Skip to main content
×
×
Home

Environmental Law and the End of the New Deal Order

  • Paul Sabin
Extract

“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.

Copyright
Corresponding author
paul.sabin@yale.edu
References
Hide All

1. David Sive, “Pioneering Environmental Lawyer and Atlantic Chapter Leader, 1961–1982,” an oral history conducted in 1982 by Ann Lage, in Sierra Club Leaders II, 1960s–1970s (Berkeley: Regional Oral History Office, University of California, 1984), 29, 32. For the broader context of environmental law and politics, see, Richard J. Lazarus, The Making of Environmental Law (Chicago: University of Chicago Press, 2004); Richard J. Lazarus and Oliver A. Houck, Environmental Law Stories (New York: Foundation Press, 2005); James Salzman and Barton H. Thompson, Jr., Environmental Law and Policy, 3rd ed. (New York: Foundation Press/Thomson Reuters, 2010); Karl Boyd Brooks, Before Earth Day: The Origins of American Environmental Law, 1945–1970 (Lawrence: University Press of Kansas, 2009); Christopher J. Bosso, Environment, Inc.: From Grassroots to Beltway (Lawrence: University Press of Kansas, 2005); Scott Hamilton Dewey, Don't Breathe the Air: Air Pollution and U.S. Environmental Politics, 1945–1970 (College Station, TX: Texas A&M University Press, 2000); James Morton Turner, The Promise of Wilderness: American Environmental Politics since 1964 (Seattle: University of Washington, 2012); J. Brooks Flippen, Nixon and the Environment (Albuquerque: University of New Mexico Press, 2000); J. Brooks Flippen, Conservative Conservationist: Russell E. Train and the Emergence of American Environmentalism (Baton Rouge: Louisiana State University Press, 2006); Paul Milazzo, Unlikely Environmentalists: Congress and Clean Water, 1945–1972 (Lawrence: University Press of Kansas, 2006); Peter A. Coates, The Trans-Alaska Pipeline Controversy: Technology, Conservation, and the Frontier (Bethlehem, PA: Lehigh University Press, 1991); John Wargo, Green Intelligence: Creating Environments That Protect Human Health (New Haven: Yale University Press, 2009); Nancy Langston, Toxic Bodies: Hormone Disruptors and the Legacy of DES (New Haven: Yale University Press, 2010); Zygmunt J. B. Plater, The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River (New Haven: Yale University Press, 2013); Philip Shabecoff, A Fierce Green Fire: The American Environmental Movement (New York: Hill & Wang, 1993); Samuel P. Hays, Beauty, Health, and Permanence: Environmental Politics in the United States, 1955–1985 (Cambridge: Cambridge University Press, 1987); Robert Gottlieb, Forcing the Spring: The Transformation of the American Environmental Movement (Washington, DC: Island Press, 2005); and Thomas R. Dunlap, DDT: Scientists, Citizens, and Public Policy (Princeton: Princeton University Press, 1981). For a skeptical assessment of the role of law and courts in environmental change, see Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (Chicago: University of Chicago, 1991), 269–92.

2. For an assessment of Earth Day's wide-ranging impact, see Adam Rome, The Genius of Earth Day: How a 1970 Teach-in Unexpectedly Made the First Green Generation (New York: Hill and Wang, 2013); for an account of the environmental law groups that places them in the context of shifting American governance and administrative procedures, see Richard N. L. Andrews, Managing the Environment, Managing Ourselves: A History of American Environmental Policy, 2nd ed. (New Haven: Yale University Press, 2006), 218–21. Many environmental law initiatives, including the new Environmental Law Institute's Environmental Law Reporter, were stimulated by a pivotal September 1969 conference in Virginia. For a report on the 1969 Airlie conference, see Conservation Foundation (Malcolm F. Baldwin and James K. Page, eds.) Law and the Environment (New York: Walker, 1970); see also, Lazarus, Making of Environmental Law, 47–48. For Moorman's comments on NEPA, see, James W. Moorman, Attorney for the Environment, 1966–1981: Center for Law and Social Policy, Sierra Club Legal Defense Fund, Department of Justice Division of Lands and Natural Resources, an oral history conducted in 1984 by Ted Hudson, (Berkeley: Regional Oral History Office, University of California, 1994), 57. For an early review of environmental law activities, see Carter, Luther J., “Conservation Law I: Seeking a Breakthrough in the Courts,Science 166 (1969): 1487–491; for use of the Refuse Act, see, for example, David Sive's work on Hudson River pollution, as discussed in Robert D. Lifset, Power on the Hudson: Storm King Mountain and the Emergence of Modern American Environmentalism (Pittsburgh: University of Pittsburgh Press, 2014), 130–50. Relevant organizational histories and autobiographies include: Tom Turner, Wild by Law: The Sierra Club Legal Defense Fund and the Places It Has Saved (San Francisco: Sierra Club Legal Defense Fund in association with Sierra Club Books, 1990); Charles Halpern, Making Waves and Riding the Currents: Activism and the Practice of Wisdom (San Francisco: Berrett–Koehler Publishers, 2008); James Gustave Speth, Angels by the River: A Memoir (White River Junction, VT: Chelsea Green Publishing, 2014); John H. Adams, Patricia Adams, and George Black, A Force for Nature: The Story of NRDC and the Fight to Save Our Planet (San Francisco: Chronicle Books, 2010); Marion Lane Rogers, Acorn Days: The Environmental Defense Fund and How It Grew (New York: Environmental Defense Fund, 1990); and Barbara Craig, Courting Change: The Story of the Public Citizen Litigation Group (Washington, DC: Public Citizen Group, 2004). For an early assessment of NEPA, see Richard A. Liroff, A National Policy for the Environment: NEPA and Its Aftermath (Bloomington: Indiana University Press, 1976).

3. Brooks, Before Earth Day, 17–39; Karl Boyd Brooks, Public Power, Private Dams: The Hells Canyon High Dam Controversy (Seattle: University of Washington Press, 2006); and David Sive, “Pioneering Environmental Lawyer,” 10–14.

4. For nuclear testing, pesticides, and auto safety, see, for example, Commoner, Barry, “The Fallout Problem,Science, New Series, 127 (1958): 1023–26; Commoner, Science and Survival (New York: Viking Press, 1966); Rachel Carson, Silent Spring (Boston: Houghton Mifflin Company, 1962); and Ralph Nader, Unsafe at Any Speed; the Designed-in Dangers of the American Automobile (New York: Grossman, 1965); see also, Wargo, Green Intelligence.

5. For discussion of the “New Deal Order,” see Steve Fraser and Gary Gerstle, eds. The Rise and Fall of the New Deal Order, 1930–1980 (Princeton: Princeton University Press, 1989). For a critique of the idea of a “New Deal Order” based on uneven political development in a federalist system, see Weir, Margaret, “States, Race, and the Decline of New Deal Liberalism,Studies in American Political Development 19 (2005): 157–72.

