Historical Analysis in Environmental Law V: What is to be done? Police, public health, statutory nuisances, planning and zoning, labor law, and literature

In the last post in this series I suggested looking at the histories of commons regulation, forest law, and 'police' to better understand the historical roots of modern environmental law. Before moving on to note several other relevant areas of historical law, I would like to note that while critics (most recently Markus Dubber) have impugned police for its broad discretion and patriarchal foundations, these very elements were powerful enablers of environmental regulation in the public interest. Moreover, the opposing tradition that Dubber identifies—the Enlightenment ideal of the 'rule of law'—has often used the liberal ideal of private property to frustrate public-minded environmental regulation. In any case, police regulations, with their wide remit and geographic dispersion, are natural places to look for sources of modern environmental law. Noga Morag-Levine has indeed made the connection between early modern 'science of police' and later regulation of air pollution, but it is likely that 'police' was—for better or worse—a fertile source of much more of environmental regulation than we yet realize.

An important sub-set of police regulation was the public health law that grew up in the Victorian age as a response to the urbanization and industrialization of the period, giving expression to the sanitary movement's concern with the effects of environmental degradation on human health and welfare, particularly of the working classes. Public health statutes, bylaws, regulations, and licenses regulated issues such as smoke pollution, industrial odors, and sewage disposal. This highly developed area of law could be investigated for its influences on later environmental law, including its emphasis on technical solutions to pollution problems and the division of labour between central and local regulation that continue to characterize the field. Public health law is also likely responsible for the creation of a bureaucracy of professionals with expertise in the health and engineering aspects of pollution that would form the core professional staff of modern environmental regulators.

Associated with public health law in the Anglo-American world was the law of statutory nuisances. Statutory nuisances allowed for private and public administrative and criminal enforcement of prohibitions on various forms of pollution and encroachment on the public domain, and thus are a likely source of much modern environmental law. Moreover, this area of law may be a source of the prevalent confusion over the role of nuisance law in the pre-1970 area. It may be true that 'nuisance law' was the dominant vehicle for environmental regulation in this period; yet the category of 'nuisance' included not only a common law variant (private and public, the latter of which could be criminally prosecuted), but also statutory nuisance, with its explicit prohibitions on specific types of environmental harms and risks, such as discharges of pollution into water sources and emissions of 'noxious vapours'. If the law of nuisance one imagines is the private, common law of nuisance usually thought of, modern environmental legislation might indeed seem to represent a major revolution. If, on the other hand, statutory nuisance is given its due, the environmental legislation of the 1970s may look more like an elaboration of existing law.

The issue of incompatible land uses also spurred development of the modern law of planning and zoning. Beyond the obvious environmental ramifications (both positive and negative) of this area of law, it likely influenced modern environmental regulation in several ways. Not only has it served as an important tool for protection of open space and nature, but it may also have been a complementary source of regulation of classic environmental issues such as water and air pollution. For not only did zoning law mandate separation of uses (a principle much denounced by contemporary critics), it also created a process by which the environmentally harmful land uses could be enjoined at the land-use permitting stage, or else conditioned on meeting environmental requirements.

Note that most of the above areas of proto-environmental law were centered on local rather than central governments. Even more recognizably modern environmental regulation, such as permitting systems, often developed at the local level before the national one. The 1970 start date for even modern environmental regulation would thus look even more tenuous were we to widen the scope of research to include local governments; many key provisions are likely to be revealed as not much more than the adoption of local legal norms and their application across a larger jurisdictional area. On the other hand, the shortcomings and failures of local government and local solutions might be investigated as motivating factors behind the development of modern, nationally based systems of environmental regulations.

Another apparent historical font of environmental law is labor law, particularly the legal protections for the health of workers. The place of workers in nature conservation law is a related theme that would benefit from further research. Like several of the sources of environmental law surveyed above, this one, too, might provide valuable insight into the class politics of the field, helping to revise a prevalent view that associates environmental law with elite interests and values. 

Finally, in keeping with my colleague and teacher Assaf Likhovski's chapter on the intellectual history of law, a promising avenue of research lies not in the search for environmental law's sources in positive law, but in historical legal and environmental literature. Treatises on water law, forest law, and other environmental-legal topics go back several hundred years; on pollution law at least to the nineteenth century. Relatedly, I have elsewhere suggested that the history of environmental law might be studied through visual art and literature. Studies of past scholarly and artistic works, including the arguments about law and regulation in environmental writings, can help to not only put historical environmental law in context, but also to reveal some of the intellectual and cultural roots of developments in the law over time.

The above desiderata call for a clarification: I do not mean to suggest that in this search for origins of environmental law we should wish or expect to find unbroken continuity between environmental-legal regimes or the environmental attitudes that motivated them; nor can we assume that the meaning of terms such as 'environment' or 'conservation' in the past denoted the same things they do today. Ideas and concerns about the natural environment obviously changed from place to place and from time to time, and it would be foolish to think that the cultural meanings of smoke emissions or the commons in the Victorian era (to give but two examples) were the same as today. Nor can we assume that the law regulated these issues in different eras for identical reasons or in identical ways. 

Yet I do mean to suggest that the past may not be as foreign a country as we sometimes think. Some of the basic motivations behind modern environmental law—public health and safety, conservation of resources to allow future use, aesthetics, and so on—are evident in much historical law, even as their meanings and particular expressions change over time. Moreover, even when societal attitudes and motivations have changed, available legal technologies—permitting processes based on best available techniques, requirements for studies of environmental impacts, demands for sustainability—may have survived and been applied to purposes both old and new. Without denying that environmental law may have seen a major change around 1970 (and at other historical inflection points yet to be identified), it was just that—a change—not the birth of a field of law out of thin air.

So much for the longitudinal axis; on the lateral axis I comment only briefly. Once the various areas of environmental law avant la lettre have been fleshed out, they need to be contextualized. Who pushed for these legal regimes and who opposed them? What material and economic interests were at stake? Which conceptions of justice, political ideologies, and environmental attitudes were reflected in the law, and which rejected? What were the effects of the law, not only on 'the environment' but also on society, economy, and culture? What changes occurred in the field, and why? These questions will be kept in mind in the next and final post in this series.

Comments? Please email me; there's still time for changes in the chapter.