Law and the Environment

Abstract

At first glance, “environmental law” might seem, from its name, a phenomenon of the late twentieth century, growing out of the 1960s environmental movement and taking off with the National Environmental Policy Act of 1969. In fact, environmental law cannot be understood apart from the long-established debates and tensions that define the traditions of American law as a whole: individual rights and the extent of state power, the authority of law and its means of implementation. Long before the mid-twentieth century, American law was fully engaged with such matters as, for example, the private use of common resources, such as wildlife and rivers; private activity that injured public health and welfare, such as the emission of industrial wastes; and the municipal assumption of administrative power to build networked sanitary infrastructure. Courts had accepted science-based rationales to authorize law that limited private rights. Governments had engaged in interstate responses to environmental problems that crossed jurisdictional boundaries.