“I don't think there was ever a field of law which developed as explosively and dramatically as environmental law,” David Sive, a pioneering environmental lawyer, declared in a 1982 interview. “It was the great romance.” Along with new state and federal regulatory agencies and more than a dozen major environmental statutes passed in the 1970s, fledgling public interest environmental law firms emerged as a major force in national politics. The most prominent organizations, founded between 1967 and 1971, included the Environmental Defense Fund (EDF), Center for Law and Social Policy (CLASP), Natural Resources Defense Council (NRDC), and the Sierra Club Legal Defense Fund. Public Advocates and the Center for Law in the Public Interest, two California-based firms founded during these same years, also initiated key litigation. These small but powerful legal organizations—all predominantly funded by the Ford Foundation—quickly achieved landmark victories that helped to define the early successes of modern environmentalism. They delayed the Alaskan pipeline for more than 3 years, defeated a Disney resort proposed for the Sierra Nevada mountains, and helped push the pesticide DDT off the market in the United States. The organizations also foiled myriad plans for highways, airports, and power plants and pressed agencies to implement new environmental laws in the 1970s.Footnote 1
The environmental law organizations are typically portrayed as offshoots of those new environmental laws, such as the 1970 National Environmental Policy Act (NEPA) and Clean Air Act. However, that timeline misinterprets the organizations’ origins. Public interest environmental law began before the 1970s legislation that the groups would help enforce. The formation of the law organizations also largely predated the celebrated 1970 Earth Day event that helped forge “the first green generation.” The EDF and CLASP had already begun operation by 1970, and the NRDC had been in development for more than a year. The nascent groups did little to help Congress to pass NEPA, but the groups also were neither creations of NEPA nor dependent upon it for their existence. “I [had] never heard of NEPA before it passed,” admitted James Moorman, CLASP's lead environmental attorney and first executive director of the Sierra Club Legal Defense Fund, in a 1984 interview. Before NEPA and other new legislation, the lawyers had begun to experiment with their legal strategies, including injunctions based on threats to life and property and lawsuits citing constitutional provisions, common law trust theories, and statutes such as the 1899 Refuse Act. Moorman and his colleagues soon realized how effectively NEPA could help them force agencies to rigorously review proposed government projects and permits, but NEPA provided environmental lawyers with a powerful tool, rather than the rationale for creating their law firms.Footnote 2
If the new public interest environmental law firms were not created by NEPA and other landmark legislation, and they did not flower in response to Earth Day, then what was their genesis? Significant legal conflicts during the 1940s and 1950s, particularly over western dam construction, helped lay the groundwork for later litigation and the formation of the law organizations. The Idaho Wildlife Federation, Izaak Walton League, and other conservation groups, for example, used the 1946 Administrative Procedure Act and the Fish and Wildlife Coordination Act to oppose dam construction plans. Opponents of pesticide spray programs and power plant construction in the eastern United States also helped pioneer new legal tactics. Individual lawyers such as David Sive, working in private practice in New York and active in the Sierra Club, took on individual cases, often on a pro bono or discounted basis. But these legal efforts did not create a coherent field of environmental law, nor did they take institutional form as robust, independent law firms.Footnote 3 Only in the late 1960s did new ideas about government's limitations, fresh judicial openness to lawsuits against agencies, and youthful disillusionment with private law practice intersect with Ford Foundation philanthropy to create a coherent field of public interest environmental law.
Public interest environmental law thus built on earlier examples of litigation and added a key component: an intensifying 1960s critique of federal agencies and governmental power. The liberal lawyers who founded the environmental law organizations believed in cooperative or communal action by government, and many had been inspired by President John F. Kennedy's call to public service. However, they also had come to believe that government, by itself, could not effectively represent the public interest. The environmental lawyers shared this view of government's limitations with peers who pursued similar public interest litigation strategies focused on other “unrepresented” groups, including consumers, children, women, welfare recipients, the mentally ill, the poor, and racial minorities. The environmental lawyers' critical view of the government was bolstered by increasingly frequent battles with government agencies that concealed information from the public, forcefully overrode public opposition, and selectively drew on experts who supported government plans. Landmark 1960s books, including Rachel Carson's Silent Spring (1962) and Ralph Nader's Unsafe at Any Speed (1965) lambasted federal regulators for their cozy relationship with corporations and their lax oversight of public health and environmental protection. Profound disillusionment over the Vietnam War and the slow pace of civil rights reform sharply deepened this critique of government. The government seemed to be waging war on nature and urban communities in the United States, as well as in far-off countries.Footnote 4
The new environmental lawyers fit awkwardly within modern liberalism. They called on the government to act, yet questioned whether government agencies could effectively represent the public. They urged societal planning to assess environmental impacts and prepare for the future, yet their lawsuits targeted planning triumphs celebrated by a previous generation of liberal leaders: dams, power plants, highways, airports, and urban redevelopment. Drawing on 1960s theories about captured or isolated agencies and the need for an external force that could pressure government to act, the environmental lawyers reconceptualized the public interest, and, in the process, the administrative state. Their efforts helped bring an end to the New Deal order, a period of time between the 1930s and 1970s when the federal government, in close partnership with business and labor organizations, greatly expanded its coordination of the national economy and individual industries, as well as its development of natural resources and public infrastructure projects.Footnote 5
What is the relationship between public interest environmental law and the conservative, market-oriented era that followed? In recent years, historians have explored the cultural, ideological, and economic forces that helped launch the Reagan era. Conservative success in the 1980s, this compelling scholarship argues, emerged both from the internal contradictions of the New Deal coalition and the rising effectiveness of right-wing mobilization. In these narratives, the environmental movement and the wave of 1970s environmental legislation are often seen as a final extension of the “modern activist state.” Public interest law organizations, in this telling, were a critical last piece of a liberal establishment against which the conservative movement would mobilize during the 1970s.Footnote 6
