Sunday, January 28, 2018

Historical analysis in environmental law VI: What is at stake

In the last couple of posts in this series I suggested several directions of inquiry for uncovering the history of environmental law. In this final post in the series, I would like to tentatively offer some thoughts on why the historical exploration of environmental law matters.

First of all, history can help us better understand current environmental law. For instance, David Driesen has recently advanced a positive theory of environmental law, attempting to explain its salient features, such as reliance on certain types of standards. Notably missing from his account are historical explanations for these aspects of environmental law, explanations which might be provided by works such as those of Morag-Levine.  Or take the argument of 'free market environmentalists' that private law would do a better job of protecting the environment than modern regulation; this type of argument could be checked against the historical experience of legal systems that have relied on private law for this purpose.

AC Pigou
Second, the history of environmental law is a topic that offers an opportunity to bridge the material and the abstract, or to take up environmental historian Linda Nash's challenge 'to show how what is presumed to be social or cultural is thoroughly intertwined with the natural.' Such an endeavour would be beneficial to both environmental history and legal history, as legal doctrines, institutions, and ideologies—social and cultural artifacts—developed with regard to the natural, may circulate beyond the narrow confines of environmental law to other legal contexts. One thinks, for instance, of Pigouvian taxes, cost-benefit analyses, and feasibility standards, all developed 'intertwined with the natural' but spreading their branches far afield.

Environmentalists often portray themselves as acting in the name of an apolitical public interest.
Nevertheless, environmentalism and environmentalists are often seen as highly political; accused on the one hand of advocating an anti-capitalist, anti-market, state-interventionist agenda, while at the same time accused by others of elitism, putting the aesthetic and recreational values of the (white) upper classes ahead of the basic economic interests or needs of the working classes, indigenous peoples, and racial minorities. The history of environmental law provides an interesting arena for the study of class and race politics and environmentalism on the one hand, and law on the other.

Historical analysis of environmental law is likely to show that there is some truth to the elitist charge, as in recent work by Ben Pontin identifying a strain of 'old Tory', aristocratic environmentalism in nineteenth century Britain, or in the work of Mario Prost and Yoriko Otomo showing the imperialist and racist sources of international wildlife protection law. Yet in other contexts environmental law may be shown to have lined up with the working classes and minorities, whether in the commons preservation movement that fought for access by the British working classes to environmental amenities, the alliances with occupational health regulation and trade unions, or in the proto-environmental justice aspects of the American wilderness movement recently explored by Jed Purdy. Further research will no doubt reveal more complex, even ambiguous political coloring of environmental law, thus deepening analysis of the political and distributional aspects of both the environment and the law.

Finally, politics and distributional issues bring us to the potential of the history of environmental law to enrich our understanding of two of the most important historical issues of our time: empire and capitalism. Empire and colonialism have become central to our understanding of environmental history, from Alfred Crosby's Columbian Exchange to Richard Grove's Green ImperialismRecent years have also seen a surge of interest in the legal histories of empires (though rarely with any attention to the environmental aspects of those histories). We need to ask what the role of law was in the environmental transformations wrought by empire, and what the effect the varied environments of empire had on the development of law. These questions need to be asked not only with regard to imperial peripheries, but also for imperial centres, as well as for the jurisdictions that were not formally part of empires but were nonetheless caught up in their economic, cultural, and ecological webs.

As for capitalism, it is impossible to imagine it without the material capital originating in the environment, and without law to facilitate the exploitation of the environment. Environmental historian Steven Stoll has written, 'Documenting the effects of capital without confronting its architecture and foundation seems like an ineffective scholarly project.' Environmental law is an important part of this architecture and foundation; it must have enabled exploitation of the environment and possibly legitimated it, but at other times regulated and even stymied it. How, where, when, and why these various scenarios played out, who benefited and who lost, and under what conditions the worst excesses of capitalism were curbed, are questions whose answers might not only enrich our historical understanding, but our current environmental law and politics as well.

Comments? Please let me know, as there's still time to improve the chapter.

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