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.

Dan Ernst's exam on public health law

Dan Ernst strikes again with an amazing exam question for his legal history course, this time on public health law in the US (see here for an earlier one on grazing). Some excerpts from the essay:

The Wisconsin Supreme Court wrote in a 1909 decision, Milwaukee authorized its commissioner of health to “summarily abate nuisances of all kinds, destroy diseased or infected food, clothing, and other like articles, establish temporary hospitals in case of epidemics, and, in fine, to exercise very broad and autocratic powers in all matters relating to the conservation of the public health.”  Indeed, the commissioner’s power to act without a prior hearing or even notice “at times must trench closely upon despotic rule.”  But it could not be otherwise: “The public health cannot wait upon the slow processes of a legislative body or the leisurely deliberation of a court.  Executive boards or officers who can deal at once with the emergency under general principles laid down by the lawmaking body must exist if the public health is to be preserved in great cities.” 

*****

In People ex rel. Copcutt v. Board of Health (1893), decided by the New York Court of Appeals, a board of health did give the owner of a wood mill a hearing before declaring his ponds a public nuisance, because of the sewage that seeped into them.  When the millowner sought damages for the board-ordered destruction of the dams that created the ponds, a trial judge upheld the board’s action, but only after making his own determination that the ponds were public nuisances.  The Court of Appeals affirmed, but in the process emphasized the need for de novo review after the fact.  The board of health “could obtain its information from any source and in any way,” the court noted.  If such factual determinations were “final and conclusive,” it continued, “the citizen would in many cases hold his property subject to the judgments of men holding ephemeral positions in municipal bodies and boards of health, frequently uneducated and generally unfitted to discharge grave judicial functions.”  The court then approvingly quoted a treatise writer: “where the public authorities abate a nuisance under authority of a city ordinance ‘they are subject to the same perils and liabilities as an individual.’” 

US Public Health Service officers, c. 1912

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

Historic Spanish conservation laws

The US Library of Congress's online Herencia collection, containing royal decrees, papal bulls, legal opinions, judgments, and royal orders from Spain from the 15th through the 19th centuries, has recently been running a crowdsourcing project to review transcriptions of the historic documents.

Two collections that might interest readers of this blog are the collections of laws and statutes on agriculture, conservation, hunting, and fishing, and that on disease and public health law.

Royal Order of December 12, 1748 concerning the conservation of forests and plantations (LOC)

The Cigarette: A Political History

The Cigarette: A Political History (Harvard UP, 2019) by Sarah Milov, co-founder of this blog, was recently reviewed by Reuel Schiller for Jotwell. Schiller writes that Milov's "narrative weaves together legal, political, and economic history in a manner that calls for a revaluation of the dimensions of twentieth-century liberalism and the nature of its decline. The book is a compelling exercise in historical synecdoche: its subject is the political history of the cigarette, but its story is that of the twentieth-century American state." Further excerpts:

Frankly, one could teach a course on twentieth-century legal history using this book as a textbook. It speaks to a broad range of subjects central to the interests of legal historians: the role of law in constituting capitalism; the interaction of law, gender, and race in the construction of social movements; the simultaneously emancipatory and constraining potential of framing policy preferences as rights; the profound role of the administrative state in structuring politics and policy; the rise of public interest litigation; the importance of understanding the legal history of agriculture, a field sorely neglected by legal historians. While different readers will find different analytic points particularly compelling, two stand out for me.

First, Milov’s narrative suggests the need to reevaluate the postwar state’s legal and political contours. For readers familiar with early New Deal policies such as the National Industrial Recovery Act and its industry-written “codes of fair competition,” American tobacco policy is familiar. It was “associationalism” — an interweaving of public and private power that obscured the extent to which private institutions acted as vehicles for public policy. In the traditional narrative of the New Deal, associationalism ended with the political and legal demise of the National Recovery Administration in 1935. Joining scholars such as Brian Balogh, Milov shows how, in fact, associationalism outlasted the NRA and became an integral component of postwar state. Far from being replaced by the light touch of Keynesian fiscal policy, Milov shows how producer-oriented associationalism melded with consumer-oriented Keynsianism to give an alliance of corporate and state interests an active role in structuring the post-war economy as it simultaneously created an illusion of statelessness.

Digital Library VI: The Laws of England Relating to Public Health (1848)

This weeks addition to the digital library of historical environmental law is Joshua Toulmin Smith's The Laws of England Relating to Public Health, published in London by S. Sweet in 1848. The full title continues: Including an Epitome of the Law of Nuisances, Police, Highways, Waters, Water Courses, Coroners, Burial, &c. Relating Thereto; with an Historical Review of the Law of Sewersl and an Examination of the Proposed Measure of Sanatory* Legislation Now Before Parliament. As you can tell from the title, "public health" in the Victorian era included much of what we would today label "environmental law".