The early years of public interest environmental law, however, reveal how liberals themselves, and not just an energized political right, helped end New Deal-style state building. A decade before the Reagan Revolution, the new environmental groups attacked governmental power and administrative discretion. Even with its very name, “public interest” law asserted that government alone could not adequately represent the people. An external force had to be created to do so. “There is administrative arrogance at every level,” the lawyer Frederick Sutherland of the Center for Law in the Public Interest explained in 1975. Government agencies “need to have their butts kicked once in a while.” Even as liberals launched new national programs to protect American health, safety, and the environment, the public interest law firms prepared to sue both new and longstanding agencies. Their lawsuits made clear that the era of relatively unchallenged government discretion was over.Footnote 7
In its aggressive and suspicious attitude toward government, public interest law shared much in common with the Great Society's community antipoverty programs of the mid-1960s. With federal funding, these community action programs and legal services clinics had mobilized citizen activists and lawyers to pressure local governments to deliver better services to the poor. Public interest lawyers turned sophisticated legal tools against the federal government itself, as well as against state and local agencies. Like the community action programs, public interest law firms sued the government in order to improve its performance, rather than dismantle it. They denounced both government overreach and agency passivity. They questioned government's representativeness, effectiveness, and expertise. Government, they argued, no longer had a monopoly on scientific and technical knowledge. When public interest lawyers boasted of their eagerness to “sue the bastards,” they referred, in practice, to lawsuits against government officials and agencies. Yet they also were deeply suspicious of market forces and corporations. Rather than embrace the free market idealized by conservatives, public interest lawyers instead held up a third alternative: an informed, active citizenry, represented by professional experts, who would ensure that government agencies pursued the true public interest.Footnote 8
Public interest environmental lawyers spoke broadly about “curbing an industrial civilization's abuse of nature,” and they criticized the economic growth strategies, and the government, labor, and business partnerships, that characterized the New Deal order. However, in both practice and in theory, the public interest lawyers largely worked to improve the existing political and economic system, not to overturn or radically alter it. John Adams, NRDC's founding executive director, called this approach “responsible militancy.” Their legal strategies were fundamentally conservative in method. Litigation offered a practical alternative to urban riots and student protests. The public interest lawyers sought to represent the “unrepresented,” but they also were elitists who highly valued professionalism and technical expertise. Personal alienation from soul-deadening corporate law helped spur young lawyers to create new legal organizations that would allow them to pursue a social mission while practicing law. They might not be able to stop the war in Vietnam, but they could use their professional skills to fight other perceived injustices, including environmental despoliation.Footnote 9
Of course, the National Association for the Advancement of Colored People (NAACP) and American Civil Liberties Union (ACLU) had fought with governments for decades, particularly at the state level. Public interest environmental law organizations, along with new welfare rights organizations and women's rights groups, consciously modeled themselves on the NAACP Legal Defense Fund and the ACLU, but now the federal administrative state was the chief target. In the case of the environmental law firms, their far-reaching campaign centered less on individual rights than on the proper way to balance economic growth and environmental protection. Over the course of the 1970s and 1980s, environmental lawyers helped transform the way the federal administrative state functioned. Landmark environmental cases remade administrative law with key court rulings that determined legal standing to sue, clarified judicial power to review agency decisions, and defined administrative discretion. In the process, their lawsuits helped contain some of the worst environmental problems of modern capitalism.Footnote 10
Losing Faith in the New Deal
Belief in government's ability to represent the public interest underlay many of the New Deal's economy-wide planning efforts and its large-scale public works projects. The New Deal, of course, was not a single unified endeavor, and historians have highlighted the era's complexities and its contested and inequitable outcomes. Yet for many liberal lawyers in the 1930s, confidence in government as a tool for social reform inspired them to go to Washington, where they hoped to use specialized federal agencies to address societal problems. As the historian of regulation Thomas McCraw writes, the New Deal represented a “high tide of popular faith in the ability of expert commissioners to shape business practice in accordance with the public interest.” James M. Landis, whom McCraw called the “outstanding theorist of American regulation,” described a “new instrument of government, the administrative tribunal.” In his landmark 1938 book The Administrative Process, Landis embraced administrative power, while dismissing judicial review and legislation as insufficient tools for addressing “modern problems.” Landis' views, widely shared among New Deal regulators, reflected an enduring Progressive era belief in scientific expertise. His enthusiasm for executive agencies also showed continued liberal frustration with conservative courts that blocked workers' rights legislation and New Deal economic controls. Landis, who served on both the Federal Trade Commission and the Securities and Exchange Commission, spoke for his generation of federal institution builders when he contrasted the “overheated atmosphere of litigation” with the “calm of scientific inquiry” represented by expert-led agencies. Separated from politics, and able to act effectively and impartially, federal agencies, Landis believed, could best serve the public interest.Footnote 11
The Tennessee Valley Authority (TVA) perhaps best symbolized the New Deal faith in federal administration, and in grand technological schemes to control nature to encourage economic development. TVA's broad mandate for regional improvement sought to benefit the people of seven states. The agency's leaders were “dreamers with shovels in their hands,” wrote TVA chairman David Lilienthal in Democracy on the March, a triumphant account of the agency that he headed. TVA had controlled the Tennessee River system and “put [it] to work” for the people. “What God had made one,” Lilienthal said of the river valley, “man was to develop as one” through coordinated planning. Although TVA's specific regional planning model was never replicated around the country, the agency still stood as a positive symbol in the postwar period for government planning and public support for transformative development projects, at home and abroad. Writing in 1950, the historian and leading liberal Henry Steele Commager celebrated TVA as “the greatest peacetime achievement of twentieth-century America.” TVA, Commager said, “triumphantly allied science and politics … in an integrated and coordinated plan for the whole life of the region.” Commager portrayed government action as superior to the alternative: private initiative. The agency, he wrote, showed that “public intelligence can operate most effectively through government and that government can be more efficient than business.” In New York, Robert Moses followed this model by using independent agencies, federal funding, and other bureaucratic levers to dramatically alter the region's infrastructure.Footnote 12
