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Abstract

This Article, which is a précis for a book in progress about the history of late twentieth-century U.S. environmental law, argues that our modern environmental law is peculiarly a creature of the New Deal. Despite its obvious legacy from common-law nuisance and Progressive regulation, what makes modern environmental law different from anything that came before is the way in which reformers built it out of parts copied from New Deal reform projects: cooperative federalism, the tax-and-spend power, representation-reinforcing, rights trumps, and so on. Environmental law’s history, its character, its accomplishments, and its shortcomings thus entwined with those of the New Deal regime as a whole, as it reached the peak of its vigor in the early 1970s and decayed gradually but steadily thereafter. Historians are rightly skeptical of “rise and fall” stories that ascribe any organic structure or teleology to the arc of a culture. Historians find such arcs all the time nonetheless, in American history just as readily as in the Third Reich or the Roman Empire. As literary devices, narrative arcs have no inherent truth of their own; what matters is the extent to which they help us understand our history in useful ways. As a regime or a “legal culture,” then—the term is Lawrence Friedman’s—the New Deal has a life history, much as did the Jacksonian Era that began in the early nineteenth century and ended with the Civil War, or the Victorian, laissez-faire era that emerged out of Reconstruction and collapsed, in its turn, during the Great Depression of the 1930s. Environmental law has been a key target for anti-New Deal reformers precisely because it epitomizes the essential character of the entire suite of late-twentieth-century projects, from affirmative action to universal health care, that reformers aim to dismantle... In the end, the rise and fall of environmental law may have much to tell us about the character of American law in the late twentieth century generally.

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