You wouldn't know it from the title, but Toulmin Smith was a major critic of England's mid-nineteenth century public health legislation, as Noga Morag-Levine has explained. A sort of "free-market environmentalist" of his time, he argued that the new centralized, administrative regulatory mechanisms enacted under Edwin Chadwick's reformist program--what Toulmin Smith called "empirical legislation"--were inconsistent with the English constitution, which (he argued) required regulation through the common law. (Compare Philip Hamburger's recent arguments in this vein.) So Toulmin Smith's work was more of an attack on contemporary environmental and health regulation than a treatise summarizing the law, as he explained in his Introduction:

The object of these pages is very simple. It is to show that the care, by law, for the public health, and for removing causes injurious to public health, is no new thing : that the law of England has ever had a most careful regard for all that concerns the public health: that the principles of the common law in reference to the matter are clear and decisive, and may be taken as models of what law should truly be in its regard for the welfare of the people. It is, further, to show that though, as manners and customs change with passing time, the machinery for carrying out certain principles of law into practice may be modified, those principles, based as they always are on national peculiarities, ought never to be neglected for the sake of introducing novel or speculative doctrines. Thus, it being a principle of the common law that any noxious accumulation is a nuisance which ought to be abated, it may be of little importance whether it be abated, in one age, by the bailiff of the court leet, or, in another, by the inspector of police; but it is of very great importance that new and theoretical remedies, interfering with numerous private rights and honest prejudices, should not be introduced and made compulsory.

The Common Law of England has been, in all ages, the great bulwark of the liberties of Englishmen. It is just in proportion as the principles of that common law have been neglected or superseded that those liberties have been endangered. And the people are bound to take care that, in the anxiety for sanatory improvement, no fresh invasion of those liberties do take place. For this purpose it is necessary that the principles of the common law be well known to the people themselves ;—and it is desired to be understood that these pages are addressed, for that purpose, to the general reader ; and that it has, therefore, been endeavoured to divest them of technical treatment.

It seems that Toulmin Smith's anti-regulatory agenda also made him something of a cholera skeptic:

Historical Analysis in Environmental Law V: What is to be done? Police, public health, statutory nuisances, planning and zoning, labor law, and literature

In the last post in this series I suggested looking at the histories of commons regulation, forest law, and 'police' to better understand the historical roots of modern environmental law. Before moving on to note several other relevant areas of historical law, I would like to note that while critics (most recently Markus Dubber) have impugned police for its broad discretion and patriarchal foundations, these very elements were powerful enablers of environmental regulation in the public interest. Moreover, the opposing tradition that Dubber identifies—the Enlightenment ideal of the 'rule of law'—has often used the liberal ideal of private property to frustrate public-minded environmental regulation. In any case, police regulations, with their wide remit and geographic dispersion, are natural places to look for sources of modern environmental law. Noga Morag-Levine has indeed made the connection between early modern 'science of police' and later regulation of air pollution, but it is likely that 'police' was—for better or worse—a fertile source of much more of environmental regulation than we yet realize.

An important sub-set of police regulation was the public health law that grew up in the Victorian age as a response to the urbanization and industrialization of the period, giving expression to the sanitary movement's concern with the effects of environmental degradation on human health and welfare, particularly of the working classes. Public health statutes, bylaws, regulations, and licenses regulated issues such as smoke pollution, industrial odors, and sewage disposal. This highly developed area of law could be investigated for its influences on later environmental law, including its emphasis on technical solutions to pollution problems and the division of labour between central and local regulation that continue to characterize the field. Public health law is also likely responsible for the creation of a bureaucracy of professionals with expertise in the health and engineering aspects of pollution that would form the core professional staff of modern environmental regulators.

Associated with public health law in the Anglo-American world was the law of statutory nuisances. Statutory nuisances allowed for private and public administrative and criminal enforcement of prohibitions on various forms of pollution and encroachment on the public domain, and thus are a likely source of much modern environmental law. Moreover, this area of law may be a source of the prevalent confusion over the role of nuisance law in the pre-1970 area. It may be true that 'nuisance law' was the dominant vehicle for environmental regulation in this period; yet the category of 'nuisance' included not only a common law variant (private and public, the latter of which could be criminally prosecuted), but also statutory nuisance, with its explicit prohibitions on specific types of environmental harms and risks, such as discharges of pollution into water sources and emissions of 'noxious vapours'. If the law of nuisance one imagines is the private, common law of nuisance usually thought of, modern environmental legislation might indeed seem to represent a major revolution. If, on the other hand, statutory nuisance is given its due, the environmental legislation of the 1970s may look more like an elaboration of existing law.

American regulation of water pollution

Water filtration plant at Lake Montebello, Maryland, 1915

This Day in Water History recently posted a Municipal Journal and Engineer article from 1909, "Stream Pollution in America", which surveys some of the state-level regulation of water pollution going on at the time. The blogger notes that "we know from other sources that these laws were seldom enforced or had penalties that were too lenient, so they were ignored", but I'm not sure the situation today is so different. Some excerpts from the 1909 article:

At a Conference of State and Provincial Boards of Health of North America, held in Washington last June, the Committee on the Pollution of Streams appointed last year presented a report in which it gave some data concerning the extent to which the pollution of streams was being regulated by the various States. Ohio, New Jersey and Kansas have, according to this report, passed laws during the last few years which ”are especially worthy of note as indicating advancement and the confidence which the Legislatures of these States must feel in these State Boards of Health.” From the reports of the secretaries of the Boards of Health of the several States they abstract a number of statements showing what is being accomplished by them.