The new public interest lawyers, by contrast, sued the TVA. They sued the Department of the Interior and the Department of Transportation. They sued the Atomic Energy Commission and the Federal Power Commission (FPC). They sued local and state agencies, including water boards, highway departments, and public utilities. Historians and the contemporary public often view the environmental movement in terms of the growth of the state in relationship to business. And the new Environmental Protection Agency (EPA), established in 1970, did grow rapidly into a large federal agency, and it directed much of its regulatory efforts at private businesses. However, the public interest environmental law firms themselves focused their attack on the administrative state. They rejected modernist developmental plans for new infrastructure, such as TVA's dams and nuclear and coal-fired power plants. “We were, by nature, skeptical of all of the big Roosevelt-era public works projects,” one NRDC lawyer later recalled. “We didn't like big dams, we didn't like big power plants, we didn't like big transmission lines.” The lawyers questioned technological and scientific strategies to manipulate nature to boost economic production. They challenged the administrative proceedings that generated and approved these plans.Footnote 13
The initial litigation by leading public interest environmental law firms in the early 1970s almost exclusively targeted the government for legal action. The Sierra Club Legal Defense Fund counted seventy-seven legal accomplishments between 1971 and 1973. Approximately seventy sought to block governmental actions, or to intervene in public proceedings to influence government regulatory and permitting practices. The defendants named in the Sierra Club Legal Defense Fund cases presented a Who's Who of Nixon's cabinet: Clifford Hardin and Earl Butz (representing agriculture, including the Forest Service); John Volpe (transportation), George Romney (Housing and Urban Development [HUD]), and Rogers Morton (interior). Other legal actions named the Atomic Energy Commission, Army Corps of Engineers, FPC, California Coastal Zone Conservation Commission, Texas Highway Department, and other agencies. The EDF similarly began its 1972 case summary with a list of acronyms for the ten federal agencies named in its legal interventions: AEC (Atomic Energy Commission), FPC, TVA, FDA (Food and Drug Administration), FCC (Federal Communications Commission), FTC (Federal Trade Commission), EPA, USDA (United States Department of Agriculture), HUD, and FAA (Federal Aviation Administration). In more than sixty of the sixty-five legal actions listed, the EDF either intervened in public proceedings, such as permitting processes for private projects, or directly assailed a government-led initiative. Fewer than five of EDF's legal actions directly targeted companies or private parties. Similarly, only three out of twenty-nine of the NRDC's legal action initiatives from its first 7 months directly named a corporate defendant.Footnote 14
These lawsuits against government agencies and these interventions into public proceedings ranged widely and opportunistically, illustrating a growing scope of ambition on the part of the emerging environmental movement. Government projects under attack included new highways, bridges, airports, and dams, and the dredging of harbors. Other government initiatives prompting lawsuits included pest control efforts, such as DDT spraying campaigns, and water management plans. The new national public interest law firms frequently partnered with local citizen groups in their opposition to agency plans.
In a representative and significant case, the Sierra Club joined with Citizens to Preserve Overton Park to attack a proposed six lane interstate highway through a large park in Memphis, Tennessee. Parks often appealed to highway planners because the land already was owned by the public and did not displace residents. The Overton Park v. Volpe lawsuit, which named the secretary of transportation and state highway commissioner as defendants, positioned the conservation groups in direct opposition to what the Sierra Club considered the “official indifference and hostility” of state and federal highway agencies. The case illustrated how environmental lawyers did not wait for, or solely depend upon, NEPA for their litigation. The plaintiffs, who successfully blocked the highway extension through central Memphis, relied instead on 1966 and 1968 legislation that protected public parks from being used for highway construction. Overton Park was just one of many similar efforts around the country to curb freeway construction in cities or through protected public lands.Footnote 15
Public interest lawyers also targeted agency permitting and regulatory decisions, again with wide-ranging scope. A country club in Half Moon Bay, California, a power plant in Wyoming, a ski development in the Sierra Nevada: all required permits to proceed, opening an opportunity to sue the government agencies charged with issuing those permits. The lawyers often could halt proposed development projects, at least temporarily, by demanding that agencies produce the environmental impact statements newly mandated by NEPA. Once an impact statement had been written, the lawyers then could contest that statement's adequacy, conclusions, and underlying assumptions. In one of the very first uses of NEPA, CLASP sued the Secretary of the Interior in March 1970 on behalf of the Wilderness Society, Friends of the Earth, and the EDF. Their lawsuit, which also hinged on right-of-way specifications from the 1920 Mineral Leasing Act, prompted a court injunction halting construction of the Trans-Alaskan Pipeline for several years. CLASP, a tiny law firm run out of a dingy office in Washington's Dupont Circle, barely even existed as a going concern, and now it had helped stop one of the most costly and ambitious engineering projects in American history.Footnote 16
These lawsuits directed at government agencies reflected a fresh twist in longstanding debates over the public interest. Nineteenth and early twentieth century debates defining the public interest had turned on what kinds of private business activities should rightly be subject to government regulation. When a business was “affected with the public interest,” government, embodying the “public,” could properly regulate it. Now the new public interest law firms asserted the reverse: government agency activities affected a broad public interest that justified private involvement in governmental decision making. The public interest, they asserted, lay outside government in an unrepresented citizenry whose cause the new law firms would champion.Footnote 17
