'Lessons for a Warming Planet' offers hope and cautions

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Speaker A: Welcome to the Modern Law Library. I'm your host, Lee Rawls, and today I'm joined by Alejandro Camacho and Brigham Daniels. They're the authors of the new book Lessons for a Warming A Vital History of US Environmental Law. Gentlemen, thanks so much for joining us.

Speaker C: Yeah, it's a pleasure.

Speaker D: Thank you for having us.

Speaker A: So, Greg, I'm going to start with you. Could you tell us how this book came to be? How did you and Alejandro start working with each other?

Speaker D: Alejandro had just finished writing a book called Reorganizing Government with Rob Glipskin. It's a really well done book and NYU Press, sort of out of the blue, invited him to write a history. And I had just presented a little bit of environmental history, uh, at a conference that we both attended. And Alex called me and as they say in the book, the rest is history.

Speaker A: Well, I think that there are touch points in US Environmental history that people will naturally think of, uh, that pop to mind like, you know, oh, Silent Spring, the Environmental Protection Act. But what I really enjoyed about this book is it goes back a lot further. You look at these environmental eras and I was in particular really fascinated by your information on the Allocation era. Alejandro, can you please talk a little bit about how you and Brigg decided to divide up the eras and then I'll later get more into asking about this Allocation era.

Speaker E: Yes.

Speaker C: So it really builds on what Brig had mentioned before that. I mean, this collaboration started, it's hard to imagine, seven years ago about. And we were surprised by the complete absence of anything similar to what we were looking to do, which is really that no prior book on the history of environmental law had taken what we thought a genuinely broad view. Most sort of Focus only on environmental protection areas, laws emerging from the 1970s or possibly the Progressive era, missing, frankly, centuries of legal history that drove exploitation.

Speaker F: So we wanted to look at both

Speaker C: sides of the coin of what we considered to be environmental law, broadly construed, sort of the law that sort of protected. It protected the environment, but also the laws that harmed the environment.

Speaker F: And in that sense, it's sort of.

Speaker C: We really wanted to think about this book as a history, uh, legal history, an environmental legal history, but one that would give lessons to offer for today's challenge. And so we really started this sort of approach we both got really excited about. It was obviously quite daunting as well.

Speaker F: So one of the first things we had to think about was, you know,

Speaker C: what are the different eras that we would, how would we divide up this history? And we saw that in many ways that the. One of the major themes that you could see in U.S. legal history, environmental history, is that there were ebbs and flows. There were moments when there were major themes, major dominant approaches to human relationships with the environment. And so in some of those eras, namely starting with the allocation era, it was an era where exploitation was the primary dominant wave. And in many ways it's ludicrous. We refer to an era, this allocation era, of almost a century, but it really was an era that was dominated by exploitation. Um, then you see another era, the

Speaker F: progressive era, which of course it's not

Speaker C: quite bright line rules, but an era where a different emerges, which is primarily one of protection. And then this is where the era sort of ended up taking shape, where then you have a modernization era, where the dominant theme becomes exploitation, an environmental era where protection dominates.

Speaker F: And then you have a very distinctive era, the one we're in right now,

Speaker C: one we've been in for about 50 years of not really a dominant wave and an undercurrent, but really one of turbulence. And we can definitely talk more about that as well.

Speaker A: Absolutely. And one thing that I appreciated about this is I think that, you know, as an American student in grade school, maybe early high school, we are taught that there is a line of progress. And what I have seen more and more as I'm an adult is that, okay, no, civil rights was not, for example, a one way upward trending line. We had a lot of ebbs and flows, as you said. And so looking at environmental law, uh, in this perspective has been really interesting. I told you that I was really interested in the allocation era. So Brig, this is pre colonial times to 1890, which is hugely consequential, obviously for the nation, it's got everything from, you know, Native Americans being forced off their ancestral lands, the, uh, Homestead Act, a lot of our, uh, traditions. When it comes to, for example, water rights were established then. Can you talk about why this is an important era to consider for environmental history and then maybe why you think people haven't turned that lens on it?

