Pontin on environmental law-making in Victorian Britain

We recently had the pleasure of hosting Ben Pontin at the Law and Environment Workshop at TAU. Ben presented some of his fascinating, ongoing research on what he terms "the first green industrial revolution", the wave of environmental law-making (both judicial and legislative) that swept Victorian Britain.

Ben's presentation on his book project on the influence on environmental law of Britain's landowning class and its struggle with capitalist industrialists was fascinating. Hopefully we'll hear more about this work, complementing recent work on middle- and working-class environmentalism, soon.

A recent article of Ben's, "Environmental Law-Making Public Opinion in Victorian Britain: The Cross-Currents of Bentham’s and Coleridge’s Ideas", published in the Oxford Journal of Legal Studies, sets out some of the intellectual and cultural background, as explained in the abstract:

James Northcote, Portrait of Samuel Taylor Coleridge (1804)

It is increasingly clear that law and its enforcement in Victorian Britain were quite effective in tackling formative industrial problems concerning pollution and broader threats to nature. What is unclear is the political philosophy, if any, underlying this historic achievement. A prevalent view is that early ‘environmental’ law lacked any philosophical underpinning (being instead a piecemeal reaction to the various problems of industrialization as and when these presented themselves). The article revisits this issue with reference to Dicey’s analysis of 19th century ‘law-making public opinion’. Dicey identified three broad streams of seminal opinion that, he argued, shaped laws as the century unfolded. The early part of the century was dominated by ‘Old Toryism’, including the romantic conservatism associated with Samuel Taylor Coleridge. This then gave ground to ‘Benthamism’ (or ‘individualism’) which in turn ceded dominance to ‘collectivism’ (also influenced by Bentham’s ideas). Whilst Dicey ignored laws relating to the environment, I argue that this is not because these presented a particular difficulty for his thesis. Indeed, all three seams of ‘law-making opinion’ converged around the legal protection of nature to offer a rich and diverse philosophical foundation for environmental law.

Competing heritages in international environmental law

I recently came across "Theorising International Environmental Law", by Stephen Humphreys and Yoriko Otomo. The abstract:

This paper, part of a larger work on international law theory, sketches some early lines of inquiry towards a theoretical understanding of international environmental law. 

As the body of international law regulating human interaction with the natural world, one might expect this branch of law to be a cornerstone of the international system. Yet in practice, international environmental law’s reach is strikingly circumscribed. Little of the governance of natural resources, for example, is ‘environmental’. Subsisting at the periphery, environmental law focuses on conserving particular (rare, exotic) species and ‘ecosystems’, and curbing certain kinds of pollution. Its principles are vague, peppering the margins of rulings within other judicial fora: it is quintessential soft law.

Caspar David Friedrich,
The Wanderer above the Mists (1817-18)

In this paper, we suggest that international environmental law’s dilemmas are due to two competing heritages. On one hand, this law enshrines the peculiar pantheism of the European romantic period, positing the ‘natural world’ as sacred, inviolable, redemptive. On the other, its main antecedents are found in colonial era practices, which provided the data for the earliest environmental science and a laboratory for prototypical attempts at conservation and sustainable development. Caught between irreconcilable demands, international environmental law struggles today to avoid utopian irrelevance or nugatory paralysis.

The history of capitalism, growth, and environmental limits

The Nov. 24 issue of The Nation has a very interesting, extended review by Timothy Shenk of a number of recent books on the history of capitalism. Given that environmental history is now intensively engaged with the topic of capitalism, that legal historians are also part of the new school, and that the emerging history of environmental law gives a prominent place to the industrial revolution and capitalism, I think this is a central topic for readers of this blog. Shenk writes:

Mostly young, and mostly specializing in the history of the United States, historians of capitalism are one part of a broader revival in political economy. Yet the success enjoyed by this segment of a larger groundswell remains noteworthy—and surprising. Despite the seeming predictability of the subject’s popularity at a time when economic issues have moved to the forefront of public debate, turning capitalism into the central category of historical analysis requires intellectual sacrifices, pushing some topics into the spotlight and relegating others to the shadows. This has not escaped the capitalism cohort’s peers, many of whom fear that the trend would undo advances made by a generation of cultural historians, while leading to even more scholarship of and by white men. Historians of capitalism vigorously protest those charges, but murmurs of discontent have already begun, and they will grow louder if the field continues to thrive.