The concept of public interest law as a necessary tool for countering government emerged directly from studies in the late 1950s and early 1960s of how the federal government actually worked. Regulatory agencies, as the prominent appellate judge Henry Friendly poetically acknowledged in 1962, “did not combine the celerity of Mercury, the wisdom of Minerva, and purity of Diana to quite the extent we had been taught to expect.” Even James Landis, the earlier champion of administrative governance, came to see deep problems inherent in federal agency regulation. In an influential 1960 report prepared for President-elect John F. Kennedy, Landis examined issues that weakened and undermined effective federal regulation. One key problem was that public agencies got too close to private industry, and ended up serving private purposes. Although sometimes a government official's industry orientation reflected a prior business background, more troublesome from the perspective of the system's integrity, Landis wrote, were those regulators “originally oriented towards the public interest but who gradually and honestly begin to view that interest more in terms of the private interest.” The problem was particularly acute in agencies that combined industry promotion with industry regulation. Landis described a subtle shift toward “industry orientation” that resulted from frequent and productive contacts with industry representatives. In a sentence frequently quoted by the new public interest lawyers, Landis wrote, “It is the daily machine-gun-like impact on both agency and its staff of industry representation that makes for industry orientation on the part of many honest and capable agency members as well as agency staffs.” Landis no longer believed that agencies could be separated from external pressures and operate only according to scientific expertise. Justice William O. Douglas, another New Deal veteran, would echo Landis's views in his famous 1972 dissent in Sierra Club v. Morton. Douglas complained that federal agencies were “notoriously under the control of powerful interests,” and he described a “web spun about administrative agencies by industry representatives.”Footnote 18
Whereas some theorists argued that political pluralism resulted in an even-handed balance among societal forces, others described a historical pattern of private dominance of a government that increasingly controlled many aspects of American society. New Left scholars such as Gabriel Kolko pointed out that earlier government reform efforts, including railroad regulation, served the narrow interests of business, rather than the broader public. Kolko criticized government regulatory agencies as susceptible to industry “capture.” In Private Power and American Democracy, Grant McConnell similarly described how “a substantial part of government in the United States has come under the influence or control of narrowly based and largely autonomous elites.” In The Decline of American Pluralism, Henry Kariel wrote that large organizations in American society had gained too much control over government institutions and over people's daily lives. Yale law professor Charles Reich called for a new kind of property right that could protect the individual against arbitrary and oppressive governmental power over public benefits. Reich, whose influence was frequently cited by Yale students who helped start new environmental law groups, questioned many traditional liberal responses to social problems. Reich's best-selling book, The Greening of America, rejected the “consciousness” and structures of the “Corporate State” that had dominated American society since the New Deal and become a “mindless juggernaut.” Public interest law groups formed in response to these new ideas about government's role perpetuating inequality and entrenching societal power. Even simply knowing how to operate within agency forums could provide a critical advantage. Marc Galanter, a legal sociologist, described “repeat player advantages” that helped explain “why the haves come out ahead.”Footnote 19
An Attack on the Agencies
The founders of the environmental law firms embraced these theoretical critiques of government agencies. They sought to hold government true to a public purpose that went unfulfilled either because private interests dominated or “captured” the agencies, or because the agencies themselves were isolated and misguided bureaucratic fortresses. David Sive, the early NRDC board member, described pervasive agency capture at NRDC's founding meeting in March 1970. Sive complained that environmentalists, representing the “general interest,” typically had to battle “short-term interests” represented by “a governmental agency whom we must also oppose.” Sive elaborated:
The Federal Power Commission is power-oriented, the Atomic Energy Commission is atom-oriented, the Interstate Commerce Commission is railroad oriented. The general interest must often fight not only the developer, which may be a private company, but the very governmental agency which is supposed to regulate that company but because of the nature of things, does not represent the broad general interest. That is a tremendous and sometimes insuperable barrier—to have to take on the governmental agency.
By embracing the private objectives of the economic interests that they were meant to regulate, Sive argued, federal agencies themselves had become an environmental threat.Footnote 20
Victor Yannacone, an outspoken, combative lawyer who helped launch the EDF, similarly criticized government agencies for catering to industry's interests and shutting out other views. The isolation of agencies from the public interest helped cause environmental problems. “If we have to find a common denominator for the serious environmental crises,” Yannacone argued in a 1970 Earth Day speech, “it would have to be entrenched bureaucracies which are essentially immune from criticism or public action.” Yannacone described administrative agencies as “star chamber[s]” impervious to external input and constraints. “These self-perpetuating, self-sufficient, self-serving bureaus are power sources unto themselves, effectively insulated from the people and responsible to no one but themselves.” Narrow jurisdictions and missions further hampered agencies and made them “inherently incapable” of considering complex ecological problems in a sophisticated way.Footnote 21
Environmental lawyers pointed to a range of government actions, including pesticide spray programs and highway development, to demonstrate this bureaucratic bullheadedness and agency capture. The EDF's litigation against the pesticide DDT emphasized these flaws in the USDA. The USDA, Yannacone said, served the agricultural and chemical interests, rather than the American people. The agency was largely impenetrable to external groups seeking to inform its policies, and it failed to adequately study and address the environmental problems associated with DDT. In her 1962 Silent Spring, Rachel Carson had excoriated the USDA and local spray districts for “propaganda,” “reckless” plans, “gross exaggeration,” and refusal to listen to scientific complaints. The government campaign against the gypsy moth, which had contaminated milk and farm produce, had been pursued to the point of “absurdity,” Carson wrote, revealing the “power and inclination of the control agencies to disregard supposedly inviolate property rights.” Lawsuits against new highway construction, such as the proposed Interstate 40 through Overton Park in Memphis, similarly placed environmental advocates in direct opposition to state and federal highway engineers. Transportation officials developed highway plans in close partnership with private boosters, including automobile clubs, construction firms, and oil and motor vehicle companies. In her 1970 Superhighway—Superhoax, writer Helen Leavitt described the meetings of the “Road Gang,” a secretive group consisting of company representatives and state highway officials. Leavitt particularly attacked the federal Highway Trust Fund, which established a separate financing scheme for highways that insulated them from competing budgetary demands and democratic controls. Highway supporters vigorously defended the freedom of state highway commissions to use dedicated highway funds for the exclusive benefit of highway users. Highway opponents struggled to have their criticism heard in a policy process dominated by what they decried as “The Freeway Establishment.” Critics denounced freeways through city neighborhoods as “an instrument of war against the urban population.”Footnote 22