Speaker D: Well, I think that when people think about environmental law, very frequently, what they mean is environmental protection. And what that misses is the other side of the coin, that there is a whole lot of law that is meant to exploit the environment. The thing that is distinctive about the allocation era is after the first wave of protection, which is the Progressive era, you have sort of a legacy of environmental protections. But, you know, when you start the allocation era, you're pretty much starting with a, uh, fairly clean slate, although you have some common law. But that common law is not much different than the law that is developed in the allocation era, which is, you know, how we value our resources is for resources, it's for using them, it's for our benefit. And you know, the allocation era, a lot of the law that came from that era, the vast majority of it, tends to take the shape which is we will use the environment and its resources to produce wealth. And the law is very distinctive, not only in the way that it encourages development, but in the way that it also selects winners and losers. So just as an example, during the allocation era, we have the development of public lands across the country. And then these lands are then given away through the Homestead Act. At the same time, Native Americans were dispossessed of all of these lands. Right. I mean, so the law is not just producing wealth, but it's producing wealth very strategically for a pre selected set of winners and um, for that matter, pre selected set of losers.

Speaker A: Yeah, a pre selected set of winners and losers. But also definitely, you know, the government was deciding what purpose these lands should be put to. I mean, the Homestead Act, I believe, you had to physically farm and produce a crop on your land for, you know, some five years before you could lay full title to it. So that was the government deciding the Great Plains should be farmland. And I hadn't really thought about it quite that way before reading this book. So just to say, Greg, Alejandro, if you write a full book just about this era, I will read it. Uh, but Alejandro, what were you hoping the audience for this book would be? I found it very approachable. It is not super dense. But who were you hoping to reach with this book?

Speaker F: Well, that was also a long term

Speaker E: or Took time to develop in many ways. We're trying to thread multiple needles here with this book. With regard to audience, I think I would say our primary audience, if I had to pick one, would be the current and future leaders of our country, and particularly those who will have to manage the sort of balance between, uh, environmental exploitation and development and environmental protection. So that in many ways, if you made it more concretely, would be, uh, anything from high school, college, law students, but also the generally interested public. And obviously we also wanted to speak to legal scholars. We wanted to speak to history, environmental historians and policymakers as well. Uh, but I do think that our primary audience was the, uh, educated public. But really, in trying to help them understand, help everyone understand, but particularly those that. Two different things. First of all, that the history of environmental law is not just a history of protection, it's also a history of exploitation. And that you can't really understand how to engage in protection without understanding how it was built to exploit. But also to help them draw on those lessons and to see that by taking a wider aperture of what you look at both in terms of what the law is and the timeline of the eras, that you can learn a lot more how to deal with the problems of today and to perhaps have a little bit more imagination about how to address them. Because, uh, when you take a narrower

Speaker F: view of history, when you take a

Speaker E: narrow view of what is law, what is environmental law, you may miss things and how to address new emerging problems that we are currently having to deal with.

Speaker A: Well, we're going to take a quick break to hear from our advertisers. When we return, I'll still be speaking to Alejandro and Brig about Lessons for a Warming A vital history of U.S. environmental law.

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Speaker A: Welcome back to the Modern Law Library. I'm, um, your host Lee Rawls and we are still talking about lessons for a warming planet. So Brig, there are a lot of people who are very concerned with current environmental challenges and soon to be future environmental challenges. And we are in what you call in the book the contested era. For people looking at addressing today's and tomorrow's changes, what are you hoping they take from the book as an attitude to how we can change things or how environmental law, uh, has changed in the past?

Speaker D: If I could take a half step back and just talk about the contested era. Every one of the other eras that we identified has sort of a dominant theme, the dominant theme of the current era, which basically goes back until 1980. It's a push and pull, it's a tug of war. And what you're seeing is sort of a very choppy sea where the boat is rocking back and forth and back and forth and our law is kind of ping ponged as that happens. At the same time, we are looking ahead and experiencing some of the most profound environmental challenges our nation has ever faced. You know, uh, the long term challenge that exploitation has baked is climate change. But you also have new and emerging challenges like AI and all the things that go with that. I think the thing that I hope they take away from this, number one, is hope. You know, looking back, we can see that this is not the first time our country has had its back up against the wall. And you just had to conclude that we really didn't have a way forward. And yet the history, not all of it, but a good chunk of that history, shows you that it is actually possible to overcome hurdles that just seem insurmountable. The second thing that I hope that people take out of this is I wouldn't want them to be so hopeful that they don't also recognize the risk. The real risk of our era is that we're going to have a push and pull, push and pull. And I mean, I don't have a crystal ball, I wish I did. But, uh, from the best I can tell, the way that the era is going to end is that one side or the other is basically going to emerge victorious. And I think, you know, we are either heading toward a very hopeful future or we are heading towards a very dismal future. And the thing that I hope that people understand is that looking back one of the things that is so prevalent is that we didn't get the history that we had due to luck. We got the history that we had due to, well, not entirely to luck. A big chunk of why we got our history was due to effort. And they were efforts of social movements. They were efforts of people well beyond lawyers, focused on the law, protesters, you name it. And what I would really hope that they take away is a resolve to fight for a better future, you know, that that hope somehow spurns to action. I would love to convert the people out there who are climate, uh, change warriors into climate change warriors. And I hope that they recognize that a big part of our future, or at least a part of our future is in each of our individual hands. And what are we going to do about building a future that we want?

