Everything there is to say about the subject, which could obviously be an entire course in its own right, but rather today im going to focus on a few recurring big picture problems that Environmental Issues pose for the subject matter of this class, namely law and society. If you remember when we went back to day one, day two of this class and we talked about what law and society is, we talked about how law and society is often the study of law and legal issues outside of the box of legal doctrine or sort of outside the box of legal logic, all right . Well be looking at environmental law and litigation, not simply through questions and american legal doctrine but more broadly as kind of social, philosophical issues to grapple with, all right . We also talked in the beginning of the semester how law and society deals, at times, in aggregates, right . Its sort of the big picture or sort of the effects of large numbers of kind of individual personal disputes on the big picture, all right . Well be dealing and thinking in aggregates a little bit today as well, all right . Its a class that will lead to a couple of big questions, all right . Big question number one, how much can we regulate private property in the interest of protecting the environment, all right . Big question number two, who actually gets to advocate on behalf of the environment or Environmental Issues in our courts. Okay . Those are the two things were going to be focusing on. All right . Im going to begin today by offering you a brief background in environmental change in u. S. History, including what was and what was not kind of distinctive about the consciousness we refer to as environmentalism when it came on the scene in the mid20th century. Then im going to introduce you to these two sorts of problems. All right . So here we go, to kind of prolog about the environment. All right . It is changes in the land. All right . In many ways, environmental change has been a constant in american life. All right . Early european settlers to say they the part of north america, now known as new england was wr amazed by the absolute diversity of plant life and abundance of animals they found there. One observer describes the herring, quote, in such multitudes as almost incredible, pressing shallow waters as will scarce permit them to swim. Another columnist speculated they might be able to walk across streams on the backs of these fish without even getting their feet wet. The same went for water fowlf i shall tell you, one man wrote, how 150 geese in a week in one shot it might be counted as impossible. Indigenous villages teaming with fresh vegetables and Indigenous Peoples as muscular, healthy and well fed. All right . They were the product of when natures abundance was made possible. All right . The jamestown project early, early depiction of what we now know as native americans, right. Roasting the abundant fish here speared with their kind of muscular bodies and frames exposed. All right . Now, in recent years, historians and others have questioned whether some of these reports of abundance, this kind of image of an american eden filled with bountiful plant and animal life were themselves kinds of products of history, products of more recent changes in the land. Right . We now know in ways that american early colonists didnt that native american populations had been in many cases decimated by disease that had been introduced to north introduced to the americas via the caribbean, mexico or south america many years before european colonists reached upper north america, all right . Thats their theory that this vast abundance that early colonists saw was a kind of product of natural rapid natural restocking after the normal predators, right, the Indigenous Peoples had been decimated by other causes, right . For that matter theres a whole series of historical work going on right now about the vast historical changes that human beings had caused going back basically to the sort of dawn of humanity as a species. All right . But the thing is, right, you have to start somewhere, right . One of the things about starting around new contact is that you can begin to start telling a story about how the land changed, right . How the environment changed in a particular region as you start Going Forward. Right . We know quite a bit about how colonization came to radically reshape the very environment of, say, new england or the future United States of america more generally. And i could run through a few of the major changes right now. All right . First off, you can imagine this kind of abstractly as it went along. Forests got cleared for farms, right . Trees got cut down, rocks plowed out. Wildlife, native wildlife got replaced with domestic animals. Many of them imported, right, mostly imported from europe. European pigs and cows replacing the native deer or elk, right . You begin to see changes in the land that way, all right . In much of the northern United States, beaver were hunted nearly to local extinction in the early years of american colon during the u. S. Colonial period, right. This not only took one element of native wildlife out of the picture, it meant that beavers stopped building beaver dams and stopped flooding the landscape with water, as they periodically set up ways to set up ponds to hunt for fish. All right . So you have a drying out of the land, right, as well as its being turned from forest into agriculture. You have water that had once flowed very slowly from rainfall down into the Atlantic Ocean increasingly rushing through rapidly moving streams and rivers toward that final destination as the land around it gradually dried out. All right . Many of the fish i mentioned a few minutes ago gradually die out, either through habitat destruction, manmade dams, blocking spawning paths or through overfishing destroying the ability of fish to, you know, reproduce and to come