The failure of government to represent the broad public—because agencies were either captured or impenetrable—thus created the impetus for public interest law as an alternative. Earth Day organizer Denis Hayes, although not a lawyer, expressed a common sense of frustration and disillusionment in 1970, stating bluntly: “We have learned not to place our faith in regulatory agencies that are supposed to act in the public interest.” Resource policy governing rivers, pesticides, and highways, Michigan law professor Joseph Sax argued in 1968, needed to move away from “government agency monopoly planning.” Sax questioned “whether public agencies adequately protect the public interest.” In a letter requesting financial support for his research on environmental law reform, Sax argued for more thorough judicial review and better legislative standards for public works projects. The decision-making process needed “external scrutiny” and a “prod.” Private groups needed to “intervene in the enforcement process as a ‘third force.’” Following the same reasoning, CLASP sought to represent “previously unrepresented groups,” including the poor, consumers, the mentally ill, and citizens concerned about the environment. “Decisions by government agencies on major policy questions are less reliable when the only advocates before them are the spokesmen of private interests,” CLASP argued. CLASP would counter traditional Washington law firms and correct the “imbalance of legal representation in Federal decision making.”Footnote 23
The founders of environmental law thus explicitly attacked federal administrative agencies that, for many liberals, had not fulfilled the promise of the New Deal. “Although the power of the administrative agencies has grown since the New Deal, there has been increasing recognition that the agencies have not fully lived up to their mandate to serve the ‘public interest,’” CLASP wrote in a grant proposal to the Ford Foundation. An early NRDC fundraising letter explained that TVA had once been a “benevolent government agency,” but had become the largest “offender,” its strip mines polluting streams and reducing the people to poverty. Another NRDC appeal letter complained that the “Good Forester,” who cared “for the forest as a natural whole,” had been replaced by the “Sales Agent,” who listened only to the timber industry. Public interest lawyers sought to make federal agencies fulfill broader public missions that included the health of forests and streams and the well-being of the people who used them in different ways.Footnote 24
The growth of the national administrative state during the New Deal had aimed, in part, to overcome the limitations of state governments. Legal reformers now increasingly criticized flawed federal agencies. Several Yale law students of Charles Reich captured this sentiment in a 1970 Yale Law Journal essay on the emerging public interest law field: federal agencies, they argued, were “at best demoralized and inefficient, and, at worst, the captives of a few powerful special interest groups.” The agencies had been “taken over by powerful, moneyed interests” and now resembled “the state governments in Roosevelt's time.” Harvard Law School professor Louis Jaffe, a leading theorist of administrative law, declared that environmental law's promise lay principally in its ability to bring back the administrative magic of a previous generation. At NRDC's founding conference in March 1970, Jaffe said, “Administrative agencies could be effective once again, as they were with the beginning of the New Deal, if they get into the act—if they are given something pertinent to do.” Environmental litigation, Jaffe said, sought “to stimulate these agencies.” In a 1971 essay, John Adams similarly characterized NRDC's first objective as its “effort to make our courts and administrative agencies effective instruments of environmental protection.” To accomplish this goal, NRDC would “monitor the federal departments and regulatory agencies and ensure that the public interest … is fully considered in their administrative actions.”Footnote 25
The Ford Foundation shared Jaffe and Adams's view that aggressive action by public interest lawyers would make the government work better. Ford Foundation president McGeorge Bundy, a quintessential government insider who had stepped down as National Security Advisor in 1966 to lead the foundation, strongly agreed that the public interest was “not adequately represented” by the government in a range of fields, including environment, communications, and energy policy. Ford program officer Gordon Harrison, who oversaw the foundation's environmental law grants, explicitly declared that government agencies were the primary target of the new public interest law firms. The law firms, Harrison explained, needed “to bring suits against government agencies, to oversee the performance of government agencies and take other legal actions to provide the agencies with a broader view of social interests than they normally get.”Footnote 26
From Agency Expertise to Judicial Review
Turning against government agencies meant embracing the courts. In a reversal of the New Deal embrace of agencies over courts, the perceived limitations of federal agencies now justified expanded oversight by a more receptive judiciary. Agency deficiencies also led courts to welcome previously marginalized parties into the courtroom. In a pivotal 1966 court decision involving a Mississippi television broadcaster, Judge Warren Burger, then on the Court of Appeals for the District of Columbia, eloquently articulated the new skepticism about regulatory agencies. Burger explained why new parties should be allowed to intervene in administrative proceedings. The idea that the FCC could “always effectively represent the listener interests,” Burger wrote, was “one of those assumptions we collectively try to work with,” until it no longer “stands up under the realities of actual experience.” The facts of the case, he argued, did not support that assumption. The Mississippi broadcaster had aired discriminatory coverage of civil rights protests, in clear violation of the “fairness doctrine” that governed broadcast licenses. Despite complaints, the FCC had still renewed the broadcasting license. Federal agencies such as the Commission, Burger noted, did not always effectively represent the public, leaving a role for third parties to intervene. Consumers could help an overtaxed public agency identify issues and problems. Consumers, Burger wrote, “are generally among the best vindicators of the public interest.” Without consumer input, the agency might not act successfully alone. “In order to safeguard the public interest in broadcasting,” Burger concluded, “some ‘audience participation’ must be allowed in license renewal proceedings.”Footnote 27
Burger's Office of Communication of the United Church of Christ, et al., v. Federal Communications Commission opinion provided a “foundation stone” for public interest law, according to Charles Halpern, cofounder of CLASP. The broadcasting case showed that the “traditional regulatory model didn't work” as long as regulatory agencies only heard from corporate interests. Burger also signaled—in Halpern's phrase—that “the courthouse door is open.” For lawyers such as Halpern, Burger's decision justified establishing an elite, specialized public interest law firm such as CLASP. Halpern later recalled the reasoning: “The black tenant farmers in Mississippi don't know how to do this game. What we need is people who know how to play the Washington game, to really monitor administrative agencies on an on-going basis, and become players.” Few Washington attorneys, however, served unrepresented groups. The “Washington bar … skilled in dealing with the Federal government” was “rarely available” to serve clients without a lot of money. CLASP could fill the void.Footnote 28
