 (1994).
(667) Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
(668) Id. at 560-61.
(669) Id. at 564.
(670) Id. at 568.
(671) 520 U.S. 154 (1997).
(672) See id at 157-66.
(673) 523 U.S. 83 (1998).
(674) 42 U.S.C. [sections] 1101 (1994).
(675) Steel Company, 523 U.S. at 106.
(676) Id. at 107.
(677) 528 U.S. 167 (2000).
(678) 33 U.S.C. [sections] 1251 (1994 & Supp. IV 1988).
(679) Laidlaw, 528 U.S. at 186.
(680) Id at 706-07; see also Friends of the Earth, Inc., v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000). Perhaps importantly, the Court also held that plaintiffs must demonstrate standing separately for both monetary and injunctive relief. Laidlaw, 528 U.S. at 186.
(681) However, for the argument that the decisions may force the movement to become stronger by becoming more human-centered, see generally Ann E. Carlson, Standing for the Environment, 45 UCLA L. REV. 931 (1998).
(682) Philip Weinberg, Are Standing Requirements Becoming a Great Barrier Reef Against Environmental Actions?, 7 N.Y.U. ENVTL. L.J. 1, 7 (1999).
(683) 33 U.S.C. [subsections] 1365(a), (b)(1)(A), (g) (1994); see also Alberto B. Lopez, Laidlaw and the Clean Water Act: Standing in the Bermuda Triangle of Injury in Fact, Environmental Harm, and "Mere" Permit Exceedances, 69 U. CINN. L. REV. 159 (forthcoming 2001). A similar argument might also be made about the Clean Air Act. See Maria Farinella, Comment, The Clean Air Act of 1990: Title V's Operating Permit Provision for Citizen Access to State Court Judicial Review, 8 ADMIN. L.J. AM. U. 67, 72-80 (1994) (discussing legislative history).
(684) See infra Part V.C; Eileen Gauna, Federal Environmental Citizen Provisions: Obstacles and Incentives on the Road to Environmental Justice, 22 ECOLOGY L.Q. 1, 86-87 (1995): see also Lincoln L. Davies, Note, If You Give the Court a Commerce Clause: An Environmental Justice Critique of Supreme Court Interstate Waste Jurisprudence, 11 FORDHAM ENVTL. L.J. 207, 228-29 (1999) (describing environmental justice's goal of self-determination and sovereignty) [hereinafter Davies, Interstate Waste].
(685) See, e.g., JOSEPH VINING, LEGAL IDENTITY: THE COMING AGE OF PUBLIC LAW 1 (1978) (arguing that the law of standing was in "a sense of intellectual crisis"): Sam Kalen, Standing on Its Last Legs: Bennett v. Spear and the Past and Future of Standing in Environmental Cases, 13 J. LAND USE & ENVTL. L. 1, 2 (1997) ("[S]tanding is on the verge of collapsing onto its weak intellectual foundation."). See generally George Van Cleave, Congressional Power to Confer Broad Citizen Standing in Environmental Cases, 29 Envtl. L. Rep. 10,028 (Envtl. L. Inst. 1999) (discussing the Court's apparent misconstruing of Congress's power in conferring standing).
(686) Compare Sierra Club v. Morton, 405 U.S. 727 (1972), and Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), with Bennett v. Spear, 520 U.S. 154 (1997).
(687) The Clean Air Act allows fee-shifting "whenever appropriate." 42 U.S.C. [sections] 7604(d) (1994). Other statutes provide for attorney's fees for prevailing or "substantially prevailing" parties. See, e.g., Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [sections] 9659(f) (1994): Federal Water Pollution Control Act, 33 U.S.C. [sections] 1365(d) (1994); Resource Conservation and Recovery Act of 1976, 42 U.S.C. [sections] 6972(e) (1994).
(688) See supra Part IV.A.4; see also City of Burlington v. Dague, 505 U.S. 557, 567 (1994) (prohibiting enhancement of the lodestar amount to reflect the fact that the attorneys worked on a contingent fee arrangement).
(689) 463 U.S. 680, 692-94 (1983).
(690) Id. at 682 n.1.
(691) 511 U.S. 809 (1994).
(692) Id. at 815-16.
(693) The decisions may also have expanded their applicability illogically. For instance, in Ruckelhaus, the Court made the questionable assertion that its construing of the Clean Air Act should apply to 16 other federal statutes. See Ingrid Holmlund, Awards of Attorney's Fees to Nonprevailing Parties Under the Clean Air Act--Ruckelhaus v. Sierra Club, 59 WASH. L. REV. 585, 594 (1984) (discussing the questionable nature of the Court's decision in Ruckelhaus).
(694) Steven M. Dunne, Attorney's Fees for Citizen Enforcement of Environmental Statutes: The Obstacles for Public Interest Law Firms, 9 STAN. ENVTL. L.J. 1, 43 (1990).
(695) See Gauna, supra note 684, at 76-79.
(696) See Dianna M. Gibson, Litigation Related Attorney's Fees Unrecoverable Under CERCLA's Private Cost Recovery Action, 15 J. ENERGY NAT. RESOURCES & ENVTL. L. 114, 127 (1995) (discussing the effect of CERCLA's attorney's fees provisions on environmental cleanup).
(698) See generally Richard J. Lazarus, Restoring What's Environmental About Environmental Law in the Supreme Court, 47 UCLA L. REV. 703 (1999-2000) (discussing the judiciary's attitude toward environmental lawsuits).
(699) The main counterexamples in the civil rights context, of course, are the Court's arbitration decisions, as they also might allow claims to be totally shut out of federal court by shifting them to a potentially less evenhanded forum.
(700) Exec. Order No. 10,925, 26 Fed. Reg. 1977 (Mar. 6, 1961).
(701) GRAHAM, supra note 498, at 456.
(702) 42 U.S.C. [sections] 2000e-f(g)(1) (1994).
(703) See Exec. Order No. 11,246, 30 Fed. Reg. 12,319-12,321 (Sept. 24, 1965) (outlining President Johnson's affirmative action policy for government contractors).
(704) 42 U.S.C. [subsections] 2000e-2000e17 (1994 & Supp. IV 1998).
