Class and conservation

Recently published in the American Journal of Legal History is William B Meyer's "Class, Conservation, and the Police Power in the American Gilded Age: The Origins of Lawton v. Steele". The abstract:

The leading police power case of Lawton v. Steele, decided by the US Supreme Court in 1894, offers insight into the question of judicial class bias during the decades following the Civil War. Conflict arose in rural northern New York State over restrictions on livelihood fishing by nets imposed to protect sport angling by affluent tourists. Opposition to the restrictions was grounded in a producerist worldview and class consciousness. The matter reached the courts in a challenge to state laws permitting the summary destruction, without legal process, of nets placed illegally. Seemingly prohibited by the Fourteenth Amendment and previous case law, such destruction was upheld by a Supreme Court divided along ideological lines, correlating with the justices’ Whig or Jacksonian antecedents. The dissenters, those of Jacksonian sympathies, argued unsuccessfully against the challenged laws.

Winslow Homer, Adirondack Lake (Blue Monday) (1892)

Tension between public health and environmental protection

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

Digital library I: A New Treatise on the Laws for Preservation of the Game (1766)

So (as Ann Wilson sang), the first post in the digital library of historical environmental law series is on A New Treatise on the Laws for Preservation of the Game, first published in 1764; the second edition, available online, was printed in London in 1766 by His Majesty's Law Printers.

The title page gives the author as "a Gentleman of the Middle-Temple"; said gentleman was apparently one Timothy Cunningham, a prolific author of law books in eighteenth century Britain.

The title of "Gentleman" may have been about more than manners or class, as the long title of the treatise has this explanation (Oklahoma!, anyone?): "Containing All the Statutes, Cases at Large, Arguments, Resolutions and Judgments concerning it; equally useful to the Gentleman and Farmer; as the Gentleman may learn how far his Privilege extends, and the Farmer may be enabled to know when the Gentleman exceeds the Limits prescribed by Law, and the proper Methods of Redress." So the author must have been something of a "sporting gentleman" (as he puts it on in the "Advertisement") himself, not simply a disinterested scholar.

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.

The redwood wars

The latest American Historical Review has a review by Neil Maher of Darren Speece's Defending Giants: The Redwood Wars and the Transformation of American Environmental Politics (U. Washington Press, 2017). Some excerpts:

Speece begins with the conflict’s prehistory, describing the rise in the region during the late nineteenth and early twentieth centuries of a “corporatist” logging industry that was permitted, with encouragement from the California Board of Forestry, to self-regulate cutting practices on privately owned land. Redwood preservation during this period most often involved elite groups, such as San Francisco’s Bohemian Club, purchasing groves from timber companies. The next four chapters, which jump to the late twentieth century and the “Redwood Wars” themselves, follow local activists and their two-pronged strategy—involving lawsuits and direct action campaigns—that all but halted old-growth logging on the North Coast and, in doing so, weakened the corporatist reign over redwoods. The legal stalemate that resulted, Speece concludes, fostered “the Deal” orchestrated by President Bill Clinton, which not only protected the old-growth redwoods of the North Coast’s Headwaters Forest but also laid the groundwork for additional protection of endangered landscapes nationwide.

Defending Giants is about more than environmentalists, however, and in order to give voice to the lumber executives, loggers, and lawyers who also serve as foot soldiers in this conflict, Speece embraces a diverse set of historical methodologies. To understand the grassroots beneath his tall trees, he scours local newspapers, digs into unprocessed archival material from North Coast environmental groups, and, perhaps most importantly, conducts dozens of oral interviews with activists, timber workers, lumber company managers, and forest policy bureaucrats. Speece also skillfully navigates a torrent of legal cases initiated by environmentalists to halt redwood logging, and tracks a wide range of timber policy proposals through the hallways of capitols in both Sacramento and Washington, D.C. Finally, he carefully balances his narrative by analyzing the annual reports of the Pacific Lumber Company, which owned these redwood forests, of its successor, the Maxxam Corporation, and of several other timber businesses from the Pacific Northwest. The result, which successfully blends social, political, legal, and business history, will interest more than environmental historians. 

Postwar America's greatest environmentalist

More on working-class environmentalism and the law (see, most recently, here): Jacobin recently ran a piece by Connor Kilpatrick claiming that "Postwar America’s greatest environmentalist was a labor leader". There's a lot here also about politics, religion, climate skepticism and more. Some excerpts:

Today, the AFL-CIO lobbies Congress to pass the Keystone XL pipeline while noted NASA climate scientist James Hansen, one of the first to link global warming to fossil fuels, is repeatedly arrested for protesting such projects. And while in 2017, the idea that the interests between wonky environmentalists and jobs-focused trade unionists would diverge seems like common sense, it’s only because the bad guys won.

But it wasn’t a preordained victory. For nearly a decade in the 1960s and ’70s, environmentalism seemed to be on the cusp of a popular reckoning against the powers of capital. And it found an ally in the labor movement which, for a few years, looked like it might be able to not only cling to life but find a way back into the heart of American society.