Public interest law firms and federal judges shared a common interest in enhancing the ability of third parties to sue the government. Such litigation enhanced the federal judiciary's own power to review agency decision making. The courts increasingly expanded “standing” to sue beyond narrow economic interest. Rather than simply a narrow technical determination, the increased openness of the courts reflected a profound change in thinking about what mattered in society and who had the right to contest it. Changes in standing doctrine correlated with new theories about “public goods” articulated by economists such as John Kenneth Galbraith. Galbraith argued that a wealthy society such as the United States needed to move beyond a narrow focus on economic production to emphasize better quality of life, including environmental amenities. When judges granted legal standing to litigants making these new social claims, they encouraged lawsuits to safeguard less direct economic interests.Footnote 29
In a key 1960s case that expanded legal standing for environmental litigation, conservationists sought to block a hydropower facility planned for Storm King Mountain along the Hudson River in New York. Consolidated Edison proposed to pump river water up Storm King into a storage reservoir during inexpensive off-peak hours, and then release it to power hydroelectric generators during peak times. The pipes, pumps, turbines, and wires would have industrialized a celebrated mountain landscape. The FPC argued that the conservationists who sued to block approval of the project had suffered no “personal economic injury” meriting court review. But the Court of Appeals disagreed. Conservation groups, the court ruled in Scenic Hudson Preservation Conference v. Federal Power Commission, could sue over the “aesthetic, conservational, and recreational aspects of power development.” In addition to encouraging more environmental lawsuits, the Storm King case led directly to the founding of the NRDC. Buoyed by their successful litigation, several veterans of the Storm King litigation decided to create a specialized national organization to litigate for environmental protection. The Scenic Hudson case also inspired others to see the potential for environmental lawsuits. Storm King was the “talk of Yale Law School students concerned with the environment,” recalled one student, who saved press clippings on the case in the late 1960s and went on to a career in environmental law after graduation.Footnote 30
The Scenic Hudson decision was part of the larger judicial shift in the 1960s to embrace a more expansive definition of the “public interest.” In Udall v. FPC, a 1967 Supreme Court case concerning hydroelectric power plants proposed for the Pacific Northwest, Justice William O. Douglas argued that determining whether projects served the “public interest” involved a much broader calculation than just future power supply and demand. Agencies also had to assess “the public interest in preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish… and the protection of wildlife.” Douglas insisted that “all relevant issues” had to be explored. Wildlife and fish conservation might prove “all-important.” Justices John Marshall Harlan II and Potter Stewart dissented sharply from Douglas's majority opinion, arguing that the court should defer to agency decisions. Harlan thought it “indisputable” that the court should not overturn the FPC's exercise of judgment. Douglas's intervention, however, signaled the judiciary's heightened concern for environmental considerations, its skepticism toward agency planning, and its openness to the lawyers who sought to represent environmental claims in court.Footnote 31
In their struggle against what they saw as captured agencies and corrupt and ineffective legislatures, public interest lawyers thus embraced the increasingly accessible courts as their natural ally. “The restoration and maintenance of a livable environment,” Sive declared in 1970, was largely “the problem of the control of administrative agencies by the courts.” Lawyers uch as Roderick Cameron, Executive Director of the EDF, also touted the independence of the judiciary. Cameron saw courts as “largely free of the economic and political pressures of vested interests.” They “stand on a higher plane” and could serve as the “one social institution” that might provide “powerful therapy for the unresponsiveness of the political branches of government.” In contrast to independent courts, Cameron said in a 1970 Earth Day speech, “industries who profit by rape of our environment see to it that legislators friendly to their interests are elected, and that bureaucrats of similar attitude are appointed.” James Moorman, the lead environmental lawyer at CLASP, praised courts as “generalized bodies” rather than specialized agencies. “Courts still can be shocked,” Moorman argued at NRDC's founding conference in March 1970, and NRDC would bring “shocking problems.” Courts could “prevent citizens from becoming alienated.” They also provided a level playing field: “a one to one situation no matter how rich or powerful or influential one side may be.” EDF's Yannacone more grandiosely envisioned the courtroom as the proper setting for a titanic reform struggle. “Law is the framework of civilization and litigation is the civilized answer to trial by combat. The courtroom is the arena. Lawyers are your champions. The rules of evidence are the articles of war.”Footnote 32
An Agenda of Establishment Reform
Public interest environmental law constituted an attack on federal agencies from within the liberal establishment itself. The new environmental lawyers remained idealistic and hopeful about peaceful social change overseen by the courts. They distinguished themselves from protesters and rioters, and they believed that the system would respond to their legal claims. “We're hawks,” EDF cofounder Charles Wurster told Sports Illustrated in 1969, “but we operate entirely within the sociolegal structure. We don't block traffic. We don't sit in. We don't riot.” NRDC “believes in the legal process,” Stephen Duggan emphasized at the organization's founding conference in March 1970. “We want to work within it.” NRDC could help “renew this country through the time-honored method of using the judicial system for change.” Senator Clifford Case, a liberal Republican from New Jersey who supported NRDC's work, felt the same way. Case called NRDC's legal reform efforts a worthy substitute for “demonstrating in the streets and picketing.” The Washington Post similarly praised the environmental lawyers for “doing exactly what the establishment advised—working peacefully within the system to change the system.”Footnote 33
The environmental lawyers' faith in the responsiveness of the legal system reflected the fact that all of the firms were founded by idealistic, ambitious, and highly educated professionals, almost entirely white men for the first few years. The EDF began in 1967 on Long Island, when scientists from SUNY-Stony Brook joined forces with a local lawyer to file suit against county-level spraying of the pesticide DDT. Successful young Washington lawyers left private practice and government service to start CLASP in 1969, with the aim of creating a new firm to represent underrepresented constituencies in federal policy forums. NRDC formed in early 1970 when veterans of the Storm King litigation partnered with recent Yale law school graduates to create a national environmental law firm. The Center for Law and the Public Interest was started in 1971 by several young lawyers leaving private practice to create a California-centered law firm modeled on those established previously on the East Coast. The Sierra Club Legal Defense Fund developed initially as the legal arm of the national Sierra Club, then spun off in 1971 as an independent organization to pursue an expanded litigation program.