(705) 42 U.S.C. [subsections] 1973-1973gg-10 (1994 & Supp. IV 1998).
(706) GRAHAM, supra note 498, at 459.
(708) See Exec. Order No. 11,246, 30 Fed. Reg. 12,319 (1965). For a discussion of the Plan, see GRAHAM, supra note 498, at 287-97.
(709) Pub. L. No. 92-261, 86 Stat. 111 (1972). For a discussion of the Equal Employment Opportunity Act, see GRAHAM, supra note 498, at 431-43.
(710) GRAHAM, supra note 498, at 456.
(711) Id. at 459 (quoting court evidence that is quoting the EEOC).
(712) See FREE AT LAST, supra note 161, at 33-34.
(713) KASHER, supra note 279, at 195.
(715) See id. at 197 (discussing the confusion over the meaning of "power" in the civil rights movement).
(716) Id. at 218.
(717) Id at 219.
(718) Id. at 216 (quoting King).
(719) 402 U.S. 1 (1971). For a discussion of Swann, see generally Harry Kalven, Jr., The Supreme Court 1970 Term, 85 HARV. L. REV. 3, 74 (1971).
(720) 402 U.S. 33 (1971).
(721) Id. at 29-30.
(722) Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189 (1973); LINO A. GRAGLIA, DISASTER BY DECREE: THE SUPREME COURT DECISIONS ON RACE AND THE SCHOOLS 132 (1976).
(723) See GRAGLIA, supra note 722, at 262-70.
(724) Id. at 277 (quoting the Convention's adopted resolution).
(725) Id. at 276.
(726) 438 U.S. 265 (1978).
(727) Id. at 266.
(729) Id. at 320.
(730) See generally Keith E. Sealing, The Myth of a Color-Blind Constitution, 54 WASH. U. J. URB. & CONTEMP. L. 157 (1998) (calling the Court's affirmative action decisions an erroneous recognition of the Constitution as a color-blind document).
(731) See HENRY J. ABRAHAM & BARBARA A. PERRY, FREEDOM AND THE COURT: CIVIL RIGHTS AND LIBERTIES IN THE UNITED STATES 431-32 (7th ed. 1998),
(732) See, e.g., Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987); United States v. Paradise, 480 U.S. 149 (1987); Wygant v. Jackson Board of Education, 476 U.S. 267 (1986); Firefighters Local 1784 v. Stotts, 467 U.S. 561 (1984); Fullilove v. Klutznick, 448 U.S. 448 (1980); United Steelworkers of America v. Weber, 443 U.S. 193 (1979). For discussions of these cases, see ABRAHAM & PERRY, supra note 731, at 432-46; and Sealing, supra note 730, at 171-78.
(733) 515 U.S. 200, 227 (1995).
(734) See Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996); Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994), cert. denied, 514 U.S. 1128 (1995). See generally Tom Morganthau & Ginny Carroll, The Backlash Wars: Clashes Over Race and Preferences Flare Up--Just in Time for the Campaign, NEWSWEEK, Apr. 1, 1996, at 54.
(735) Paul Finkelman, The Rise of the New Racism, 15 YALE L. & POL'Y REV. 245 (1996) (reviewing D'SOUZA, supra note 1).
(736) Michael Riley, White & Wrong: New Klan, Old Hatred, TIME, July 6, 1992, at 24-25.
(737) J. Michael Kennedy, Klan's Back on Old Turf in Texas: A Federal Judge's Order to Desegregate Public Housing Brings Protests by the KKK, L.A. TIMES, Feb. 9, 1993, at A5. But see Riley, supra note 713 (discussing significant local opposition to the protest).
(738) Emelyn Cruz Lat, Klan Meet: A Bid to Rise Again?, SEATTLE TIMES, June 21, 1996, at B1.
(739) Pub. L. No. 101-275, 104 Stat. 140 (1990).
(740) Michael J. Sniffen, Race Remains Chief Motivator for Hate Crimes, SEATTLE TIMES, Nov. 19, 1999, at A8. The numbers declined from 1997 to 1998, but 530 less police agencies reported in 1998.
(741) See, e.g., R.G. Ratcliffe, State's Hate Crimes Declined in 1998: Most Attacks Linked to Race, Ethnic Bias, HOUSTON CHRON., May 19, 1999, at A21 (reporting a 5% decline in hate crimes but noting that 59% of those crimes were motivated by racism). But cf. Lat, supra note 738 (arguing that reported incidents do not necessarily reflect actual incidents).
(742) See, e.g., Sunya Walls, Black Church Bombings Continue in the South: Clinton Asks Congress for More Money to Investigate, CHICAGO CITIZEN, June 20, 1996, at 2.
(743) See, e.g., Racial Slurs Surface in Church Bombing, NEW ORLEANS TIMES-PICAYUNE, Jan. 11, 1996, at A6 (for example, `White is right' was found painted on a door); Gabriel Escobar, Family's Tragedy Is Korean Merchants' Call to Action, WASH. POST, Aug. 17, 1993 at A1 (discussing racist attacks on Koreans in Washington, D.C.).
(744) Kevin J. Shay, '96 Wichita Fails Church Fire Has Seared Several Reputations: Grand Jury Twice Declined to Indict Pastor, DALLAS MORNING NEWS, Jan. 4, 2000, at 15A; see also Angie Cannon & Chitra Ragavan, Another Look at the Church Fire Epidemic: Race Seemed to Have Played Less of a Role, U.S. NEWS & WORLD REPORT, Nov. 22, 1999, at 26 (reporting that a number of motives, including racism, religious intolerance, and greed, were behind the rash of church fires).
(745) 31% of Young White Adults Show Anti-Black Views, L.A. TIMES, June 12, 1993, at A19 (reporting the results of an Anti-Defamation League study that found that thirty-one percent of whites eighteen to thirty years old, compared to only twenty-three percent of those aged thirty to forty-nine, believed that blacks were more prone to violence than other races and more likely to accept welfare rather than work for a living).
(747) Guy Aoki & Philip W. Chung, `Rising Sun,' Hollywood and Asian Stereotypes, L.A. TIMES, May 3, 1993, at F3.