6. For recent surveys of the history of conservatism, see Phillips–Fein, Kim, “Conservatism: A State of the Field,Journal of American History 98 (2011): 723–43, and the accompanying forum; Zelizer, Julian E., “Reflections: Rethinking the History of American Conservatism,Reviews in American History 38 (2010): 367–92. For select monographs, see Kim Phillips–Fein, Invisible Hands: The Making of the Conservative Movement from the New Deal to Reagan (New York: W.W. Norton & Company, 2009); Bethany Moreton, To Serve God and Wal-Mart: The Making of Christian Free Enterprise (Cambridge, MA: Harvard University Press, 2009); Kevin Kruse, White Flight: Atlanta and the Making of Modern Conservatism (Princeton: Princeton University Press, 2005); Darren Dochuk, From Bible Belt to Sunbelt: Plain-Folk Religion, Grassroots Politics, and the Rise of Evangelical Conservatism (New York: W.W. Norton, 2011); Lisa McGirr, Suburban Warriors the Origins of the New American Right (Princeton: Princeton University Press, 2001); Matthew D. Lassiter, The Silent Majority: Suburban Politics in the Sunbelt South (Princeton: Princeton University Press, 2006); Jason Morgan Ward, Defending White Democracy: The Making of a Segregationist Movement and the Remaking of Racial Politics, 1936–1965 (Chapel Hill: University of North Carolina Press, 2011); and Michelle M. Nickerson, Mothers of Conservatism: Women and the Postwar Right (Princeton: Princeton University Press, 2012). For the disintegration of the New Deal coalition, see, for example, Robert O. Self, American Babylon: Race and the Struggle for Postwar Oakland (Princeton: Princeton University Press, 2003); Robert O. Self, All in the Family: The Realignment of American Democracy since the 1960s (New York: Hill and Wang, 2012); Thomas J. Sugrue, The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit (Princeton: Princeton University Press, 1996); Jefferson Cowie, Stayin’ Alive: The 1970s and the Last Days of the Working Class (New York: New Press, 2010); Jefferson Cowie and Salvatore, Nick, “The Long Exception: Rethinking the Place of the New Deal in American History,International Labor and Working-Class History 74 (2008): 332; and Klein, Jennifer, “A New Deal Restoration: Individuals, Communities, and the Long Struggle for the Collective Good,International Labor and Working-Class History 74 (2008): 4248. For environmental legislation as extension of an activist state, see Steven M. Teles, “Conservative Mobilization against Entrenched Liberalism,” in Paul Pierson and Theda Skocpol, eds. The Transformation of American Politics: Activist Government and the Rise of Conservatism (Princeton: Princeton University Press, 2007), 160–188; Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton: Princeton University Press, 2010); Bruce Schulman and Julian Zelizer, eds., Rightward Bound: Making America Conservative in the 1970s (Cambridge, MA: Harvard University Press, 2008), 7; and McGarity, Thomas O., “Regulatory Reform in the Reagan Era,Maryland Law Review 45 (1986): 253–73; for conservative public interest law, see also, Ann Southworth, Lawyers of the Right: Professionalizing the Conservative Coalition (Chicago: University of Chicago Press, 2008); Jefferson Decker, “Lawyers for Reagan: The Conservative Litigation Movement and American Government, 1971–87” (PhD diss., Columbia University, 2009); and McEvoy, Arthur F., “Environmental Law and the Collapse of New Deal Constitutionalism,Akron Law Review 46 (2013): 881908. McEvoy characterizes environmental law as “the New Deal's crowning achievement,” arguing that citizen suits and judicial review were innovations of the New Deal, rather than tools that undermined New Deal-era deference to agency-led development initiatives.

7. For Sutherland quotation, see, G. Christian Hill, “Stepping on Toes: Public-Interest Firm On a Winning Streak Shakes Up California,” Wall Street Journal, October 16, 1975, 1. Although beyond the scope of this article, public interest science drew on similar impulses as public interest law, including concern that executive agencies abused their monopoly on technical information and expertise. The Scientists' Institute for Public Information and the Union of Concerned Scientists were early groups founded to provide an independent counterpoint to government science. See, for example, Hippel, Frank von and Primack, Joel, “Public Interest Science,Science 177 (1972): 1166–71; Joel R. Primack and Frank Von Hippel, Advice and Dissent: Scientists in the Political Arena (New York: Basic Books, 1974); Brian Balogh, Chain Reaction: Expert Debate and Public Participation in American Commercial Nuclear Power, 1945–1975 (Cambridge: Cambridge University Press, 1991); and Michael Egan, Barry Commoner and the Science of Survival: The Remaking of American Environmentalism (Cambridge, MA: MIT, 2007). For a discussion of how public interest science could support public interest law, see, J. Anthony Kline to Sanford Jaffe, March 7, 1972, Natural Resources Defense Council Papers, Yale University Manuscripts and Archives (hereafter NRDC Papers), Accession 2012-M-055, MS 1965, Box 24: Folder 8. In addition to public interest law and science, new neighborhood movements blocked government redevelopment plans and sought instead to rehabilitate old buildings and cultivate a neighborhood identity. See, for example, Suleiman Osman, The Invention of Brownstone Brooklyn: Gentrification and the Search for Authenticity in Postwar New York (New York: Oxford University Press, 2011). In the area of economic regulation, resistance grew to government economic controls that were seen to hamper entire economic sectors, serve narrow corporate interests, or just be economically inefficient. See Richard H. K. Vietor, Contrived Competition: Regulation and Deregulation in America (Cambridge: Belknap Press of Harvard University Press, 1994); and Thomas K. McCraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge, MA: Harvard University Press, 1984), 222–99.

8. For the unsustainability of a legal services model funded by government and the turn to public interest law firms as an alternative, see Anthony Kline, interview with the author, New Haven, CT, October 24, 2014. For “sue the bastards,” see, for example, Victor J. Yannacone's Earth Day speech: “What do you do when a municipality decides that the highest and best use of a mighty river is an open sewer? What do you do when the Army Corps of Engineers or the Bureau of Reclamation decides to drown the Grand Canyon or most of central Alaska, or insists on destroying the delicate ecological balance of an entire state like Florida? Just what can you do? SUE THE BASTARDS!” Victor J. Yannacone, “Sue The Bastards,” Michigan State University, East Lansing, MI, April 22, in Environmental Action, Earth Day: The Beginning: a Guide for Survival (New York: Arno Press, 1970), 211–12; Noel A. Cazenave, Impossible Democracy: The Unlikely Success of the War on Poverty Community Action Programs (Albany: State University of New York Press, 2007); Frances Fox Piven and Richard A. Cloward, Regulating the Poor; the Functions of Public Welfare (New York: Pantheon Books, 1971), 262–63; and Rabin, Robert L., “Federal Regulation in Historical Perspective,Stanford Law Review 38 (1986): 11891326.

9. For a discussion of the lawyers' disillusionment with corporate law and their aspiration to contribute to social change through the law, see “Ardent Courtships,” Time 93 (April 18, 1969): 79; Halpern, Making Waves and Riding the Currents, 53–56; Speth, Angels by the River, 145–58; Gus Speth to Whitney North Seymour, Jr., January 12, 1970, NRDC Papers, Accession 2012-M-055, MS 1965, Box 24: Folder 8; Adams, Adams, and Black, A Force for Nature, 19 (“I hated the work and managed to survive by starting a softball team and taking on legal aid cases”); for “abuse of nature,” see, “The Environmental Legal Defense Fund, Speth, First Draft, 11/6/68,” NRDC Papers, Accession 2012-M-055, Administrative Executive Director John H. Adams Records, MS 1965, Box 24: Folder 8; John H. Adams, “Responsible Militancy––The Anatomy of a Public Interest Law Firm,” Record of the Association of the Bar of New York (1971): 631–45; for representation of the “unrepresented,” see, CLASP, “Proposal to the Ford Foundation,” April 24, 1970, 1, Ford Foundation Archive (hereafter FFA), Grants, Reel 4683.

