Law in the Anthropocene? Maybe not

Eric Biber recently posted a series at Legal Planet based on his recent Georgetown Law Journal article, "Law in the Anthropocene Epoch" (abstract below). The Anthropocene, for those who have somehow missed this buzzword, is (according to its proponents--it has yet to be officially adopted) a new epoch, in which the signs of human changes to the planet are visible in the geologic record. The article and blog posts contain a useful catalog of ways in which current legal doctrines and institutions do a poor job of dealing with environmental challenges, and essentially argue for the desirability of major changes in liberal conceptions of individual rights and private property. That sounds right, but I'd like to quibble over three historical elements of the argument.

First, Biber's confidence in the direction of future political and legal change ("Humans will inevitably respond to the Anthropocene", "These responses will ineluctably lead to greater government involvement", etc.) seems to me problematic, reflecting an environmental-determinist and functionalist view of legal development that I find unconvincing. Many of the challenges identified by Biber have been with us for some time, and the law has apparently not adapted to them. It is not clear that it must or will do so in the future. I think a more tentative or even a normative tone would have made for a more convincing argument.

Second, Biber's use of "the Anthropocene" is idiosyncratic. Many proponents of the idea of an Anthropocene epoch seem to have settled on a start date in the mid-twentieth century, though others (including the originators of the idea) argue for an 1800 start, and others would push it back even further. In any case, if there is an Anthropocene, we are already in it, the challenges identified by Biber are already upon us (with many of them hundreds of years old), and so if, as he argues, the law will change in response to them, it should have already done so. If the Industrial Revolution took place during the Anthropocene, it is hard to make sense of his argument that "These changes will parallel similar revolutionary legal changes associated with industrialization and the development of a national economy in the United States in the nineteenth and twentieth centuries."

Oliver Wendell Holmes and water pollution

Yesterday's edition of This Day in Water History notes the anniversary of a historic interstate lawsuit over water pollution, Missouri v Illinois (1906). See my own take after the jump.

January 17, 1900: Fifteen days after Chicago opened the Sanitary and Ship Canal and reversed the course of the Chicago River to discharge sewage into the Mississippi River, Missouri sued Illinois, “…praying for an injunction against the defendants from draining into Mississippi River the sewage and drainage of said sanitary district by way of the Chicago drainage canal and the channels of Desplaines and Illinois river.”

The Bill of Complaint alleged in part:

“That if such plan is carried out it will cause such sewage matter to flow into Mississippi River past the homes and waterworks systems of the inhabitants of the complainant…

That the amount of such undefecated [huh?] sewage matter would be about 1,500 tons daily, and that it will poison the waters of the Mississippi and render them unfit for domestic use, amounting to a direct and continuing nuisance that will endanger the health and lives and irreparably injure the business interests of inhabitants of the complainant…

That the water of the canal had destroyed the value of the water of the Mississippi for drinking and domestic purposes, and had caused much sickness to persons living along the banks of said river in the State of Missouri.”

The opinion in the case was written by Supreme Court Justice, Oliver Wendell Holmes and read in part:

“The data upon which an increase in the deaths from typhoid fever in St. Louis is alleged are disputed. The elimination of other causes is denied. The experts differ as to the time and distance within which a stream would purify itself. No case of an epidemic caused by infection at so remote a source is brought forward and the cases which are produced are controverted. The plaintiff obviously must be cautious upon this point, for if this suit should succeed many others would follow, and it not improbably would find itself a defendant to a bill by one or more of the States lower down upon the Mississippi. The distance which the sewage has to travel (357 miles) is not open to debate, but the time of transit to he inferred from experiments with floats is estimated at varying from eight to eighteen and a half days, with forty-eight hours more from intake to distribution, and when corrected by observations of bacteria is greatly prolonged by the defendants. The experiments of the defendants’ experts lead them to the opinion that a typhoid bacillus could not survive the journey, while those on the other side maintain that it might live and keep its power for twenty-five days or more, and arrive at St. Louis. Upon the question at issue, whether the new discharge from Chicago hurts St. Louis, there is a categorical contradiction between the experts on the two sides.”

Commentary: In effect, Justice Holmes ruled in favor of Chicago. The experts for St. Louis had failed to prove their case.

Reference: Leighton, Marshall O. 1907. “Pollution of Illinois and Mississippi Rivers by Chicago Sewage: A Digest of the Testimony Taken in the Case of the State of Missouri v. the State of Illinois and the Sanitary District of Chicago.” U.S. Geological Survey, Water Supply and Irrigation Paper No. 194, Series L, Quality of Water, 20, Department of the Interior, Washington, D.C.: U.S. Government Printing Office.

Mervyn Susser and the question of causation

George Conk recently blogged on the passing of epidemiologist Mervyn Susser, 92. Susser wrote, among other things, on the problem of causation, which can often be a serious obstacle to obtaining damages for environmental harm (or instituting regulation to prevent it). Conk writes:

The former editor of the American Journal of Public Health, he was a South African-born progressive, who collaborated with his wife Zena Stein.  I had just began to seriously look at the problem of how to prove causation of disease in occupational illness cases where no exact mechanism  of injury could be identified. Susser gave me direction as I represented the Trial Lawyers Association  in the asbestos-related disease case Landrigan v. Celotex, a landmark guide in the use of scientific evidence.

*****

Mervyn Susser, like the great progressive epidemiologists Irving Selikoff  and Sir Austin Bradford Hill, was motivated by the fight against disease and the need to identify causal relationships.  The epidemics of heart and lung disease associated with tobacco and asbestos motivated Selikoff and Hill. Susser, a pioneer of community medicine, worked in a clinic treating Black citizens in Johannesburg. In the progressives view causal inference was to be achieved neither by idolatry of formal tests of statistical significance nor by anecdotal snapshots.  Rather the public health called for a socially aware observational perspective informed by clinical methods, pathology, and biostatistics.  No single factor was decisive.  The health of patients called for effective strategies, not skepticism. 

*****

Dr. Susser explained that scientific skepticism is to be doubted.  “We have to practice believing”.  He wrote:

In the end, a quality which lawyers should understand better than any- judiciousness- matters more than any.  Scientists use both deductive and inductive inference to sustain the momentum of a continuing process of research.  The courts of law, and the courts of application, use inference to reach decisions about what action to take. Those decisions often cannot rest on certitudes, most especially when population risks are converted into individual risks. It is my firm belief, nonetheless, that practical decisions that draw sustenance from scientific inference will be better decisions than those that do not.