[Tony] Mazzocchi and his union, the Oil, Chemical and Atomic Workers International (OCAW), were the primary muscle behind the 1970 Occupational Safety and Health Act (OSHA), signed into law by Richard Nixon. Looking back on that victory, which mobilized both labor and the burgeoning environmental movement, Mazzocchi said: “We have demonstrated that an unpopular idea can be generated into a powerful political program that’ll reignite the consciousness of the American people.”

London air pollution

The new issue of American Historical Review has a review by Christine Corton of William Cavert's The Smoke of London: Energy and Environment in the Early Modern City (Cambridge UP, 2016). Corton writes:

Cavert looks at the early legal debates, many initiated by personal complaints from Elizabeth I and Charles I, aimed at limiting smoky industries located near the Royal Palaces. Charles II shared his father’s dislike of coal smoke, but “measures against it were limited, local, sporadic, and rearguard” (190), not least because Charles was more interested in projects outside the capital city in Windsor or Greenwich. Such preferences marked the failure of earlier attempts to limit smoky industries within London.

The situation changed gradually as local magistrates became more interested in cleaning London’s air to benefit health and to protect buildings. But these early attempts to legislate started a pattern that was to be followed during later centuries as attempts to reduce smoke failed to be passed into law. For many people, a major part of the problem was that the smoke pouring from workshops signified industrial success and full employment, just as smoke issuing from domestic chimneys registered prosperity and cozy domesticity, a relationship only hinted at in Cavert’s book.

Other, wealthier individuals also tried to limit the number of smoke-emitting industries located near their own dwellings. New developments in the west of London, such as Covent Garden, prohibited smoky trades from the outset in order to attract a higher class of resident. Urban settlements created for and by social and political elites partly explain why London’s East End suffered more from the West End’s smoke, as the vapors from the increasing number of domestic dwellings were blown eastward by the prevailing winds.

Forest law

from Livre de la Chasse

Moving from forests in Mexico to English forests, the latest issue of the William & Mary Bill of Rights Journal, dedicated to Magna Carta, has a couple of articles on medieval forest law in England (thanks to Legal History Blog for noting it). The first is Ryan Rowberry's "Forest Eyre Justices in the Reign of Henry III (1216–1272)" (for the second, see here). Rowberry notes that scholars have estimated that forest jurisdictions covered nearly one-quarter of England by the thirteenth century, possibly more.

 As there's a lot of interesting stuff here, I'll just quote a bit (omitting footnotes, text in brackets is my own). First of all, to clarify what a medieval "forest" was:

‘Forest’ in medieval England denoted a defined area of unenclosed land within which wild game, principally deer, along with wide swathes of its habitat were protected by forest laws for the benefit of the king. Medieval forests, however, could include “not only woodland, but also heath, pasture, meadow, and arable land, and even hamlets, villages, and townships.” Importantly, forest jurisdictions in England unlike those in Normandy could, and often did, extend outside the king’s own demesne land (the crown’s landed estate) onto privately held lands, acting as a type of economically restrictive land-use overlay on areas that remained subject to the common law as well.

Water and public spaces in Weimar-era Berlin

A pernicious myth has it that environmental protection and conservation are a sort of upper-class conspiracy, or at the least a luxury appreciated by the well to do. An H-Urban review by Eliza Martin of Matthew Gandy's The Fabric of Space: Water, Modernity, and the Urban Imagination (MIT Press, 2014) discusses the book's treatment of water in interwar Berlin ("Weimar Berlin" is evocative but confusing), showing that in this context, as in many others, proto-environmentalism was a working-class issue. Martin writes:

Gandy asserts that examining the changing paths water takes through urban spaces gives us new ways of viewing and understanding cities and how they evolve. He is particularly interested in the process of modernization of urban space, and the role water infrastructure plays in that activity. Gandy states that controlling water is a key aspect of modernization and state formation...

*****

Gandy... demonstrates [the] movement towards an emphasis on nature as leisure, when he discusses changes in urban planning taking place in Weimar Berlin. As part of creating a modern city, Martin Wagner, city building commissioner in Berlin, was concerned with providing residents, especially working-class residents, with an opportunity to have contact with nature. Wagner felt one way to do this was to provide access to local lakes and rivers as spaces of leisure. Wagner moved to protect remaining lakeside land from privatization to keep these areas open for the city as a whole, as a public resource, and provided public transportation to these areas. Here we see links between water and infrastructure as not purely a public health issue, but also as about democratizing access to urban space, and offering working-class Berliners the chance to enjoy urban nature. 