10. Key administrative law cases include: Sierra Club v. Morton, 405 U.S. 727 (1972) (legal standing); Vermont Yankee Nuclear Power Corp. vs. NRDC, 435 U.S. 519 (1978) (procedural requirements); Morrison v. Olson, 487 U.S. 654 (1988) (independent counsel and executive/congressional power); Gade v. National Solid Wastes Management Association, 505 U.S. 88 (1992) (pre-emption); and Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (judicial review of agency decisions). Even cases that the lawyers lost left a lasting mark; see, for example, Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984) (judicial deference to agency decisions).

11. Thomas K. McCraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Harvard University Press, 1984), 152; Peter H. Irons, The New Deal Lawyers (Princeton Princeton University Press, 1982); James McCauley Landis, The Administrative Process (New Haven: Yale University Press, 1938); Morton J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 220; Rabin, “Federal Regulation in Historical Perspective”; Schiller, Reuel E., “The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law,Michigan Law Review 106 (2007): 399441; and John M. Jordan, Machine-Age Ideology: Social Engineering and American Liberalism, 1911–1939 (Chapel Hill: University of North Carolina Press, 1994). For the variety of meanings of the New Deal, see, for example, Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York: W.W. Norton & Company, 2013); Colin Gordon, New Deals: Business, Labor, and Politics in America, 1920–1935 (Cambridge: Cambridge University Press, 1994); Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York: Knopf, 1995); Fraser and Gerstle, The Rise and Fall of the New Deal Order; Jennifer Klein, For All These Rights: Business, Labor, and the Shaping of America's Public-Private Welfare State (Princeton: Princeton University Press, 2006); Jason Scott Smith, Building New Deal Liberalism: The Political Economy of Public Works, 1933–1956 (New York: Cambridge University Press, 2006); and Sarah T. Phillips, This Land, This Nation: Conservation, Rural America, and the New Deal (New York: Cambridge University Press, 2007).

12. Smith, Building New Deal Liberalism; Phillips, This Land, This Nation; David Eli Lilienthal, TVA; Democracy on the March (New York: Harper and Brothers, 1944), 8, 48, 223; Finis Dunaway, Natural Visions: The Power of Images in American Environmental Reform (Chicago: University of Chicago Press, 2005), 77–86; Ekbladh, David, “‘Mr. TVA’: Grass-Roots Development, David Lilienthal, and the Rise and Fall of the Tennessee Valley Authority as a Symbol for U.S. Overseas Development, 1933–1973,Diplomatic History 26 (2002): 335–74; and Henry Steele Commager, The American Mind: An Interpretation of American Thought and Character Since the 1880's (New Haven: Yale University Press, 1950), 344–45. For an influential early critique of Robert Moses-style urban development, see, Jane Jacobs, The Death and Life of Great American Cities (New York: Random House, 1961); for the classic account of Moses' deployment of agency power, see, Robert A. Caro, The Power Broker: Robert Moses and the Fall of New York (New York: Knopf, 1974); for a more recent revisionist account of Moses' contributions to New York's development, see, Hilary Ballon and Kenneth T. Jackson, eds. Robert Moses and the Modern City: The Transformation of New York (New York: W. W. Norton & Co, 2007).

13. Interview by the author with Ralph Cavanagh, New Haven, CT, September 26, 2013. Cavanagh joined NRDC in 1979, after the initial launch of the organization, shaped by the strong public interest orientation of Yale Law School. For a survey of TVA's evolution as a power company and increasing litigation against the agency, see, Wilmon H. Droze, “The TVA, 1945–80: The Power Company,” and Dean Hill Rivkin, “TVA, the Courts, and the Public Interest,” in Erwin C. Hargrove and Paul Keith Conkin, eds., TVA, Fifty Years of Grass-Roots Bureaucracy (Urbana: University of Illinois Press, 1983), 66–85, 194–229; for the shift of TVA into an agent of Southern industrialization and military development, see Bruce J. Schulman, From Cotton Belt to Sunbelt: Federal Policy, Economic Development, and the Transformation of the South, 1938–1980 (New York: Oxford University Press, 1991), 91–93; see also Erwin C. Hargrove, Prisoners of Myth: The Leadership of the Tennessee Valley Authority, 1933–1990 (Princeton: Princeton University Press, 1994), 155–94; and William U. Chandler, The Myth of TVA: Conservation and Development in the Tennessee Valley, 1933–1983 (Cambridge, MA: Ballinger Publishing Co, 1984), 115–54.

14. Sierra Club Legal Defense Fund (SCLDF), Inc. and Sierra Club, “Legal Program Accomplishments During Period August 1, 1971–August 1, 1973,” FFA SCLDF Reel 2154; Environmental Defense Fund, “A Proposal to the Ford Foundation: October 5, 1972, Attachment 1,” FFA EDF Reel 2587 grant files; and Ed Strohbehn to Executive Committee, “Analysis of NRDC Legal Action Initiatives,” July 28, 1971, NRDC Papers, Accession 2012-M-055, Box 23: Folder 1.

15. Citizens to Preserve Overton Park v. Volpe, 405; for “official indifference and hostility,” see, J. William Futrell, “Love for the Land and Justice for its People’: Sierra Club National and Southern Leader, 1968–1982,” an oral history conducted in 1982 by Ann Lage, in Sierra Club Leaders II, 1960s–1970s (Berkeley: Regional Oral History Office, University of California, 1984), 41 (quoting 1972 Senate testimony); and Peter Strauss, “Citizens to Preserve Overton Park v. Volpe––Of Politics and Law, Young Lawyers and the Highway Goliath,” in Peter Strauss, ed. Administrative Law Stories (New York: Foundation Press, 2005), 258–333. Other highway disputes litigated by the Sierra Club included a coastal highway south of San Francisco, the Hayward Freeway outside Oakland, the Century Freeway in Los Angeles, the Copper River highway in Alaska, and an expressway through Leaking Park in Baltimore. See Sierra Club Legal Defense Fund, Inc. and Sierra Club, “Legal Program Accomplishments During Period August 1, 1971–August 1, 1973,” FFA SCLDF Reel 2154, 44–49. Over a period of 18 months in the early 1970s, Anthony Kline, cofounder of Public Advocates, another Ford-funded law firm, helped stop freeway projects in nine different states. Legal protections against the displacement of low-income people from federally financed projects were so definitive, although previously unobserved, that “you couldn't lose these lawsuits,” Kline recalled in an 2014 interview. Anthony Kline interview. For the battle over Westway in New York City, see, William W. Buzbee, Fighting Westway: Environmental Law, Citizen Activism, and the Regulatory War That Transformed New York City (Ithaca: Cornell University Press, 2014).

16. Sierra Club v. California Coastal Zone Conservation Commission, Deane & Deane, et al. (country club); Sierra Club, et al. v. Morton, et al. (Jim Bridger power plant); Sierra Club, et al. v. Edward P. Cliff, et al. (ski lifts), in Sierra Club Legal Defense Fund, Inc. and Sierra Club, “Legal Program Accomplishments During Period August 1, 1971–August 1, 1973,” FFA SCLDF Reel 2154, 5, 11, 30. For the pipeline case, see Wilderness Society v. Hickel, 325 F. Supp. 422 (1970) (citing NEPA as well as the Mineral Leasing Act of 1920's pipeline right of way provisions); subsequent litigation included Wilderness Society v. Morton, 479 F. 2d 842 (D.C. Cir., 1973) and Alyeska Pipeline Svc. Co. v. Wilderness Society 421 U.S. 240 (1975) (denying attorney fees to the environmental litigants for more than 4,000 hours of attorney time). As an example of the close ties among the law firms, CLASP, NRDC, SCLDF, and EDF all worked together in the extensive litigation that followed the initial lawsuit and temporary injunction.