(748) See generally Bob Baker, Stereotype That Won't Go Away: Young Black Males Find Themselves Continually Under Scrutiny from Police and Public, L.A. TIMES, May 31, 1992, at A1.
(749) J. Nachbar & K. Lause, Breaking the Mold: The Meaning and Significance of Stereotypes in Popular Culture, 26 J. POPULAR CULTURE 236, 238 (1992).
(750) See id; Aoki & Chung, supra note 747. See generally Francis W. Alexandro, Stereotyping as a Method of Exploitation in Film, BLACK SCHOLAR, May 1976, at 26.
(751) Susan Estrich, The Politics of Race, WASH. POST, Apr. 23, 1989, at W20.
(753) See John A. MacDonald, Specter of Willy Horton Hovers Over Pennsylvania Race, HARTFORD COURANT, Oct. 15, 1994, at A2.
(754) Nachbar & Lause, supra note 749, at 241.
(755) Finkelman, supra note 735, at 248.
(756) Shelby Steele, White Guilt, in AFFIRMATIVE ACTION 130, 132, 137 (Donald Altschiller ed., 1991): see generally Leonce Giater, Commentary Put to Rest the `Spirit of Proposition 209' Racism: Whites Like to Think They Instantly Voided Their History of Prejudice. L.A. TIMES, Aug. 4, 1999, at B7. For more on white attitudes of the value of not being black, see ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, AND UNEQUAL 35-36 (1995) (relating an example of a classroom survey in which "most [students] seemed to feel it would not be out of line to ask for ... $1 million for each [year of being] black").
(757) Gerald F. Seib & Joe Davidson, Shade of Gray: Whites, Blacks Agree on Problems: The Issue Is How to Solve Them, WALL ST. J., Sept. 29, 1994, at A1.
(760) RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994).
(761) See, e.g., CLAUDE S. FISCHER ET AL., INEQUALITY BY DESIGN: CRACKING THE BELL CURVE MYTH (1996); MEASURED LIES: THE BELL CURVE EXAMINED (Joe L. Kincheloe et al. eds., 1997).
(762) See, e.g., Mitchel Cohen, Beware the Violence Initiative Project: Coming Soon to an Inner City Near You, Z MAG., Apr. 2000, at 30, 37.
(763) Id. at 35 (characterizing Dr. Frederick Goodwin, who employed an analogy of male monkey sexuality and aggressiveness to "the loss of social structure in ... the high impact inner city areas" when testifying before the National Health Advisory Council).
(764) D'SOUZA, supra note 1, at 525-26.
(765) Finkelman, supra note 735, at 282.
(766) Pub. L. No. 104-7, 109 Stat. 93 (1995).
(767) James S. Gibney, The Berkeley Squeeze, in AFFIRMATIVE ACTION, supra note 756, at 96, 99.
(769) Id. at 97-99.
(770) Id. at 96.
(771) K.L. Billingsley, California to Vote on Banning Race-, Sex-Based Preferences, WASH. TIMES, Feb. 22, 1996, at A3.
(773) See id For more on the treatment of affirmative action in California, see generally Andre Douglas Pond Cummings, "Never Let Me Slip, `Cause If I Slip, Then I'm Slippin'": California Paranoid Slide from Bakke to Proposition 209, 8 B.U. PUB. INT. L.J. 59 (1998).
(774) CAL. CONST. art. 1, [sections] 31(a) (added by Initiative Measure (Prop. 209, approved Nov. 5, 1996)).
(775) Debating with the Grand Dragon: CalState Northridge's Machiavellian Attack on Proposition 309, J. BLACKS HIGHER EDUC., Sept. 30, 1996, at 35.
(776) Battle over Proposition 209, CURRENT EVENTS, Dec. 12, 1997, at 3.
(777) James Q. Wilson, Proposition 209: When a `Factor' Becomes a Quota System?, L.A. TIMES, Oct. 20, 1996, at M1, M3.
(778) Charles L. Geshekter, Affirmative Action in Principle Non-Discrimination in Fact: Higher Education After Proposition 209, 10 STAN. L. & POL'Y REV. 205, 206 (quoting Berkeley professor Martin Trow).
(779) Cf. Wilson, supra note 777 (arguing that Proposition 209 would not further sex discrimination because the California Constitution prohibits the practice).
(780) Martin D. Carcieri, Operational Need, Political Reality, and Liberal Democracy: Two Suggested Amendments to Proposition 209-Based Reforms, 9 SETON HALL CONST. L.J. 459, 463 (1999) (summarizing a number of leading arguments against affirmative action).
(781) John D. Maguire, Resist the Call of the Privileged Class, L.A. TIMES, Oct. 24, 1996, at B9; see also Roger Mahony, Solidarity and the Common Good: A Pastoral Response to Proposition 209, 11 NOTRE DAME J.L. ETHICS & PUB. POL'Y 89 (1997) (stating his opposition to the initiative in his capacity as a Catholic Cardinal).
(782) Kathryn Tarbell, Proposition 209, L.A. TIMES, Sept. 5, 1996, at B8.
(783) Cummings, supra note 773, at 69 (quoting Michael J. Wenzl, Donations and UCLA Admissions, L.A. TIMES, May 14, 1996, at B6).
(784) See Kenneth J. Garcia & Susan Yoachum, Clinton Starts Final Push at Oakland Rally: He Stops Short of Attacking California's Proposition 209, S.F. CHRON., Nov. 1, 1996, at A1 ("I've never been for quotas or for anybody unqualified getting anything they were unqualified for. But I am for giving people a chance to prove they are qualified. And I think we ought to keep on doing that.") (quoting President Clinton).
(785) Susan Yoachum, Dole Climbs Aboard the Proposition 209 Bandwagon, S.F. CHRON., Oct. 29, 1996, at A1 (quoting Dole).
(786) Dan Morain, Proposition 309 Still Holding Strong Lead, L.A. TIMES, Oct. 25, 1996, at A1.
(787) Cummings, supra note 773, at 61.
(788) Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480, 1490 (N.D. Cal. 1996).
(789) Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997).
(790) Coalition for Economic Equity v. Wilson, 522 U.S. 963 (1997).
