At first glance, “environmental law” might seem, from its name, a phenomenon of the late twentieth century, growing out of the 1960s environmental movement and taking off with the National Environmental Policy Act of 1969. In fact, environmental law cannot be understood apart from the long-established debates and tensions that define the traditions of American law as a whole: individual rights and the extent of state power, the authority of law and its means of implementation. Long before the mid-twentieth century, American law was fully engaged with such matters as, for example, the private use of common resources, such as wildlife and rivers; private activity that injured public health and welfare, such as the emission of industrial wastes; and the municipal assumption of administrative power to build networked sanitary infrastructure. Courts had accepted science-based rationales to authorize law that limited private rights. Governments had engaged in interstate responses to environmental problems that crossed jurisdictional boundaries.

Two essential categories of environmental law and litigation, nuisance and natural resources, are ancient and capacious: they have occupied courts, legislatures, and other governmental authority for centuries. To resolve problems that, today, we call “environmental,” Anglo-Americans have continuously developed or recognized new kinds of nuisances – from the wastes of medieval “noxious trades” to the invisible and odorless ozone created by twenty-first-century motor vehicle engines. In like manner, they have vastly broadened the category of natural resources, extending it far beyond substantial objects like fish to, for example, the stratospheric ozone layer, observable only by experts using esoteric instruments and conservable only by many nations acting in collaboration.