17. Scheiber, Harry N., “The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts,Perspectives in American History 5 (1971):327402; Harry N. Scheiber, “Affected With a Public Interest,” in Encyclopedia of the American Constitution. 2nd ed., Vol. 1, eds. Leonard W. Levy and Kenneth L. Karst(Detroit: Macmillan Reference USA, 2000) 52–53.

18. Friendly blamed a lack of clear standards for what he saw as administrative malaise, inconsistency, and lack of independence. Henry J. Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards (Cambridge, MA: Harvard University Press, 1962); and James M. Landis, Report on Regulatory Agencies to the President-elect (Washington, DC: United States Government Printing Office, 1960), 71; see also, Jaffe, Louis L., “The Effective Limits of the Administrative Process: A Reevaluation,Harvard Law Review 67 (1954): 1105–35; and Jaffe, Louis L., “The Independent Agency. A New Scapegoat,Yale Law Journal 65 (1956): 1068–76. For references to Landis's critique by pioneers in public interest law, see, Halpern, Charles R. and Cunningham, John M.. “Reflections on the New Public Interest Law: Theory and Practice at the Center for Law and Social Policy,Georgetown Law Journal 59 (1970–71): 1095–126; Berlin, Edward, Roisman, Anthony Z., and Kessler, Gladys. “Public Interest Law,George Washington Law Review 38 (1969–70): 675–93; Lazarus, Simon and Onek, Joseph, “The Regulators and the People,Virginia Law Review 57 (1971): 1069–108; and Sierra Club v. Morton, 405 U.S. 727 (1972): 746–47.

19. Robert Alan Dahl, Who Governs? Democracy and Power in an American City (New Haven: Yale University Press, 1961); Grant McConnell, Private Power & American Democracy (New York: Knopf, 1966), 338–39; Henry S. Kariel, The Decline of American Pluralism (Stanford: Stanford University Press, 1961); Gabriel Kolko, Railroads and Regulation, 1877–1916 (Princeton: Princeton University Press, 1965); Gabriel Kolko, The Triumph of Conservatism; A Re-interpretation of American History, 1900–1916 (New York: Free Press of Glencoe, 1963); Reich, Charles A., “The New Property,Yale Law Journal 73 (1964): 733–87; Charles A. Reich, The Greening of America: How the Youth Revolution Is Trying to Make America Livable (New York: Random House, 1970), 18; and Citron, Roger, “Charles Reich's Journey from the Yale Law Journal to the NYT Best-Seller List,New York Law School Law Review 52 (2007–8): 387416. For a recent review of “capture” theory pointing to its pre-twentieth century antecedents, see, William Novak, “A Revisionist History of Regulatory Capture,” in Preventing Regulatory Capture: Special Interest Influence and How to Limit it, eds. Daniel Carpenter and David Moss (New York: Cambridge University Press, 2013), 25–48. For Reich's influence on Charles Halpern, James Gustave Speth, and Anthony Kline, see, Halpern, Making Waves and Riding the Currents, 58–59; Speth, Angels by the River, 154–55; James Gustave Speth, Interview by the Author, New Haven, CT, October 2, 2014; and Anthony Kline, interview by the author, New Haven, CT, October 24, 2014. For an extensive discussion of the turn toward judicial oversight of administrative law, see, Schiller, Reuel, “Enlarging the Administrative Polity: Administrative Law and the Changing Definition of Pluralism, 1945–1970” Vanderbilt Law Review 53 (2000): 1389–453; Galanter presented his ideas at a Yale Law School seminar in the fall of 1970, and subsequently published them in Galanter, Marc, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,Law & Society Review 9 (1974): 95160; several of Reich's students jointly authored a student note discussing the emergence of the field and its connection to developments in political science: Borosage, Robert, Brown, Barbara, Friedman, Paul, Gewirtz, Paul, Jeffress, William, and Kelly, William, “The New Public Interest Lawyers,Yale Law Journal 79 (1970): 1069–152, 1070, fn. 1 and 3. For Yale Law School's distinctive environment, which led to many seeking careers in public interest law, see Laura Kalman, Yale Law School and the Sixties: Revolt and Reverberations (Chapel Hill: University of North Carolina Press, 2005).

20. David Sive, “The Role of the Natural Resources Defense Council,” Princeton Inn, March 21, 1970, NRDC Papers Accession 2013-M-056, MS 1965, Box 18: Folder 19; Roderick Cameron, Executive Director of the Environmental Defense Fund, complained similarly in 1970 that the government was “extraordinarily vulnerable to the accrual of political power” by “narrow but powerful economic interests. Indeed we seem to be more a democracy of economic interests than of private citizens.” Industries could develop their technical knowledge and articulate their desires. “Too often the public concern, the ecological considerations, the broader public interests go unheard.” Roderick Cameron, “Demonstrate,” State University of New York, Stony Brook, N.Y. April 22, 1970, in Environmental Action, Earth Day: The Beginning, 194

21. Victor J. Yannacone, “Sue The Bastards,” in Environmental Action, Earth Day: The Beginning, 205, 210.

22. Carson, Silent Spring, 155–72; Joshua Blu Buhs, The Fire Ant Wars: Nature, Science, and Public Policy in Twentieth-Century America (Chicago: University of Chicago Press, 2004); Helen Leavitt, Superhighway––Superhoax (Garden City, NY: Doubleday, 1970); Simmons, Bob, “The Freeway Establishment,Cry California 3 (1968), 3138; and Mohl, Raymond A., “The Interstates and the Cities: The U.S. Department of Transportation and the Freeway Revolt, 1966–1973,Journal of Policy History 20 (2008): 193226; for an account of the decades-long political struggle to insulate California highway user funds from competing state demands, see, Paul Sabin, Crude Politics: The California Oil Market, 1900–1940 (Berkeley: University of California Press, 2005), 159–201.

23. Denis Hayes, “The Beginning,” Sylvan Theater, Washington, D.C., April 22, 1970, in Environmental Action, Earth Day: The Beginning, preface; Joseph L. Sax to Gordon Harrison, August 28, 1968, Reel: 1359, Grant # 68-906, Section 1, FFA; Joseph L. Sax to Frank J. Barry, July 15, 1968, Reel 1359, Grant 68-906, Section 4, FFA; and CLASP, “Proposal to the Ford Foundation,” April 24, 1970, FFA, Grants, Reel 4683, 1–2.

24. CLASP, “Proposal to the Ford Foundation,” April 24, 1970, 3, FFA, Grants, Reel 4683; Harry M. Caudill to Mr. And Mrs. Dudley, June 8, 1971, in NRDC Papers, Accession 2013-M-064, MS 1965, Box 4: Folder 9; Laurance Rockefeller to Mr. And Ms. Picker, January 10, 1972, NRDC Papers, Accession 2013-M-064, MS 1965, Box 4: Folder 1.