(791) Carl Rowan, Proposition 209 Will Hurt Us All, BUFFALO NEWS, Apr. 7, 1998, at B3 (noting that 562 black students and 1,045 Hispanic students were offered admission to the Fall 1997 class).
(792) Editorial, The Proposition 209 Trade-Off. CHI. TRIB., Apr. 25, 1998, at 22.
(793) Clarence Page, After Proposition 209: A New Racial Outreach, SALT LAKE TRIB., Apr. 13, 1999, at A9.
(794) See, e.g., Lyle Denniston, Dilemma of California Communities, BALT. SUN, Oct. 31, 1997, at 2A (discussing Santa Cruz, California).
(795) Charles Dervarics, GOP Plan Would Federalize Proposition 309, BLACK ISSUES HIGHER EDUC., Apr. 2, 1998, at 4 (discussing Riggs' plan and his opponents' arguments).
(796) Sam H. Verhovek & B. Drummond Ayres, Voters Back End to State Preferences, N.Y. TIMES, Nov. 4, 1998, at B2 (discussing the anti-affirmative action nature of Initiative 200).
(797) But Look Under the Other Bush: Affirmative Action in Florida, ECONOMIST, Mar. 11, 2000, at 36.
(798) See, e.g., Karla Schuster, Bush's College Policy OK'd: Affirmative Action Has Ended on the State g Campuses, Replaced with the Governor's One Florida Plan, ORLANDO SENTINEL, Feb. 23, 2000, at D1. The Texas and Florida plans, of course, raise issues of their own. For brief but helpful discussions of these topics, see id.; June Kronholz, Texas Pioneering Alternatives for Affirmative Action, WALL ST. J., Dec. 31, 1998, at A12; Steve Patterson, Affirmative Action a Hot Topic at Black Journalists' Meeting: Bush's One Florida, Other Plan Attacked FLA. TIMES UNION (Jacksonville), Apr. 1, 2000, at B2; Jodi Wilgoren, End of Affirmative Action Can Benefit Texas Minorities, OREGONIAN, Nov. 24, 1999, at A2.
(799) Morain, supra note 786 (quoting Ewing Kenney, a retired chemical engineer).
(800) Eva Paterson & Oren Sellstrom, Equal Opportunity in a Post-Proposition 209 World 26 HUM. RTS. 9, 9 (1999).
(801) These numbers are derived from a pre-election day opinion poll by excluding undecided voters. Cf. Morain, supra note 786.
(802) KLINE, supra note 297, at 110 ("In 1990 ... 74 percent of respondents supported protecting the environment regardless of the cost, up nearly 30% from 1981.").
(803) JACQUELINE VAUGHN SWITZER, GREEN BACKLASH: THE HISTORY AND POLITICS OF ENVIRONMENTAL OPPOSITION IN THE U.S. 174 (1997).
(804) ANDREW ROWELL, GREEN BACKLASH: GLOBAL SUBVERSION OF THE ENVIRONMENTAL MOVEMENT 9 (1996).
(805) SWITZER, supra note 803, at 179-82. Alaska, Hawaii, and North Dakota also passed bills supporting the movement, but their effects were extremely limited. See id. at 181.
(806) Id. at 184.
(807) KLINE, supra note 297, at 104-05.
(808) Id. at 105.
(809) SWITZER, supra note 803, at 185; see also id. at 177.
(810) Id. at 186-87; KLINE, supra note 297, at 105.
(811) KLINE, supra note 297, at 105-06.
(813) Id. at 108.
(814) Id. at 111; SWITZER, supra note 803, at 155.
(815) Pub. L. No. 101-549, 104 Stat. 2584 (1990).
(816) 42 U.S.C. [subsections] 13101-13109 (1994).
(817) Convention on Biological Diversity, S. TREATY DOC. NO. 103-20 (1993) reprinted in 31 I.L.M. 818.
(818) KLINE, supra note 297, at 115-17.
(819) Id. at 108.
(820) Id. at 111.
(821) ROWELL, supra note 804, at 10-13 (discussing the roles Ron Arnold and Alan Gottlieb played in the development of the anti-environmental movement); SWITZER, supra note 803, at 196-97.
(822) DAVID HELVARG, THE WAR AGAINST THE GREENS: THE "WISE-USE" MOVEMENT, THE NEW RIGHT, AND ANTI-ENVIRONMENTAL VIOLENCE 141-55 (1994) (documenting Charles Cushman's organizing efforts against the National Park Service).
(823) See ROWELL, supra note 804, at 12.
(824) Id. at 13 (quoting Arnold).
(825) Id. at 16-17.
(826) Id. at 17.
(827) Id. at 17-18.
(828) SWITZER, supra note 803, at 197 (quoting Arnold).
(829) HELVARG, supra note 822, at 9.
(831) Niki Christopher, Note, Cattle Ranch with Park Rangers: The Battle [or a Tallgrass Prairie National Park in Kansas, 18 STAN. ENVTL. L.J. 211, 248 (1999) (quoting Cushman). The area was instead made into a National Preserve. See Tallgrass Prairie National Preserve Act of 1996, 16 U.S.C. [sections] 698u (Supp. II 1997). See generally Christopher, supra.
(832) See generally, Rene Erm II, Comment, The `Wise Use' Movement: The Constitutionality of Local Action on Federal Lands Under the Preemption Doctrine, 30 IDAHO L. REV. 631 (1994); Andrea Hungerford, Comment, "Custom and Culture" Ordinances: Not a Wise Move for the Wise Use Movement, 8 TUL. ENVTL. L.J. 457 (1995).
(833) See, e.g., ROWELL, supra note 804, at 5 (depicting the environmental movement as coopted under the Clinton Administration).
(834) HELVARG, supra note 822, at 8; Christopher, supra note 831, at 245.
(835) Christopher, supra note 831, at 246; see also HELVARG, supra note 822, at 143.
(836) ROWELL, supra note 804, at 26; see also SWITZER, supra note 803, at 201.
(837) Phil Brick, Determined Opposition: The Wise Use Movement Challenges Environmentalism, ENV'T, Oct. 1995, at 16, 37.
(838) Christopher, supra note 831, at 244.