back. All right . So we start seeing, right, number of areas, broad changes to the local environment. All right . Look, again, these changes to the land, right, as they were famously called, were not without their contributions to humanity. Right . Its also in new england among some of these same fastmoving rivers and streams that the United States began its Industrial Revolution, by figuring out, for example, how to turn cotton into fabric at high speed. All right . This was one step toward the United States emerging as a Global Economic power as well as a revolution in the way that we eventually make and eventually come to buy and enjoy various different things. And, of course, that Industrial Revolution caused many more changes to the land, right, as we search for coal and oil eventually to fire our factories and power our trucks, pushed agriculture into new and sometimes marginal climates, crisscrossed the landscape first with train tracks and then with highways. All right . Now, at various points in that history, right, at various points in that history from, again, perhaps semi mythical american eden to an industrial present. Some americans came to question the ecological havoc that ensued. In the late 19th and early 20th centuries, number of prominent citizens with support from president Theodore Roosevelt came seriously worried that the United States was using its nonrenewable resources far too quickly. Conservationists, as these people became known, worked to set aside forests, mountains full of minerals for use by future generations as well as to preserve some especially beautiful locations for parks. During the new deal, response to the Great Depression in the 1930s, Franklin Roosevelt and people working for him tried to boost employment and restore the planet by hiring the unemployed for various conservation programs, planting trees to bring back ground cover, trying to mitigate the horrible dust bowls that plagued the great plains during that era. All right . But a crucial change, a crucial moment came in the mid1960s, which saw the rise of industrialism in the United States, okay . Over the course of that decade, americans found themselves galvannized on economical and Environmental Issues on a number of different fronts. Some of those were intellectual. Rachel carsons book silent spring made an account of how chemical pesticides had worked their way up the food chain and could potentially fatally poison birds and fish, became a kind of National Sensation and inspiration that made americans question both the quantity and the types of pesticides they had been pumping into their environment. Certain public events, Massive Oil Spill in california, Santa Barbara channel that ended up washing up on californias, you know, previously prestige beaches. The ignition of a part of a decently sized body of water, the Cuyahoga River in cleveland, decades of accumulated pollution also got peoples attention, right . We generally tend to think of water something used to put out fires, not something that seemingly will spontaneously combust, okay . We think about what people have been putting there, right, and what other damage it was potentially doing. All right . And the evidence that americans were destroying nature or the Natural World was becoming an overflowing sawyer was not limited to those. Many rapidly expanding suburbs began to see how an overtaxed Natural World allowed personal ways to come bubbling back into their personal lives. All right . Overtaxed septic systems, right, these big sort of tavengs that many suburban houses place in the backyard in which one flushed ones where everything that came down the toilet, right, sat and percolated for a moment before ideally percolating in the groundwater, regularly started percolated back up through the grass in communities where too many septic tanks were placed too close together without adequate space for water to dissipate. Suburban homeowners started turning on the tap of their sink and pouring glasses of what became sometimes known as white beer. Pictured over here. That is tap water that has been sufficiently polluted with detergents that have leeched their way back into wells and the water supply. Then you get this frothy detergent head on a glass of water. All right . These combined experience, right . Some of them public, some of them personal, some of them intellectual arguments made in books. Some coming out of every day life. You know, it helped to begin to develop a different kind of consciousness about ones place in the world and ones place on the earth. All right . Far more than the conservists had a few generations earlier, environmentalists started asking people to think about the facts of their actions on the health of the planet in general. All right . What was thrown away could no longer completely be forgotten. The earth no longer had a limitless capacity to swallow up and take care of what we no longer needed or no longer wanted, all right . Environmentalists also began asking americans to see the world in ecological terms. That is, to see how many different plants and animals sustained one another, you know, produced this sort of complicated web of life. All right . That is, they asked people to see the earth ecologically and to see their own actions as something that could potentially impact the ecosystem and ultimately disrupt a habitat. All right . The Natural Beauty and wild things were worth protecting for their own sake, all right . Not simply to not simply for their future harvest on behalf of humanity. While conservationists tried to scientifically manage forests in order to make sure that we could spread the timber harvest over multiple generations, environmentalists sort of talking about setting aside wilderness areas permanently, all right, to keep old forests wild, right . To keep them safe from any future development, all right . Keep them safe from