Speaker A: And when we look back at the people who have done some of this work, you know, sure there are individuals, but a lot of it was collective work. We talked in the beginning about the allocation era, uh, moving to the Progressive Era. And before reading your book, that is where I kind of thought about environmental law starting. I was like, oh, Teddy Roosevelt sure loved shooting bears on public land and was in favor of national parks. But the modernization era, which is 1920 to 1960, is a fascinating one to me because it was looking at ways to modernize their society and there was quite a bit of the resource management exploitation. But you also had things like the Deals civilian conservation core. Do you think, Alejandro, uh, you see any political, uh, mobility or, or possibility in establishing something like that? And for people who don't know what the New Deal's Civilian conservation corps was, 2.5 million people over the course of the Great Depression were involved in doing this work. And it put bread on the table for so many families. But do you think you could see something similar being done now or in the near term future?

Speaker F: Well, of course there have been proposals, uh, as recently as the prior administration considering such a thing. So I certainly think of that as a possibility. What's interesting about where that comes up and where it sort of shows one of the themes of our book is, as you mentioned, that that developed in the modernization era, which is such a varied era in so many ways. I mean, we talk about the Roaring Twenties, Great Depression, New Deal, World War II and the post war boom, the Cold War. So it's obviously it's a varied era, but it's an era that was again primarily dominated by a, uh, move towards fossil fuel dependency, massive investments in that infrastructure. It's an era where in many ways, if you're thinking about obviously the advent of the car, it's an era where conservation was kind of kicked out of the car. But where you see fossil fuel dependency, suburban sprawl, nuclear lead and gasoline. Exactly. Chemical pollution. But you also see again, this. One of our major themes is that there's always this dominant. Other than the contested era where it's much more turbulence in every era. Even though you have this dominant, uh, in this case dominant era of exploitation and many ways sort of legal system underwriting the quote, unquote American Dream. You do have undercurrents of conservation environmentalism like the Civilian Conservation Corps. And you do see modest federal legislation towards pollution regulation and early state level air and water laws. So it isn't just a black and white sort of binary of any of these eras. And of course what often happened is that an undercurrent in any given era becomes the dominant era in a subsequent era. And the weird era in many ways is the one that we all live in. This is where I think our book modestly does offer such tremendous value in the sense that it helps us have a much broader aperture about our history. And to see that for us not to be trapped in our current era, our current way of thinking, from the student who often maybe feels maybe potential despair to see that this is not the way it's always been. Blue and red states is a, a fairly new idea, um, but it's so ingrained in our politics. But we also see that if you look further and you have this wider aperture, you see that even for the very sophisticated environmental lawyer and person who knows everything about uh, or quite a bit about environmental law, that that person needs to take a step back and realize that in each of these areas, whether you're talking about the Progressive era, as you mentioned, or in the environmental era, the one where the 1970s and you see this massive development of environmental law, that environmental law was not a term, it was not an infrastructure. And people use legal imagination to really develop whole new systems of law to deal with new problems. And that there's tremendous hope, as Brig mentioned in that. But you need to be willing to think creatively and to develop these ideas and push for these ideas through social movements and other ways. And that that is how legal change and legal projections occur.

Speaker A: And the two of you have a great phrase to talk about how these changes to environmental law, ah, occur. You know, how environmental law has developed over the history of the United States and its accretions, uh, erosions and avulsions. So Brig, can you talk to us about the accretions, erosions and avulsions and why that really mattered for the development of environmental law?

Speaker D: Uh, the first two of those. This is sort of the accretion erosion is a slow process, adding on a little, taking away a little.

Speaker A: Right.

Speaker D: It's changed, but it's very incremental. And avulsion is like. Imagine a river jumping out of its river course and then starting to create a brand new riverbed. That is an evolution. It's a radical change. And, you know, one of the ways to kind of think about law and its change is to think about are we seeing incrementalism or are we seeing something more radical and traumatic? One of the surprising things to me, as we looked back, Alejandro and I had some candid conversations at the beginning about, well, what lessons do we think we will discover? What lessons are there? And we had to ask ourselves. You know, I think we had a. We had some, uh, maybe some ideas, but we didn't have a very sophisticated idea about one of the lessons. But I think one of the lessons, as we really looked at it in more detail, was that, you know, change kind of takes these two different forms, and it's often a very surprising thing that allows for sort of the more radical kind of form. The other thing to say about it is, you know, a lot of the. What might be considered the movement for environmental protection, this isn't a, uh, holistic movement, meaning that it is. It has its own divisions. And you often have players who are trying to make a play for incremental change or trying to make more radical change. And sometimes the tension between the degree of change is more serious and under debate than whether or not change is needed. And that was an interesting point. But it is often a more radical change that actually introduces a new era.