(839) SWITZER, supra note 803, at 209.
(840) ROWELL, supra note 804, at 9; see also id. at 131 (`Environmentalism is a new paganism. It worships trees and sacrifices people.') (quoting Cushman); Christopher, supra note 831, at 242.
(841) PAUL R. EHRLICH & ANNE H. EHRLICH, BETRAYAL OF SCIENCE AND REASON: HOW ANTI-ENVIRONMENTAL RHETORIC THREATENS OUR FUTURE 11-12 (1996); see also Tim Callahan, Trees and Volcanoes Cause Smog!: More Myths from the "Wise Use" Movement, HUMANIST, Jan. 11, 1996, at 29.
(842) See, e.g., SWITZER, supra note 803, at 210-11 (relaying the example of Dixie Lee Ray's repeated use of the American dung beetle and the cockroach as examples of the ESA gone wrong during public appearances--even though neither species has been listed under the Act). See generally EHRLICH & EHRLICH, supra note 841.
(843) HELVARG, supra note 822, at 9.
(844) See SWITZER, supra note 803, at 209-10. See generally Michael Haddigan, `Wise Use': These Non-Environmentalists Say They're Nature's Friend, CHI. TRIB., May 13, 1995, at 18; Andy Rowell, Global Warning: Wise Use Reinvents Itself as an International Environmental Movement, VILLAGE VOICE, Oct. 15, 1996, at 22.
(845) ROWELL, supra note 804, at 152-54.
(846) See, e.g., SWITZER, supra note 803, at 218-19; Jon Margolis, Peril in the West: Enforcing Environment Laws Gets Scary Rangers, Other Staffers Harassed and Threatened by Angry People from `Wise Use' Groups, CHI. TRIB., Nov. 24, 1994, at 21 (recounting death threats, bombings, and other Wise Use-advocated violence); Brian Tokar, The "Wise Use" Backlash: Responding to Militant Anti-Environmentalism, ECOLOGIST, July 17, 1995, at 150 (discussing the connection of the Wise Use movement to various militia groups).
(847) SWITZER. supra note 803, at 266 (describing Wise Users' use of the United States Court of Federal Claims); see U.S. CONST. amend. V.
(848) 505 U.S. 1003, 1020 (1992).
(849) 512 U.S. 374, 391 (1994).
(850) 526 U.S. 687, 722 (1999).
(851) 526 U.S. 687 (1999).
(852) See ROWELL, supra note 804, at 36-37. The argument proceeds that if endangered species are found on one's property, the ESA's prohibition on harming, harassing, or killing listed species restricts one's use of the land. For more academic treatments of the issue, see generally Jeffrey J. Rachlinski, Protecting Endangered Species Without Regulating Private Land Owners: The Case of Endangered Plants, 8 CORNELL J.L. & PUB. POL'Y 1 (1998); Barton H. Thompson, Jr., The Endangered Species Act: A Case Study in Takings & Incentives, 49 STAN. L. REV. 305 (1997).
(853) Federal Water Pollution Control Act, 33 U.S.C. [section] 1344 (1994).
(854) ROWELL, supra note 804, at 34-35.
(855) W. K. Burke, The Wise Use Movement: Right-Wing Anti-Environmentalism, THE PUBLIC EYE, June 1993, at 5 (quoting Tarso Ramos).
(856) ROWELL, supra note 804, at 16-18.
(857) SWITZER, supra note 803, at 195.
(859) HELVARG, supra note 822, at 90.
(860) KLINE, supra note 297, at 112. See generally STEVEN LEWIS YAFFEE, THE WISDOM OF THE SPOTTED OWL: POLICY LESSONS FOR A NEW CENTURY (1994).
(861) Erm, supra note 832, at 633.
(862) SWITZER, supra note 803, at 197; see also Katherine Long, Wise Group Aims to Eradicate Environmental Movement, LAS VEGAS REV. J., Dec. 8, 1991, at 25A.
(863) KLINE, supra note 297, at 110.
(864) Id. at 113.
(865) Lichter, supra note 5.
(867) See generally Dean Lueck & Jeffrey A. Michael, Preemptive Habitat Destruction Under the Endangered Species Act, at www.montana.edu/wwwae/homepage/lueck/JLE%20paper.PDF (last modified July 19, 2000).
(868) Craig N. Oren, Getting Commuters Out of Their Cars: What Went Wrong?, 17 STAN. ENVTL. L.J. 141, 150-59 (1998) [hereinafter Oren, What Went Wrong?].
(870) Id. at 141; 42 U.S.C. [section] 7511a(d) (1994) as amended by 42 U.S.C. [section] 7511a(d) (Supp. I 1995). For more on the factors driving increased car use, see Oren, What Went Wrong?, supra note 868, at 160-73.
(871) 42 U.S.C. [sections] 7511a(d) (1994) as amended by 42 U.S.C. [section] 7511a(d) (Supp. I 1995); see also Oren, What Went Wrong? supra note 868, at 174-77 (describing the requirements).
(872) See, e.g., Peter J. Herzberg & Brian Montag, Gearing Up for the Employer Trip Reduction Program, N.J. LAW., Apr. 1994, at 27, 30-31 (providing examples of methods employers might use to induce employees not to drive to work).
(873) See 136 Cong. Rec. 6479 (Apr. 3, 1990) (recording a vote of 89 to 11 for the amendment).
(874) See Craig N. Oren, How a Mandate Came from Hell: The Making of the Federal Employee Trip Reduction Program, 28 ENVTL. L. 267, 361-62 (1998) [hereinafter Oren, Mandate from Hell].
(875) Id. at 366.
(876) Oren, What Went Wrong? supra note 868, at 188-89.
(877) Holley Gilbert, Workers Help County Meet Trip Reduction Rules, OREGONIAN, July 14, 1994, at C2.
(878) David Ivanovich, Houston Trip Reduction Program for Workers Ripped Hous. CHRON., Oct. 8, 1994, at 2.
(879) Russell Hancock, Air Quality Control Regulations Aren't Giving Value for Money, S.F. CHRON., Aug. 25, 1995, at P2.
