Tuesday, January 9, 2018

Historical analysis in environmental law III: Winds of change

In the previous post in this series I discussed the seeming lack of interest of legal historians in environmental angles. Nonetheless, recent years have seen deepening interest in the history of environmental law, with a few scholars highlighting the connections between the supposedly foundational environmental legislation of the 1970s and earlier law. One prominent work in this genre of pushing back environmental law's start date is Karl Boyd Brooks's Before Earth Day. Brooks's book is notable not only for identifying the statutory precursors of modern environmental regulation, but for its attempt to trace the manifold legal, personal, and institutional connections between legislation and litigation, and between pollution control law and the law of nature protection, two areas of modern environmental law that might be assumed to have distinct, even antagonistic, origins.

Another front opened recently regards the relationship between modern environmental law as it coalesced in the 1970s and the New Deal administrative state. On the one hand, Arthur McEvoy has argued that environmental law was a project of the New Deal regime, and that after the early 1970s it declined along with the wider regime. On the other, two recent articles have argued that the environmental law of the 1970s marked a break with New Deal liberalism. Paul Sabin explains the era's public interest law organizations as growing out of environmentalists' increasing disillusionment with the state as an engine of public-minded environmental protection, spurring a turn to an oppositional and litigious stance. Jedidiah Purdy, meanwhile, sees the salient federal legislation of the 1970s and the organizations that grew up around it as departing from an earlier tradition that viewed environmental issues in a wider context of social and economic justice. Mainstream environmental lawyers, he argues, were lulled by the shrinking economic inequality of the postwar period into focusing on elite and professional advocacy and environmental issues narrowly defined, forsaking issues, such as the disproportionate impacts of environmental harms (and environmental regulation) on minorities and workers, that would later come to be labelled 'environmental justice'.

Yet while these works do the valuable service of suggesting connections to wider themes of legal history such as the rise of—and reaction to—the administrative state, they push back the start of environmental law by only a few decades. They also make no connections to environmental regulation before the twentieth century, outside the US, or indeed outside the arena of federal regulation.

It bears noting that the relative dearth of historical work on environmental law, as well as the relatively narrow jurisdictional and chronological frames of what work there is, are far more marked in the American context than in the European. For instance, scholars have produced a significant body of work on French regulation of early industrial pollution, and quite a few British legal historians have given significant attention to environmental issues. Noga Morag-Levine's work has bridged some of these bodies of scholarship, compellingly arguing that English and Continental approaches to pollution control in the nineteenth century continue to inform current American debates over issues such as the appropriateness of the precautionary principle or feasibility standards. The blindness as to the history of environmental law may be a particularly American disease. (To the extent it is, this exceptionalism is itself a topic worthy of research).

The work that perhaps treats American environmental law in the most comprehensive manner is Betsy Mendelsohn's chapter on law and the environment in The Cambridge History of Law in America, which notes in its opening section:

Environmental law cannot be understood apart from the long-established debates and tensions that define the traditions of American law as a whole: individual rights and the extent of state power, the authority of law and its means of implementation. Long before the mid­-twentieth century, American law was fully engaged with such matters as, for example, the private use of common resources, such as wildlife and rivers; private activity that injured public health and welfare, such as the emission of industrial wastes; and the municipal assumption of administrative power to build networked sanitary infrastructure. Courts had accepted science-based rationales to authorize law that limited private rights. Governments had engaged in interstate responses to environmental problems that crossed jurisdictional boundaries.
Two essential categories of environmental law and litigation, nuisance and natural resources, are ancient and capacious: they have occupied courts, legislatures, and other governmental authority for centuries. 
Mendelsohn then goes on to trace environmental regulation—including legal regimes designed to encourage exploitation of the environment—from colonial times, through the growth of the administrative state in the nineteenth and twentieth centuries, to the environmental law of the postwar period.

Yet Mendelsohn's article stands alone. Few legal historians have followed her example, whether in uncovering the legal roots of contemporary environmental law or in making the lateral connections between historical environmental law and other historical topics. The field remains in need of extensive work in both of these directions.

Next: What is to be done? For the full series and links to the article, see here.

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