The American Environmental Movement, Part 1

Jan Paynter: Jonathan Z. Cannon is the Blaine T. Phillips Distinguished Professor of Environmental Law at the University of Virginia School of Law where he is Director of the Law School’s Environmental and Land Use Law Program. Professor Cannon joined the law faculty in 1998 from the Environmental Protection Agency where he served as general counsel between 1995 and ’98 and Assistant Administrator for Administration and Resources Management between 1992 and ’95. Professor Cannon teaches Environmental and Energy Law, Land Use Law and Conservation Planning and Law. He has written widely on institutional design for programs as diverse as the Chesapeake Bay Restoration and Superfund, the cultural significance of the Supreme Court’s environmental decisions and on the future of the Environmental Movement. He has authored Environment in the Balance: The Green Movement and the Supreme Court, published in 2015 by Harvard University Press. John Cannon serves on the Board of Directors of the Environmental Law Institute and on the Advisory Board of the Policy Integrity Institute. He received a BA from Williams College in 1967 and a JD from the University of Pennsylvania Law School in 1974. Welcome again, Professor.

Jonathan Cannon: Thank you. I’m happy to be here.

Jan Paynter: Before we begin our discussion of environmentalism, climate change and the challenges that face us as a nation and globally, share with us if you would a little about what brought you to your interest and commitment to environmental law and why you decided to write Environment in the Balance.

Jonathan Cannon: My commitment to environmental law began—and this is really true—on the first Earth Day which was in 1970. I think like a lot of people then I had concerns about the environment and for me personally environment was an issue. I resented the sulfur dioxide emissions from the local electric utility plant, I resented the development of green space into shopping centers and I think a lot of people at that time had the same kinds of grievances but we felt they were personal grievances. And then on Earth Day there was this outpouring of public concern that communicated to all of us, this is or was a collective issue and that people could be mobilized to deal with it. And it was really then that I decided to go to law school and I decided to go to law school to be an environmental lawyer and that’s what I’ve been lucky enough to do for all the years since.

Jan Paynter: You wrote to me before we started the program, ‘This is an arresting moment in the history of the Environmental Movement and the American political institutions.’ Your book Environment in the Balance wrestles with questions which are fundamental to the survival of the Green Movement going forward. Before we begin our discussion I want to tick quickly through a few facts. I think people are probably familiar with them but we’ll go ahead and do them anyway. 2016 was the hottest year ever recorded according to NASA and NOAA. Carbon dioxide levels on the planet are the highest in four million years. The earth’s oceans are warming 13 percent faster than previously thought. And this has been measured very interestingly by specialized temperature floats deployed in the ocean called argos which sounds extremely futuristic to me and fascinating. According to NASA’s Goddard Space Institute the planet is heating up at uneven rates and—this is pertinent to us—Northeast USA will reach two degrees Centigrade warming threshold faster than anyplace on earth. And finally, the Polar Icecap will be largely gone by 2030 with obviously rising sea levels and loss of habitat. There are many statistics, I just thought I would go through a few. To begin our discussion John, tell us a bit about the Conservation Movement which pre-dated the modern Environmental Movement and why did environmentalism come to the fore as a pressing issue in the United States?

Jonathan Cannon: The Conservation Movement goes back—people date it to different eras—but it goes back a long way and there were certainly the seeds of the modern Environmental Movement in early efforts for example to establish National Parks. John Muir was a figure in that. Teddy Roosevelt was a figure in early conservation efforts—efforts to protect national forests and so forth from degradation. The modern Environmental Movement began both as an extension of that and as something quite different largely in response to substantial pollution efforts or substantial pollution incidents that were happening at that time. This was in the late 1960s, early 1970s. So the Cuyahoga River caught on fire, there were heavily smoggy areas in California, there was concern about pesticides. Rachel Carson’s book very influential in this. So that there was really a new generation of concern generated from modern industrial practices and the consequences that people could see and feel or be told about and be frightened by.

Jan Paynter: Who was Michael McCloskey and why is he significant for the development of the movement, John?

Jonathan Cannon: Well, Michael McCloskey was an early figure in the Sierra Club during that period and he announced really the need for a new movement, a new environmental movement and defined it as a movement not just to deal specifically with individual pollution problems but to change the core values of the American people so that we would be more attuned to environmental consequences and value nature—defined then as the environmental other—value nature in a way that would allow us to live sustainably over time.

Jan Paynter: He comes up again and again in the book and he was a fascinating figure. I’m particularly interested in your books Cultural Analysis of the Differing Attitudes and Responses Toward Nature and Man’s Place in the Natural World and in that connection, what is meant by the term ‘the New Environmental Paradigm’ coined I believe by Dunlap and Van Liere and what does it describe?

