Tuesday, January 19, 2021

Some foundations of modern British environmental law


The recent issue of the Journal of Environmental Law has a review by Stephen Tromans of Richard Macrory's Irresolute Clay: Shaping the Foundations of Modern Environmental Law (Hart, 2020). An excerpt:

In a series of Chapters, Macrory looks at the development of the profession of environmental law: the ‘early sparks’ of environmental law as an academic discipline; practising environmental law as a barrister; and the ‘coming of age’ of academic environmental law. Here of course, the author is on strong ground, having been at the heart of the development of environmental law as an academic discipline since its inception. He has also had some, though very limited, experience of advocacy at the environmental Bar.

Chapter 3 deals with ‘the emergence of environmental lawyers’ in the UK, covering forerunners such as Professor Jack Garner, the Lawyers’ Ecology Group founded in 1972, and the inception of the UK Environmental Law Association (UKELA) in 1986. Having been involved in that process, it is always interesting to read about it, though how interesting generally to later practitioners may be questionable. The key point made is the undoubted development of environmental law ‘as a distinct and vibrant field’—the growth of UKELA reflecting that development. Macrory concludes that ‘the notion of both environmental law and environmental lawyers seems now to be fully embedded in our legal system.’ As in other areas, the possible weakness of the analysis maybe derive from the quite narrow focus of the author’s own personal journey, which does not really provide a full account of why and how environmental law came to achieve that position. In particular, a fuller analysis might have revealed quite a complex synergy between different areas of the law and different types of lawyers.

The strength of an organisation like UKELA has always been that it has drawn together lawyers from private practice, both as barristers and solicitors, lawyers working in house with industry, increasingly—and to be welcomed—lawyers working for environmental NGOs, lawyers within central and local government and agencies, as well as academics (and as Macrory points out, also many members from non-legal professions). The teaching and research in environmental law burgeoned in the late 1980s and 1990s, with many noted academics not mentioned in Macrory’s book—for example, Brian Jones and Michael Bowman working with Professor Garner in Nottingham; the engaging David Hughes at Leicester, who wrote one of the first student texts on the topic; the late Simon Ball at Sheffield, who wrote the other, later joined as co-author by Stuart Bell; Lakshman Guruswamy at Durham; Lynda Warren at Aberystwyth; and others. However, a relatively small cadre of academic lawyers would not have sustained the subject. What was also instrumental in the development of environmental law was that it became possible for people who had studied it to go on and get a job in that field and have the opportunity of making it their career. This occurred in the early 1990s because the major solicitors’ firms, and their clients, particularly US companies, began to regard environmental law as a necessary and even desirable practice area. New legislation such as the Environmental Protection Act 1990, and new EU Directives being transposed into UK law, meant that there was a need for advice on compliance. Perhaps even more important, from a commercial perspective, was the recognition of environmental risk—particularly the risk of liability for historically contaminated land—in transactions. These included loans, with very considerable interest and concern by the mainstream banking industry in such risks. The result was rapid growth in environmental departments in established London firms and the appointment of environmental lawyers as partners to head them, in some cases being appointed from an academic background. This provided strong support for the development of environmental law and the incubation of a future community of environmental lawyers and is a strong factor in it becoming an established practice area.

Thursday, January 14, 2021

The origins of American environmentalism

The upcoming issue of Environment and History has an interesting, extended review by Thomas Le Roux (translated from the original French review in Le mouvement social) of Chad Montrie's The Myth of Silent Spring: Rethinking the Origins of American Environmentalism (U Cal Press, 2018). According to the review, the book does not try to downplay the importance of Rachel Carson's Silent Spring, but rather to point out the rich history of environmentalism (and environmental regulation) long predating Carson's work, with sources in labor, public health, social justice, and other movements. An excerpt:

