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Women and Environmental Law

Friday, November 15, 2019

When it comes to the history of the environmental law and policy in the United States, the heroic stories most of us have heard concern men—John Muir, Aldo Leopold, Henry David Thoreau, Teddy Roosevelt, Gifford Pinchot, David Sive, David Brower, to name but a handful of the most famous. But we are less likely to know the achievements of the women who molded modern environmental policy despite having to clear hurdles seldom encountered by men. As we celebrate ELI's 50th year and the simultaneous half-century since NEPA was enacted, let’s all take the opportunity to learn and talk more about the achievements of women in advancing environmental protectionand how critical those kinds of efforts will be in the future for environmental law.

Countless women changed the course of American history by applying the rule of law to complex social problems, through their leadership in the abolitionist, suffragette, and civil rights movements. Harriet Tubman, Sojourner Truth, and Rosa Parks are household names, and there are so many more who worked tirelessly to address these issues. Women were no less involved in establishing the fields of public health and ecological protection, including Graceanna Lewis (1821-1912), who was active in the suffrage and abolitionist movements and then turned her attention to birds, becoming the foremost expert on them but unable to obtain an academic post due to her gender. Or take Florence Nightingale (1820-1910), remembered as a nurse but often unacknowledged for her revolutionary efforts that sparked worldwide health care reform. She so improved the unsanitary conditions and water contamination at a British base hospital during the Crimean War, reducing the death count by two-thirds, that her methods laid the foundation for water and sanitation laws enacted in the United States and around the world that remain in place today.

In the 20th century, Marjorie Stoneman Douglas (1890-1998) wrote the still-definitive 1947 book about the Florida EvergladesThe Everglades: River of Grass.  Many people in and outside the environmental profession know of biologist and writer Rachel Carson (1907-1964), whose third book, Silent Spring, focused on the effects of chemicals and pesticides on the environment, and is credited with spurring the development of modern environmental law. Mardy Murie (1902-2003), nicknamed “the grandmother of U.S. conservation," was the motivating force behind the establishment of the Arctic National Wildlife Range in 1960 and instrumental in the passage of the Alaska National Interest Lands Conservation Act in 1980.

More recently, Lois Gibbs first turned attention to environmental law when her five-year-old son developed epilepsy and respiratory ailments after starting kindergarten in her Love Canal community. She organized her neighbors in an effort that ultimately led to the passage of CERCLA in 1980. She was nominated for the Nobel Peace Prize in 2003. Wangari Maathai (1940-2011) received the Nobel Peace Prize for taking a simple idea—plant a tree to protect land from erosion, create jobs, and provide firewood—and establishing the Greenbelt Movement. By 2005, African women had collectively planted 30 million trees.

These are just a handful of the many women who influenced and shaped environmental law.

Discrimination against women in higher education and employment was perfectly legal in the United States under federal law when NEPA and the key pollution statutes were passed, and affected many lawyers who are still active in their careers today. It was not until 1971 that the U.S. Supreme Court outlawed the practice whereby private employers refused to hire women with pre-school children. Until 1972, women were legally prevented from attending many colleges and law schools, and no statute or rule barred private employers from refusing to hire qualified women. In 1973, the U.S. Supreme Court banned gender-segregated "help wanted" advertising as a violation of the Civil Rights Acts of 1964. Women could not obtain credit cards in their own name rather than on a husband's account until 1974.

As a result, many female lawyers started in jobs at corporations or firms as secretaries or administrative assistants—often despite an education better than men who were routed into top jobs. Justice Sandra Day O'Connor, the first woman appointed to the U.S. Supreme Court in 1981, tells of her inability to obtain a position at a law firm despite having graduated third in her class at Stanford Law School in 1952 and having served on the Stanford Law Review. She found employment in government, as so many other women did well into the 1970s and '80s, as a deputy county attorney in California. Similarly, the second woman appointed to the Supreme Court (12 years later), Justice Ruth Bader Ginsberg, graduated first in her class from Columbia Law School in 1959 and was rejected for a clerkship at the U.S. Supreme Court due to her gender. She finally took a professorship at Rutgers Law School in 1963, where she was told she would be paid less than her male counterparts because she had a husband with a well-paying job.

Happily, the days when women could not practice law, serve on a jury, vote, hold property, enter into contracts, seek public office, or speak in public without approbation in the United States are long gone. Today, 51% of the entering classes in law schools are women, and 50% of lawyers entering law firms are women. But stubborn barriers for women remain, impeding them from reaching their full professional potential. Women lawyers’ weekly salaries are on average 80% of male lawyers’ salaries.

Once the topic of anecdotes told privately among women due to fear of further exclusion, retaliation, criticism, embarrassment, or being considered “too sensitive ” or humorless and difficult, sexual harassment and discrimination have become more widely discussed of late, encouraging individuals to speak out and institutions to formally study and address the issues.

Sustainability has shaped environmental policy in the last two decades, and many sustainability professionals are women. A Net Impact study of the general workforce found that 60% of women consider it very important “to work for a company that prioritizes social and environmental responsibility,” as opposed to 38% of men. The corps of leaders with sustainability in their job descriptions has many prominent women, and sustainability is a bedrock concept of effective environmental stewardship and regulation now and in the future.

However, women around the world continue to face hardship. It widely recognized by the United Nations and others that women disproportionately suffer the impacts of environmental hazards, especially in developing countries. Women gather water, fish, and farm the land, affected by drought, flooding, and violence. During pregnancy and motherhood, their health is more at risk from environmental hazards.

These two factors taken together—sustainability, and the impact of environmental hazards on women—will of necessity involve more women in the shaping of environmental law going forward.

All blog posts are the opinion of its author(s) and do not necessarily reflect the views of ELI the organization or its members.