Another one of those books I bought at ASEH and am just finishing is Before Earth Day: The Origins of American Environmental Law, 1945-1970 (Lawrence: University Press of Kansas, 2009) by Karl B. Brooks.
Brooks argues that historians have placed too much emphasis on the environmental laws of the Johnson and Nixon Administrations. Instead, Brooks studies the period between the end of World War II and Earth Day and finds many important precedents. Little credited federal laws (the Administrative Procedure Act of 1946 and the Fish and Wildlife Coordination Act of 1946, for example) and numerous state laws enacted in the late 1940s and early 1950s formed the foundation of post-war environmental law. Two things happened in this early period. First, states enacted many laws, proving the theory that they were the laboratories of reform. While some of these laws pushed the federal government to take a more aggressive stand on some issues, many made their way to the court and judicial review. Second, executive agencies empowered to administer environmental laws (on both state and federal levels) received greater authority to make changes and new regulations without having to go back to the legislative bodies. Thus, laws begat more laws, more judicial review, and more regulations. The process repeated itself until the accumulation of new codes required some adjustment. This is where Brooks sees the important legislation of the 1960s and 1970s coming in. They were not revolutionary responses to Rachel Carson, but critical clarifications to an existing body of law. As a byproduct, he makes a case that Eisenhower was good president on environmental matters.
My biggest question for this book is why start in 1945? As James Tober argues in Who Owns the Wildlife (1981) a substantial body of law related to wildlife developed in the late 19th century. There was a Supreme Court case, Geer vs. Conntecticut (1896) that ruled wildlife essentially belonged to the state. The decision of Missouri vs. Holland (1920) upheld the federal power to enforce wildlife regulations. And there were important laws throughout the early twentieth century affecting the environment and wildlife in particular, many of which empowered the executive agencies to form regulations. What affect did these laws have on the post-war evolution of environmental law?