Speaker F: Uh, yeah. Um, I think one of the things that was, to me, building on what Brig just said there, that to me was an insight that maybe is not insightful to others, but to me was one as, uh, we were pursuing this project, was that that tension between the idealists and the pragmatist is one that lives within individuals as much as between movements. That many of us are both an idealist and a pragmatist. And certainly in this current era, we can relate to that. Where many of us would like to do something that is a fundamental transformation of the political or legal system, but we also want to pursue achievable incremental wins. And so in many ways, that tension certainly exists within movements, but also within individuals.

Speaker A: Yes. And one of my favorite anecdotes from the environmental era section of the book, which, again is the 1960s, 1970s, has to do with President Nixon, who at one moment is saying, yeah, I don't mind being the clean air guy. You know, the open water. That sounds pretty good. And then you say a week. You quote him a week later, and he is so fed up, and he says, I don't want anything to do with these environmental people. Uh, and he did end up signing just incredibly important environmental laws. And the path doesn't have to be smooth for everybody to get to a place of positive change.

Speaker D: The history of Nixon is super interesting. Teddy Roosevelt sort of makes sense when you think about the Progressive Era. You kind of hit a wall a little bit when you start thinking. And then in the environmental area, where we had all these, we packed the Clean Air act, the Clean Water act, the Endangered Species Act. Who was it? It was Richard Nixon. You don't really think about him as the, uh, green warrior. One of the things I really take away from that story is how much our political system relies on not the preferences of the politicians themselves. I would say President Nixon tolerated environmental law, but absolutely detested environmentalists. I don't think that there is a really big difference between how President Nixon saw environmentalists in private than the way that President Trump talks about environmentalists in public. But what really kept the private Nixon private and the public Nixon, as a champion of environmental law, was he saw that there was a great political opportunity. And that opportunity, there were a bunch of different factors that created it, but. But part of it was what people were doing at that time to create momentum. So basically taking current events and using those events to further the concern of the environmental issue.

Speaker A: You taught me something in a caption, actually, in one of your books. I have seen, as I'm sure many of our listeners have, uh, pictures of the Cuyahoga river on fire and burning. But it turns out that the picture photograph that was popularized to talk about a late 1960s fire actually came from an earlier era, because the Cuyahoga river pretty much caught fire regularly. That's wild.

Speaker D: Uh, I mean, I think this is one of the things, if you think about, how can we mark progress? You know, when we think about a river starting on fire, this is like a biblical thing, right? Like the water is burning, it's burning. In the 1950s, it was Wednesday, right? Like, it was so polluted with oils and animal fats and chemicals and everything else. The river starting on fire was just one little fact to It. I don't even know if this makes the book, but one of the things that is so interesting about the Cuyahoga river starting on Fire is that it wasn't even front page news in Cleveland. Right? I mean, it became the poster child for all water problems. But it was so common in that time. I mean, it wasn't maybe every day, but it certainly was maybe, you know, every year or two, uh, a big one and smaller ones frequently, you know, that this was not such a surprising event. And, you know, when we look back at all the destruction that we've wrought upon the planet over the course of time, it's essential to remember that almost year by year, because of the Clean Water act, our water in the United States is cleaner almost year over year. And that is a real credit to environmental law. So if we start thinking about, A, we can actually solve these problems, and then B, how are we going to solve them? Um, law is going to play a role.

Speaker F: I just wanted to say that I think, to take it a meta step back to what you see from this era is that, you know, in many ways your question is how do we produce a vulsive legal change and how Nixon was critical to it and how the Kio river river were. But in many ways, this was a sort of a gumbo, if you will, of science and information. Things like news like the Cuyahoga river catching fire, but things like Rachel Carson's Silent Spring, things like the Earthrise photograph where people saw for the first time, uh, our planet from the outside, sort of an instant symbol of Earth's fragility. We have social movements, you have political opportunity and opportunism, and it takes all of these things. Not one of these things alone would have been enough. But I also think, obviously, um, a key piece is sort of a legal imagination and how all these things together led to avulsion of also legal change. And it wasn't perfect. It was many ways chaotic in many ways, as Brigg pointed out, it was unforeseen, um, by many. But together, all these things led to the environmental law that we have today.