Smoke regulation in Baltimore

Pratt Street Power Plant today (G. Edward Johnson)

As a former Marylander who spent a lot of time in Baltimore, I was particularly interested when Legal History Blog recently noted the publication of Ann-Marie Szymanski's "Regulatory Transformations in a Changing City: The Anti-Smoke Movement in Baltimore, 1895–1931" in The Journal of the Gilded Age and Progressive Era. The article enters a longstanding discussion of the circumstances of the development of local environmental regulation against a common-law background, foregrounding as well dimensions of gender and class. The conclusion:

In many ways, the long road to administrative smoke regulation in Baltimore followed the path laid out by anti-smoke reformers elsewhere, albeit in fits and starts. In cities across the United States, amateur activists initially relied on the existing common-law approach to regulating nuisances, a strategy that, at best, only allowed them to shut down isolated polluters. However, when various judges and health boards proved reluctant to declare smoke to be an actionable nuisance, smoke opponents organized campaigns during the 1890s to secure smoke abatement ordinances that declared smoke a nuisance by definition. After the courts nullified several such ordinances on the grounds that only states could define nuisances, anti-smoke activists turned their attention to state legislatures, which increasingly empowered municipalities to regulate smoke after 1900. With this enabling legislation in hand, cities typically went beyond the nuisance approach. Municipal officials no longer merely responded to complaints, but became proactive. For example, they often required businesses to secure building permits for all new construction and repairs to boilers and furnaces. They also created more sophisticated solutions to the smoke problem. Whereas the common-law approach provided three basic responses to any regulatory conflict (injunctions, abatement and the payment of damages), the new anti-smoke regime proposed a variety of technical solutions, including the installation of smoke-control equipment. Of course, this reliance on technical solutions empowered those who were presumably best able to design them, namely, engineers.

Some scholars have been critical of the triumph of experts in early environmental regulation. Indeed, as the Baltimore case confirms, engineers who served as smoke inspectors often sought accommodation, cooperation, and gradual smoke reduction. David Stradling, for one, argues that such a conciliatory approach blunted the movement's impact on urban pollution; likewise, he holds that women's “arguments concerning health, beauty, cleanliness, and morality gradually lost ground to engineering concerns” and the narrower quest for efficiency. Frank Uekoetter disagrees with these conclusions, noting that even after engineers became leaders in the movement, some public officials continued to prosecute those who violated anti-smoke ordinances and ignored the inspectors' technical advice. Moreover, he finds that both women and engineers emphasized technological as well as aesthetic and moral aspects of the smoke problem, suggesting that there was no rigidly gender-specific approach to the smoke issue.

This study suggests that some female anti-smoke activists were deferential to experts without ceding the entire sphere of action to them.

The sporting life

I recently had the pleasure of hearing Greg Alexander present his recent paper, "The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam", at a workshop here in Tel Aviv. To me the article is a model for the way recent environmental laws can be better understood by placing them in a socio-political historical context that extends beyond modern "environmentalism" narrowly construed; in this case hundreds of years of debate over land reform and the secular transfer of power from the Scottish landed gentry to the working classes. The abstract:

Henry Charles Seppings-Wright,
Privy Councillor, Professor and Politician
(caricature of James Bryce, Vanity Fair 25 Feb. 1893).
Bryce, a scholar, politician, and diplomat,
was a key figure in the movement to provide
public access to the Scottish Highlands.

In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to "everyone" a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging "right to roam" comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This paper is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life: One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through walking, hiking, and similar forms of unmediated interaction with nature. Curiously, both visions of the sporting life claimed the mantle of preservation and conservation. The paper argues that the culture of unmediated contact with nature ultimately prevailed as a democratic culture became more entrenched in both politics and society.

Hard-to-see legal changes illustrated by environmental history

Today we have a guest post from Dan Allosso, a PhD candidate in history who runs the new www.environmentalhistory.us website, which has video lectures, a blog, and reviews of important books in environmental history. Dan recently reviewed one of the most important books of legal history, Morton Horwitz's The Transformation of American Law, 1780-1860 (Harvard UP, 1977), as well as Ted Steinberg's Nature Incorporated: Industrialization and the Waters of New England (U Mass Press, 1994). He put together a condensed version for our blog:

Harvard Law professor Morton Horwitz’s The Transformation of American Law, 1780-1860 is not an Environmental History text, per se. Nor is it a well-known volume outside legal history circles, in spite of winning the Bancroft Prize in 1978. It’s not an easy read, but it tells an important story, which was amplified by Horwitz’s student Ted Steinberg in the EH classic, Nature Incorporated.

Horwitz argues a fairly radical case, which unfortunately is not widely understood because of the book’s subject matter and style. Horwitz focuses on common law. Constitutional law, he says, “represents episodic legal intervention buttressed by a rhetorical tradition that is often an unreliable guide to the slower (and often more unconscious) processes of legal change in America” (xii). Constitutional law also focuses on judicial review, rather than what Horwitz characterizes as a very active, constructive, legislative role taken on by nineteenth century jurists. “By 1820,” he says, “the process of common law decision making had taken on many of the qualities of legislation. As judges began to conceive of common law adjudication as a process of making and not merely discovering legal rules, they were led to frame general doctrines based on a self-conscious consideration of social and economic policies” (2). The ancient tradition of “an eternal set of principles expressed in custom and derived from natural law” gave way to an understanding of law as “an instrument of policy” that could be used “for governing society and promoting socially desirable conduct” (30). Once this change had been accomplished, the game became defining the terms “socially desirable.”