*****

In New Jersey there are 54 sewage purification plants in operation or ready for operation by municipalities and large public institutions. The policy of that State is to allow no untreated sewage to be discharged from new systems into waters of the State. The Board of Health is also compelling municipalities to install purification plants on existing sewerage systems, and 22 are now under orders to cease pollution of the streams, these including all municipalities on the Delaware River.

The Ohio State Board of Health has been asked to investigate 18 complaints under the act prohibiting stream pollution, and has ordered sewage disposal works to be installed in four of the cities before Jan. 1, 1910. The constitutionality of the law under which they act has been questioned, but if decided in their favor they hope to prevent the pollution of all the streams in the State.  

Lessons from tobacco for the future of climate change liability

The law surrounding the health effects of tobacco are an important precedent for many environmental law issues (see here and here). Now Martin Olszynski, Sharon Mascher, and Meinhard Doelle recently posted "From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability". The abstract:

In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the public healthcare costs of tobacco-related disease. Although comparisons between the tobacco industry and the fossil-fuel industry are increasingly common, this article is the first to consider the legally-relevant differences and similarities between these two contexts in detail. It also sets out the main elements of a potential Climate Change Damages and Adaptation Costs Recovery Act. As will be seen, the design of such legislation engages several complex legal issues, implicating not only tort doctrine but also questions of legislative competence and private international law. Nevertheless, our initial assessment is that such legislation is both likely and feasible. Our analysis focuses primarily on Canadian law but should also be relevant to other jurisdictions that are increasingly grappling with the costs of climate change mitigation and adaptation. 

Environmental history in oral arguments

Brian Tomasovic recently posted the abstract for his article "Soundscape History and Environmental Law in the Supreme Court", published last year in Environmental Law. The abstract:

Today’s technology unleashes new, digitized information resources with immense scale and speed. This Article examines one such resource — the archive of audio recorded proceedings of the United States Supreme Court — appraising, for the first time, its value to those who study and practice environmental law. From hundreds of hours of audio across six decades, a history of environmental litigation sounds forth, imparting rich lessons on advocacy, judicial reasoning, and the role of the Court in environmental law’s development. The Article organizes itself in three major parts, furnishing insights on: oral advocacy in the environmental docket; the voices from the bench; and the audience for prospective engagement with any selection or subset of recordings. Serving partly as a listener’s guide, the Article defines the reach of environmental litigation in the audio archive and demonstrates its unique value as a tool for learning and the professional betterment of environmental law scholars and practitioners.

Tomasovic explains that argument audio hosted on the Supreme Court’s website presently begins with the October 2010 Term, while recordings going back to 1955 are at the Oyez website. The article's Appendix B "compiles the list of available oral argument recordings for more than three hundred Supreme Court cases where environmental protection or natural resource concerns were at stake", and also "labels, using keyword tags, the identity of these settings under the rubric of the environmental burdens, risks, or amenities at issue in each case".

Is this resource important? Tomasovic thinks so; here are some highlights from my perspective (footnotes omitted). I'll start with his treatment of environmental history as reflected in the recordings:

Merchants of Doubt - the prequel

(courtesy The Age of Change)

Oreskes and Conway's Merchants of Doubt shined a light on how industry employed scientists in recent decades to cast doubt on the reality of environmental and health problems like smoking and climate change. An article by Andrew Perchard & Keith Gildart in last year's Labor History, "'Buying brains and experts': British coal owners, regulatory capture and miners’ health, 1918 – 1946", shows that this problem has been around for a while. The abstract:

This article examines British coal owners’ use of medical and scientific knowledge of occupational lung diseases in the mining industry to resist regulatory changes between 1918 and 1946. It explores the strategies deployed by coal owners in response to scientific and lay debates over the hazard to workers’ health presented by dust, and legislation to compensate miners for pneumoconiosis and silicosis contracted in the nation’s collieries. In particular, it investigates coal owner deployment of the views of notable scientists, especially the eminent physiologist John Scott Haldane (1860–1936), who insisted on the harmlessness of coal dust, in order to avoid costly compensation payments, as well as capital investment in ameliorative measures to reduce miners’ exposure to such hazards. In so doing, the article provides new insights by illustrating how coal owners influenced mining education programmes, deploying the arguments of Haldane and others, with direct implications for health and safety in British mines. This contributed to the mounting public health disaster wrought by coal dust on Britain’s mining communities. This process is viewed as part of the broader political activities of the coal owners – and their industry body, the Mining Association of Great Britain – in its attempts to influence the regulatory process in a period of dramatic change in the political economy of coal.

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.