Speaker A: Well, we're going to take another quick break to hear from our advertisers. When we return, I'll still be speaking about Lessons for a Warming, a vital history of US Environmental law.

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Speaker A: Welcome back to the Modern Law Library. I'm your host Lee Rawls, here with Alejandro Camacho and Brig Daniels. So gentlemen, we've talked about evulsive change happening. And my experience reporting on the law, studying legal change is that often when there is a, a big legal change, what you then have in the decades following are courts struggling to decide what say some legislation meant or a flurry of new smaller legislations to deal with things that were unforeseen when uh, the, when the big change was made. And I think that a great area to look at that for is with waste disposal. We talked about Clean Water act, the Clean Air act and other smaller things had to follow it like the Solid Waste Disposal Act, Resource Conservation and Recovery act, all of these things. So it doesn't, it's not a one and done change. So when you talk to environmental lawyers, Greg, do they approach environmental law, uh, more like seeking these avulsive changes or do they think about the, the fix its which are very important.

Speaker D: Lawyers do both. I think it's very tempting though to over invest in incremental thinking. And part of the reason for that is that is the thing that is kind of present, you know, when you start thinking about, like you mentioned, we have these big enactments, but now we have to figure out what different words in these enactments mean. And you know, each of those fights matter. I'm not trying to dismiss them, but that's sort of tuning the dial a little bit. It's not readjusting it completely. One of the things that I think is a lesson of uh, when you look back is how much of the law that was completely new and might seem to be completely entirely new, except for the person who had been trying to get something passed for the last 20 years. So you know, there is sort of um, there's a longer term payoff cycle for evulsive change kind of thinking and it's easy to underinvest in it because it's not present. When I look at the planet and the problems that we're facing right now, the thing that is striking to me is, you know, incrementalism. While any changes that's positive is helpful, incrementalism is not going to be enough to solve a problem like climate change, we're going to actually have to have a major readjustment. And so one of the things that we came to this later on in our writing of the book, uh, ah, and Alex really put his finger on it, uh, it wasn't the first person to think of the idea of legal imagination, but kind of captioning what a lot of this is, this legal imagination. We want to be able to. When the opportunity presents itself, it is essential that there are people there with potential options. And that doesn't happen unless you're willing to take a step away from incrementalism and make some of those investments in change that are on a much longer time trajectory.

Speaker A: Yeah, I think it's human nature, or at least it's often in my nature to when there's a problem, let's say, you know, with a, with a giant system, be like, well, can we tweak it? Can we just tweak it and get it to work again, rather than having to take a chance on a whole new system, you know, can I just fix my car breaking down car rather than buying a new one? But there are times when we are confronted by actual circumstances that say, no, something huge needs to happen.

Speaker D: Right.

Speaker F: And I do think that, you know, I think you also. I think it's a perfectly reasonable reaction. Obviously, many times the incremental is the better approach. I mean, I think having evulsions all the time is a destabilizing legal system.

Speaker C: Right.

Speaker F: And so, you know, as a descriptive matter, it doesn't happen. But it's also probably normatively not a good, good thing if that does occur. I think one of the concerns might be, of course, in addition to, as Rick pointed out, that people might lose the forest for the trees, is that to the extent that that avulsion, as often happened, had gaps in it, because you couldn't capture everything, you could. When you get into the incremental sort of interpretive mode, you might miss those major things that were ignored. Like in the context of environmental law, I would say one of the major consistent themes of key failures and gaps has been environmental justice has almost entirely been ignored. And when it does get addressed, it's a very incremental way. But again, I keep coming back to this theme of our book, which is such a, to me an, uh, important thing to get my head around, but certainly for everyone, is that when you take a wider aperture, not just sort of like the wider aperture of history, but also of what environmental law is, is that environmental law is bigger than most people think. It's not just pollution control law and natural resources law, and that it can be. And certainly that humans interaction with the environment, both exploitation, development and protection, can take the form of civil rights law law, property law, zoning law, corporate law, consumer protection law, administrative law. It doesn't always. And so you might need to tweak the Clean Air act to deal with the thing. But it also might require us to rethink, especially when you're talking about massive issues like perhaps climate or AI or biotech or, um, environmental justice. It might require a wider aperture.