(880) Ivanovich, supra note 878, at 2; Bay Area Trip Reduction Efforts Lifted CLEAN AIR NETWORK ONLINE TODAY, Oct. 17, 1995, available at 1995 WL 2265342.
(881) Airing New Facts: More Cause to Reconsider Car-Pool-to-Work Mandates, HOUS. CHRON., Apr. 10, 1995, at 16.
(882) Oren, What Went Wrong?, supra note 868, at 143.
(883) Guy T. Baehr, State Prods Firms to File Trip-Reduction Plans: Hundreds Still Out of Compliance with Clean Air Act Provisions, STAR-LEDGER (Newark, N.J.), June 18, 1995, available at 1995 WL 8854668.
(884) Oren, What Went Wrong?, supra note 868, at 144-45 (quoting Chafee).
(885) Clean Air Act Amendments: Hearings on Inspection and Maintenance Programs Before the Subcomm. on Oversight and Investigations of the Senate Comm. on Env't and Pub. Works, 104th Cong. 178 (1995) (statement of Mary D. Nichols, Assistant Administrator for Air and Radiation, EPA).
(886) 42 U.S.C. [section] 7511a(a)(2)(B)(ii) (1994 & Supp. IV 1998).
(888) Vehicle Inspection and Maintenance Requirements for State Implementation Plans, 57 Fed. Reg. 31,058, 31,059 (July 13, 1992).
(890) Thomas O. McGarity, Regulating Commuters to Clear the Air: Some Difficulties in Implementing a National Program at the Local Level, 27 PAC. L.J. 1521, 1565-71 (1996).
(891) Inspection/Maintenance Program Requirements, 57 Fed. Reg. 52,950, 52,951 (Nov. 5, 1992).
(892) Id. at 52,977.
(893) Id. at 52,950; McGarity, supra note 890, at 1573-74.
(894) Natural Resources Defense Council, Inc. v. EPA, 22 F.3d 1125 (D.C. Cir. 1994).
(895) McGarity, supra note 889, at 1578.
(896) See Inspection/Maintenance Flexibility Amendments, 60 Fed. Reg. 20,934 (Apr. 28, 1995); Arnold W. Reitze, Jr., Federalism and the Inspection and Maintenance Program Under the Clean Air Act, 27 PAC. L.J. 1461, 1511 (1996).
(897) McGarity, supra note 889, at 1579.
(898) For discussions of this slide, see McGarity, supra note 889, at 1595-99; Reitze, supra note 895, at 1511-12; Gary Lee, Compromising on Clean Air Act: Under Republican Pressure, EPA Reduces Enforcement Efforts, WASH. POST, Feb. 21, 1996, at A1; see also 40 C.F.R. [section] 51.350 (1995).
(899) See McGarity, supra note 889, at 1579-93; Carl Ingram, Accord Would Toughen Auto Smog Testing, L.A. TIMES, Mar. 10, 1994, at A1.
(900) McGarity, supra note 889, at 1593.
(901) Reitze, supra note 895, at 1512-13.
(902) McGarity, supra note 889, at 1604.
(903) Id. at 1600-05.
(904) Id. at 1604-09 (quoting various officials).
(905) See id. at 1610-19.
(906) John Williams, Bush to EPA: Don't Meddle in State Affairs, HOUS. CHRON., Apr. 13, 1995, at 1.
(907) See National Highway System Designation Act of 1995 [section] 48, Pub. L. No. 104-59, 109 Stat. 568.
(908) See generally COMMISSION FOR RACIAL JUSTICE, UNITED CHURCH OF CHRIST, TOXIC WASTES AND RACE IN THE UNITED STATES: A NATIONAL REPORT ON RACIAL AND SOCIO-ECONOMIC CHARACTERISTICS OF COMMUNITIES WITH HAZARDOUS WASTE SITES (1987); PAT COSTNER & JOE THORNTON, PLAYING WITH FIRE: HAZARDOUS WASTE INCINERATION: A GREENPEACE REPORT (1990); BENJAMIN A. GOLDMAN & LAURA FITTON, TOXIC WASTES AND RACE REVISITED (1994); U.S. ENVTL. PROTECTION AGENCY, 1 ENVIRONMENTAL EQUITY: REDUCING RISK FOR ALL COMMUNITIES (1992); U.S. GEN. ACCOUNTING OFFICE, SITING OF HAZARDOUS WASTE LANDFILLS AND THEIR CORRELATION WITH RACIAL AND ECONOMIC STATUS OF SURROUNDING COMMUNITIES (1983).
(909) Richard Hofrichter, Introduction in TOXIC STRUGGLES: THE THEORY AND PRACTICE OF ENVIRONMENTAL JUSTICE 1 (Richard Hofrichter ed., 1993) [hereinafter TOXIC STRUGGLES].
(910) PROCEEDINGS OF THE FIRST NATIONAL PEOPLE OF COLOR ENVIRONMENTAL LEADERSHIP SUMMIT xiii (1991).
(911) Studies had shown that not only did minorities and the poor take the brunt of America's pollution, but that environmental laws were also not being enforced as stringently in these communities as in others. See Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, NAT'L L.J., Sept. 21, 1992, at S1.
(912) Exec. Order No. 12,898, 59 Fed. Reg. 2629 (1994).