In the second half of the nineteenth century... local municipalities were pressed to provide public health services or access to drinking water. The fight against pollution was one of the main issues of the urbanising nineteenth century, and this is the subject of the second chapter, which exposes different types of action to protect urban environments between 1870 and 1945. In particular, women, industrial workers and racial minorities began to claim environmental justice. As unions organised, and within the context of a wider social movement during this period, the working and lower classes managed to have their voices heard in order to improve their living conditions in an insalubrious urban environment. Often pressured by radicals, socialists and reformers, a number of communities took action to address local injustices. For example, between 1897 and 1904, under the directives of the radical Mayor Jones, Toledo, Ohio inaugurated a municipal service for garbage collection, as did Milwaukee, Wisconsin, which was led by a socialist-leaning mayor after 1898. It is particularly interesting that environmental activists also found themselves fighting for better industrial hygiene to protect the health of factory workers. It is in this milieu that the socialist John R. Commons, who established several health and safety measures in Milwaukee, participated in creating the American Association for Labor Legislation. His work, alongside that of Professor Alice Hamilton, resulted in a more protective regime for industrial hygiene in Chicago and in the whole of the State of Illinois. In this urbanising world, the desire for nature was not only a privilege of the upper classes, but the contemporary push for segregation was such that numerous conflicts emerged regarding the use of forests, beaches or the rural surroundings of cities for a day’s relaxation. In the middle of natural spaces, unions and local communities created educational camps that focused on learning about natural environments for urbanites otherwise confined to their city districts or to their factories. These different actions diffused a renewed sentiment of the need for nature which was well-rooted prior to the second World War, and Montrie highlights that this need was reinforced with the federal program for conservation during the New Deal.

Monday, January 4, 2021

Dan Ernst's exam on public health law

Dan Ernst strikes again with an amazing exam question for his legal history course, this time on public health law in the US (see here for an earlier one on grazing). Some excerpts from the essay:

The Wisconsin Supreme Court wrote in a 1909 decision, Milwaukee authorized its commissioner of health to “summarily abate nuisances of all kinds, destroy diseased or infected food, clothing, and other like articles, establish temporary hospitals in case of epidemics, and, in fine, to exercise very broad and autocratic powers in all matters relating to the conservation of the public health.”  Indeed, the commissioner’s power to act without a prior hearing or even notice “at times must trench closely upon despotic rule.”  But it could not be otherwise: “The public health cannot wait upon the slow processes of a legislative body or the leisurely deliberation of a court.  Executive boards or officers who can deal at once with the emergency under general principles laid down by the lawmaking body must exist if the public health is to be preserved in great cities.” 

*****

In People ex rel. Copcutt v. Board of Health (1893), decided by the New York Court of Appeals, a board of health did give the owner of a wood mill a hearing before declaring his ponds a public nuisance, because of the sewage that seeped into them.  When the millowner sought damages for the board-ordered destruction of the dams that created the ponds, a trial judge upheld the board’s action, but only after making his own determination that the ponds were public nuisances.  The Court of Appeals affirmed, but in the process emphasized the need for de novo review after the fact.  The board of health “could obtain its information from any source and in any way,” the court noted.  If such factual determinations were “final and conclusive,” it continued, “the citizen would in many cases hold his property subject to the judgments of men holding ephemeral positions in municipal bodies and boards of health, frequently uneducated and generally unfitted to discharge grave judicial functions.”  The court then approvingly quoted a treatise writer: “where the public authorities abate a nuisance under authority of a city ordinance ‘they are subject to the same perils and liabilities as an individual.’” 

US Public Health Service officers, c. 1912

Thursday, December 31, 2020

Clean Air Act turns 50

Dan Farber recently posted on the subject at Legal Planet. Here's part of what he had to say:

No doubt we could design a more effective and efficient regulatory scheme if we were start over. But the Clean Air Act has nonetheless had a major impact.  Here’s what EPA has to say on the subject  — and remember, this is from the Trump EPA, which is no fan of regulation:

  • Experience with the Clean Air Act since 1970 has shown that protecting public health and building the economy can go hand in hand.

  • Clean Air Act programs have lowered levels of six common pollutants — particles, ozone, lead, carbon monoxide, nitrogen dioxide and sulfur dioxide — as well as numerous toxic pollutants.

  • From 1970 to 2017, aggregate national emissions of the six common pollutants alone dropped an average of 73 percent while gross domestic product grew by 324 percent. This progress reflects efforts by state, local and tribal governments; EPA; private sector companies; environmental groups and others.

  • The emissions reductions have led to dramatic improvements in the quality of the air that we breathe. Between 1990 and 2017, national concentrations of air pollutants improved over 75% for lead, carbon monoxide, and sulfur dioxide; 56% for nitrogen dioxide (annual); and 22% for ozone. Particulate concentrations improved more than a third between 2000, when trends data begins for ultra-fine particles, and 2015.