Speaker A: Well, I love the idea of asking lawyers who may not think of themselves as environmental lawyers to think about how their areas of law could be used to further environmental justice or environmental progress or just address climate change in general. And so I have to wonder, Alejandro, when you've talked to people about your book, are the responses generally people excited about the possibilities for change or daunted by, you know, what may be required? What's been the response so far?

Speaker F: It's definitely been positive. I think at least that from my experience it has been. We're still early days, as the book has only been out for a little bit of time. So I'm excited to find out what people think more generally. But I think the first reaction we get quite often, or that I get quite often is I didn't think about environmental law being this broad. I didn't think about it being about exploitation and protection and that environmental law could involve strands of corporate law or consumer protection, administrative law. I think that has been many ways the primary reaction, But I think the secondary sort of related reaction that I'm very pleased about is links to what sort of Briggs hope about what people would get from this, and that is potentially cautious hope that I think, given that our audience is intended to be the current and future leaders of thinking about how to address these sorts of problems, the current ones as well as emerging ones, is that they see that they can play a role in thinking through, addressing environmental, certainly on an incremental. In an incremental way. I mean, no one of us can address all the problems of the world. Even the most powerful people, uh, on this planet can't. It requires collective action. But each of us can play a role in whatever area of law that we're dealing with and thinking about both how to address things in a very incremental way, but in a broader way. And I think a lot of people really take that sort of call and have said thank you. But I think as Brig also Pointed out that it requires a little bit more than just thinking. Um, it requires really a mindset and incremental steps to actually help make this change occur.

Speaker A: Well, I can think just off the bat of three major accomplishments that I think could be attributed to incremental change in my lifetime. There was, you know, when I was in primary school, acid rain was something we were all very afraid of and talked about a lot. And maybe it's not eliminated, but I certainly, it's certainly so much better. The hole in the ozone layer and many of the animals who were endangered when I was a child have seen their populations rebound. So in my lived experience, things can get better. Brig, you come from Utah and I'm from the Midwest. And Alejandro, you're in California. What have been the sort of successes in your region that you've seen in your lifetime?

Speaker D: Well, there have been a lot. It's very interesting because this is true in my state of Utah, but it's also true in a lot of the surrounding states that a lot of the really big gains in environmental protection oftentimes start with a, uh, very divisive fight. And then over time, people kind of come to terms and maybe even recognize, oh, this wasn't so bad after all. So we're seeing the. Within just say, for example, federal lands. We're seeing fights right now over Bears Ears National Monument and the Grand Staircase National Monument. And people are, you know, locally. It's a very divisive issue. You don't have to go back in time very far before what is now Arches national park was a national monument. And people were pulling their hair out over that one. And now it's, you know, about half the license plates in the state have delicate arch on them. And it's a point of great pride, and it's completely non controversial that we'd protect it. Of course we would. The other thing I'll say is just how much cleaner our air is now, uh, as compared to when I was a kid, when I was growing up. And it would snow. The first snow was often like, kind of had like a grayish or blackish tint to it. And we'd get a very. We still do get this winter inversion, but it used to be a very, very, very dense fog. And that fog was basically just people burning wood in their chimneys and also cars. And we've seen a lot of progress that way. You know, I think the other thing to say is a lot of what we can say as far as incremental changes, how much, um, more we're having energy Growth. And that energy growth tends to be not as pollutant, heavy as the, uh, old energy sources. The old energy sources waning off. First it was coal and wood being replaced by coal, and then, uh, coal being replaced by gas and gas being replaced by hydro and solar and geothermal and uh, all these, uh, wind in the state. There have been some incremental progress for sure, but we also have major challenges. And I think that's true of a lot of places in my home. It's Great Salt Lake, but a lot of people working very, very hard to try to fix those problems too. And I think that one of the things that I really came to appreciate in writing this book was with Alejandro is how much of those changes that I would have just taken for granted. There are stories and lives and energy that were spent in finding those bits and pieces of progress, Whether it's, uh, incremental changes or more large ones.

Speaker A: So, Alex, the idea of environmental justice was raised. Can we give listeners who may not be as familiar with this phrase, uh, more of an idea of what we're talking about when we say environmental justice?

Speaker D: Sure.