25. “The New Public Interest Lawyers,” Yale Law Journal, 1069; Louis Jaffe, “The Role of the Law and Courts,” in summary of a panel on environmental law at the Princeton conference, March 1970, in NRDC Papers Accession 2013-M-056, MS 1965, Box 18: Folder 16; and Adams, “Responsible Militancy,” 634.

26. Interview with McGeorge Bundy, Ford Foundation Oral History Project, New York, NY, March 5, 1974, FFA; interview with Gordon A. Harrison, Ford Foundation Oral History Project, New York, NY, March 21, 1972, FFA, 35.

27. Office of Communication of the United Church of Christ, et al., v. Federal Communications Commission, 359 F.2d 994 (D.C. Cir. 1966), 1003, 1005. More recently, as the Supreme Court has become more conservative, liberal attitudes toward the courts have switched again. David J. Barron has noted the development, more recently, of a progressive “anti-court” position. See David J. Barron, “What's Wrong With Conservative Constitutionalism? Two Styles of Progressive Constitutional Critique and the Choice They Present,” Harvard Law and Policy Review Online, October 7, 2008. https://web.archive.org/web/20081007195035/ http://www.hlpronline.com/2006/07/barron_01.html Accessed on September 15, 2015; see also Benson, Josh, “The Past Does Not Repeat Itself, but It Rhymes: The Second Coming of the Liberal Anti-Court Movement,Law & Social Inquiry 33 (2008): 1071–110.

28. Burger acknowledged that his decision to enlarge the scope of intervention could lead to “spurious petitions from private interests” that might “sometimes cloak themselves with a semblance of public interest advocates.” But Burger expressed confidence that the FCC could distinguish between legitimate and illegitimate claims to represent public interests. United Church of Christ, et al. v. Federal Communications Commission, 1006; Kay Mills, Changing Channels: The Civil Rights Case That Transformed Television (Jackson, MS: University Press of Mississippi, 2004); Shapiro, Sidney A., “United Church of Christ v. FCC: Private Attorneys General and the Rule of Law,Administrative Law Review 58 (2006): 939–60; and Charles Halpern, interview by the author, February 15, 2010, Berkeley, California. In their application to the Ford Foundation, CLASP founders argued that Burger's “landmark decision … underscored the need for public interest advocacy.” CLASP, “Proposal to the Ford Foundation,” April 24, 1970, FFA, Grants, Reel 4683, 3.

29. For the courts as leaders in an effort to reform agency practices, see, R. Shep Melnick, Regulation and the Courts: The Case of the Clean Air Act (Washington, DC: Brookings Institution, 1983), 3–4; Stewart, Richard B., “The Reformation of American Administrative Law,Harvard Law Review 88 (1975): 1667–813; and Merrill, Thomas W., “Capture Theory and the Courts: 1967–1983,Chicago–Kent Law Review 72 (1997): 1039–117. John Kenneth Galbraith, The Affluent Society (Boston: Houghton Mifflin, 1958). Adam Rome discusses Galbraith and Arthur Schlesinger's impact on environmental politics in Rome, Adam, “‘Give Earth a Chance’: The Environmental Movement and the Sixties,Journal of American History 90 (2003): 525–54; see also, Hays, Beauty, Health, and Permanence. For the classic article arguing for standing for nonhuman elements of nature, which the courts did not embrace, see Stone, Christopher, “Should Trees Have Standing? ––Toward Legal Rights for Natural Objects,Southern California Law Review 45 (1972): 450501.

30. Scenic Hudson Pres. Conf. v. Federal Power Commission, 354 F.2d 608 (1965): 616; Sive, “Pioneering Environmental Lawyer and Atlantic Chapter Leader, 1961–1982”; Rubinowitz, Leonard S., “Of Birds, Bees, and the FPC,Yale Law Journal 77 (1967): 117–38; and Bonine, John E., “Private Public Interest Environmental Law: History, Hard Work, and Hope,Pace Environmental Law Review (2009): 465–91, 466. For an in-depth account of the Storm King fight and its broader implications for environmental law and politics, see, Lifset, Power on the Hudson.

31. Udall vs. FPC, 387 U.S. 428 (1967), 450, 444, 451. In a somewhat ironic twist, it was Douglas's faith in the potential of nuclear power that bolstered his confidence that the hydroelectric dams were not urgently needed. See also, Brooks, Before Earth Day, 149–57.

32. Sive, David, “Some Thoughts of an Environmental Lawyer in the Wilderness of Administrative Law,Columbia Law Review 70 (1970): 612–51; Roderick Cameron, “Demonstrate,” State University of New York, Stony Brook, NY April 22, reprinted in Environmental Action, Earth Day: The Beginning, 193; James Moorman, remarks, “The Role of the Law and Courts,” summary of panel on environmental law at the Princeton conference, March 1970, in NRDC Papers Accession 2013-M-056, MS 1965, Box 18: Folder 16; and Victor J. Yannacone, “Sue The Bastards,” in Environmental Action, Earth Day: The Beginning, 210.

33. Rogin, Gilbert, “All He Wants To Save Is the World,Sports Illustrated 30 (February 3, 1969): 2429; “Address by Stephen P. Duggan, Chairman,” Princeton, NJ, March 20, 1970, in NRDC Papers Accession 2013-M-056, MS 1965, Box 18: Folder 14; Stephen P. Duggan, Jr. et al., to Mr. Ruth, December 17, 1970, in NRDC Papers Accession 2013-M-056, MS 1965, Box 18: Folder 4; Senator Clifford P. Case to David M. Kennedy (secretary of the treasury), October 15, 1970, NRDC Papers Accession 2013-M-056, MS 1965, Box 18, Folder 9; and “IRS and the Public Interest,” Washington Post, November 14, 1970, A16. Yale law professor Boris Bittker, an early NRDC supporter, similarly described the Yale law students' efforts to create NRDC as “an outstanding example of devotion to action within the established institutions of our society, during a period when despair and alienation were the prevailing mood on many campuses.” Boris Bittker to David M. Kennedy, Secretary of the Treasury, October 21, 1970, in White House Special Files (WHSF): John Dean: Subject File: Box 61, “Public Interest Law Firms,” Richard M. Nixon Presidential Library; Kalman, Yale Law School and the Sixties, 63–64. During the IRS controversy mentioned in the text, Bernard Wolfman, Dean of the University of Pennsylvania Law School and a tax law expert like Bittker, also wrote to Treasury Secretary Kennedy of the faculty's daily struggle to “gain student adherents to our view” that the American political and social system provides the “channels and mechanism that will permit the pursuit of change by persuasion, that violence, disruption and rebellion are unwarranted and destructive.” The creation of public interest law firms, the support for them by prominent foundations, and the courts' willingness to “hear their causes on the merits” have “provided stellar testimony to our credibility.” Bernard Wolfman to David M. Kennedy, October 16, 1970, in WHSF John Dean Box 61 “Public Interest Law Firms” Nixon Library.