(913) See, e.g., ROBERT D. BULLARD, DUMPING IN DIXIE: RACE, CLASS, AND ENVIRONMENTAL QUALITY (1990): CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS (Robert D. Bullard ed., 1993) [hereinafter CONFRONTING ENVIRONMENTAL RACISM]: RACE AND THE INCIDENCE OF ENVIRONMENTAL HAZARDS: A TIME FOR DISCOURSE (Bunyan Bryant and Paul Mohai eds., 1992): TOXIC STRUGGLES, supra note 908: UNEQUAL PROTECTION: ENVIRONMENTAL JUSTICE AND COMMUNITIES OF COLOR (Robert D. Bullard ed., 1994); WHO PAYS THE PRICE? THE SOCIOCULTURAL CONTEXT OF ENVIRONMENTAL CRISIS (Barbara Rose Johnston ed., 1994): Sheila Foster, Race(ial) Matters: The Quest for Environmental Justice, 20 ECOLOGY L.Q. 721 (1993); Eileen Gauna, The Environmental Justice Misfit: Public Participation and the Paradigm Paradox, 17 STAN. ENVTL. L.J. 3 (1998); Cynthia Hamilton, Women, Home and Community: The Struggle in an Urban Environment, RACE, POVERTY & THE ENV'T, Apr. 1990, at 3; Gloria E. Helfand & L. James Peyton, A Conceptual Model of Environmental Justice, 80 SOC. SCIENCE Q. 68 (1999); Ralph M. Perhac, Jr., Environmental Justice: The Issue of Disproportionality, 21 ENVTL. ETHICS 81; J. B. Ruhl, The Co-Evolution of Sustainable Development and Environmental Justice: Cooperation, then Competition, then Conflict, 9 DUKE ENVTL. L. & POL'Y F. 161 (1999); Taylor, Shaping Activism, supra note 344; Robert R.M. Verchick, In a Greener Voice: Feminist Theory and Environmental Justice, 19 HARV. WOMEN'S L.J. 23 (1996).
(914) Davies, Interstate Waste, supra note 684, at 225-30.
(915) Lincoln L. Davies, Note, Working Toward a Common Goal? Three Case Studies of Brownfields Redevelopment in Environmental Justice Communities, 18 STAN. ENVTL. L.J. 285, 311-17 (1999) [hereinafter Davies, Brownfields].
(916) Cole, supra note 579, at 387-98.
(917) See, e.g., Robert W. Collin & William Harris, Sr., Race and Waste in Two Virginia Communities, in CONFRONTING ENVIRONMENTAL RACISM, supra note 913, at 93, 98-100 (discussing defeat of a nuclear waste site seeking to be located in a community); Winona LaDuke, A Society Based on Conquest Cannot Be Sustained: Native Peoples and the Environmental Crisis, in Toxic STRUGGLES, supra note 909, at 98, 105-06 (summarizing four cases where Native Americans "successfully resisted the destruction of their land and lives"); Hamilton, supra note 913, at 3, 10-13 (examining grassroots organization of mothers in South Central Los Angeles).
(918) Ruhl, supra note 913, at 185. But Ruhl also argues that the "bottom line for environmental justice is that so long as it contends that racially disproportionate local impact is never acceptable regardless of economic and environmental sustainability indicators, it will play an opposition role in the environmental policy of the future." Id.
(919) See Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 STAN. L. REV. 683, 711-35 (1999).
(920) Of course, one might also argue that Wise Use is not itself an entirely distinct movement, but is instead a manifestation of a popular sentiment. To the extent that this is true, environmentalism may be stuck with facing a situation in which only cultural change will effect the desired objectives. But to the extent that Wise Users exceed or differ from the popular sentiment, the analysis still seems to apply. Americans seem to favor some limitations on resource extraction--consider, for instance, the notion of National Parks--while the Wise Use movement pushes that issue much further in terms of allowing full access for exploitation.
(921) Again, this is not to say that environmentalists do not face the dilemma of confronting culturally embedded tendencies contrary to their movement. American consumerism, for example, runs directly contrary to the movement. The difference is that environmentalism seems to be something that can more clearly benefit the public, while civil rights' benefits are often less clear.
(922) See Oren, What Went Wrong?, supra note 868, at 201.
(923) See Oren, Mandate from Hell, supra note 874, at 335-40.
(924) KASHER, supra note 279, at 35 (quoting King).
(925) See supra Part V.B.4.
(926) See Richard A. Epstein, Caste and the Civil Rights Laws: From Jim Crow to Same-Sex Marriages, 92 MICH. L. REV. 2456, 2464-65 (1996).
(927) Julian Simon, of course, would have contended that human innovation means we can overcome any effect we might have on the planet, but this proposition is rather questionable. Compare JULIAN L. SIMON, THE ULTIMATE RESOURCE 2 (1998), with JOEL E. COHEN, HOW MANY PEOPLE CAN THE EARTH SUPPORT? (1995), and PAUL R. EHRLICH & ANNE H. EHRLICH, THE POPULATION EXPLOSION (1996). In any event, it is doubtful that even Simon would have advocated intentional ignorance of our impact on the planet.
(928) See James Boyd et al., The Law and Economics of Habitat Conservation: Lessons from an Analysis of Easement Acquisitions, 19 STAN. ENVTL. L.J. 209, 212 (2000).
(929) 42 U.S.C. [subsections] 7651-7651o (1994 & Supp. III 1997). For a general discussion of the workings of the program, see Larry B. Parker et al., A Review of Major Provisions, Clean Air Act Allowance Trading, 21 ENVTL. L. 2021 (1991).
(930) See Jeffrey M. Hirsch, Note, Emissions Allowance Trading Under the Clean Air Act: A Model for Future Environmental Regulations?, 7 N.Y.U. ENVTL. L.J. 352, 353-54 (1999).
(931) See, e.g., Erika Hobbs, Clinton Offers Money for Job Training, PATRIOT LEDGER, Feb. 7, 1999, at 7; see also $3.1 Million for Job Training Promised by Ottawa for N.S. Fishery Workers, VANCOUVER SUN, Aug. 8, 1990, at A8 (discussing programs in Canada).
(932) See Gordon Smith, At Loggerheads, But They Try: An Unlikely Pair Work to Save a Lumber Town, SAN DIEGO UNION & TRIB., Mar. 1, 1994, at A1.
(933) See generally NATURE'S SERVICES: SOCIETAL DEPENDENCE ON NATURAL ECOSYSTEMS (Gretchen Daily ed., 1997).
(934) See James Salzman, The Ecosystem Approach: New Departures for Land and Water: Valuing Ecosystem Services, 24 ECOLOGY L.Q. 887, 888-89 (1997).
(935) Id. at 900.
(936) Id. at 902.
(937) EDWARD ABBEY, THE MONKEYWRENCH GANG (1991).
(938) See Timur & Sunstein, supra note 919, at 720-29.
(939) These would be arguments made by members of the "Deep Ecology" movement, which places the environment on an ethical plane where it cannot be valued economically. Cf. Mark Ritchie, Trading Away the Environment: Free-Trade Agreements and Environmental Degradation, in TOXIC STRUGGLES, supra note 909, at 209.