Speaker F: I mean, there are definitely many different definitions one might use. But I think it really is meant to capture the idea of that there are certain people who are disproportionately, uh, harmed and affected by environmental damage. And that typically it tends to be related to, uh, socioeconomic status, those who are poorer or more marginalized, as well as communities of color. And it's a theme that actually begins in the first chapter of the book. Because in many ways many of us are familiar with the fact that maybe we wouldn't call it a, uh, question of environmental justice, but that our history has begun with harms falling of our exploitation and development falling on those outside the law's protection, namely Native Americans and of course African Americans who were treated as property and not even as resources to exploit. Um, but that. That theme, of course, that was the most extreme version of environmental injustice. But that. That theme carried through in the progressive era, where, uh, even though there were great movements in environmental law to protect health and safety and public lands, that it was an era also of explicit exclusion of non Western European immigrants and people of color from the environmental benefits that carries forward in the modernization era even into the environmental era, where we have massive environmental change and legal innovations. But really environmental justice was entirely ignored. In the contested era. We do see incremental moves towards environmental justice. But even today, just like climate change, just like emerging technologies, environmental justice remains largely unresolved issue. Despite things Like Standing Rock, where indigenous communities stand up for legal and political change. We still see it as a key, important issue that remains unresolved. One of the most persistent failures of the environmental legal system.

Speaker A: Well, even the phrase from the wrong side of the tracks we can trace back to an environmental justice issue. Uh, we didn't touch on it in our conversation. But the laying of railroads involved a great deal of environmental law, resource management type type decisions. And the wrong side of the tracks was where the government decided to put the less desirable industries, the more polluting industries. You're going to have to live next to the slaughterhouse, et cetera.

Speaker F: Definitely. And same thing with roads. I mean, roads were explicitly placed. Our interstate highway system explicitly was placed in areas that were both, uh, where land was cheaper, namely poorer communities, but also communities that were marginalized, uh, communities of color. So even among working class communities, the ones that were disproportionately chosen to be taken and used for roads were communities of color.

Speaker A: So, Brig, when we're talking about current issues or things that are going to be of great concern in the future, something I see talked about a lot are data centers. It's one of the reasons that I don't care for AI uh as it's currently being produced. Could you talk about environmental law? When it comes to resource rapacious industries like AI uh and data centers, One

Speaker D: of the things that I think we're going to have to face as a people is the reality that as we move forward, we both have the potential of technical innovations that can, for better or worse, take a lot of the tasks that we currently do and simplify them. That might mean job redundancies and other things. It isn't always a positive thing for sure, as we think about what does this mean for society. But the thing that has been so stunning over the last four or five years particularly is the real accelerated growth of not only how those technologies are being used, but how much resources they consume. So just as an example, there is a major data center that is being proposed in the northern part of Utah right now that would actually more than double our energy use as a state. It's actually stunning to think that one data center is going to use more energy than the 3.5 million people that live in the state already. And you know, I think the water piece of this is what a lot of people focus on. And when people think about water consumption of data centers, what they tend to be thinking about is the cooling of, of the, basically the chips and how much water that takes. What I would Say is that that's just a fraction of the water that is actually consumed. Because in most instances, unless you have an enormous source of renewable energy, it's going to take a lot more water to cool the gas fired power plants or heavens forbid, coal in our state than it's going to take for, you know, the coils themselves. But I think this is one of these things where it would have been very, very hard for me to imagine, uh, a decade ago that you could open up something like ChatGPT and ask it to do what it does. But it also, there's no free lunch here that we're going to have to at some point reckon with what this means for our resources. Now, in terms of our book, uh, I think that one of the things that the history of environmental law would suggest is that one of the reasons that environmental law changes in the way that it goes from one legal medium to another, we go from something like consumer protection to administrative law to corporate law or antitrust law or wherever, wherever environmental law has taken us is because we don't anticipate at the outset that the things that are going to be causing environmental destruction are the things that are causing environmental destruction. And I think that more and more we're starting to see the innovation of computer AI. More and more we're seeing it conflict with the world that we want to live in. Not just the world it creates, um, but the environmental consequences of that technology.

Speaker A: And touching on the legal imagination, I'm reminded in the book you talk about how there is or has been a lot of focus on environmental law at the federal level. But there are opportunities at the local and state level to make big impacts in environmental law.

Speaker D: Uh, absolutely. And we're seeing this with data centers. There are some local areas that are zoning out at this point. And I think that this is one of the things that one of the lessons you can take away from environmental law and how progress happens. It's very interesting that before 1970, the idea of federal environmental law was just not even really a thing.

Speaker F: Well, the word environmental law wasn't a thing, right?

Speaker D: Well, sure, sure. But if you think about it, there were no big environmental organizations in Washington lobbying for the Clean Air act when it was passed. I mean, they just didn't have a presence in Washington. It wasn't even part of what was going on and it was all local. But what we've kind of seen over time is that innovators in policy might seek alternative fora, uh, to have some of these fights. And you're absolutely Right, Lee, that one of the ways that we're seeing that right now with AI is people are turning to our local government for help.

