The Politics of Nature: Climate Change, Environmental Law, and Democracy

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and scale of government. This Article traces several major episodes in those developments: the rise of a Romantic attachment to spectacular landscapes, a utilitarian ideal of rational management of resources, the legal and cultural concept of “wilderness,” and the innovation of “the environment” as a centerpiece of public debate at the end of the 1960s. The Article connects each development to changes in background culture and values and the social movements and political actors that brought them into public debate and, eventually, legislation. The result is both a set of specific studies and the outline of an account of the ways that the political struggles of a democratic community have created new, and always contested, ideas of “nature” throughout American history. The Article then shows how past episodes cast light on the present: today’s climate politics, including the seemingly anomalous (even “irrational”) choices by municipalities to adopt the Kyoto carbon-emissions goals, makes most sense when understood as an extension of a long tradition of political argument about nature, which does not simply take “interests” as fixed, but changes both interests and values by changing how citizens understand themselves, the country, and the natural world