(940) See KLINE, supra note 297, at 131.
(941) Take the case of the recent presidential election. Even President George W. Bush, who defiantly resisted implementing a centralized inspection/maintenance regime in Texas, touts his clean air record as his commitment to environmental protection.
(942) Ingram, supra note 523, at 46.
(943) Id. at 47.
(944) See Zygmunt J.B. Plater. From the Beginning, a Fundamental Shift of Paradigms: A Theory and Short History of Environmental Law, 27 LOY. L.A. L. REV. 981, 984-94 (1994).
(945) ALLAN SCHNAIBERG & KENNETH ALAN GOULD, ENVIRONMENT AND SOCIETY: THE ENDURING CONFLICT 151 (1994).
(946) 1000 Friends of Oregon is dedicated to dealing with sprawl and other related land use issues. The organization has served as a model for other such groups across the nation. See 1000 Friends of Oregon, 1000 Friends of Oregon, at http://www.friends.org (last visited Jan. 23, 2001).
(947) See McGarity, supra note 890, at 1582-84.
(948) See Davies, Brownfields, supra note 915, at 317-23.
(949) See Safe Drinking Water & Toxic Enforcement Act, CAL. HEALTH & SAFETY CODE [sections] 25249.6 (West 2000).
(950) 33 U.S.C. [sections] 1342(b) (1994) (Clean Water Act): 40 C.F.R. [sections] 70.1 (2000) (Clean Air Act).
(951) See C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994); Oregon Waste Systems, Inc. v. Dept. of Envtl. Quality of Oregon, 511 U.S. 93 (1994): Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. Of Natural Resources, 504 U.S. 353 (1992); Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334 (1992); Philadelphia v. New Jersey, 437 U.S. 617 (1978). The dormant commerce clause also often frustrates the objectives of environmental justice, as imported waste is often deposited in landfills of predominantly minority areas, and almost always in predominantly low-income areas. See Davies, Interstate Waste, supra note 684, at 262-74.
(952) Kirsten H. Engel, State Environmental Standard. Setting: Is There a "Race" and Is It "To the Bottom"?, 48 HASTINGS L.J. 271, 274 (1997).
(953) Compare id. with Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992). See also Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1196 (1977) ("[S]uccess of federal programs has been gravely compromised by this dependence upon state and local governments, whose generally poor record in controlling environmental deterioration triggered the initial resort to federal legislation....").
(954) See, e.g., Robert H. Abrams, Superfund and the Evolution of Brownfields, 21 WM. & MARY ENVTL. L. & POL'Y REV. 265, 265 (1997) (discussing the success of cooperative federalism in environmental law).
(955) 42 U.S.C. [sections] 7410 (1994 & Supp. III 1997).
(956) See, e.g., Steve Novick & Bill Westerfield, Whose SIP Is It Anyway? State-Federal Conflict in Clean Air Enforcement, 18 WM. & MARY J. ENVTL. L. 245 (1994); Stephen Fotis, Comment, Private Enforcement of the Clean Air Act and the Clean Water Act, 35 AM. U. L. REV. 127 (1985).
(957) See Ora Fred Harris, Jr., The Automobile Emissions Control Inspection and Maintenance Program: Making It More Palatable to `Coerced' Participants. 49 LA. L. REV. 1315, 1326-28 (1989).
(958) See supra Part IV.B.1.
(959) See generally Robert W. Adler, Addressing Barriers to Watershed Protection, 25 ENVTL. L. 973 (1995).
(960) See William Goldfarb, Watershed Management: Slogan or Solution?, 21 B.C. ENVTL. AFF. L. REV. 483, 498-99 (1994).
(961) See, e.g., Scott D. Anderson, Watershed Management and Nonpoint Source Pollution: The Massachusetts Approach, 26 B.C. ENVTL. AFF. L. REV. 339, 376-77 (1999).
(962) David H. Getches, Colorado River Governance: Sharing Federal Authority, as an Incentive to Create a New Institution, 68 U. COLO. L. REV. 573 (1997).
(963) See Adler, supra note 959, at 977-78, 990-93.
(964) See Goldfarb, supra note 960, at 501-02.
(965) SWITZER, supra note 803, at 197 (quoting Arnold).
(966) The Clean Air Conservancy, Beveridge & Diamond P.C. Works with Washington D.C.'s Birney Elementary School Sixth Graders to Help Reduce Air Pollution, at http://www.cleanairconservancy.org/Education/birney%20summary.html (last visited December 22, 2000).
(967) See EHRLICH & EHRLICH, supra note 841, at 189-99.
(968) The world's population passed six billion likely sometime during 1999. Linda Martin, Six Billion and Counting, HARV. INT'L REV., Oct. 1, 2000, at 22. For more on the effects of an increasingly burgeoning population, see generally EHRLICH & EHRLICH, supra note 841; Gretchen Daily & Paul Ehrlich, Population, Sustainability, and Earth's Carrying Capacity, 42 BIOSCIENCE 761, 770 (1992); Norman Myers, Consumption in Relation to Population, Environment and Development, 17 ENVIRONMENTALIST 33 (1997).
(969) See, e.g., Stuart L. Pimm et al., The Future of Biodiversity, 269 SCIENCE 347 (1995); Jeremy T. Kerr & David J. Currie, Effects of Human Activity on Global Extinction Risk, 9 CONSERVATION BIOLOGY 1528 (1995); see also Robert Repetto, Deforestation in the Tropics, SCI. AM., Apr. 1990, at 36.
(970) See, e.g., Terry L. Root & Stephen H. Schneider, Ecology and Climate: Research Strategies and Implications, 269 SCI. 334 (1995).
LINCOLN L. DAVIES, Associate, Steptoe & Johnson LLP, Washington, D.C. J.D., Stanford Law School, 2000; B.S., The University of Michigan, 1997. I would be remiss if I did not thank Jennifer Schubert, Kathleen Davies, Brigham Daniels, Drew Hansen, Brian Jones, Pam Karlan, Paul Larsen, Mark Nelson, Barton Thompson, Sheila White, and Robin Wilcox.