The latest issue of the Journal of Environmental Law has an interesting piece by Ben Pontin, "The Constitutive Tension Between Public Health and Environmental Protection—An Historical Perspective". Pontin writes (footnotes omitted):
According to David Hughes, the author of an early formative textbook, environmental law has ‘public health origins’. That is to say, many current regulatory bodies and laws are rooted in the sanitary boards created and statutes drafted during industrialisation to address cholera, typhus and other diseases then associated with urban life. Hughes makes the important point that environmental regulation has borrowed from public health regulation above all in the form of the use of criminal law as a tool of prevention of harm, rather than sanctioning of individual wrongdoing.
It is true that the laws and institutions of public health burgeoned during industrialisation, and that they defined progress at this time. Thus one of the most ‘progressive’ Victorian-era administrations—that of Benjamin Disraeli between 1874 and 1880—was elected on a manifesto echoing Cicero’s maxim salus populi sumprema lex esto (the health of the people is the highest law). This administration put on the statute book the Public Health Act 1875, which heralded a significant shift ‘towards a more modern, collectivist approach to public health’. Under the umbrella of Cicero’s maxim was also enacted legislation controlling air and river pollution.
Yet environmental legislation in and around this period has an autonomy in relation to public health that is not fully captured by Professor Hughes’ characterisation. For instance, whereas public health campaigners seeking the creation of a robust nationwide legal response to disease encountered obstacles in an age of ‘laissez faire’, those defending ‘nature’ found legislation easier to secure. An example is the protection of rural vegetation from chemical factories under the Alkali Act 1863, by means of a centralised, criminal administrative regulatory regime. Public health campaigners in respect of urban peoples were less easily heard within the law-making institutions than the elite proprietors of country estates, safeguarding trees, hedges and meadows.
Charles Tennant's St. Rollox Chemical Works in 1831
The Sea Birds Preservation Act 1869 is another particularly noteworthy environmental statute which highlights the priority accorded to the protection of cherished wildlife relative to public health. Whilst the protection afforded to the vegetation of the countryside under the Alkali Act 1863 was rooted in an ‘instrumental’ concern to protect the property of the landed elite, the 1869 Act—in its focus on wild birds—was based on the intrinsic value of nature (the protection of wild birds supposedly for their own sake). Out of this Act and its limitations grew a women’s movement for the protection of birds from the excesses of the fashion industry, or ‘murderous millinery’, led by Emily Williamson and Eliza Phillips. Today it goes by the name of the Royal Society for the Protection of Birds (RSPB), managing 200 nature reserves in the UK, and drawing upon the largest membership of any wildlife organisation in Europe.
At the time the RSPB was founded, it was not necessarily a political advantage for an ‘environmental’ campaign to put public health at its heart. Every winter of Queen Victoria’s reign subjects in towns and cities died of respiratory illnesses linked to smoke from the chimneys of residences and workshops. Bill after bill failed in Parliament, as MPs could not find the collective will to abate pollution from the combustion of coal insofar as it took the lives of vulnerable folk. The comparison between the failure of these bills and the successes in areas of vegetation and birds is stark and thought-provoking. It was not until the ‘killer smog’ of 1952 that Parliament was persuaded to legislate for clean air zones, but like early public health interventions, the Act was permissive and localised, and not quite as robust as clean air campaigners had long been advocating. A more distinctively ‘nationwide’ and ambitious post-war measure, drawing on a Victorian-era environmental heritage, can be found in the National Parks and Access to the Countryside Act 1949, protecting inter alia areas of outstanding natural beauty.
A thread running through these historical examples is that environmental law has a different character depending on one’s understanding of its roots, and whilst priorities come and go with the passage of time, there remains almost ‘constitutive’ tension between public health and the environment.