The origins of American environmentalism

The upcoming issue of Environment and History has an interesting, extended review by Thomas Le Roux (translated from the original French review in Le mouvement social) of Chad Montrie's The Myth of Silent Spring: Rethinking the Origins of American Environmentalism (U Cal Press, 2018). According to the review, the book does not try to downplay the importance of Rachel Carson's Silent Spring, but rather to point out the rich history of environmentalism (and environmental regulation) long predating Carson's work, with sources in labor, public health, social justice, and other movements. An excerpt:

In the second half of the nineteenth century... local municipalities were pressed to provide public health services or access to drinking water. The fight against pollution was one of the main issues of the urbanising nineteenth century, and this is the subject of the second chapter, which exposes different types of action to protect urban environments between 1870 and 1945. In particular, women, industrial workers and racial minorities began to claim environmental justice. As unions organised, and within the context of a wider social movement during this period, the working and lower classes managed to have their voices heard in order to improve their living conditions in an insalubrious urban environment. Often pressured by radicals, socialists and reformers, a number of communities took action to address local injustices. For example, between 1897 and 1904, under the directives of the radical Mayor Jones, Toledo, Ohio inaugurated a municipal service for garbage collection, as did Milwaukee, Wisconsin, which was led by a socialist-leaning mayor after 1898. It is particularly interesting that environmental activists also found themselves fighting for better industrial hygiene to protect the health of factory workers. It is in this milieu that the socialist John R. Commons, who established several health and safety measures in Milwaukee, participated in creating the American Association for Labor Legislation. His work, alongside that of Professor Alice Hamilton, resulted in a more protective regime for industrial hygiene in Chicago and in the whole of the State of Illinois. In this urbanising world, the desire for nature was not only a privilege of the upper classes, but the contemporary push for segregation was such that numerous conflicts emerged regarding the use of forests, beaches or the rural surroundings of cities for a day’s relaxation. In the middle of natural spaces, unions and local communities created educational camps that focused on learning about natural environments for urbanites otherwise confined to their city districts or to their factories. These different actions diffused a renewed sentiment of the need for nature which was well-rooted prior to the second World War, and Montrie highlights that this need was reinforced with the federal program for conservation during the New Deal.

Historical analysis in environmental law I: Introduction

This past summer I noted that I posted a draft of my "Historical Analysis in Environmental Law" (on SSRN and Academia), forthcoming in the Oxford Handbook of Historical Legal Research, edited by Markus Dubber and Chris Tomlins. I believe there's still some time for modifications, so I'll post a series on it now, and hope some of you will have some helpful comments!

Environmental law has no history.

This is not to say environmental law has no past; indeed, scholars are beginning to uncover its historical roots. What I mean by having no history is, first, that there is a general feeling, common to legal historians and environmental lawyers (particularly in the United States), that environmental law is something new under the sun, having emerged in the 1970s from the environmental crises of the preceding decade (such as the Cuyahoga River catching fire) and a contemporaneous sharpening of ecological consciousness (spurred, most prominently, by Rachel Carson's Silent Spring). Modern environmental law lacks of connection both to earlier periods and to the great themes and trends of legal history.

The general view of environmental law's history is that before circa 1970 environmental regulation as we think of it today—a branch of public law in which the regulator sets standards for activities with environmental impacts—was insignificant. Rather, it is taught, the environment was regulated through nuisance law—a system relying on private parties, or sometimes the government, bringing a lawsuit to enjoin environmentally harmful activities or obtain damages for environmental harm: "Prior to the explosion of environmental legislation in the 1970s, the common law was the legal system's primary vehicle for responding to environmental problems.... The common law relied largely on nuisance law doctrines to resolve environmental controversies..." (Percival et al, 63) Some look to this period as a lost golden age; others see it as having been a workable system for its time; while yet others condemn it as a failure.

This view of modern environmental law being created ex nihilo in a moment of crisis is, first and foremost, inherently implausible.

Merchants of Doubt

H-Environment recently re-posted its 2011 Roundtable Review of Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (Bloomsbury, 2010). Reviewer Mark Carey writes:

The handful of scientists the book identifies as the "merchants of doubt" in this half-century history are mostly retired physicists who played prominent roles in the development of the atomic bomb, nuclear weapons, or other aspects of U.S military defense during World War II and the early Cold War years.... These doubters repeatedly sought to obscure scientific consensus on a range of issues unrelated to their backgrounds and training. They used the prestige they earned and the political connections they developed as notable physicists not only to get recognition and attention, but also to gain access to influential policymakers. In most cases, these scientists joined with--and were funded by--private industries and conservative think tanks, particularly the George C. Marshall Institute.

The merchants of doubt argued persistently and loudly over time that tobacco smoking (and later second-hand smoke) was not bad for people's health, even though scientists and the tobacco companies themselves knew otherwise. They promoted strategic defense initiatives (popularly known as Star Wars) in the 1980s by suggesting in contrast to specialist scientists that nuclear winter was an unlikely possibility that should not deter increased arms production. They argued (falsely) that scientific conclusions about acid rain, the ozone hole, and global warming were inconclusive and could not be linked to anthropogenic causes. And most recently, some have contended that Rachel Carson was wrong, that her impassioned fight against DDT has actually resulted in the death of millions of African children from malaria that could have been prevented with DDT. 

Labor and environmental law

The last issue of Environmental History has Stefania Barca's survey article, "Laboring the Earth: Transnational Reflections on the Environmental History of Work". Among other things, Barca's rich article raises issues that I think have received too little attention in those working on the historical sources of environmental law, particularly the role of worker safety regulation in setting environmental-legal standards, and the role of the labor movement, and the Left in general, in the development of environmental law. On the first issue, for instance, Barca writes (footnotes omitted):

Another important step in the environmental history of work comes from placing the workplace center stage in our narratives and understanding it as an ecological system. This approach was suggested by Arthur McEvoy in a 1995 article, noting that, from the vantage point of the shop floor, “Ecology points to an analysis of health and safety in terms of the interaction between a number of systems: the worker's body and its maintenance, the productive processes that draw on the worker's energy, and the law and ideology that guide them.” Not only the workplace, but also workers' bodies should thus fully enter environmental history narratives as meta-texts where the political ecology of industrial societies had been written.

An important contribution in that sense was given, again in the United States, by Christopher Sellers's Hazards of the Job, a work that marked a turn in the literature by bridging the history of the workplace with that of environmental science and environmentalism. The book showed how US and European workplaces had been important spaces for knowledge production about human and environmental health and for professional coalitions pushing toward regulation of industrial hazards. Not only has work been extracted from workers' bodies in the course of the industrial era, but so too has knowledge. The branch of medical science known as industrial hygiene developed out of extracting information from workers' bodies and observing their reaction to a variety of risk factors in the course of their work life. This kind of science evolved in Europe and the United States between the last decade of the nineteenth century and the first half of the twentieth, and it reached a wider significance for the environmental movement through Rachel Carson's Silent Spring, which amply relied on research from physicians and industrial hygienists. It was that science that first began to draw the boundaries between normality and abnormality, acceptable and unacceptable limits of exposure and contamination. The environmental movement of the 1960s, according to Sellers, started from the criteria and definitions central to industrial hygiene to attack pollution.

E.B. White and William O. Douglas

Mark Weiner's series from last month on E.B. White and mid-twentieth-century liberal internationalism has some interesting thoughts on the connections between thinking on international law and environmentalism in the writings of White and Justice Douglas. For more on Rachel Carson, travel writing, Charlotte's Web, and the connections between the natural world and the international community, see here and here.