Sunday, January 5, 2014

The hidden histories of environmental law

Thanks to the Legal History Blog and Slate's "The Vault", I came across "The Roaring Twenties", a digital history site self-described as "an interactive exploration of the historical soundscape of New York City". The site has historical newsreel footage of all kinds of loud noises from early twentieth-century New York, along with published materials and hundreds of original documents from the municipal archives relating to noise complaints (see the explanation of sources under "Info"), all organized by date, by type of noise, and accessible by location on a historical map of the city. In addition to the material on noise, other environmental issues pop up as well, such as in a 1930 video of a staged confrontation between two boys over a banana peel thrown on the sidewalk in Manhattan's Lower East Side (check it out for its great accents and slang). (And if you want to understand why New Yorkers for years turned their back on their waterfront, watch some movies of tugboats and other watercraft at work.)
New York City Smog, Nov. 1966

The website is a good illustration of the masses of historical materials on environmental regulation that have yet to be explored and of some of the blinders that have limited research into pre-1970 environmental law. These types of limitations have been recognized for decades by legal historians as methodological obstacles that need to be overcome, yet they continue to plague study of environmental-legal history:

First, there is the issue of terminology. The environmental issues exposed by "The Roaring Twenties" site were not necessarily cataloged under "environment" or "pollution", but rather under issues such as nuisance, sanitation, public health, smoke, noxious vapors, and cleanliness. This kind of terminological disconnect can cause legal developments with deep historical roots to appear as if they sprouted from nowhere.

Second, there is the issue of scale. As in the case of the New York City materials documented by the website, much environmental regulation took place (and still does) at the level of sub-national governments, making it invisible to historians focused on developments at the national level.

Third, there are the interrelated issues of what counts as law, what sources are legal sources, and what legal sources are studied. The city documents reproduced on the website consist largely of complaints to city officials and their responses. The documents indicate that in some cases the complaints resulted in legal action in the courts (typically lower courts whose decisions are difficult to access and often overlooked by legal scholars), but in many (perhaps most) cases they resulted in action by administrative officials such as a letter to the creator of the nuisance, a visit by inspectors, and the like. These kinds of enforcement activities are often ignored by students of the law, yet they are arguably legal actions par excellence, whether as actions taken under color of law, or as law in action creating a normative reality that governed behavior and expectations.

For instance, the website has this to say about a 1933 complaint by Mr. D. Friedman of Atlantic Avenue in Brooklyn about noise from a nearby factory:

Mr. Friedman's complaint was referred to Dr. James Morrison, Assistant Sanitary Superintendent for Brooklyn, for investigation and appropriate action.  Mr. Friedman complained again of this noise a month later, and apparently he took the owner of the factory to court under the Nuisance Law.  Unfortunately, neighbors who had - reluctantly - agreed to appear in court to verify the complaint failed to show, and the case was thus dismissed.  Since then, however, a patrolman from the Health Squad reported to Commissioner Wynne that there were fewer looms in operation and that the windows were closed at night to contain the noise.  On 5 September 1933, Mr. Friedman was interviewed and found to be satisfied with conditions.
"The Roaring Twenties" makes accessible a trove of environmental-legal sources, especially complaints to city authorities about noise. I suspect that complaints about other environmental problems, such as smoke, fumes, and smells, are also widespread in the municipal archives, and studying them would yield valuable information about pre-1970 environmental regulation. I hope that someone puts these on line, too!

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