For more on the history of the Act, see here


Monday, December 28, 2020

Tension between public health and environmental protection

The latest issue of the Journal of Environmental Law has an interesting piece by Ben Pontin, "The Constitutive Tension Between Public Health and Environmental Protection—An Historical Perspective". Pontin writes (footnotes omitted):

According to David Hughes, the author of an early formative textbook, environmental law has ‘public health origins’. That is to say, many current regulatory bodies and laws are rooted in the sanitary boards created and statutes drafted during industrialisation to address cholera, typhus and other diseases then associated with urban life. Hughes makes the important point that environmental regulation has borrowed from public health regulation above all in the form of the use of criminal law as a tool of prevention of harm, rather than sanctioning of individual wrongdoing.

It is true that the laws and institutions of public health burgeoned during industrialisation, and that they defined progress at this time. Thus one of the most ‘progressive’ Victorian-era administrations—that of Benjamin Disraeli between 1874 and 1880—was elected on a manifesto echoing Cicero’s maxim salus populi sumprema lex esto (the health of the people is the highest law). This administration put on the statute book the Public Health Act 1875, which heralded a significant shift ‘towards a more modern, collectivist approach to public health’. Under the umbrella of Cicero’s maxim was also enacted legislation controlling air and river pollution.

Yet environmental legislation in and around this period has an autonomy in relation to public health that is not fully captured by Professor Hughes’ characterisation. For instance, whereas public health campaigners seeking the creation of a robust nationwide legal response to disease encountered obstacles in an age of ‘laissez faire’, those defending ‘nature’ found legislation easier to secure. An example is the protection of rural vegetation from chemical factories under the Alkali Act 1863, by means of a centralised, criminal administrative regulatory regime. Public health campaigners in respect of urban peoples were less easily heard within the law-making institutions than the elite proprietors of country estates, safeguarding trees, hedges and meadows. 

Charles Tennant's St. Rollox Chemical Works in 1831

Friday, December 11, 2020

Climate change and the US Clean Air Act

President Nixon signs the Clean Air Act of 1970
Richard Revesz recently posted a piece on climate change regulation, "Bostock and the End of the Climate Change Double Standard", forthcoming in the Columbia Journal of Environmental Law. The abstract explains that the article "performs a deep dive into the legislative materials surrounding the enactment of the Clean Air Act of 1970. After uncovering a treasure trove of sources that had not previously been part of the public discourse, it shows how, under the interpretative approach of each of the three opinions [in the US Supreme Court decision of Bostock v. Clayton County (2020)], greenhouse gases are unquestionably pollutants for the purposes of the Clean Air Act."

The article goes on to argue that

Despite the abundance of legislative history demonstrating Congress’ awareness of and concern about climate change, much of the evidence was not brought to bear in arguments in support of the Act’s authority to regulate greenhouse gases.... The analysis of the legislative history undertaken here, therefore, is largely new to the dialogue surrounding the Clean Air Act’s authority to regulate greenhouse gases, and provides considerable evidence of the scope of Congress’ awareness of issues involving global climate change preceding at the time of the passage of the Act.

*****

Despite the lack of virtually any discourse surrounding the references to climate change in the legislative history of the Clean Air Act of 1970, the legislative materials... provide considerable evidence that Congress understood and was concerned about issues surrounding climate change during the time of the Act’s debate and passing. 

The article goes on to detail the many statements and reports regarding climate change in general and global warming in particular that were part of the legislative history of the 1970 Clean Air Act Amendments. 

Monday, October 12, 2020

Pandemics: Legal history and anthropology

Trionfo della morte (1446)
(Galleria Regionale di Palazzo Abbatellis)

This coming November 6 the Centre d'Histoire et d'Anthropologie du Droit at Université Paris Nanterre will host (online) what looks to be a very interesting program on the legal history and anthropology of pandemics: "Les crises pandémiques à travers les âges. Approche historique, juridique et anthropologique". The program includes fifteen talks on legal responses to epidemic diseases and their regulation from ancient Athens to modern times.

Registration ends October 29.

Wednesday, October 7, 2020

Early American history and modern American environmental law


A recurring theme in scholarship on environmental regulation is the roots of the American approach to environmental regulation, and to what extent this approach is exceptional. 