Inspired by the perceived impact of major civil rights rulings such as Brown v. Board of Education, environmental lawyers hoped favorable judicial decisions would prompt similar action on environmental problems. “Important social legislation has often been preceded by lawsuits which pose, structure, and focus the problem,” said EDF's Roderick Cameron, noting the civil rights decisions of the 1950s and 1960s. In naming itself a “defense fund,” Cameron's EDF deliberately mimicked the NAACP's legal arm. The Yale law graduates who helped start the NRDC also initially named their new group, “The Environmental Legal Defense Fund,” and planned to create a “legal action organization analogous to the NAACP Legal Defense and Education Fund, Inc, in the area of environmental defense.” Ralph Nader's consumer advocacy also helped inspire the creation of the public interest law firms. In his scathing 1965 book on automobile safety, Nader attacked the way that business used “government to its special purposes.” According to Nader, the government would ensure safer cars against corporate opposition only in response to a “sharply focused supportive constituency.” This “constituency” needed to be led by professional lawyers, engineers, and scientists who could “assume the roles of leadership that their superior knowledge makes available to them.” Through constant “vigilance,” Nader's “constituency of professionally qualified citizens” could prevent government “obsolescence and bureaucratic inertia” from stifling even well-crafted laws. Nader's legal efforts prompted early references to a “so-called public interest law firm” in the Wall Street Journal and Washington Post in the fall of 1967, and his research teams aggressively critiqued federal agencies charged with protecting the consumers from unsafe cars, dangerous chemicals, and risky new pharmaceuticals.Footnote 34
The lawyers who created the new environmental law firms believed in the system because they were products of it. For the most part, like Nader himself, who graduated from Princeton and Harvard Law School, they had excelled in mastering it. NRDC's founders from Yale Law School, for example, had glittering resumes. James Gustave Speth, a leader of the Yale student group, was a graduate of Yale College and Yale Law School, a Rhodes Scholar, and a clerk for Justice Hugo Black on the United States Supreme Court. His cofounders were equally credentialed, with their Yale law degrees, editorial positions on the Yale Law Journal, and district, appellate, and Supreme Court clerkships. Even so, the Ford Foundation considered the student group too risky. The Foundation forced the Yale students to merge their venture with a group being started by the somewhat older veterans of the Scenic Hudson litigation. These well-established New York lawyers, who had fought Consolidated Edison's Hudson River plans, included people such as Whitney North Seymour, Jr. A Princeton and Yale Law graduate and the son of a former president of the American Bar Association, Seymour was elected to the New York State Senate in the late 1960s, and then appointed a United States attorney in 1970. Seymour and some of the other older NRDC founders were liberal northeast Republicans; their younger colleagues, such as Speth, were almost entirely Democrats. With its elite connections, NRDC's inaugural board included members of legendary families in national conservation politics, such as Pinchot, Rockefeller, and Roosevelt, as well as other prominent New York lawyers and civic leaders. As if to underscore its establishment credentials, NRDC symbolically located its New York office on 44th street right next door to the New York City Bar Association.Footnote 35
The founders of CLASP also came from elite educational backgrounds, with college degrees from Harvard and Duke, and law degrees from Harvard, Yale, and Duke law schools. Even CLASP's office manager had a blue-chip pedigree, having served a similar role for 4 years at the Washington law firm Arnold and Porter, where CLASP cofounder Charles Halpern previously worked. Halpern and his colleagues leaned more strongly to the left in their antiwar views than NRDC's founders. Halpern and two friends had started the Selective Service Law Reporter in 1967 to gather and share information on Vietnam War draft resistance cases, but CLASP's founders situated their new organization firmly within the mainstream. They consulted with prominent judges, leaders of the legal bar, and government attorneys and academics. They partnered with leading law schools, including Yale, the University of Pennsylvania, the University of Michigan, and Stanford, partly to tap student energy and labor, but also to gain financial backing and the schools' stamp of legitimacy and educational purpose. Former Supreme Court Justice Arthur Goldberg supported their venture through being an active chairman of the board. Even in its long, boring, and comforting name, the Center for Law and Social Policy deliberately sought to reassure funders and the legal establishment.Footnote 36
The Ford Foundation oversaw its public interest law grantees closely and worked assiduously to help embed the new firms within the existing legal establishment. Ford, alone among the major foundations, backed the new legal organizations. Its grants propelled the law firms much further and faster than otherwise might have happened. The foundation helped to launch and stabilize the major environmental law firms with grants totaling more than $2,000,000 between 1967 and 1972.Footnote 37
The Foundation was acutely sensitive to the risks of funding this new approach to the law. Ford President McGeorge Bundy worried about the “precarious state of the consensus” underlying the firms' new legal strategies. Ford had come under congressional attack in 1968 for grants that were too political in nature.Footnote 38 Additionally, the Internal Revenue Service (IRS) initially denied NRDC its tax exemption in 1970, amid questions about whether environmental litigation firms qualified as charitable organizations.Footnote 39 According to Bundy, it was “critically important in the early stages of this new kind of law that we should avoid the appearance that politics and philanthropy are entwined.” Ford carefully monitored the fledgling public interest law firms to ensure that the Foundation and the firms complied with IRS guidelines and insulated themselves from criticism for being overly political or irresponsible. A committee of former presidents of the American Bar Association vetted the Foundation's public interest law grant docket. Each organization also had an internal litigation committee to review proposed lawsuits.Footnote 40 Foundation consultants visited each public interest law firm for several days every few months and filed lengthy reports to Ford program officers on the caseload and the management of the office.Footnote 41
Few significant conflicts emerged between the law firms and the Foundation, however, because the law firms needed relatively little oversight. Ford's grantees largely shared the Foundation's legal vision and its core assumptions about social change. They also had similar organizational imperatives. The firms wanted to bring cases that they thought they could win and that would set significant legal precedents. Their success in judicial and administrative proceedings depended on their reputation for integrity among judges, agency staff, and legislators. Beyond their Ford grants, they relied on donations from wealthy benefactors who sought significant, but not socially disruptive, changes in environmental policies.