Jonathan Cannon: Well, the New Environmental Paradigm is a set of beliefs and values that these social scientists have discerned through various studies that defines a way of thinking, a way of orienting toward the natural world that is different from what we might think of as and what they call the Dominant Social Paradigm. So the New Environmental Paradigm contains centrally a belief that nature is interconnected, that we are connected with nature and that natural systems are interconnected such that to disturb one part of the system is likely to disturb other parts of the system. It also assumes that nature is vulnerable or fragile so that disruptions can be consequential, have serious impacts over time. And it also includes a sense—and this is a value sense—that nature is important or valuable in its own right. It’s important to us because we need it to live, we need a healthy set of natural systems in order to flourish but it’s also important because it has value in itself. And those are key features of that New Environmental Paradigm.

Jan Paynter: And I guess that laid the groundwork for cases later on that actually attempted to defend nature itself.

Jonathan Cannon: Yes, that’s right. Sierra Club v. Morton is an early example of that.

Jan Paynter: How did the New Environmental Paradigm respond to the idea of American exceptionalism?

Jonathan Cannon: Well, I’m never sure what American exceptionalism means but I think it did respond to a dominant strain of American culture which has been there I think since the beginning which emphasized development, which emphasized transforming the wilderness, transforming the natural landscape into landscapes of utility to people. It emphasized economic growth and it emphasized individual effort or entrepreneurship as key values in the American story.

Jan Paynter: Depending on where a person falls on the spectrum between these two world views, John, what generally tends to be their perspective on environment and climate change issues?

Jonathan Cannon: Well, the folks that subscribe to what I’ve called the Dominant Social Paradigm tend to be skeptical of environmental concerns because to give too much credence to those concerns would limit individual action to change the environment, could limit economic development, could interfere with the kind of material plenty that those folks value. And it could also impose constraints on individual action.

Jan Paynter: I thought it was fascinating, the concept of mastery and where people fall around that idea and obviously the Dominant Social Paradigm is man has dominion over nature and then if you bring religion into it then you have the idea that man has dominion over nature and the animals so that all works together. Who was Aldo Leopold and why was his argument for the land ethic important for the Environmental Movement?

Jonathan Cannon: Aldo Leopold was a…he was a conservation scientist, he was a manager of natural systems but during his career he underwent a kind of conversion, if you will. There’s a story he told about killing a wolf, which at the time was the appropriate thing to do because fewer wolves meant more deer and therefore more opportunity for hunters and therefore limiting or exterminating the wolves was thought to be a wise thing. But the story records his experience in killing a wolf and then seeing the wolf die and he perceives at that moment that the wolf represents something larger than just a human concern about having more game, that it is part of a balance, part of a deeper order that should be respected. And that really went on to create the setting, the intellectual context for his land ethic, which is basically that—that we owe a duty, we have an obligation not just to ourselves, not just to our economic well-being but to the natural system, the human nature system in which we live.

Jan Paynter: Yeah and the idea that is suggested by that that man is a member not a conqueror which is I thought a very interesting part of the book. Again, non-human life has rights.

Jonathan Cannon: And you can see that pushing against the mastery narrative which is part of the Dominant Social Paradigm that we are…we have the technology to control but it’s inappropriate for us to use that or to use it to its fullest extent because we have other obligations including obligations of restraint and applying that technology in a way that degrade these natural systems.

Jan Paynter: Expand a little if you would, John, on the concept of the environmental other.

Jonathan Cannon: Well, I use that term in the book to suggest the part of the environment that’s not us, that’s different from us and that may have no direct connection to us, just to suggest that it is an other but not…but an other that should be taken account of or that needs to be taken account of in some way. There are of course people who argue, and I agree with them, that we’re not different from the other. We’re all nature—humans and things that we consider nature in the external sense—so that the systems in which we live are not purely natural in that sense but are human and natural and all connected. And it’s that sense that I think fundamentally underlies a deep environmentalism—the notion that we are all a community. We and they, described as the other, but all a community, all inhabitants, all members in the same community, as Aldo Leopold says.

Jan Paynter: If you are a sentient being that’s non-human, every human is the other so it is really, really fascinating and the idea of a synthetic concept of nature is kind of interesting.

Jonathan Cannon: But it’s very interesting because the use of the other also indicates how hard it is sometimes to cross that divide, for us to really consider animals, even inanimate objects like rocks and so forth, as somehow connected to us in more than just the material way.

Jan Paynter: Well, the pejorative tree hugger applied to people interested in green things. John, in your book you discuss the fraught relationship between religion and environmentalism. Discuss what you mean by that if you would and in that connection would you talk a little about Lynn White and his perspective on that.

Jonathan Cannon: So Lynn White wrote a very important essay early in the 1960s I believe in which he argues that a lot of our modern attitudes—and these are attitudes connected specifically with the Dominant Social Paradigm that we’ve talked about—a lot of our modern attitudes about the environment stem from religious doctrine or teachings dating all the way back to Medieval Christianity. And his argument is that Christianity as it evolved became a very anthropocentric religion that is centered on people and excluding consideration for the environmental other, for non-human beings, creatures. And he argues that that legacy has been deadly to our ability to deal effectively with our place in the world. He suggests the alternative pattern or the alternative story within Christianity represented by St. Francis, who famously connected with the birds and other creatures and saw them as spiritual beings and understood them as God’s creatures and saw us all as joining in praise to God. And that alternative paradigm has actually been picked up by some religious groups and most recently and most notably by the current Pope, Pope Francis who issued an encyclical in which he says, ‘The way to connect with nature, the way for humans to connect with nature, is through the example of St. Francis.’ So he has turned Lynn White’s criticism on its head and made that Church teaching.