34. Roderick Cameron, “Demonstrate,” in Environmental Action, Earth Day: The Beginning, 195; “Audubon Unit Votes For Funds to Back Conservation Suits,” New York Times, October 2, 1967, 49. Robert W. Gilmore, president of Center for War/Peace Studies and a director of the NAACP Legal Defense and Education Fund, served on the initial NRDC board of trustees. Mitchell Sviridoff to McGeorge Bundy, May 26, 1970, “Grant out of appropriation,” NRDC Papers, Accession 2012-M-055 Administrative. Executive Director John H. Adams Records, MS 1965, Box 24: Folder 12. For an overview of NAACP Legal Defense Fund and ACLU through early 1970s, see, Robert L. Rabin, “Lawyers for Social Change: Perspectives on Public Interest Law,” Stanford Law Review 28 (1976): 207–61; for a skeptical account of the role of the judiciary, see, Rosenberg, The Hollow Hope. For the influence of ACLU, NAACP, and Nader models, see, “The Environmental Legal Defense Fund, Speth, First Draft, 11/6/68” in NRDC Papers, Accession 2012-M-055 Administrative. Executive Director John H. Adams Records, MS 1965, Box 24: Folder 8; Gus Speth to Messrs. Reich, Lefcoe, Simon and Trubek, November 2, 1968, in NRDC Papers, Accession 2012-M-055 Administrative. Executive Director John H. Adams Records, MS 1965, Box 24: Folder 8; Speth, Angels by the River, 126; see also, Halpern, Making Waves and Riding the Currents, 54; “Morton Mintz, “The Thundering Silence of Drug Consumers,” Washington Post, November 26, 1967, B2; Nader, Unsafe at Any Speed, 342–43; Fred Zimmerman, “Auto Critic Shifts Gears: Ralph Nader Plans to Expand His Crusades By Opening Firm to Lobby for the Public,” Wall Street Journal, October 31, 1967, 34; and Charles Halpern, “The Public Interest Bar: An Audit,” in Ralph Nader and Mark J. Green, eds. Verdicts on Lawyers (New York: Crowell, 1976), 159. See also, Morton Mintz, America, Inc.: Who Owns and Operates the United States (New York: Dial Press, 1971). Nader's initial forays emphasized research, publicity, and legislative efforts, rather than direct litigation. See Edward Finch Cox, Robert C. Fellmeth, and John E. Schulz, The Nader Report on the Federal Trade Commission (New York: R.W. Baron, 1969); John C. Esposito, Vanishing Air; the Ralph Nader Study Group Report on Air Pollution (New York: Grossman Publishers, 1970); James S. Turner, The Chemical Feast; the Ralph Nader Study Group Report on Food Protection and the Food and Drug Administration (New York: Grossman Publishers, 1970); and Robert C. Fellmeth, The Interstate Commerce Omission, the Public Interest and the ICC; The Ralph Nader Study Group Report on the Interstate Commerce Commission and Transportation (New York: Grossman Publishers, 1970). In an example of how public interest lawyers helped each other develop the public interest law model, Nader's Public Citizen then opened its own litigation group in 1972, in part inspired by CLASP and NRDC. Alan Morrison, telephone interview by the author, January 8, 2015; Alan Morrison (interviews conducted by Daniel Marcus in 2007 and 2008), Oral History of Alan Morrison, (Washington, DC: Historical Society of the District of Columbia Circuit, 2009), 22; and Craig, Courting Change.

35. Frank Barry was “not particularly moved by the specifics of our proposal,” Gus Speth reported on a 1968 telephone call, “but they were very impressed by our vitae. I quote: ‘Our eyes popped out.’” Barry told Speth that “we were ‘too good for the big law firms.’” Gus Speth to John F. Daum, John Bryson, Richard Ayres, Edward Strohbehn, and David Rosen, “Re: Call from Frank Barry,” November 22, 1968, NRDC Papers, Accession 2012-M-055, MS 1965, Box 24: Folder 8. For Yale group's self-confidence, see Gus Speth to Whitney North Seymour, Jr., January 12, 1970, NRDC Papers, Accession 2012-M-055, MS 1965, Box 24: Folder 8; Gordon Harrison Interview, FFA, 57; and Gus Speth, Thomas Stoel, and Edward Strohbehn to Richard Ayres, John Bryson, John F. Daum, and David Rosen, “Re: Natural Resources Defense Council,” February 1970, NRDC Papers, Accession 2012-M-055, MS 1965, Box 24: Folder 8; see, Jennifer Adams Martin, “‘Do they practice law in Washington’: The Foundation of Natural Resources Defense Council as a Non-profit Environmental Law Organization,” (Master's Thesis, University of Wisconsin-Madison, 2004); and “Address by Stephen P. Duggan, Chairman,” Princeton, NJ, March 20, 1970, in NRDC Papers Accession 2013-M-056, MS 1965, Box 18: Folder 14; Adams described their credentials in Adams, “Responsible Militancy,” 633–34.

36. Charles Halpern and Bruce Terris both graduated from Harvard College; Halpern attended Yale Law School and Terris attended Harvard Law School. Jim Moorman, who joined CLASP from the Justice Department, graduated from Duke University and Duke Law School, where he had been friends with John Adams, NRDC's first president. Among other early CLASP cofounders, Geoffrey Cowan graduated from Harvard College and Yale Law School and Michael Wald, a Stanford Law School professor, joined the Center in September 1970. CLASP, “Proposal to the Ford Foundation,” April 24, 1970, 9–12, FFA, Grants, Reel 4683; Halpern Interview, February 15, 2010; Halpern, Making Waves and Riding the Currents, 41–43, 56, 61; David Rosen, interview by the author, New Haven, CT, November 20, 2013; CLASP, “Proposal to the Ford Foundation,” April 24, 1970, 4, FFA, Grants, Reel 4683; and William Pincus to Charles R. Halpern, November 27, 1968 (regarding $25,000 Council on Legal Education for Professional Responsibility grant), in FFA CLASP Correspondence Reel 4684. Faculty from cooperating law schools served on the Board of Trustees. CLASP, “Proposal to the Ford Foundation,” April 24, 1970, 6–7, FFA, Grants, Reel 4683; and Arthur Goldberg to McGeorge Bundy, October 3, 1969, in FFA CLASP Correspondence Reel 4684.

37. Gordon Harrison, “Resources and Environment: An Accounting,” National Affairs Program, Ford Foundation, December 1972, 22, in Gordon Harrison Interview, FFA, Appendix I, 45; and Teles, The Rise of the Conservative Legal Movement, 48–51.

38. Prominent congresspeople had grilled Bundy during tax reform hearings in February 1969. Several Ford grants in the late 1960s drew particular scrutiny, including travel grants to members of Congress and to former staff members of Senator Robert F. Kennedy. Two months after the hearings, in the midst of Congress's review of rules governing private foundations, Wilbur Mills, the powerful chairman of the Ways and Means Committee, twice wrote to Bundy to ask about “allegations” that Ford planned to fund NRDS's “novel approach” to environmental law. Richard E. Ayres, Memo, June 29, 1971, in NRDC Papers, Accession 2012-M-055 Administrative. Executive Director John H. Adams Records, MS 1965, Box 24: Folder 9; Gordon Harrison Interview, FFA, 58; McGeorge Bundy to Whitney North Seymour, November 30, 1970, National Affairs Sanford M. Jaffe, Series I: Select Correspondence, FFA, Box 1: Folder 6; Troyer, Thomas A., “The 1969 Private Foundation Law: Historical Perspective on Its Origins and Underpinnings,The Exempt Organization Tax Review 27 (2000): 5265; Julian Zelizer, Taxing America: Wilber D. Mills, Congress, and the State, 1945–1975 (Cambridge: Cambridge University Press, 1998), 301; Philip Warden, “Ford Grants Aid Travels of Congressmen: Bundy Admits Trying to Sway Policy,” Chicago Tribune, February 21, 1969, C15, sec. 3; “Bundy Defends Before House Ford Grants To Aides of RFK,” Hartford Courant, February 21, 1969, 4; “Ford Foundation to Trim Equity in Ford Motor Co,” Wall Street Journal, February 21, 1969, 10; Bruce Galphin, “5 RFK Aides Defend Grants,” Washington Post, G1, February 27, 1969; Wilbur Mills to McGeorge Bundy, April 23, 1969, in FFA Svirdidoff, Admin. Subject Files “H”, Box 9: Folder 7; McGeorge Bundy to Wilbur Mills, April 28, 1969; Wilbur Mills to McGeorge Bundy, May 9, 1969; and McGeorge Bundy to Wilbur Mills, May 9, 1969, in FFA Svirdidoff, Admin. Subject Files “H”, Box 9: Folder 8; for expression of foundation concern about the “attitude of Congress and other Feds,” see, Whitney North Seymour, Jr. and Stephen Duggan, “Notes,” December 23, 1969, NRDC Papers, Accession 2012–M-055, MS 1965, Box 24: Folder 9.