The close relationship between Ford and its public interest law grantees did not sit well with less establishment-oriented activists in the early 1970s, particularly those focused on organizing for racial and economic justice. A 1971 meeting of public interest lawyers organized by CLASP erupted in racial and class conflict over close ties between the major foundations and leading public interest law firms. George Wiley, a formidable and outspoken African American leader who led the National Welfare Rights Organization, criticized the exclusion of groups such as his working on the front lines of the civil rights movement. Public interest law firms seemed to provide mainstream foundations with a safe way to do something about environmental and civil rights issues. The comfortable relationship between McGeorge Bundy and the establishment board members who advised CLASP and other nonprofit law firms “drove Wiley nuts,” Charles Halpern later recalled of the failed conference. “The tensions were so high, there was so much anger … it was terrible.”Footnote 42
In the decades to follow, as the environmental law organizations honed their expertise and grew increasingly powerful, critics complained that technocratic professionals and Washington insiders undermined the environmental movement's potential as a radical and grassroots force. Authors such as Mark Dowie and Robert Gottlieb lamented lost opportunities to partner with labor organizations, communities of color, and grassroots advocacy organizations: partnerships that might have generated a more political and disruptive movement centered on social justice. Even some of the founders of the environmental law firms themselves later worried that they had taken a wrong turn by embracing legal strategies to the exclusion of political movement building. Looking back on a “forty-year experiment on whether mainstream environmentalism can succeed,” NRDC cofounder James Gustave Speth regretted that “we opted to work within the system of political economy that we found, and we neglected to seek transformation of the system itself.”Footnote 43
At the time, however, the public interest lawyers and their financial supporters touted their constructive role. NRDC's John Adams called the “opportunity for change ‘within the system’ … a unique safety valve in the often volatile political process.” Ford's program officers similarly celebrated how public interest lawyers showed “such constraint and respect for the legal system” that courts viewed Ford's grantees as “private attorneys general, not as rebels and troublemakers.” Ford deliberately sought to situate public interest law within the system as a permanent, constructive addition to public administrative processes. Carefully selecting and managing its legal grantees helped ensure Ford's success. The American legal system was a “damn good system and… capable of a large amount of reform,” Ford's Gordon Harrison said in a 1972 interview. Environmentalism, Harrison thought, might be a “truly radical movement” in its challenge to the “growth dogma.” Ford's public interest law grantees certainly sparked ample controversy with their lawsuits; however, Ford's grantees, Harrison argued, were “careful to act so clearly within the system that in order to attack them you really have to attack the system.”Footnote 44
Conclusion
A decade before Ronald Reagan denounced the growth of the federal government in his 1981 inaugural address, liberal reformers mounted their own attack on government institutions. A new kind of liberalism—skeptical and distrustful of government, yet still committed to collective action by the state—had emerged in the heart of the liberal establishment. The environmental movement embodied these tensions within liberalism in the late 1960s and early 1970s. The environmental movement expanded the government, with new regulations and agencies, but it also created powerful new constraints on government action. Ideas about captured or isolated agencies motivated environmental lawyers to sue the government on behalf of an “unrepresented” public. They attacked many New Deal assumptions about planning and economic development. They particularly criticized the way that federal agencies advanced the interests of business, and, in the name of economic growth, dismissed environmental and social concerns. In the process, the environmental lawyers helped drive a wedge into the New Deal political coalition by attacking economic development projects, such as the Alaskan pipeline, that generated jobs for the white, male, working class voters who traditionally supported the Democratic Party.Footnote 45
The Ford Foundation, which provided critical financial support for the new firms, shared the lawyers' perspective on the problem of public representation in government proceedings. Public interest law was one of the foundation's “more important undertakings,” Ford program officer Gordon Harrison declared in 1972. “Government should not be all-powerful.” Society needed a “counterforce” to government that was “not beholden to the government in any way.” The Foundation supported a range of public interest lawyers. In addition to environmental litigation, Ford grantees sought to shape government policy affecting the rights of women, racial and ethnic minorities, the poor, consumers, the mentally ill, and other “unrepresented” groups. These vigilant and independent public interest lawyers could bring constructive social change by suing government agencies and overseeing their performance. Ford sought to create an “antagonist of government” that would stay clearly within the bounds of the American legal system, in fact becoming an integral part of that system. At a time of antiwar protest and urban riots, public interest law offered a way to accommodate forceful critiques of American governance, while continuing to stitch society together.Footnote 46
Powerful liberals in Congress also agreed that citizens, and not just government, had a crucial role to play in solving environmental problems. These politicians supported the new public interest law firms and criticized federal agencies. Senators Gaylord Nelson and Walter Mondale argued that the environmental law firms helped “enforce the law against powerful interests which Government is often unwilling to confront.” Senator George McGovern warned of the danger of creating “agencies rather than solutions,” noting that “agencies themselves often become the most serious obstacles to environmental preservation.” Citizens needed to have the power to “challenge industrial pollution and governmental inaction.” This political support for public interest law and citizen action led Congress and state legislatures to create new legal tools for private actions to protect the environment. Provisions encouraging citizen lawsuits in the Clean Air Act and state environmental laws invited public interest environmental lawyers to play their part. NEPA's mandate for environmental impact statements also reflected Congress's lack of faith that agencies would always represent the full scope of public concerns.Footnote 47
Even some federal regulators welcomed the scrutiny by environmental law firms, because they increasingly saw their agencies as mediating between competing forces in society, rather than as independent, expert decision makers. Agency leaders counted on the public interest environmental lawyers to provide a counterpoint to industry and agency positions. In 1975, John Quarles, EPA's deputy administrator, urged American foundations to continue financing environmental law firms. The firms, Quarles said, did work that was “not very glamorous,” yet still “vitally important”: reviewing permits, attending hearings, and, at times, suing the EPA to force it to act. Environmental law firms played an “integral part of the process which produces sound public policy.” Former EPA administrator Russell Train concurred in a 1977 essay, writing that the public interest law firms had “played an immensely important and valuable role, especially by holding EPA's bureaucratic feet to the fire.” Public interest lawsuits contending that the EPA was too slow or too lenient balanced industry lawsuits complaining that the EPA was too strict. “I imagine that I was the most sued man in government,” Train recalled. The environmental law firms had provided a critical counterweight to industry opposition. At other times, however, agency leaders complained that public interest lawsuits forced the agencies to pursue marginal issues and implement unrealistic or unworkable legislative requirements.Footnote 48
Liberals have long emphasized how the concept of market failure or inefficiency justifies government's regulatory role. The environmental legislation of the 1970s aimed to remedy classic examples of market failure, such as air and water pollution. The public interest environmental law firms, however, sought to address a different problem: what some observers awkwardly called “government market failure.” As two academic consultants explained to the Ford Foundation in 1972, public interest law assumed “both types of failures—the market and the government.” “Political and economic pressures on the decision-making process,” they wrote, led to government failures that justified the law firms' “extra-governmental efforts” to modify “government behavior.”Footnote 49
The rise of public interest environmental lawyers, along with peers in other areas of public interest law, therefore shows how the attack on federal agencies came from across the political spectrum, even from within liberalism itself. The new environmental lawyers helped destabilize the New Deal order with its emphasis on federal agency discretion and ambitious deployments of technology, private investment, and public infrastructure in pursuit of economic growth. In the process, the environmental lawyers framed a new conceptual challenge, particularly for liberals: how to reconcile their critique of market failures with a new understanding of the limits and pitfalls of government power. In those heady days of the late 1960s and early 1970s, the emerging environmental law firms seemed, to their founders, like a crucial guiding force to safeguard the public interest.