Shenk is critical of the new trend's focus on economic growth as a corollary of capitalism:

“The First Cotton Gin,” Harper’s Weekly, Dec. 18, 1869

...the new historians of capitalism have a... complicated relationship with economists.... This is nowhere more evident than in the routine conflation of economic growth with capitalism. Though far from the only subject addressed by these historians, economic growth serves a crucial purpose in their accounts, in which capitalism’s ability to satisfy the yearning for more becomes its trump card. An incentive that has stymied would-be revolutionaries for centuries, economic growth unites communities around the pursuit of mutual enrichment, promises social mobility and political stability, and excuses every sacrifice made in its name. Despite its contemporary ubiquity, however, the idea that economic growth is a necessary feature of collective life has a brief history—much briefer than the history of economic growth itself. Not until the middle of the twentieth century was economic growth accepted as a natural and obviously attractive feature of a modern economy, and even then its reign soon came under assault.

Today, confronting the twin pressures of mounting income inequality and escalating concerns about climate change, partisans of economic growth face stronger opposition than at any time in decades. Even if continued growth were desirable, an increasing number of economists are convinced that a decrease from the last century’s norm will be unavoidable in the century ahead. It is a strange tableau: while economists speculate on growth’s decline, a swath of the historical profession, eager to challenge the tyranny of economists, has attempted to make modernity into the story of economic growth—a story that the economists of a prior generation did more than any other group to canonize. Understanding how we arrived at this intellectual crossroads requires a history of its own. 

Nuisance injunctions

The Journal of Environmental Law has a review by Patrick Bishop of Ben Pontin's Nuisance and Environmental Protection - A Study of Nuisance Injunctions in Practice (Lawtext, 2013) (Ben blogged here about the book and his related work last summer.) Bishop writes:

This book’s aim is succinctly stated from the outset, namely to examine: ‘what nuisance law is with reference to what it does in practice, in circumstances where a claimant is awarded an injunction to restrain ongoing pollution’ (p 1). Pontin posits various nomenclatures to describe his methodology, ‘realist’, ‘law-in-action’ or ‘law-in-context’ (p 3), but in essence the approach adopted is contextual.... The intention is to elucidate the socio-economic and environmental impact of nuisance injunctions by the study of materials extraneous to the law reports; in summary this book intends to broaden and enhance our understanding of nuisance by considering ‘what happened next’.

...the introduction provides a discussion of the main theories relating to the effect of the grant of an injunction. The author identifies four hypotheses gleaned from the literature. First, the idea that the grant of an injunction is likely to result in the closure of the defendant’s polluting exercise (the closure theory). Secondly, it will simulate thinking and investment into new modes of business in a manner which eliminates or at least reduces pollution to acceptable (non-actionable) levels (the clean-up theory). Thirdly, there is the possibility that an injunction might force the defendant to relocate its place of business to an alternative area where the nature of the locality is such that the polluting activity would not constitute an actionable nuisance (relocation theory). Finally, the parties might enter into a post injunction bargain, whereby the claimant is paid to move on or waive their legal rights as suggested by Ronald Coase in his ground-breaking work, ‘The Problem of Social Cost’, (Coase theorem). Thus, while it is Pontin’s intention to produce a text of practical significance, useful to potential litigants as well as lawyers and academics, the discussion of each of the four cases is grounded in theory and the outcome of each case study is judged against the four hypotheses identified. 

*****

Across the cases, the emphasis of the contextual discussion varies considerably; the chapter discussing Attorney General v Birmingham Corporation (1858–1895) focuses on the life and career of the claimant, Sir Charles Adderley. While he has faded into relative obscurity, Adderley is described by Pontin as a figure comparable to Rachel Carson and Gro Harlem Brundtland for his contribution to the enactment of the Public Health Act 1875 (p 59). In contrast, the claimant in Halsey v Esso Petroleum Ltd (1961–1972) is given scant attention and instead the background discussion is concentrated on national economic policy. The focus of each chapter is presumably shaped by the available archival material: it is safe to assume that the life of a former parliamentarian and cabinet minister (Adderley) has been recorded in considerably more depth than that of a Fulham van driver (Halsey). Regardless of the differing emphasis of each chapter, the contextual discussion is fascinating and more importantly, it is always enlightening.