Speaker F: And you're seen actually as a perfect example of the. In many ways, it's a perfect example of legal imagination and legal change in the sense that legal imagination routinely involves impactful forms happening as experiments at a certain level, uh, like local or state level. And now we're seeing just recently that there are calls perhaps, and in fact there's political interest as well as, uh, direct representatives who are proposing potentially national moratoria on data centers. So it's a perfect example of sort of the multiscaler aspect of legal development and legal imagination playing a role in that.

Speaker D: Absolutely, yeah.

Speaker A: And Alejandro, I'd like to close out by asking you specifically about the young people. I mean, you both are teachers. There's a young person in my life, Ava Hensley. Shout out to her. She just graduated from high school and her plan is to devote her career to being an environmental policy person working in, uh, political areas to affect environmental law change. And it's great to see young people, 17, 18 year olds, so excited to do this work. So when you look at the youth of today or talk to your students about it, are you seeing a will for change? Are you hopeful that, uh, they'll be able to do something about our warming planet?

Speaker F: Yes. Uh, I mean, I think there's no doubt that there are massive environmental challenges ahead of us. But I think in looking at our legal history, our environmental history, and the sort of intersection between them and the United States, we see real reason for cautious hope. I mean, the most impactful environmental reforms, as Brig was referring to, whether you're talking about Utah or in the Midwest or in California, there was resistance to them. Industry often pointing out, saying the sky was falling and that, uh, they would major resistance and major sort of of calls that these things would be problems and that they couldn't be done, but that these seemingly insurmountable environmental challenges were surmounted. Uh, and maybe not perfectly, maybe not completely, but they were addressed and they were addressed through a combination of social movements, yes, by unfortunately, disasters that sort of sparked action by opportunism, by politicians, by social movements, but that again, I keep coming back to this idea of legal imagination that. But because the US in facing seemingly insurmountable environmental challenges, that many of the people involved in those movements sometimes despaired, sometimes thought this was not possible to address, and many times received resistance from industry and others who really were trying to prevent this sort of action. But that through leadership coalition, social movements, information technology, and of course, what we like to say, the legal imagination and the willingness to think outside the box, that together we can do something to address the major problems. It is still an open question whether the country has the collective will to mount the next wave. But that is where people like your special person and those that are out there, our students, et cetera, can really play a role that rolling up our sleeves and using your brain and using your voice and your pen can make a difference. And collectively, ideas can germinate, prove out and scale. Smaller ideas at the state or local level can become big things. That's exactly what happened in the past. We were talking about park designations, air regulations, citizen lawsuits. Those things all happen at a ground level. And that eventually became the spark for major change.

Speaker A: Well, I want to thank both Brig and Alejandro.

Speaker H: Ah.

Speaker A: For talking with us on this episode of, uh, the Modern Law Library. Gentlemen, if people are interested in talking to you more about these topics, is there any website or contact information you'd like to share? Alex, I'll start with you.

Speaker F: Yes, certainly our book is available at all fine book establishments, but certainly you can get it directly from our publisher, NYU Press, which has put together a website for the book, as well as some infographics that I think are quite useful for just introducing people who are even less familiar with environmental history or the law to get idea of the themes of the book. But certainly we each have our websites, our social media platforms, et cetera. Uh, but I think the NYU Press book, uh, website is certainly a great place to go. And of course, Barnes and Noble, Amazon, et cetera. Those definitely. And local bookstores as well, should be a great place to start.

Speaker A: And if people want to reach out directly to you. Brigham, do you have any contact information you'd like to share?

Speaker D: Let me just give you my email address. It's Brigham B R I G H A M M Daniels D A N I E L S at uh, Law Utah. Edu.

Speaker A: Thank you so much. And Alex, how about you?

Speaker F: Sure. It would be Camacho. My last nameaw ucla. Edu. Go Bruins.

Speaker A: Well, thank you again to Brig and to Alejandro for speaking with us on, um, this episode of the Modern Law Library. If you enjoyed this episode, please rate, review and subscribe in your favorite podcast listening service. And if you have a book that you think our listeners would love to hear about, you can always reach me at Modern Law libraryegaltalknetwork.comm.

Speaker J: The views expressed by participants and sponsors of this program are their own and do not necessarily reflect the positions of their employers, Legal Talk Network Infotrack, or their respective employees or associates. Content provided in this podcast is for general informational and educational purposes only and may not be accurate, complete or up to date. This program does not constitute legal, financial or tax advice. Do not act or refrain from acting upon this information without first consulting a licensed attorney or other qualified professional.