Friday, January 8, 2016

Art and the history of environmental law - part VI: Art and hidden environmental law

The last part of a series based on my article on art and history of environmental law. After looking at what art can teach us about environmental law's historical effects, we turn now to how works of art document historical environmental law itself, exposing historical law we might otherwise not know about.

Smoke over Des Moines (right)discussed in Parts IV and V of this series, does more than document the contemporary concern over air pollution that served as the background for the mid-twentieth century’s wave of environmental legislation or the failure of early legislation to solve the problem; it also alerts us to the very existence of air pollution regulation in mid-twentieth-century America, penetrating even to a relatively small Midwestern city. The poster is useful on yet another level, disclosing the legal and institutional form—local ordinances and smoke commissions—that the regulation often took in this period, thereby helping the modern historian bridge the conceptual and semantic gap between today’s legal forms and those of the past.

The WPA poster also opens further avenues of inquiry about environmental law circa 1940. We know from other sources that smoke commissioners and inspectors were appointed under a local Des Moines ordinance. Yet it was the St. Louis Smoke Commissioner, not a local official, who was the featured speaker of the advertised event. Historians have noted that the St. Louis Commissioner, Raymond Tucker, was a particularly effective and influential figure in the American anti-smoke movement, and the 1940 St. Louis ordinance that he pushed through and zealously enforced attracted attention outside the city.  The poster’s recording of Tucker’s visit to Des Moines, probably in early 1941,  might indicate the arteries of legal influence through which environmental norms flowed between jurisdictions during this period, raising questions about whether law traveled as a disembodied printed text or as a companion to flesh-and-blood travelers, and about the possibly limited geographic scope of legal diffusion during this time.

Turning to land use law, Monet’s work is once again suggestive. His 1870 paintings of the beach and boardwalk at Trouville (e.g. The Beach at Trouville, 1870, Wadsworth Atheneum, right, and La Plage à Trouville, 1870, private collection) display an interesting feature—the apparently flush building line and open beach.  Beach setbacks are a hot environmental issue today, but a supposedly recent one, as evidenced by historic building right up to the shoreline in many places. Assuming Monet’s depiction of the beach setback is historically accurate—its repetition in at least two paintings suggests it is—why did the owners of the expensive real estate in the trendy Norman resort not take advantage of the full extent of the beach to increase the built areas of their casinos and hotels? Why did they leave the beach open to the public?

The straight building line indicates a measure of coordination, and the owners’ withstanding of the temptation to “defect” and extend their buildings further out toward the sea suggests a degree of legal coercion. What kind of legal norm operated here is a mystery. Was it a French version of the “public trust doctrine”? A local initiative to preserve the tourist-attracting beach, anchored in local ordinance, contract, or servitude? An early law aimed at beach preservation, or perhaps one that sought to prevent storm damage to built structures? In any case, that Monet’s eye was drawn to this feature seems to attest to both its salience and its aesthetic value in the eyes of contemporaries.

Similarly, while Victorian environmental law may not have brought about clean skies, some paintings hint at other effects. Though mandating minimum chimney heights in order to lift pollution away from populated areas (transferring the fallout somewhere downwind) was apparently a product of the twentieth century, earlier paintings suggest that minimum chimney heights were being established already in the nineteenth. The multiple smokestacks in Caillebotte’s Factories at Argenteuil and Pissarro’s Bords de l’Oise à Pontoise (both in Part III of this series), among others,  appear to be of uniform height, towering above the squat chimneys in earlier paintings, such as De Loutherbourg’s early nineteenth-century depictions of the iron works at Coalbrookdale, Shropshire (below).

Phillipe Jacques de Loutherbourg, Iron Works, Colebrook Dale
(engraving William Pickett), 1805,
Science Museum at Wroughton
The standardization of heights evident in Caillebotte’s and Pissarro’s paintings from the latter part of the century suggests a legal moment behind the smokestacks’ specifications. Whether the elongated stacks were a uniform response to legislation requiring consumption of smoke, to more specific technical requirements imposed by legislation or licensing procedures such as the enquête de commodo et incommodo, or an attempt to head off nuisance suits by adopting industry-wide best practices needs to be investigated, but their artistic rendering at least opens this avenue of historical inquiry.

These examples suggest that while it may be difficult to discern the precise content of environmental law from artistic sources, these sources can at least alert us to the presence, and sometimes the form, of environmental legal norms, in historical contexts in which we might not have suspected their presence. Art can thus be a tool for understanding not only the preconditions and effects of environmental law, but the law itself.


To sum up this series, I would say that art can provide a valuable set of historical sources for understanding the cultural attitudes toward the environment against which environmental law did or did not develop. It can also help evaluate the effects of environmental law, particularly as these were perceived in history. While its utility for uncovering environmental law itself is probably more limited, we have seen that it can at least suggest lines of historical inquiry into the presence of environmental law and the form it took.

If you haven't seen the rest of this series or the original article, please take a look. I would appreciate your thoughts, as well as further research in this field!

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