John Nagle's Scholarship on the Meanings of Pollution

J. B. Ruhl
James Salzman, UCLA Law School


John Nagle was a valued friend of ours and a valued colleague. We wrote a casebook together1 and enjoyed each other’s company at environmental law workshops and conferences. He wrote on an impressively wide range of topics and was perhaps best known for his scholarship on the Endangered Species Act. In deciding how to honor his memory, we decided to highlight a long-running focus of his scholarship that is not as well known but, we believe, merits the attention and respect of scholars today and going forward. This Essay, therefore, reviews his work on pollution in all its forms.

Pollution is, of course, the central problem of environmental law. Picture a landscape crying for protection and a scene likely comes to mind of chimneys belching smoke into the air, pipes disgorging effluent into a murky river, and barrels of leaking waste sent goodness knows where, but nowhere good. Most of our environmental laws have been developed to address variants of this Dickensian landscape. Approaching fifty years old, modern environmental law is well established and has developed sophisticated strategies to combat traditional pollution threats.

John Nagle’s great insight was to realize that pollution comes in many forms. He established that the concept of moral pollution long predated the contemporary understanding of environmental pollution, though that is now the common meaning of the term. He recognized that the tools and insights developed to address traditional pollution threats could equally inform how we can address the threats posed by non-traditional pollution—from the societal pollution of pornography to campaign finance. He equally recognized that the environmental toolkit did not work well when applied to visual or aesthetic pollution—from the Mojave Desert and Theodore Roosevelt National Park to cell phone towers.

His analysis of the different forms of pollution was so ingenious that it defies a simple categorization. For this Essay, we have created a simple division between aesthetic pollution in the environment, described in Part I, and societal pollution, explored in Part II.