Jedediah Purdy

American Natures: The Shape of Conflict in Environmental Law

There is a firestorm of political and cultural conflict around environmental issues, including but running well beyond climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, ignoring the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension, approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world matters and how we should govern it. Each of these conceptions persists in a body of environmental law, a network of interest and advocacy groups, the attitudes and even identities of ordinary citizens, and even the American landscape. The first, Providential Republicanism, treats nature as intended for productive human use, and gives high status to its users: this idea justified the European claim to North America, defined public debates about nature in the Early Republic and persists in important aspects of private and public land-use law. The second conception, Progressive Management, arose in the later nineteenth century as part of a broader legal reform movement, and gave its shape to much of federal lands policy, notably creation of the national forests and national parks. In this idea, nature’s productive use requires extensive management by public-spirited experts, whom reformers imagined as steering the environmental policy of the administrative state. The third conception, Romantic Epiphany, concentrates on the aesthetic and spiritual value of nature, and has defined both national parks policy and the creation of the national wilderness system, and lent essential support to the Endangered Species Act. This idea entered environmental politics at the turn of the last century, with the efforts of the Sierra Club and other innovators. The most recent conception of nature, Ecological Interdependence, arose in the middle of the twentieth century and shaped much of the environmental law of the 1970s and thereafter. This conception treats nature as an intensely inter-permeable web, which humans are unavoidably part of, to our benefit and hazard. Because all these ideas persist today in environmental law and politics, they provide a map of our existing statutes and doctrines and the conflicts around those laws and emerging issues such as climate change.

Climate Change and the Limits of the Possible

Climate change looks to be more than just another environmental problem. It threatens to test the limits of our dominant ways of understanding and solving, not just environmental problems, but problems of political economy generally. Climate change has distinctive temporal and spatial features - how long it takes to unfold and the ways in which its effects are distributed across the globe - which may outstrip the capacity of our basic principles of economic and political decision-making. If so, then understanding the issue in a static way may ensure that we expect to fail in addressing it and are inarticulate about our prospects for success. That is, if we assume that economic and political decisions reflect the present distribution of self-interest within the existing structure of rules and institutions, we may be unable to see our way beyond the problem, because it so neatly frustrates the problem-solving power of our current arrangements. We may need, instead, to adopt a dynamic view of political economy.

The Fight Ahead

In the coming months, especially if Trump delivers on his promises of torture, attacks on the media, stepped-up deportation, and religiously selective exclusion, massive displays of peaceful resistance and refusal will be absolutely necessary. This may be the start of four years of vigils. It will be time for serious discussion about the ethics of civil disobedience, not as an academic question, but in lived practice. The first concern must be for the immigrants, women, people of color, and so many others that Trump attacked and belittled throughout his campaign. We also must prepare for the likelihood that Trump will move from attacking the most vulnerable to betraying the rural and white working people who turned out for him.

The Triumph of Corruption

Zephyr Teachout is an impresario of the ways that organized people can outflank organized money. In 2014, she challenged New York’s sitting governor, Andrew Cuomo, and took more than a third of the vote in a last-minute, scantily-financed primary challenge in which he outspent her about 40–1. A decade earlier, she shaped Howard Dean’s internet strategy, making his the first campaign to realize the web’s long-touted organizing potential. But while Teachout believes in the twenty-first-century version of shoe-leather politics, she argues in Corruption in America that superior footwork is not enough. Organized money is going to win unless we change the rules of politics, constitutional law, and the economy.

Corn Futures: Consumer Politics, Health, and Climate Change

The Mexicans have long been known as the Corn People, but that label perhaps provides a better fit for modern day Americans. The simple seeds of corn play a fundamental role unprecedented in the history of human agriculture. Corn now underpins two major sectors, arguably the two most important sectors, of our modern economy - food supply and energy supply. How we choose to consume this seed has far-ranging consequences for pressing issues as far apart as climate change and diabetes, energy policy and immigration, tropical deforestation and food riots.