Jan Paynter: That’s fascinating. John, does the Constitution specifically address the issue of environmental protection?

Jonathan Cannon: No, it doesn’t. It has powers, legislative powers given to Congress that provide the basis for our modern federal environmental laws but none of them specifically addresses the environment and the fact that they don’t actually creates some difficulties in both enacting and defending those laws.

Jan Paynter: John, what were some of the most consequential decisions in support of environmental protection and regulation and how have Supreme Court decisions on issues of the environment evolved over time? You note in your book that some of the most significant legislative enactments for environmentalism occurred between the ‘60s and the ‘80s.

Jonathan Cannon: So there was…After the first Earth Day, when I was picking up trash on the Potomac and millions of other people were engaged, there was an outpouring of support for legislation at the federal level and at other levels too for environmental protection—clean air, clean water, dealing with solid waste and so forth. And those laws then led to litigation inevitably in the courts and that’s what produced the decisions that are the primary focus of my book. I would say that early in that effort environmentalism seemed to be a kind of consensus view. Suddenly it was as if our society and our politics had been transformed. So those early statutes like the Clean Water Act, the Clean Air Act and others were adopted with large majorities from both sides of Congress, both the Republicans and the Democrats, and enjoyed vast public support. And the Court, at least in the initial years, seemed to be very receptive to their purposes and goals. So one of the early cases, for example, was Citizens to Preserve Overton Park, which was decided I think in 1974. In that case the court insisted on a strict reading of a statute designed to protect public parks from being bisected by interstate highways that were currently being constructed. And the Court said, ‘The purpose of this is to protect these last remaining enclaves of green nature in urban areas and we’re going to take it seriously and we’re going to insist that you, the Highway Administration, apply this law carefully and properly to protect this diminishing resource.’ I think that and other cases like that sent a signal that the Court was sympathetic to the purposes of these laws and would be vigilant in ensuring that the agencies would implement them properly.

Jan Paynter: How has the Supreme Court, in your view, historically attempted to mediate between the concerns expressed by the Dominant Social Paradigm we just discussed and those expressed by the Green Movement’s New Environmental Paradigm?

Jonathan Cannon: Well, there are a number of cases in which the Court struggles with how to strike the right balance. Some of these cases arise under the National Environmental Policy Act and specifically on the question of appropriate relief if that Act has been found to be violated. There’s one such case, a fairly recent case called Winter in which the issue was the Navy’s use of sonar in submarine exercises off the West Coast. Sonar is used by the Navy to detect enemy submarines. It also has a disruptive effect on marine mammals which use sonar signals to orient and navigate. It was conceded that the Navy had failed to do an adequate environmental impact statement but the question was whether the court should bar naval exercises pending compliance with these procedural requirements by the Navy. And the Court…the Supreme Court ultimately in an opinion written by Chief Justice Roberts decided that on balance the exercises should go ahead notwithstanding possible harm to the marine mammals and Ginsburg, Justice Ginsburg wrote a descent, a ringing descent to that determination and the two different views were all about the relative balance being given to national security represented by the submarine exercises and the harm to these wild marine mammals, the whales and dolphins and so forth and the different opinions just struck that balance differently.

Jan Paynter: That’s a tricky one.

Jonathan Cannon: Right. Chief Justice Roberts said to him, although he acknowledged that there would be some harm to marine mammals and the people who studied them and cared about them, he was of the view that that didn’t come close to over…outweighing the national security interest and Justice Ginsburg said, ‘These are serious injuries that could be avoided but in any event they are of such a magnitude and such an importance that they don’t outweigh the need to go right ahead right now with these exercises.’

Jan Paynter: Would it be accurate to say that the Supreme Court over time has evolved and become—and we talked about this before the program—over time has become a reflection of the tensions between those who subscribe to the Dominant Social Paradigm and the New Environmental Paradigm?

Jonathan Cannon: Oh, I think very much so and that’s what was the theme of my book and what brought me to write it. But you see in many of the major cases in this area the Court closely split 5-4 with justices identified with one orientation going one way and justices identified with another orientation going another way and a swing justice in the middle. It was Sandra Day O’Connor and now it tends to be almost always Justice Kennedy who occupy that kind of middle ground. But that repeated division of the Court into relatively predictable factions indicates that they are different, to me at least, that there are different world views or mindsets or orientations toward these issues that are motivating, at least in part, motivating the justices.

Jan Paynter: Well, it shows the Court is not immune to the outside world.

Jonathan Cannon: How could it be?

Jan Paynter: Exactly, how could it be? John, thank you so much for coming to our program today and we will look forward to you joining us for part two.

Jonathan Cannon: Well, thanks very much for the opportunity to be here with you. I’ve really enjoyed it. Thank you.

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