future generations, not save them for them. Okay . By the late 1960s and early 1970s, you have the kind of bipartisan era where this new consciousness begins to show itself in major legislation, legislation passed by democratic congresses but often and mostly signed by republican president s, all right . You have the National Environmental policy act of 1969, the first earth day that appears, big celebration of the environment in 1970. You see the endangered species act in 1973. Other bills, clean air acts, clean water acts designed to clean up rivers, reduce air pollution, the Environmental Protection agency comes into existence during this period. Again, environmentalism gets embraced by certain members of congress in both Political Parties like Gaylord Nelson on the democratic side, john sailor and senator john heintz on the republican side. This consciousness makes its way into legislation. And yet for all of its early bipartisan appeal, environmental consciousness could be and in some ways was uneasy fit for certain elements of the u. S. Political system and especially for certain elements of the u. S. Legal system. Again, the u. S. Legal system, as weve talked about previously in this case, perhaps ad nauseum, is based on an angloamerican system where the basic rights of society tend to be rightsbearing individuals. That is, most of what we do in our everyday life is supposed to be of political interest to the state so long as what were doing doesnt harm anyone else in the process of our doing it. All right . Sorry. Jumped ahead here. Right back. And yet one of the most fundamental realizations of the fundamental movement, right, was the idea that so many of the movements in our everyday life, right, how many times we run the dishwasher, whether or not we walk to the Grocery Store or take a car has some potential harm around us. That might be pretty close to microscopic, right . But an aggregate, right, the cumulative effect of millions of dishwasher runs or daytoday, or car trips conducted day after day by millions of different people ultimately might not. Right . And so as the environmentalism became a Mass Movement throughout the 20th century, u. S. Courts had to think precisely how to square it with existing u. S. Legal traditions and inherited legal doctrines and inherited precedence. I want to talk for much of the rest of the class today about two of the big conflicts from my perspective that ensued as a result of this. Okay. Now to the right slide. All right. One place where environmentalism plays an almost immediate challenge was the question of Property Rights, especially in the context of land and real estate, all right . Again, now, the notion that governments exist, at least in part, to protect private property is something that goes deep into the kind of deep into the American Experience and deep into the philosophical tradition that helped inspire americas founding fathers, all right . Its an idea associated with english philosopher john lock, to protect life, liberty and property and while Thomas Jefferson may have replaced the word property with pursuit of happiness and own declaration of independence, he didnt necessarily mean to change the entire underlying theory behind there, okay . That is, one of the things that is supposed to separate a society with a purposefully limited government from a society with authoritarian or totalitarian sort of government is the idea that a limited government cant just willy nilly take your stuff. Willy nilly is a very serious, academic, formal term for this stuff, right . This idea was included explicitly in our bill of rights, included in the end of the fifth amendment, which concludes nor shall private property nor shall private property be taken for public use without just compensation. In other words, the government may some day need to knock down your home to build a highway or flood your farm to build a reservoir, right . But if and when that happens, it has to pay you for the property it took and or destroyed. And that payment itself is meant to be, ought to be at least one significant check on the kind of overuse or misuse of this power, technically known as Eminent Domain, since the government would have to convince other taxpayers to foot the bill for any sort of acquisition. All right . Now, controversies over Property Rights in america existed long before environmentalism emerged as a social movement of the mid20th century. One thing i didnt mention early in the lecture is havoc by european pigs on colonial north america, all right . Told you guys i would get back to the pig obsession later on in the semester, right . According to english tradition, right, you could own a pig and brand a pig, but you could let it loose in the woods to forage on acorns or other food it could come up with, but when you introduced european pigs into north america, especially when you set pigs loose to forage in the lands controlled by your native american neighbors, right, all sorts of conflicts tended to ensue. The pigs trampled or devoured gardens of native americans who didnt have the tradition of fencing off property to keep neighboring swine out, right . Provided an important source of forage protein for many indigenous tribes, all right . In essence, these were these disputes sometimes led to war, all right, over actual fighting between neighbors, right . But they can also be imagined in some ways as a property right dispute. Who has the right to let this pig go where . How do you enforce, right how do you declare something is yours and not part of a kind of common trust, right . These are not new or original kind of issues. Theyre issues that go back to the very beginning, right . Deprived downstream users from the water to which they become accustomed, all right what happens when you start thinking like an environmentalist . Thinking ecologially seemingly hold a habitat and hold na