39. In 1970, the IRS denied NRDC's request for its legal activities, and threatened to shut down the entire foundation-supported public interest law sector. IRS staff questioned whether broad-based, cause-oriented litigation around the environment qualified as a charitable activity in the same way that poverty or civil rights law did. Following a brief but aggressive campaign that engaged prominent congressmen, including House Minority Leader Gerald Ford, as well as sympathetic political appointees such as Russell Train and William Ruckelshaus, the IRS reversed course and granted NRDC its tax exemption in November 1970. But the Ford Foundation continued to worry about funding nonexempt political activity and provoking the ire of the IRS. IRS staff members questioned whether the public interest law firms might, in practice, serve the private interests of their donors or play a disruptive role in the courtroom. Whether the Nixon White House helped set the IRS against NRDC and the other public interest law groups remains unclear. The White House did pressure the IRS to crack down on “left-wing organizations” receiving foundation funds, but I have not found written mention of NRDC and the public interest law groups as specific White House targets. In a telegram to President Nixon, Representative Gerald Ford asked Nixon to direct the IRS to reverse its decision. “Effective citizen participation in the struggle to save our environment will be road-blocked unless the IRS reverses this ill-timed ruling,” Ford wrote. Representative Ford separately introduced legislation to facilitate citizen suits to protect the environment, similar to one advanced by Senators Hart and McGovern, and in the state of Michigan. Morton Mintz, “Rep. Ford Hits IRS Tax Stand,” Washington Post, October 29, 1970, A2. Virginia Knauer, Nixon's consumer advisor, William Ruckelshaus, his EPA appointee, and Russell Train, Nixon's chair of the new Council of Environmental Quality all voiced their public support for the new public interest law firms. For the struggle over NRDC's tax exempt ruling, see, United States Congress Senate Committee on Interior and Insular Affairs, Law and the Environment: Selected Materials on Tax Exempt Status and Public Interest Litigation (Washington, DC: United States Government Printing Office, 1970); WHSF John Dean Box 61: Folder “Public Interest Law Firms,” Richard Nixon Presidential Library; “IRS modifies its warning on donations to aid some public interest law firms,” Wall Street Journal, October 16, 1970, 5; Mintz, “Rep. Ford Hits IRS Tax Stand”; Bayard Webster, “IRS Move stays Ford Fund Grant,” New York Times, November 9, 1970, 27; and Adams, Adams, and Black, A Force for Nature, 22–30; Martin, “‘Do they practice law in Washington.’” Ford's own legal advisors were unsure whether the firms would qualify for a tax exemption. Future Supreme Court justice Lewis Powell advised the foundation that the groups would not qualify, but the foundation staff found another retired justice who offered a supportive opinion. Sanford Jaffe, telephone interview by the author, October 28, 2013.

40. The foundation's public interest law advisory committee consisted of William T. Gossett, Bernard G. Segal, Whitney North Seymour, Sr., and Orison S. Marden. These “wise counselors,” whose meetings Ford President Bundy regularly attended, helped “tranquilize the doubters,” according to Gordon Harrison, protecting the grantmaking program against trustees, regulators, and other potential critics. For Ford's internal review, see, for example, Ginsburg, Feldman, and Bress to Howard Dressner, “Draft,” November 1971; and Ginsburg, Feldman, and Bress to Sanford M. Jaffe, May 24, 1973, National Affairs Sanford M. Jaffe, Series I: Select Correspondence, FFA, Box 1: Folder 6; for “wise counselors,” see Fred Bohen to Christopher Edley, December 1, 1970; McGeorge Bundy to Whitney North Seymour, November 30, 1970, National Affairs Sanford M. Jaffe, Series I: Select Correspondence, FFA, Box 1: Folder 6; McGeorge Bundy to David F. Cavers and Mitchell Rogovin, July 10, 1970, FFA CLASP Reel 4684 grant files; Gordon Harrison interview, FFA, 59; Sanford M. Jaffe, “Public Interest Law Advisory Committee Meeting of March 22, 1971,” April 14, 1971, National Affairs Sanford M. Jaffe, Series II: Chronological Files, 1970, 1971–73, FFA, Box 3; Sanford M. Jaffe to Orison S. Marden, November 2, 1972; and William Gossett, Orison Marden, Whitney North Seymour, and Bernard Segal to Sanford M. Jaffe, December 12, 1972, National Affairs Sanford M. Jaffe, Series I: Select Correspondence, FFA, Box 1: Folder 6. This oversight continued through the 1970s, as, for example, when Ford program officers warned the public interest law firms that their out-of-town trustees were insufficiently active in board governance. Sanford M. Jaffe and Edward Ames, “Memo to Public Interest Law Firms,” February 10, 1977, National Affairs Sanford M. Jaffe, Series I: Select Correspondence, FFA, Box 1: Folder 6; and Sanford Jaffe interview.

41. Ford exerted its greatest influence at the time of the initial founding of the organizations, as illustrated by the forced merger that created NRDC. Ford also sought unsuccessfully to merge the fledgling CLASP with the National Legal Aid and Defender Association. CLASP's Halpern later recalled that Ford was “very gun shy” in 1970. Ford delayed awarding a grant to CLASP for more than a year until the organization had strengthened its board with establishment lawyers, and had proven itself on the basis of grants from small foundations. Ford also pushed CLASP cofounder Bruce Terris, who chaired the District of Columbia Democratic Central Committee, to either drop his Democratic Party position or leave the new law center. CLASP insisted that Terris maintained a “strict separation” between his legal and political work. Terris ultimately quit the nascent CLASP for private practice in 1970, before Ford awarded its first grant to the organization. Ford's public interest law advisory committee also reviewed and passed judgment on the boards and internal litigation committees for each organization. See Theodore Voorhees to Christopher Edley, September 22, 1969, in FFA CLASP Correspondence Reel 4684. Victor Yannacone complained that he was forced out of EDF to accommodate Ford, although there also were many other areas of disagreement; see, for example, Carter, Luther. J., “Environmental Defense Fund: Yannacone Out as Ringmaster,Science 166 (1969): 1603. For Ford staff's distrust of Yannacone as someone who “could not be advised, guided or controlled,” see “Notes December 23, 1969: Meeting at Ford Foundation,” in NRDC Papers, Accession 2012-M-055 Administrative. Executive Director John H. Adams Records, MS 1965, Box 24: Folder 9; interview with Charles Halpern, February 15, 2010, Berkeley, CA; CLASP to Sanford Jaffe, April 24, 1970; Sanford M. Jaffe to McGeorge Bundy, May 22, 1970, “Public Interest Advocacy- Executive Committee Meeting,” FFA CLASP Reel 4684 grant files; Sanford M. Jaffe to Mitchell Sviridoff, November 19, 1971, National Affairs Sanford M. Jaffe, Series II: Chronological Files, 1970, 1971–73, FFA, Box 3; and Gordon Harrison interview, FFA; for sample monitoring reports, see Joel H. Sterns to Gordon Harrison, May 6, 1971, FFA Reel 3572, Grant 70-0643, Section 4; and Joel Handler to Sanford Jaffe, March 31, 1977, FFA CLASP Reel 4683, Grant 70-477.

