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.

Early environmental economics

Agnar Sandmo has posted "The Early History of Environmental Economics", an article surveying the thought of eighteenth- and nineteenth-century economists on environmental issues, long before Arthur Pigou's famous work on taxing externalities and the late twentieth century blossoming of the field. Thomas Malthus is here, but so are many others whose writing on environmental issues is less well known, including the Marquis de Condorcet, John Stuart Mill, and Alfred Marshall, along with Edwin Chadwick, whom I had not thought of as an economist.

Some examples. Mill, the classical liberal, is quoted as writing the following regarding the proper role of government:

John Stuart Mill

Is there not the earth itself, its forests and waters, and all other natural riches, above and below the surface? These are the inheritance of the human race, and there must be regulations for the common enjoyment of it. What rights, and under what conditions, a person shall be allowed to exercise over any portion of this common inheritance cannot be left undecided. No function of government is less optional than the regulation of these things, or more completely involved in the idea of civilized society.

Marshall anticipated later fascination with the "fisherman's problem" in the late nineteenth century:

The Polluter Pays Principle

Muhammad Munir has posted "History and Development of the Polluter Pays Principle", an article tracing the history of the often-invoked principle in economic and legal thought. The article begins with economists AC Pigou, AV Kneese, and others, and proceeds through legal developments, including the 1968 Draft Declaration of Principles on Air Pollution Control by the Committee of Ministers of the Council of Europe and an OECD seminar in 1971. The abstract:

from EESC glossaries

This work traces the history of the polluter pays principle (the PPP) in the early economic literature from 1920s. The OECD recommended the PPP as the ‘Guiding Principle Concerning the International Economic Aspects of Environmental Policies’ in 1972. In 1973 the Council of the European Communities approved the First Program of Action on the Environment and the PPP was made one of the principles of Community environmental policy. The PPP has been mentioned as one of the principles in many regional and international conventions the PPP remains as a principle of environmental policy. The polluter pays principle is one of the most efficient principles of environmental policies.

RIP Ronald Coase

Nobel Prize-winning economist and law school professor Ronald Coase passed away earlier this month at the age of 102.

Coase's 1960 article, "The Problem of Social Cost", the most-cited law review article of all time, had an immense effect on both the study of environmental law and its design, providing intellectual backing for two prominent trends in environmental law of the last few decades: market-based policies and cost-benefit analysis. As Cass Sunstein explains:

His target was the great British economist Arthur Cecil Pigou, who contended that if a polluter is emitting smoke, and thus causing injury, the best response is to make the factory owner pay for the injury or to impose a corrective tax.

Coase said Pigou failed to see “the reciprocal nature of the problem.” Suppose that a very noisy factory is causing legal injury to a doctor operating next door. Under Pigou’s approach, the factory should be required to pay damages to the doctor. But Coase pointed out that we could also make the doctor bear the cost. His central insight was that if people can bargain with one another, and if it isn’t costly for them to do so, it just doesn’t matter who is required to pay: People will negotiate their way to the efficient solution. This is the Coase theorem in a nutshell.