April's issue of Studies in American Political Development has an article in this vein by David Brian Robertson, "Leader to Laggard: How Founding Institutions Have Shaped American Environmental Policy". The abstract:

The U.S. led the world in environmental policy in the 1970s, but now lags behind comparable nations and resists joining others in tackling climate change. Two embedded, entwined, and exceptional American institutions—broad private property rights and competitive federalism—are necessary for explaining this shift. These two institutions shaped the exceptional stringency of 1970s American environmental laws and the powerful backlash against these laws that continues today. American colonies ensured broad private rights to use land and natural resources for profit. The colonies and the independent state governments that followed wielded expansive authority to govern this commodified environment. In the 1780s, Congress underwrote state governance of the privatized environment by directing the parceling and transfer of federal land to private parties and of environmental governance to future states. The 1787 Constitution cemented these relationships and exposed states to interstate economic competition. Environmental laws of the 1970s imposed unprecedented challenges to the environmental prerogatives long protected by these institutions, and the beneficiaries responded with a wide-ranging counterattack. Federalism enabled this opposition to build powerful regional alliances to stymie action on climate change. These overlooked institutional factors are necessary to explain why Canadian and American environmental policies have diverged.

Tuesday, September 29, 2020

The Santa Barbara Oil Spill

H-Environment recently published a review by Samm Newton of Teresa Sabol Spezio's Slick Policy: Environmental and Science Policy in the Aftermath of the Santa Barbara Oil Spill (U. Pittsburgh Press, 2018). The Santa Barbara spill is often pointed to as one of the foundational moments of modern American environmentalism and environmental regulation, but Spezio seems to flesh out the picture.

Newton writes that Spezio

explores the relationships between oil pollution and political changes in the 1970s and asks how the Santa Barbara oil spill became a watershed moment in the history of environmental and science policy in the US, especially in regard to the Clean Water Act of 1972 (CWA). To answer this question, Sabol Spezio analyzes how the oil spill influenced the CWA and the National Environmental Policy Act (NEPA), as well as the formation of the Environmental Protection Agency (EPA) and the National Oceanic and Atmospheric Administration (NOAA). She then turns to the changing science and technology that became essential to understanding marine oil pollution and how that contributed to detecting water pollution in fresh water systems. She argues that the US government’s reactions to the Santa Barbara oil spill improved their ability to address controlling, measuring, and regulating water contamination on a federal level. 

Her argument is broken into three sections. Part 1 describes environmental science and policy before 1969. Before the oil spill, no entity was officially in charge of managing the oceans. Federal waters were regulated by the Bureau of Land Management (BLM) and the United States Geological Service (USGS) under the guidance of the very oil companies exploiting the resources located in those waters. Additionally, scientists used different protocols and technologies to measure oil pollution. Before 1969, water quality was measured by smell, taste, sight, and/or the presence of disease. The oil spill in California challenged that precedent, contending that measurement by the senses was inefficient. A flurry of new research methods and technologies, specifically gas chromatography, followed in an effort to estimate both oil in water and the dispersants used to combat oil pollution.

*****

As Sabol Spezio argues, it took a salient crisis, like the debacle that was the oil spill, to make regulatory change possible. Several events in the 1960s and ’70s, such as the publication of Rachel Carson’s Silent Spring (1962) and the Cuyahoga River fire, contributed to the salience of environmental degradation in the American attention cycle. Sabol Spezio adds to the literature by claiming that the Santa Barbara oil spill was not just one of many environmental crises but was the tipping point event that made the reform of US environmental regulation possible. 

Tuesday, September 22, 2020

Water pollution regulation: an economic analysis

Last year the Journal of Economic Perspectives published "US Water Pollution Regulation over the Past Half Century: Burning Waters to Crystal Springs?" by David A. Keiser and Joseph S. Shapiro. The abstract:

In the half century since the founding of the US Environmental Protection Agency, public and private US sources have spent nearly $5 trillion ($2017) to provide clean rivers, lakes, and drinking water (annual spending of 0.8 percent of US GDP in most years). Yet over half of rivers and substantial shares of drinking water systems violate standards, and polls for decades have listed water pollution as Americans' number one environmental concern. We assess the history, effectiveness, and efficiency of the Clean Water Act and Safe Drinking Water Act and obtain four main conclusions. First, water pollution has fallen since these laws were passed, in part due to their interventions. Second, investments made under these laws could be more cost effective. Third, most recent studies estimate benefits of cleaning up pollution in rivers and lakes that are less than the costs, though these studies may undercount several potentially important types of benefits. Analysis finds more positive net benefits of drinking water quality investments. Fourth, economic research and teaching on water pollution are relatively uncommon, as measured by samples of publications, conference presentations, and textbooks.