Friday, October 10, 2014

Smoke regulation in Baltimore

Pratt Street Power Plant today (G. Edward Johnson)
As a former Marylander who spent a lot of time in Baltimore, I was particularly interested when Legal History Blog recently noted the publication of Ann-Marie Szymanski's "Regulatory Transformations in a Changing City: The Anti-Smoke Movement in Baltimore, 1895–1931" in The Journal of the Gilded Age and Progressive Era. The article enters a longstanding discussion of the circumstances of the development of local environmental regulation against a common-law background, foregrounding as well dimensions of gender and class. The conclusion:
In many ways, the long road to administrative smoke regulation in Baltimore followed the path laid out by anti-smoke reformers elsewhere, albeit in fits and starts. In cities across the United States, amateur activists initially relied on the existing common-law approach to regulating nuisances, a strategy that, at best, only allowed them to shut down isolated polluters. However, when various judges and health boards proved reluctant to declare smoke to be an actionable nuisance, smoke opponents organized campaigns during the 1890s to secure smoke abatement ordinances that declared smoke a nuisance by definition. After the courts nullified several such ordinances on the grounds that only states could define nuisances, anti-smoke activists turned their attention to state legislatures, which increasingly empowered municipalities to regulate smoke after 1900. With this enabling legislation in hand, cities typically went beyond the nuisance approach. Municipal officials no longer merely responded to complaints, but became proactive. For example, they often required businesses to secure building permits for all new construction and repairs to boilers and furnaces. They also created more sophisticated solutions to the smoke problem. Whereas the common-law approach provided three basic responses to any regulatory conflict (injunctions, abatement and the payment of damages), the new anti-smoke regime proposed a variety of technical solutions, including the installation of smoke-control equipment. Of course, this reliance on technical solutions empowered those who were presumably best able to design them, namely, engineers.
Some scholars have been critical of the triumph of experts in early environmental regulation. Indeed, as the Baltimore case confirms, engineers who served as smoke inspectors often sought accommodation, cooperation, and gradual smoke reduction. David Stradling, for one, argues that such a conciliatory approach blunted the movement's impact on urban pollution; likewise, he holds that women's “arguments concerning health, beauty, cleanliness, and morality gradually lost ground to engineering concerns” and the narrower quest for efficiency. Frank Uekoetter disagrees with these conclusions, noting that even after engineers became leaders in the movement, some public officials continued to prosecute those who violated anti-smoke ordinances and ignored the inspectors' technical advice. Moreover, he finds that both women and engineers emphasized technological as well as aesthetic and moral aspects of the smoke problem, suggesting that there was no rigidly gender-specific approach to the smoke issue.
This study suggests that some female anti-smoke activists were deferential to experts without ceding the entire sphere of action to them. The WCL [Women's Civic League] was hardly radical; indeed, its members were even divided on the issue of woman's suffrage. Moreover, “most of the members of the league had lived very sheltered lives, and had heretofore taken little part in public affairs of any sort.” Predictably, league members had little faith in their own authority on the smoke nuisance, and their idea of an educational campaign entailed inviting engineers and other experts to share their wisdom with the city. Likewise, it is not clear whether others respected the league as an authority on the smoke nuisance; the Baltimore Sun, for one, often printed items about the group's anti-smoke agitation in a weekly column entitled, “Frocks and Frills,” which dealt primarily with “women's” concerns, such as fashion. Still, compared to the parochial neighborhood associations and the short-lived BASL [Baltimore Anti-Smoke League], the WCL was a consistent presence in the debate about anti-smoke policies in Baltimore after 1911. It was well aware of business opposition to regulation and structured its educational campaigns around that opposition. Moreover, the league was a strong proponent of administrative regulation in a city that was often more comfortable with patronage-driven hiring and public-private hybrids.
In Baltimore, anti-smoke activists sought to replicate the successes of reformers elsewhere but confronted political opposition to any regulatory regime (common law or administrative) that seemingly threatened the city's manufacturers. Adopting the conciliatory approach embodied in the Chicago model initially did not help the WCL win over enough of the city's manufacturing interests or Mayor Preston. Only during the 1930s, when Baltimore business and political leaders felt confident about the manufacturing sector, did the city adopt a comprehensive inspection regime. After 1914, industrial activity in Baltimore had “outstripped the growth of the nation as a whole,” and this growth was largely the product of “the establishment of new industries which chose this City.” A 1939 survey of industrial activity declared, “Baltimore today enjoys a greater stability than has been common to the industry of most other large communities.” Hence, it is not entirely surprising that the Baltimore Association of Commerce established a Smoke Abatement Committee during the late 1920s that helped author the 1931 ordinance and then pushed for its enactment and acceptance.

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