42. “Foundations demand nice, respectable boards––it's a front,” complained Marion Wright Edelman of the Washington Research Project, a law group focused on federal programs for low-income families that later morphed into the Children's Defense Fund. “You have to have Arthur Goldberg as chairman of your board to get two cents.” Edelman urged avoiding big foundations. “I wouldn't go to Ford for money, because I don't want their conditions. The little foundations are the most gutsy. That is why we have deliberately sought broad support, so no foundation can cripple us.” The New Public Interest Lawyers,Yale Law Journal 79 (1970): 1112–13; Edelman sought to help CLASP navigate Ford's demands when Ford tried to merge CLASP with the National Legal Aid and Defender Association; see Marian Wright Edelman to Christopher Edley, July 8, 1969, FFA CLASP Correspondence Reel 4684; interview with Charles Halpern, February 15, 2010, Berkeley, CA; Halpern, “The Public Interest Bar,” in Nader and Green, Verdicts on Lawyers, 158; and Simon Lazarus, The Genteel Populists (New York: Holt, Rinehart and Winston, 1974), 142; for early criticism of CLASP as insufficiently focused on litigation directly serving the poor, see Theodore Voorhees to Christopher Edley, September 22, 1969, FFA CLASP Correspondence Reel 4684; for an early critique of unaccountable and elitist public interest law, particularly focused on environmental issues, see Cahn, Edgar S. and Cahn, Jean Camper, “Power to the People or the Profession? The Public Interest in Public Interest Law,Yale Law Journal 79 (1970): 1005–48. Ralph Nader's Public Citizen, which started its own litigation group in 1972, decided not to rely on foundation funding and instead funded its work through publication sales and individual donations. Alan Morrison interview; and Craig, Courting Change, 27.

43. Mark Dowie, Losing Ground: American Environmentalism at the Close of the Twentieth Century (Cambridge, MA: MIT Press, 1995); Robert Gottlieb, Forcing the Spring: The Transformation of the American Environmental Movement (Washington, DC: Island Press, 2005); and Speth, Angels by the River, 154, 152.

44. Adams, “Responsible Militancy,” 632; Gordon Harrison, “Resources and Environment: An Accounting,” National Affairs Program, Ford Foundation, December 1972, 22, in Gordon Harrison interview, FFA, Appendix I; and Gordon Harrison interview, FFA, 39.

45. Ronald Reagan, “Inaugural Address,” January 20, 1981. Gerhard Peters and John T. Woolley, The American Presidency Project http://www.presidency.ucsb.edu/ws/?pid=43130 Accessed on September 15 2015; for the rightward turn against government and toward private and market-based solutions, see Daniel T. Rodgers, Age of Fracture (Cambridge, MA: Belknap Press of Harvard University Press, 2011); and Sean Wilentz, The Age of Reagan: A History, 1974–2008 (New York: Harper, 2008). Environmentalists and unions sometimes clashed over “jobs” and the “environment,” but at other times they worked together on environmental health and safety concerns; for examples of union-based environmental action, see, for example, Rector, Josiah, “Environmental Justice at Work: The UAW, the War on Cancer, and the Right to Equal Protection from Toxic Hazards in Postwar America,Journal of American History 101 (2014): 480502; and Gordon, Robert, “‘Shell No!’: OCAW and the Labor–Environmental Alliance,Environmental History 3 (1998): 460–87.

46. Gordon Harrison Interview, FFA, 35, 38; Harrison, Gordon and Jaffe, Sanford M., “Public Interest Law Firms: New Voices for New Constituencies,ABA Journal 58 (1972): 459–67; and Sanford Jaffe interview.

47. “IRS modifies its warning on donations to aid some public interest law firms,” Wall Street Journal, October 16, 1970, 5; George McGovern, “Foreword,” in Defending the Environment; a Strategy for Citizen Action, ed. Joseph L Sax (New York: Knopf, 1971), xi; Rabin, “Federal Regulation in Historical Perspective,” 1287–89. See also, Senator Clifford P. Case to David M. Kennedy (secretary of the treasury), October 15, 1970, NRDC Papers Accession 2013-M-056, MS 1965, Box 18: Folder 9.

48. John R. Quarles, Jr., “The Environmental Movement After Five Years: An Assessment and a Proposal,” speech to the National Council on Philanthropy, December 4, 1975; Harrison, Gordon and Jaffe, Sanford M., “Public Interest Law Firms: New Voices for New Constituencies,ABA Journal 58 (1972): 459–67; and Train, Russell E., “The Beginning of Wisdom,The Wilson Quarterly 1 (1977): 96104.

49. Burton A. Weisbrod and Joel F. Handler to Robert Goldmann, “Proposal––An Evaluation of the Role of Public Interest Law Activities,” May 31, 1972, National Affairs Sanford M. Jaffe, Series I: Select Correspondence, FFA, Box 1; and Burton A. Weisbrod and Joel F. Handler, “Public Interest Law Project: Progress Report,” March 15, 1973, National Affairs Sanford M. Jaffe, Series I: Select Correspondence, FFA, Box 1. Weisbrod and Handler's proposed study of public interest law was published as, Burton Allen Weisbrod, Joel F. Handler, and Neil K. Komesar, eds. Public Interest Law: An Economic and Institutional Analysis (Berkeley: University of California Press, 1978).

He thanks Edward Ball, Ralph Cavanagh, Dennis Curtis, Elizabeth Dale, David Engerman, Daniel Esty, Beverly Gage, Robert Gordon, Jacob Hacker, Charles Halpern, Greg Huber, Anthony Kline, Douglas Kysar, Naomi Lamoreaux, Nicholas Parrillo, Claire Potter, Judith Resnik, Adam Rome, David Rosen, Eric Rutkow, Harry Scheiber, James Gustave Speth, John Witt, Stephen Wizner, the Yale Legal History Workshop, and several anonymous reviewers. Catherine Tarleton, Ben Kline, Carolyn Forester, and Carolee Klimchock provided invaluable research assistance. The article also benefited from the assistance of archivists at Yale's Manuscripts and Archives, the Rockefeller Archive Center, and Special Collections at Stony Brook University.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
  • URL: /core/journals/law-and-history-review
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Full text views

Total number of HTML views: 9
Total number of PDF views: 99 *
Loading metrics...

Abstract views

Total abstract views: 643 *
Loading metrics...

* Views captured on Cambridge Core between September 2016 - 20th April 2018. This data will be updated every 24 hours.