The conclusion to each case study returns to the four hypotheses identified in the introduction. Of these, only the closure theory is discredited; the post-injunction investigation reveals that in none of the four cases was the defendant forced out of business. There is evidence, to a greater or lesser extent, to support the clean-up theory (Birmingham and Halsey), the relocation theory (Tipping v St Helens Smelting Co Ltd (1863-1884) and eventually Halsey) and in Farnworth v Manchester Corporation (1928–1930), the parties entered into a Coasian bargain, albeit that an agreement was reached after 40 years of negotiation! Significantly, in each case the injunction was suspended, thereby providing the defendant with the necessary time to find an alternative to outright closure. As Pontin notes: ‘The costs to industry were bearable, and indeed in each case the defendant had a choice as to compliance. Thus, the law afforded them a measure of flexibility’ (p 167). 

After the Grizzly

The recent issue of American Historical Review has a review by Kevin Armitage of Peter Alagona's After the Grizzly: Endangered Species and the Politics of Place in California (University of California Press, 2013) (we covered an earlier review here). Armitage writes:

The book argues that the ESA ensnared developers and environmentalists in familiar standoffs, and that battles over endangered species drove new law, science, and land-use policy. From these conflicts emerged the concept of “protected natural areas,” one of the dominant tools for species management, but one that Alagona thoroughly questions. Alagona notes how habitat protection alone cannot account for diseases, invasive species, the complexities of species interaction, and even how historic land-use patterns may or may not provide species habitat. This superb volume is an excellent history of California wildlife and shows how environmental history can prompt a fundamental reevaluation of public policy and scientific debates.

After the Grizzly is not an exhaustive history of wildlife in California, providing, instead, detailed case studies of four species—not the eponymous grizzly, but the California condor, the Mojave Desert tortoise, the San Joaquin kit fox, and the delta smelt—to exemplify the science and politics of wildlife conservation. Grizzlies, however, remain an important part of Alagona's story. Extinct in California for most of the twentieth century, grizzlies still haunt the state. They are emblematically abundant, a symbol of statehood, a creature at once adopted and eradicated. But the fate of this species does not fit into a simple morality tale of environmental decline. The grizzly, as well as the other species Alagona discusses, came to embody debates that are as much about “the politics of place as about wild animals” (p. 41). The politics of endangered species thus became the politics of endangered habitats, which in turn helped elevate the concept of habitat in legal doctrine and ecological science.

Mono Lake at 20

A favorite of environmentalists, environmental law professors, and students is the California Supreme Court's 1983 decision in the Mono Lake Case, applying the public trust doctrine in a particularly emphatic way on the side of ecological values. Anyone who's read the case knows that the court didn't apply the trust in a strong, "property" sort of way, but rather sent the issue back to the administrative agency to reconsider diversions from the lake, giving due weight to the values protected by the trust. So what actually happened afterwards?

On November 17 Berkeley Law will be holding a symposium on the issue, "Mono Lake at 20: Past, Present and Future". Note that the "20" is not since the famous court decision, but the 20th anniversary of the ensuing State Water Resources Control Board’s Decision 1631. Michael Kiparsky explains at Legal Planet:

In 1983 the California Supreme Court directed the SWRCB to amend Los Angeles Department of Water and Power’s water rights to protect Mono Lake and its tributary creeks. In 1994, the SWRCB issued Decision 1631, its landmark decision in the Mono Lake Cases. The decision was the first in the state’s history to integrate the Water Code, Fish and Game Code, and the common law of public trust, to achieve such a result.

The symposium will address a number of fundamental questions. What are the actual results of implementation of D-1631? What does the decision mean for other water rights, as the State Water Board seeks to determine how best to protect public trust uses of the Delta and Central Valley rivers....

This effort will extend the academic symposia at UC Davis in 1980 and 2011 in several intentional ways. Building on the doctrinal syntheses of the Public Trust Doctrine developed by the scholars at UC Davis, we will seek to move from problem definition towards solutions statements. The symposium will do so by bringing together panelists from multiple perspectives to distill lessons learned from twenty years of concerted effort, placing them in the context of institutional, fiscal, and ecological realities.